Filed 8/28/20 In re K.M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re K.M., a Person Coming 

Under the Juvenile Court Law.

 B303631

 (Los Angeles County

 Super. Ct. No. CK94318)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

D.C.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Stephanie M. Davis, Judge Pro Tempore. 

Affirmed.
2

Joseph T. Tavano, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Acting 

Assistant County Counsel, Navid Nakhjavani, Principal Deputy 

County Counsel, for Plaintiff and Respondent.

________________________________

I. INTRODUCTION

D.C. (mother) appeals from the juvenile court’s order 

terminating her parental rights to her eight-year-old son, K.M.

(the child). Mother contends the juvenile court erred when it 

found that the parental benefit exception to the termination of 

parental rights in Welfare and Institutions Code section 366.26, 

subdivision (c)(1)(B)(i)1 did not apply. We affirm.

II. BACKGROUND

A. Section 300 Petition

On May 18, 2016, the Los Angeles County Department of 

Children and Family Services (Department) filed a petition on 

behalf of the child and his then two-year-old sister, J.U.,2 under 

1 All statutory references are to the Welfare and Institutions 

Code.

2 J.U. is not a subject of this appeal.
3

section 300 that alleged, as sustained by the juvenile court, the 

following counts:

“b-1: [¶] On 04/21/2016, the children[’s] . . . mother . . . was 

under the influence of illicit drugs, while the children were in . . . 

mother’s care and supervision. On 04/21/2016, . . . mother 

possessed methamphetamine. The children are of such a young 

age as to require constant care and supervision and . . . mother’s 

illicit drug use interferes with providing regular care and 

supervision of the children. On 04/21/2016, . . . mother was 

arrested for Use/Under the Influence of [a] Controlled Substance. 

Such illicit drug use on the part of . . . mother endangers the 

children’s physical health and safety and places the children at 

risk of serious physical harm, damage and danger.

“b-2: [¶] The child K[.]M[.]’s father[3]. . . has a pattern of 

engaging in criminal conduct with repeated arrests and periods of 

incarceration. [F]ather’s criminal convictions include 

Obstruct/Etc[.] Public Officer/Etc., Illegal Possession Any Assault 

Weapon, Felony Burglary 1st Degree and Street Gang Act: 

Convicted Felon. In 2015, the child’s father was sentenced to 104 

months in prison and [six] years in prison for . . . father’s criminal 

conduct. Such criminal history and conduct on the part of . . . 

father endangers the child’s physical health and safety and 

places the child at risk of serious physical harm, damage and 

danger.”

3 The child’s father is not a party to this appeal.
4

B. Jurisdiction and Disposition Hearings

At the August 3, 2016, jurisdiction hearing, the juvenile 

court sustained the section 300 petition’s allegations and set the 

matter for a contested disposition hearing. At the

August 15, 2016, disposition hearing, the juvenile court declared 

the child to be a dependent of the court, removed him from 

parental custody, and ordered mother to participate in a 

drug/alcohol program with aftercare, random weekly drug/alcohol 

testing, a 12-step program, parenting education, and individual 

counseling. The court ordered mother to have two, two-hour 

monitored visits with the child a week.4 The child, who has 

Down syndrome,5 intermittent asthma, and congenital heart 

disease, remained placed with his maternal grandmother.

C. Six-Month Review Period

In its February 9, 2017, Status Review Report, the 

Department reported that mother contacted the social worker in 

November and December 2016 and complained that maternal 

grandmother had not permitted her to visit the child. Maternal 

grandmother reported that she permitted mother to visit the 

child whenever mother wanted. Maternal grandmother stated 

4 The minute order also stated that visits were to be limited 

only by the monitor’s availability.

5 According to the Multidisciplinary Assessment Team 

summary of findings, the child’s “impairments” did not rise to the 

level of requiring mental health services.
5

that mother was a good mother and called the child every day. 

The child loved mother and was sad when mother left after 

visiting him. Maternal grandmother believed mother and the 

child had a “really good bond.” Mother was not under the 

influence of drugs or alcohol when she visited the child.

Mother was not complying with court-ordered services. 

Between October 12 and December 29, 2016, mother had missed 

12 random drug tests. She had not enrolled in a 12-step program

(or obtained a sponsor), parenting classes, or individual 

counseling, and had not maintained contact with the social 

worker.

On January 3, 2017, maternal grandmother told the social 

worker that mother visited the family all day on 

December 31, 2016, and for four hours the following day. Mother 

visited the child weekly, with the visits lasting between two and 

four hours. The following day, maternal grandmother told the 

social worker that mother visited the child once or twice a week 

for several hours each visit.

