Filed 11/13/14 In re M.Y. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re M.Y., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,

v. H.P., Defendant and Appellant. D065356
(Super. Ct. No. CJ1079C)

APPEAL from a judgment of the Superi or Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.

Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, Co unty Counsel, John E. Ph ilips, Chief Deputy County Counsel, and Tahra C. Broderson, Deputy Co unty Counsel, for Plaintiff and Respondent.2 Dependency Legal Group of San Diego and Manuel Ra mon "Ray" Diaz for Minor. In this child dependency case, we review orders denying a mother's Welfare and Institutions Code section 388 1 petition to modify an earlier order terminating reunification services and term inating her parental rights under section 366.26. The subject of these proceedings, M.Y., was taken into the custody of plaintiff and respondent San Diego County Health and Human Services Agency (the agency ) at the age of 17 months as a result of a series of violent dome stic altercations betw een the child's mother, defendant and appellant H.P. (mother), and the child's father, R.Y. (father). Reunification services were terminated when M.Y. was 32 months old because the parents had made no progress in dealing with their violent relationship. The juvenile court denied mother's petition to modify because it f ound that, notwithstanding her testimony to contrary, she continued to engage in conflict with fathe r. The juvenile court found that M.Y. was adoptable and rejected mother's contention th at she had a beneficial relationship with M.Y. within the meaning of section 366.26, subdivision (c)(1)(B)(i ). Accordingly, the court terminated mother's and father's parent al rights. Mother filed a timely notice of appeal. The juvenile court's orders are suppor ted by substantial evidence of continuing serious conflict between mother and fathe r, M.Y.'s adoptability, and the absence of a relationship with M.Y. which, notwithstanding mother's failu re to reunify, would justify continuing her parental rights. Accordingly, we affirm the juvenile court's orders.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.3 FACTUAL AND PROCEDUR AL BACKGROUND
A. Petition M.Y. was born in November 2010. At that time, moth er and father were living together with mother's other two child ren, P.P., age 6, and H.C., age 4. On five occasions between August 2011 and April 2012, law enforcement was called to the apartment where th e family lived with mother's mother to investigate reports of domestic violence and spousal battery. On April 8, 2012, mother was arrested after she hit father three times and threw candles at his face. According to father, mother's arrest occurred after she "'jabbed me with her fi ngers about four or five times in the back . . . cursed and screamed at me in front of our child . . . pi cked up three tea light candles from the counter and threw them at my face. '" In support of an application for a restraining order, father filed a declaration in which he stated that "'[i]n around February or March 2012, [mother] and I got into an ar gument and she punched me in the neck, spit on my face, and cursed at me while I was carr ying [M.Y.] . . . [Mother] is verbally and physically abusive towards me in front of our child and I am extremely concerned for [M.Y.'s] safety and my own.'" M.Y.'s sister, P.P., reported that mother and father fo ught "'with words and with hands'" about three times a week and appeared to her to be "'trying to beat each other.'" M.Y.'s brother, H.C., stated that he saw moth er throw a lotion bottle at father and that it left a gash on father's head. The apartment manager where th e family lived stated that mother has one of "'the most vola tile tempers I have ever seen.'"4 Although immediately following the April 8, 2012 altercation both mother and father signed a safety plan which required that they have no contact with each other, shortly thereafter a social worker discovered that they were in contact with each other and that father had decided not to pursue a rest raining order but instea d hoped to reconcile with mother and help her regain custody of her children. Thereaft er, the agency filed a petition alleging that M.Y., P.P. and H.C. we re dependents within the meaning of section 300, subdivision (b), by virtue of the fact that their parents had faile d or were unable to protect them. The juvenile court sustained all three pe titions and placed M.Y. in the custody of father's mother, P.P. in the custody of her father and H.C. in the custody of his father. The juvenile court further ordered reunifi cation services for mother and father.
