Filed 7/7/17 In re L.A. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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In re L.A. et al., Persons Coming Under the Juvenile Court Law. C082977


SAN JOAQUIN COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

C.A.,

Defendant and Appellant.

(Super. Ct. Nos. STKJVDP20150000012, J07085)



C.A., the mother of the minors L.A. and S.M., appeals from the juvenile court’s orders denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.) She contends the juvenile court committed reversible errors in denying her petition for modification, failing to apply the beneficial parental relationship exception, and denying her request for a bonding study. Mother also argues that having both minors being represented by the same counsel created an actual conflict of interest requiring reversal. We shall affirm the juvenile court’s orders.
BACKGROUND
In January 2015 the minors L.A. (born May 2005) and S.M. (born November 2014) were living with mother and her boyfriend, M.M. On January 8, 2015, the San Joaquin County Health and Human Services Agency (Agency) received an anonymous report that M.M. was molesting L.A. and sent a social worker to investigate. The social worker determined the report was unfounded, but L.A. revealed to the social worker that mother and M.M engaged in domestic violence in front of her. She told the social worker that mother would get hit with a hand on the face, and would get “owies.” L.A. thought about the fighting each day. The police were called every week. L.A. did not want mother with her boyfriend, and did not like them fighting.
Mother told the social worker she had L.A. when she was 14. She and M.M. fought a lot due to trust issues. The police are called weekly because she would call them when M.M. hits her. She receives Social Security for a mental disability related to depression. Mother was not seeing a therapist or psychiatrist at the time. She used to drink once a month but now drank beer every day. Mother and M.M. had fought on the day she was interviewed; M.M. had hit her and pulled her hair.
The following day, M.M.’s mother, B.G. told the social worker that both M.M and mother are “crazy,” but mother is at least fairly honest about her mental health issues. B.G. was concerned about mother’s drinking; mother and M.M. would fight after she drinks and he uses methamphetamine and/or alcohol. This would happen all the time. When the minors were dropped off with B.G. the previous day, mother went to the store, bought a bottle of cognac, and started drinking. Mother intended to drink the entire bottle, but B.G. convinced her to stop.
On January 12, 2015, B.G. told the social worker that mother came to her home, started kicking the garage door, and would not go away. The social worker called mother, who admitted that, after thinking her boyfriend was cheating on her, she went on a rampage and took it out on B.G. Mother also admitted she had been drinking. Mother loved M.M. and did not know if she could leave him.
At a January 13, 2015 meeting, mother admitted to having a drinking problem and would drink until she blacks out. Mother drove to B.G.’s home when she was drunk and started banging on the garage. She said she was “immune to drinking” and needed it. Mother admitted to having anger problems. At the end of the meeting, mother said, “Take the kids. I don’t give a fuck about these kids . . . . I don’t give a fuck. I’m tired of being a mother.” L.A. was present at the time.
The Agency filed a section 300 petition on January 14, 2015, alleging jurisdiction based on domestic violence between mother and M.M., its effects on L.A., mother’s reluctance to seek a restraining order against M.M., mother’s history of alcohol abuse, mother’s history of mental health issues, and M.M.’s history of substance abuse and mental health issues. The juvenile court detained the minors and placed them in foster care the next day. Mother had to be detained by a bailiff at the detention hearing after she caused a commotion outside and assaulted an officer.
The juvenile court sustained the petition on February 13, 2015.
The March 2015 disposition report stated that mother was diagnosed with anxiety and depression. She stopped taking her medication when pregnant with S.M., took it for a few weeks after giving birth, but stopped when she started drinking again. She was not currently seeking treatment from the mental health department. Mother continued to maintain an intimate relationship with M.M.
The minors were placed in the home of nonrelated family members D.M. and Y.M., who had a long-standing relationship with mother. Mother visited the minors three times a week at the caretakers’ home. The social worker noted mother did extremely well with her children during visits.
The juvenile court ordered services and a psychological evaluation for mother at the April 7, 2015 disposition hearing.
The November 2015 status review report related that the minors were doing well in their placement. L.A. was withdrawn and depressed at times, so she was seeing a counselor to help her process her feelings. S.M. was being assessed for mental health treatment.
Mother completed parenting education in April 2015. She began individual counseling in July 2015, and had competed 12 out of 20 sessions. In May 2015 mother was terminated from an outpatient substance abuse program after admitting to drinking alcohol. She was readmitted to the program in June, but was terminated again in October 2015 after testing positive for alcohol. In October 2015 mother sustained severe injuries following an alcohol-related car accident.