The delivered service log showed that on 

February 16, 2017, the social worker spoke with mother at 

maternal grandmother’s home. The social worker and mother 

spoke in private—maternal grandmother kept the child 

distracted in another room. Mother told the social worker she 

visited the child two or three times a week for several hours each 

visit—arriving around 8:00 a.m. and leaving around 6:00 p.m. 

Mother stated, “‘My son is my best friend . . . we used to do 

everything together and he’s not used to me not being there.’” 

The social worker reported that the child “seemed to be very 

bonded and connected” with mother and wanted to be around

while she spoke with mother.
6

During the interview, maternal grandmother repeatedly 

had to take the child out of the room where the social worker and 

mother spoke. The child did not like being separated from 

mother and cried when he had to leave her. At one point, the 

child sat at the table with the social worker and mother and 

appeared to want to be part of the conversation. He seemed 

calmer, less aggressive, and more playful and interactive with the 

social worker while mother was present.

On March 10, 2017, mother called the social worker and 

stated that maternal grandmother was not answering her 

telephone and mother had not seen the child since the social 

worker interviewed mother at maternal grandmother’s home on 

February 16, 2017. Mother said that maternal grandmother 

tried to start an argument with her at the end of every visit and 

she would “rather hear [her] son laugh over the phone [than] cry 

in front of [her] when [she had] to leave him.”

Mother explained her close relationship with the child. 

When he was in her custody, she home-schooled him and he was 

able to speak a little. Currently, he was not speaking. She 

brushed his teeth and dressed him.

Mother called the social worker again on March 14, 2017, 

complaining that maternal grandmother would not let her see the 

child. She said that maternal grandmother told her after the 

social worker’s February 16, 2017, meeting with mother at 

maternal grandmother’s house that she would not allow mother 

to visit the child.

At the March 28, 2017, six-month review hearing, the 

juvenile court found that the Department had provided mother 

with reasonable services. It ordered the Department to prepare a 

written visitation schedule.
7

D. Twelve-Month Review Period

In its July 18, 2017, Status Review Report, the Department 

reported that in early April, mother and maternal grandmother 

entered into a written visitation agreement pursuant to which 

mother would visit the child on Fridays from 2:45 p.m. to 

4:45 p.m. Mother agreed to give 24 hours’ notice if she had to 

cancel a visit and that the Department could cancel a visit if she 

was more than 15 minutes late.

After a couple of weeks, mother started arriving late for 

visits and missed visits without notifying the social worker. 

Mother missed visits on April 14; May 5; May 12; May 19;

May 26, which was cancelled due to an emergency in the social 

worker’s caseload; and June 2, 2017.

On June 6, 2017, maternal grandmother passed away. On 

June 13, 2017, the child was placed in foster care with S.W.

At the end of June 2017, the Department filed a section 388 

petition requesting that the juvenile court limit mother’s visits to 

once a month for two hours in a Department office. The petition 

alleged that maternal grandmother’s male companion informed 

the Department that mother and an unknown male had abducted 

the child from maternal grandmother’s backyard on June 3, 2017. 

Maternal grandmother’s male companion called law enforcement. 

With the assistance of the Palmdale Sheriff’s Department, 

paternal grandmother and an unknown male returned the child 

later that day. The juvenile court granted the petition and 

ordered mother’s visits with the child limited to two, two-hour 

visits a month in a Department office.

The delivered service log showed that on April 7, 2017, 

mother had a visit with the child at a Department office. 
8

According to the social worker, mother was “extremely playful 

and active with her son during the visit. It was clear that the 

child . . . was comfortable in his mother’s presence and seemed to 

have a close bond with her.” The child was very active and 

mother was able to handle his “behaviors to some extent.” 

Mother interacted positively and appropriately with him. She 

held the child and gently rocked him back and forth for about the 

final 30 minutes of the visit. At the end of the visit, the child

began to cry and became upset when mother had to leave. 

Mother also had a difficult time saying goodbye.

During mother’s April 21, 2017, visit with the child, she 

was very interactive and affectionate with him. The child was 

“very hyper and full of energy,” but mother was patient with him 

and was able to keep up with him and keep him entertained. 

They watched a movie together.

During mother’s April 28, 2017, visit with the child, the 

child appeared to be comfortable in mother’s presence. Mother 

was playful, affectionate, and patient with the child and 

interacted with him appropriately. When the child cried, mother 

consoled him. They watched “Mickey’s Clubhouse” on mother’s

portable DVD player.

On July 14, 2017, the child was placed with maternal 

relative K.A.

Mother visited the child on July 21, 2017. At the beginning 

of the visit, the child approached a woman sitting in the 

Department’s lobby and stopped in front of her as though he 

thought she was mother. The social worker took the child to the 

visitation room where mother was waiting. Mother was 

appropriate with the child and they watched “Mickey’s 
9

Clubhouse” on mother’s telephone. The child became upset at the 

end of the visit when mother said goodbye.