B. Reunification At a review hearing held in M.Y.'s ca se in December 2012, an agency social worker reported that althou gh mother and father had made progress in dealing with conflicts in their relationship and had engaged in counseling, father's mother reported incidents which suggested that mother and father continued to engage in physical altercations and substance abuse. At the 12-month review hearing in M.Y.'s case, which was held on July 26, 2013, a social worker reported receiving evidence th at mother and father were continuing to engage in physical conflict as well as substance abuse. The social worker had obtained a series of incident reports from the San Die go Police Department which indicated that the5 police had been repeatedly calle d to the residence they shared over reports of physical conflict between mother and her landlord and mo ther and father. The social worker also reported she had been contacted by mother's cousin who expressed concern about M.Y.'s safety if he was returned to mother's care. The cousin reported her suspicion that both mother and father were using methamphetamine . Finally, the social worker reported that at a safety mapping meeting the agency had arranged, mother walked out after she and father admitted they had lied to the social worker about the st atus of their relationship. Although they had to ld the social worker that they had broken up , they were in fact together and admitted they had lied to make it easier to get M.Y. back. In light of the continuing conflict and instab ility in mother's and father's lives, the agency recommended that reunification servi ces be terminated and that a permanent planning hearing under section 366.26 be se t. The juvenile court agreed with the agency's recommendation and, on July 26, 2013, it terminated reunification services and set a section 366.26 hearing.
C. Petition to Modify The agency learned that on September 14, 2013, mother and father were engaged in another incident of domestic violence that involved a response by the San Diego Police Department. The incident occurred at a gym where father worked. According to father, he often spent nights at the gym and mother wo uld visit him there. Father reported that, on September 14, mother came to the gym . She was looking at his computer and discovered what she thought was evidence he was flir ting with other wome n. Father told6 police that mother slapped him multiple times, threw his tools around the room and, when he walked away, thre w a hammer at him. By the time police arrived, mother had left the scene but kept calling father while he was talking to the police officer. The po lice officer spoke with mother on father's phone; she reported that when she discovered father's flirting, she decided to break up with father. She claimed that he would not let her leave a nd that he threw clothes around and tried to keep her keys and phone. Although mother report ed to the social wo rker that she had br oken up with father, on September 30, 2013, the social worker saw her in a car in a parking lot adjacent to the gym where father worked. Notwithstanding her continuing conflicts with father an d evidence their relationship was continuing, on December 9, 2013, mother filed a petition to modify the order terminating reunification services and setting the section 366.26 hearing. In the petition, mother asserted that she had co mpleted a parenting class and an anger management class. She also indicated that she been sober since July 2013 and that she had continued individual therapy. In suppo rt of her petition, mother submitted reports from her therapist, who believed she was maki ng progress, and from a psychologist who had performed a bonding study. At the January 22, 2014 hearing on her petition to modify, mother testified and admitted that she had prev iously lied to social wo rkers about her use of methamphetamine but that she had been attending Narcotics An onymous meetings7 regularly and had been sober si nce July 2013. Moth er also stated that she did not have any contact with father in the three months before the September 2013 incident and that she had gone to his place of em ployment that day only because he owed her some money. She further testified that fath er made unwanted advances a nd that he would not let her leave. She explained that on September 30, she was near the gym where father worked because she was homeless at that time and wanted to take a shower at the gym. The juvenile court denied the petition to modify largely because it found mother's testimony not credible and no changed circum stance with respect to the repeated domestic violence between mother and father. The juvenile court stated: "With respect to domestic violence, I do no t find that it's -- that chan ged circumstances have been demonstrated. I rely in large measure on . . . my observations of mother's testimony on the stand, which I find incredible. Her explan ations of the incident on September 14th[] and my observations of her ph ysical demeanor on cross-exam ination suggest[] that she was not being truthful with the court." The j uvenile court found that mother was not only untruthful about the September 14 incident but also about her later appearance near the gym where father worked: "But what is par ticularly concerning, vis-a-vis the domestic violence, is that when just a short time befo re there is this very negative contact on the 14th, where mother ascribes to father all of these manipulative and damaging behaviors, including, apparently, restraining her and not a llowing her to leave, by her version. And her -- that's her thought process would allow he r to go back. And no t only that, but on the stand she's somewhat smug and -- and defi ant about it, that sh e needed to take a8 shower. That was her choice. And, essentia lly, almost that she would do it again. And that is what really is concerning to th e court is what I observed on the stand." Although the juvenile court conceded th at mother was making changes with respect to obtaining parenting information, employment and a stable home, "with respect to domestic violence, which is the crux of the protective issue here, I do not find that there's been demonstrated by a prepond erance of the evidence a change in circumstances."