Mother underwent a psychological evaluation following an April 2015 referral from the Agency.
The evaluation reported mother had a history of attempting suicide. Around August 1, 2015, mother was fighting with a friend while in a car at an intersection. The friend threw the car keys away; mother felt shameful and worthless as she looked for them. While looking for her keys, she decided to walk in front of a car to end it, causing her to sustain injuries in the subsequent accident.
The only coping skills mother could identify with were praying and crying. She often handled emotional distress with destructive behaviors. Mother admitted having trouble managing her anger since she was a child. She recently sustained a black eye after fighting another woman and beating the woman up, which made mother feel good. Mother also described an incident of road rage after the driver in front of her did not respond quickly enough to the traffic light turning green. The driver in front of her flipped her off after she honked her horn, so she raced around him to beat him to a merge point in the road, which caused the two cars to collide. Once, after being knocked out by L.A.’s father during a fight, she grabbed a kitchen knife after regaining consciousness and went to his house with the intent to stab him. Police were at his home and she refused their directives to drop the knife, which led to her arrest.
Mother was diagnosed with recurrent, severe, major depressive disorder, and moderate alcohol use disorder in early remission. The evaluator found “serious concerns exist about [mother’s] ability to safely and adequately care for her children at this time. Further, the type and severity of her mental health problems suggests that any effort at improving her functioning should be perceived as a long-term endeavor—assuming that she is able to stay consistently involved in treatment, and avoid the more severe consequences in her life (i.e., suicide attempts, domestic violence, problem drinking, and association with inappropriate people [e.g., ex-boyfriend, mother, aunts].)”
At the December 29, 2015 review hearing, the juvenile court was informed mother had entered a residential alcohol treatment program. The juvenile court extended mother’s services and set a hearing for February 2016.
The February 2016 status report related that the minors remained placed with the nonrelated extended family members in Stockton. Both appeared to be doing well in their placement, but L.A. wanted to return to mother’s care. The caretakers were not willing to adopt the minors. L.A. was working with a mental health clinician; L.A. said that working with the clinician was helping her. A mental health clinician was giving the caregiver tips on dealing with S.M.’s screaming, squealing, and tantrums.
Mother was approaching the end of her 20 individual counseling sessions; her therapist recommended continued individual counseling. She was not scheduled to complete inpatient substance abuse treatment until May 14, 2016, followed by six months of after care. Mother had two alcohol-related accidents in the past year with pending driving under the influence charges. Although mother had stated she would refrain from contacting M.M., she admitted contacting M.M.’s mother to “check in on him.” Mother’s counselor at the substance abuse treatment facility said that she had contacted M.M. in person.
Mother’s psychiatric appointment set for February 8, 2016, was too late to provide an adequate assessment of whether her medication was appropriate and ameliorating her symptoms. She did not feel the need to be on psychotropic medication. According to the social worker, the prior psychiatric evaluation that mother had a “severe and complicated clinical presentation,” was a strong indicator that she would benefit from appropriate medication. The social worker felt that a considerable amount of time would be needed to determine whether the medication was serving its intended purpose and whether mother was compliant in using it.
The social worker observed mother was very loving and affectionate with her children. Given the difficulties in believing mother was capable of parenting her children in a safe environment while reaching her 12-month review, the social worker recommended terminating reunification services with adoption as a permanent plan for both minors.
Mother testified at the contested review hearing on March 28, 2016. She began drinking when she was 13 years old. After being terminated from two outpatient alcohol treatment programs, she entered an inpatient program on November 14, 2015, where she continued to be at the time of the hearing. Mother completed a domestic violence class and was participating in anger management and parenting classes while in the program. Her biweekly tests for alcohol were negative, and she was attending two outside Alcoholics Anonymous (AA) meetings on a weekly basis. She would enter the aftercare program after completing treatment on May 14, 2016.
Mother testified that she failed the two outpatient programs because of her unhealthy relationship with M.M., which ended a few months before entering the inpatient program. She had two incidents of driving under the influence of alcohol, in January 2015, and in October 2015. Both happened after she got angry with M.M. and drank too much before driving.
She consistently visited the minors, during which she would either play with them or help L.A. with her homework. Mother planned to enter a shelter while in the aftercare program. She was taking her psychotropic medication for the last week.