On July 28, 2017, mother failed to attend her visit with the 

child.

At the 12-month review hearing on October 25, 2017, the 

juvenile court found that mother had not complied with the case 

plan—she had not appeared for numerous drug tests, she had not 

properly maintained contact with the Department, and she had 

not consistently visited the child. It terminated mother’s 

reunification services and set the matter for a section 366.26 

permanent plan hearing.

E. Permanent Planning Period

In the Department’s February 21, 2018, section 366.26 

report, the Department reported that the child was thriving 

under K.A.’s loving care and supervision. As for the child’s 

medical and developmental diagnoses/conditions, K.A. had 

demonstrated her strong commitment to advocate on the child’s 

behalf and was meeting his medical, dental, developmental, 

educational, and emotional needs. During the social worker’s 

home visits, the child appeared to be “doing great” and was 

always well groomed and well dressed. K.S. had enrolled the 

child in school and secured special bus transportation for him. 

She had ensured that he continued to receive his speech/language 

therapy services and she actively participated in his 

individualized education plan (IEP) meetings and 

implementation. Rather that request respite care, K.A. included 

the child on family vacations for his continued enrichment and 

development.
10

Mother’s visits with the child were scheduled to take place 

from 3:30 p.m. to 5:30 p.m. on Fridays. Mother showed signs of 

improvement in attending visits. Mother appeared loving, 

affectionate, and attentive toward the child during visits.

The Department reported in its May 23, 2018, Status 

Review Report that the child was thriving in his placement with 

K.A. who expressed a desire to adopt the child, but also to be his 

legal guardian if adoption efforts failed. Mother continued to 

visit the child twice monthly in a Department office, but her 

visits were inconsistent due to her “tardiness and forgetfulness of 

the scheduled dates of the visits.” When mother did visit, she 

was appropriate, affectionate, and attentive toward the child’s 

needs.

In its November 26, 2018, Status Review Report, the 

Department reported that the child was thriving in his placement 

with K.A. The child was regularly attending school and his 

overall vocabulary, communication, and self-expression had 

greatly improved since the start of his IEP and special education 

services in the fall of 2017.

Mother’s visits with the child had been inconsistent 

because she was late and forgot scheduled visit dates. When 

mother was present, she was appropriate, affectionate, and 

attentive toward the child’s needs. The child responded well to 

mother and appeared to be comfortable in her presence. He often 

became upset when visits ended. According to K.A., mother 

rarely called to speak with the child.

Mother failed to attend her visit with the child on 

May 18, 2018. Mother visited the child on June 1, July 13, 

July 27, and September 28, 2018. At the end of the July 27, 2018, 

visit, the child became upset and struck mother in the face 
11

multiple times, continuing to strike her after she asked him to 

stop and restrained his hands. Mother suggested the child was 

learning “‘rough-housing’” in his placement. After the 

September 28, 2018, visit, mother had not contacted the social 

worker to schedule a visit with the child.6

In its May 20, 2019, Status Review Report, the Department 

reported that the child was thriving in K.A.’s care and was 

comfortable in her presence. The child and K.A. seemed to have 

a loving bond with one another. Mother “continue[d] to have 

seldom communication” with the social worker and the child. 

Mother’s visits with the child still were inconsistent due to her 

tardiness and forgetfulness of scheduled visit dates. Mother was 

affectionate and interactive with the child when she visited.

On June 19, 2019, mother filed a section 388 petition 

requesting the juvenile court return the child to her care or, 

alternatively, order additional reunification services. The 

petition stated that mother had enrolled in the Tarzana 

Treatment Center and was participating in substance abuse 

counseling, testing, a 12-step program, Narcotics 

Anonymous/Alcoholics Anonymous meetings, parenting classes, 

mental health treatment, group sessions, and anger 

management.

On June 21, 2019, the juvenile court summarily denied 

mother’s section 388 petition. It found the request did not state 

new evidence or a change of circumstances and the proposed 

change of order was not in the child’s best interest.

6 The delivered service log attached to a later Department 

report reflects that mother had visits on November 2

and 16, 2018.
12

In an August 8, 2019, Last Minute Information for the 

Court, the Department informed the juvenile court that mother 

had improved in confirming visits with the social worker 24 hours 

in advance, but mother continued to be tardy for every visit. K.A. 

told the social worker that mother rarely spoke with the child on 

the telephone between visits.

The Department reported in its November 20, 2019, Status 

Review Report that K.A. had consistently and adequately 

provided for the child’s physical, educational, and developmental 

needs. In the social worker’s presence, the child always was well 

groomed, nicely dressed, clean, and physical healthy. The child 

appeared to be comfortable in his placement with K.A. and it was 

“apparent that there [was] a clear and loving bond between the 

child” and K.A.