D. Termination of Parental Rights The agency presented eviden ce that M.Y.'s paternal grandparents, who had been caring for him for almost two years, were will ing to adopt him, and, further that, given his overall developmental characteristics, good health and relatively young age, there were more than 100 families in the community who would be interested in adopting him. For her part, mother presen ted evidence that she had been visiting M.Y. on a regular basis and a bonding study which showed that M.Y. had a bond with both mother and his caregivers. Father di d not contest the agency's re commendation that his parental rights be terminated. The juvenile court found that M.Y. was ad optable and that mother's bond with him was not sufficient to outweigh the benefit of placing him in a perm anent adoptive home. Accordingly, the juvenile court terminated mother's and father's parental rights. Mother filed a timely notice of appeal. 2

2 M.Y.'s counsel has filed a brief that jo ins in the arguments made by the agency. Father has not appeared in this appeal.9 DISCUSSION
I In her first argument on appeal, mother contends that she presented unrebutted evidence she was sober and had addressed her history of domestic violence and that the juvenile court therefore abused its discretion failing to give her relie f under section 388. We find no abuse of discretion. On her petition for relief under section 388, mother bore the burden of proving that, in light of changed circumstances, M. Y.'s best interests would be served by modifying the juvenile court's prior order. ( In re Stephanie M. (1994) 7 Cal.4th 295, 317.) As the agency points out, we review the juve nile court's determination under section 388 for abuse of discretion, and its decision will not be disturbed unless it was arbitrary, capricious or patently absurd. ( In re Stephanie M. , at p. 318.) As the parties concede, we review the juvenile court's fact ual findings for substantial evidence and have no power "'to judge the effect or value of, or to weigh th e evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence.'" ( In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) The record here fu lly supports the juvenile court' s determination that mother's history of domestic violence was the principal protective issu e with respect to her ability to act as M.Y.'s parent. The record also fu lly supports the juvenile court's determination that mother failed to show any material change of circumstance on that critical issue. The continuing nature of the problem is evid ent not only in the September 14 violent10 confrontation, and the Septembe r 30 sighting near father's place of employment, but also in the juvenile court's stri king and binding appr aisal of mother's credibility and the concerns that her continuing un truthfulness raise. In consid ering M.Y.'s best interests, the continuing incidents of domestic violen ce and untruthfulness far outweigh mother's commendable efforts to educate herself, stay s ober, and maintain contact with her son. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) Thus, on this record, we find no abuse of discretion in the juvenile court's de termination that mother failed to meet her burden under section 388.
II With respect to the juvenile court's orde r terminating her parental rights, mother argues that she established a beneficial bond with M.Y. within th e meaning of section 366.26, subdivision (c)(1)(B)(i) and that the j uvenile court therefore erred in terminating her parental rights. We find no error. Where, as here, reunification services have been terminated and the dependent child is adoptable, the Legislature has expre ssed a strong preference that parental rights be terminated and the child be made available for adoption. (See § 366.26, subd. (c)(1).) The Legislature has provided an exception to this statutory preference when the record shows compelling reason to find termination woul d be detrimental to the child, the parent has maintained regular visitation and the child would benefit from continuing the parental relationship. (§ 366.26, subd. (c)(1)(B)(i).) As we stated in In re Autumn H . (1994) 27 Cal.App.4th 567, 575, this exception arises only when the parental relationship "promotes11 the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural paren t/child relationship in a tenuous placement against the security and the sense of belong ing a new family would confer. If severing the natural parent/child rela tionship would depriv e the child of a substantial, positive emotional attachment such th at the child would be greatly harmed, the preference for adoption is overcome and the natural pa rent's rights are not terminated." Here, the bonding study mother relies upo n showed that M.Y. was bonded to both his mother and his caregivers. Like the juvenile court, we also note that at the time of the hearing, M.Y. had spent most of his young li fe in the care of his grandparents. Under these circumstances, the juvenile court was fully warranted in determining that mother's relationship with M.Y. would not provide him with the benefits of a permanent placement either with his paternal grandpa rents or another stable adoptive home.
DISPOSITION The orders appealed from are affirmed. BENKE, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.