The juvenile court terminated reunification services and set a section 366.26 hearing.
On July 7, 2016, mother filed a section 388 petition for modification that sought resumption of reunification services and the return of the minors. As changed circumstances, mother alleged her completion of the inpatient program, her current participation in the aftercare program, and her continued participation in her own rehabilitation program after her services were terminated. Attached to the petition was a statement of completion for the inpatient program, certificates of completion for drug and alcohol treatment programs, along with domestic violence, parenting, anger management, and breaking barriers classes, a statement of participation in medication services, a rental agreement for housing, a finding that she is entitled to receive social security disability payments, and a letter from mother to the juvenile court asking for services to be reinstated.
The minors’ counsel filed an opposition to the petition on July 14, 2016, asserting the change would not be in the minors’ best interests. The Agency filed an opposition on July 19, 2016, arguing the petition was untimely and failed to show that change was in the minors’ best interests.
The July 2016 section 366.26 report stated that the minors were placed with L.A.’s paternal aunt on July 8, 2016. The paternal aunt and uncle wished to adopt both children.
L.A. had no developmental concerns and completed fifth grade. She had not seen her counselor for three weeks because the prior caretaker was not cooperating with any of L.A.’s services. L.A. was no longer in contact with the prior caretaker after the paternal aunt reported that L.A. cries after phone calls with the prior caretaker. S.M. was on track developmentally and had no problems with tantrums. Mother continued to have biweekly visits with her children. L.A. was asked if she wanted to make a statement to the juvenile court. She declined.
The report recommended adoption.
At a July 27, 2016 hearing, the juvenile court was informed that L.A. was struggling since being moved, and had been kept from therapy by the previous foster mother. The Agency submitted a report from the court appointed special advocate (CASA) relating that the prior foster mother, Y.M., was a very strong supporter of mother, and became very controlling and manipulative when she learned the minors would be moved. L.A.’s counsel and her therapist both felt strongly that it was no longer healthy for L.A. to be in Y.M.’s care as she was emotionally manipulating L.A., trying to convince her that living with the paternal aunt was deserting Y.M. She kept the minor from seeing her therapist and the CASA worker, and lied several times, even telling the paternal aunt that the CASA worker never saw L.A. The minors’ new home was a culture shock, being loud, chaotic, and messy in contrast to the controlled, quiet home of the prior placement. While L.A. was unhappy in the new placement, she had been unhappy in the prior placement as well.
The August 2016 status review report related that it took the minors a few weeks to adjust to their new placement. The minors were no longer in contact with the former caretakers because L.A. became very upset and cried when she had phone contact with the former foster mother. L.A. and S.M. were very bonded to each other; L.A. loved to interact with her little sister and S.M. looked to L.A. and smiled at her when she heard her voice. L.A. was in contact with her therapist and CASA worker following the new placement. S.M. was referring to the paternal aunt and uncle as mom and daddy. The report recommended terminating parental rights.
The juvenile court denied mother’s section 388 petition on August 10, 2016, finding she failed to carry her burden of establishing changed circumstances. Mother’s counsel requested a bonding study, which the juvenile court denied.
A CASA report filed that day stated the worker’s belief that Y.M.’s actions traumatized L.A. so she does not know how to think or feel for herself. L.A. should continue to see her therapist and not have contact with Y.M.
The adoption social worker testified at the September 8, 2016 section 366.26 hearing. She continued to recommend adoption, but admitted this was a very difficult case because of L.A.’s attachment to mother. Her bond with mother caused difficulty in adjusting to her placement and would cause difficulty anywhere she would go. L.A. was going to counseling, but there was not much progress on the issues of transition and adoption. L.A. believed she would be returning to mother.
The social worker observed some visits. Mother and L.A. were always close to each other; L.A. would play with her mother’s hair, and there would be hugs and kisses. There was also a great bond between L.A. and her sister S.M. S.M., who was removed when she was about a year old, did not have the same bond with mother. S.M.’s visits with mother are like those with a friend, and she is fine after they conclude. L.A. tends to get sad and be a little withdrawn after the visits.
In light of their strong bond, the social worker recommended that L.A. and S.M. should not be separated. Adoption would keep the minors together; if L.A. had no sibling, the social worker would recommend guardianship for her.
Mother testified at the hearing. She presented pictures, from before and after the minors’ removal, showing the minors and her enjoying various activities together. S.M. called her mommy and would sit on her lap during visits. She thought it was important for the minors to stay together even if they did not return to her.
The juvenile court acknowledged L.A.’s bond with mother, but found it was not so substantial and positive that the minor would be greatly harmed if it did not continue. It found the beneficial parental relationship exception did not apply and terminated parental rights.
DISCUSSION
I
Mother contends the juvenile court erred in denying her petition for modification. She claims the petition showed changed circumstances and granting it would be in the minors’ best interest. She also argues the petition alleged a prima facie case for relief warranting a hearing on the petition. We disagree.
A petition to change or modify a juvenile court order under section 388 must factually allege that there are changed circumstances or new evidence to justify the requested order, and that the requested order would serve the minors’ best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) The petitioner has the burden of proof on both points by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
To decide whether a parent has met his or her burden under section 388, the juvenile court must consider such factors as the seriousness of the problem that led to the dependency, and the reasons for the problem’s continuation; the degree to which the problem may be and has been removed or ameliorated; and the strength of the relative bonds between the dependent child and the child’s parents or caretakers. However, this list is not exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229.)
The petition must be liberally construed in favor of its sufficiency. (Rule 5.570(a).) Nonetheless, if the juvenile court finds that even so construed the petition fails to make a prima facie case as to either or both tests under section 388, the court may deny the petition without an evidentiary hearing. (In re Justice P., supra, 123 Cal.App.4th at p. 189.)
We review a ruling denying a section 388 petition for abuse of discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 870.) We reverse only if the ruling exceeded the scope of the juvenile court’s discretion, or if under all of the evidence, viewed most favorably to the ruling, no reasonable judge could have made that ruling. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).)
The dependency came about in part because of mother’s significant substance abuse and mental health problems. While she commendably continued with services after they were terminated, her petition did not allege changed circumstances with respect to either problem. Although she had completed inpatient care, she was still undergoing the aftercare portion of her substance abuse treatment when the petition was filed. While the petition contained a letter showing her continued participation in counseling services, it contained no allegations or supporting documentation addressing the real concerns regarding her psychotropic medication that were raised in the Agency’s report prior to the termination of her services. Also, the psychological evaluation indicated that mother’s mental problems required long-term treatment. The petition gives no indication that she had undergone the necessary treatment contemplated by the evaluation.
Mother’s petition at best shows changing rather than changed circumstances. It was not an abuse of discretion to deny the petition without a hearing.
II
Mother claims there is insufficient evidence to support the juvenile court’s finding that the beneficial parental relationship exception to adoption did not apply. Mother notes her regular visits with the minors. She also relies on L.A.’s reaction to being removed from mother’s care and to being placed in the paternal aunt’s household. Mother finds the most compelling evidence in support of her argument is the CASA worker’s report and the testimony of the adoptions social worker showing problems with L.A.’s placement at the paternal aunt’s home and the social worker’s concerns with adoption because of L.A.’s bond with mother. We are not persuaded.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several “ ‘possible alternative permanent plans for a minor child . . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) There are only limited circumstances that permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing an exception to termination of parental rights. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; rule 5.725(d)(2).)
Termination of parental rights may be detrimental to the minor when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) We review with deference a juvenile court’s rejection of an exception to adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [whether the standard of review is deemed substantial evidence or abuse of discretion, broad deference to the lower court is required]; Jasmine D., at p. 1351 [abuse of discretion]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [substantial evidence].)
To prove that the beneficial parental relationship exception applies, “the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child. [Citation.]” (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Moreover, it is not enough simply to show “some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) “[T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466, italics omitted.)
While there was a clear bond between mother and L.A., mother did not carry her burden of establishing that severing the bond would greatly harm the child. The minor had problems adjusting to the potential adoptive parents’ household. While the adoption social worker’s testimony indicated this was a result of her bond with mother, the CASA worker’s report also identified emotional manipulation by the prior foster mother as an additional cause. The problems displayed by L.A. related to severing her bond with mother, sadness at the end of visits, and difficulty in adjusting to the new placement were not so severe that the adoption social worker recommended against adoption. More importantly, there is nothing in the record showing that those difficulties, while real, were so severe that they would support a finding of great harm to L.A. if parental rights were terminated. The trial court did not err in finding the beneficial parental relationship exception did not apply in this case.
III
Mother next argues the juvenile court erred in denying her request for a bonding study.
A bonding study, whether intersibling or parent-child, is not required prior to termination of parental rights. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) The court has discretion to order a bonding study even late in the process. (In re Richard C., at p. 1197.) Absent a showing of clear abuse, the exercise of the court’s discretion will not be overturned. (In re Lorenzo C., at p. 1341.)
A bonding study is simply an expert opinion on the relationship between the parent and child. The juvenile court is never required to appoint an expert when making a factual determination unless “it appears to the court . . . that expert evidence is . . . required.” (Evid. Code, § 730.) When there is ample evidence in the record of the relationship between parent and child, the juvenile court can properly conclude that a bonding study is unnecessary.
As detailed in our summary of the relevant facts and procedure, the juvenile court already had ample evidence of the bond between both minors and mother, and in particular, between L.A. and mother. It was not an abuse of discretion to deny the request.
IV
Mother’s final contention is that, by representing both minors, minors’ counsel had an actual conflict of interest mandating reversal of the juvenile court’s orders. She is wrong.
“When first appointing counsel [for multiple siblings] in a dependency matter, the court may generally appoint a single attorney to represent all the siblings. It would have to appoint separate attorneys if, but only if, there is an actual conflict among the siblings or if circumstances specific to the case—not just the potential for conflict that inheres in all multisibling dependency cases—present a reasonable likelihood an actual conflict will arise.” (In re Celine R. (2003) 31 Cal.4th 45, 58.)
“The following circumstances, standing alone, do not necessarily demonstrate an actual conflict of interest: [¶] (i) The siblings are of different ages; [¶] (ii) The siblings have different parents; [¶] (iii) There is a purely theoretical or abstract conflict of interest among the siblings; [¶] (iv) Some of the siblings are more likely to be adopted than others; [¶] (v) The siblings have different permanent plans; [¶] (vi) The siblings express conflicting desires or objectives, but the issues involved are not material to the case; or [¶] (vii) The siblings give different or contradictory accounts of the events, but the issues involved are not material to the case.” (Rule 5.660(c)(2)(B); see In re Zamer G. (2007) 153 Cal.App.4th 1253, 1268.) “A conflict arises where minor’s counsel seeks a course of action for one child with adverse consequences to the other.” (In re Barbara R. (2006) 137 Cal.App.4th 941, 953.)
Mother relies on what she sees as a conflict between L.A.’s and S.M.’s interests. She claims that “despite the social worker’s testimony that parental rights termination would be drastic to L.A. due to her age and bond with her mother, her counsel did not advocate either for a bonding study, or for guardianship rather than adoption.” Relying on the adoption social worker’s testimony at the section 366.26 hearing, mother asserts L.A. and S.M. had divergent interests, guardianship for L.A. and adoption for S.M., that created an actual conflict of interest requiring reversal.
Mother overstates the adoption social worker’s misgivings and improperly conflates her interests with L.A.’s.
The adoption social worker testified that the paternal aunt was committed to maintaining contact between the minors and mother. The social worker also had concerns about undermining of L.A.’s placement by the prior foster mother. At the section 366.26 hearing, minors’ counsel told the juvenile court that while L.A. initially did not want to give a statement on the section 366.26 hearing, they now had her opinion, as L.A. opened up to the CASA worker. L.A. told counsel she was “okay with the current placement.” Counsel also told the juvenile court L.A. was old enough to understand what was happening.
While guardianship may have been in mother’s interests, there is ample reason for counsel to conclude adoption was in L.A.’s best interests. Although she had a strong bond with mother, L.A. had a strong bond with S.M. as well. Adoption for both children was the best way to preserve that bond and giving the minors the stability and permanency they were entitled to. Arguing for adoption for both minors was not an actual conflict of interest. It was appropriate advocacy by counsel for both clients’ interests.
DISPOSITION
The orders of the juvenile court are affirmed.





RAYE , P. J.



We concur:



BLEASE , J.



HULL , J.