Mother’s visits with the child had been inconsistent. Even 

though mother was better about confirming visits with the social 

worker, she continued to arrive at visits between 25 and 60 

minutes late. During visits, mother gave the child food and toys 

that she brought to the District’s office. Mother often sat holding 

the child and watching cartoons for a majority of their visits. 

K.A. reported that mother rarely called to speak with the child. 

Weeks would pass without a telephone call from mother, then

mother would call late at night when the child was already in bed

or getting ready for bed. Mother would promise to call back in 

the morning or right after school when the child was home, but

did not follow through.

At the January 3, 2020, section 366.26 hearing, mother 

testified that since the child began living with K.A. she visited 

him every chance “they” gave her—the first and last Friday of the 

month. She testified the visits were unmonitored and she had 
13

not missed any offered visit in the prior 18 months. She had been 

10 to 15 minutes late for three visits, but always notified the 

social worker. Since June 7, 2017, mother had tried to call the 

child every morning and every night but “they don’t answer.”

When visits took place, the child always waited for mother 

in the same chair and was excited to see her. When he saw 

mother, he would jump up and run to her, hug her, and call her 

“my mom.” During visits, the child did not pay attention to 

anyone or anything else and would tell mother about his “days”

and show her what he had done in school. Mother and the child

would work on arts and crafts, read, and watch Mickey Mouse on 

mother’s telephone. Mother brought washable markers, finger 

paints, crayons, coloring pages, and balls to visits. She also 

helped the child with his schoolwork. Mother never had to 

redirect or use discipline with the child during visits—when he 

was with her, he was “so great.”

At the end of visits, the child gathered his and mother’s 

things as though they were going to leave together. When told

that they were not, the child would scream and cry and try to 

take mother’s hand to lead her in the direction in which he was 

going. Mother would then sit with the child and comfort him, 

telling him he would see her again in two weeks.

Mother testified that she did not attend the child’s medical 

appointments because K.A. and the social worker would not allow 

her to do so. She last called one of the child’s doctors to check on 

his well-being in May 2018. In the prior year, mother had not 

participated in the child’s daily care such as feeding and bathing 

him, although she fed him at visits. K.A. and the social worker 

did not allow her to have contact with the child other than at 

visits.
14

Mother believed the child would be negatively impacted if 

his relationship with her were severed because the only time that 

he talked, ate, interacted, or opened up was when he was around 

mother. Otherwise, he closed and isolated himself. Mother 

learned about the child’s behavior when they were not together 

from K.A.

At the conclusion of mother’s testimony, the juvenile court 

continued the hearing. When the hearing resumed on 

January 7, 2020, mother’s counsel argued that the juvenile court 

should find that the parental benefit exception to the termination 

of parental rights applied.

The juvenile court found mother’s testimony “self-serving in 

a lot of instances and less than credible in a few.” Mother had 

not maintained a parental bond with the child. There had not 

been consistent visitation. Visits were limited to two times a 

month “based on the factors that were of . . . mother’s own doing.” 

Also, mother’s visits did not “equate to parenting sessions, which 

is basically what the visitation is to look like if the exception is to 

be applied.” The juvenile court concluded that the permanence 

that the child would have from being adopted far outweighed any 

benefit that might be obtained from continuing a relationship 

with his parents and terminated mother’s and father’s parental 

rights.

III. DISCUSSION

A. Applicable Law

“At a section 366.26 hearing, the juvenile court selects and 

implements a permanent plan for the dependent child.” (In re 
15

Noah G. (2016) 247 Cal.App.4th 1292, 1299, (Noah G.).) At this 

stage of the proceedings, the preferred plan is adoption. (In re 

Breanna S. (2017) 8 Cal.App.5th 636, 645.) “First, the court 

determines whether there is clear and convincing evidence the 

child is likely to be adopted within a reasonable time. [Citations.] 

Then, if the court finds by clear and convincing evidence the child

is likely to be adopted, the statute mandates judicial termination 

of parental rights unless the parent opposing termination can 

demonstrate one of the enumerated statutory exceptions applies.” 

(Id. at pp. 645–646.)

“The parental benefit exception applies when there is a 

compelling reason that the termination of parental rights would 

be detrimental to the child. This exception can only be found 

when the 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).)” (In re Anthony B. 

(2015) 239 Cal.App.4th 389, 395 (Anthony B.); accord, In re 

E.T. (2018) 31 Cal.App.5th 68, 75–76.) For the benefit prong of 

the exception, “[t]he issue . . . is not whether there was a bond 

between [the parent] and [the child]. The question is whether 

that relationship remained so significant and compelling in [the 

child’s] life that the benefit of preserving it outweighed the 

stability and benefits of adoption.” (Anthony B., supra, 239 

Cal.App.4th at p. 396.)

Various factors affect the parent-child bond, including 

“[t]he age of the child, the portion of the child’s life spent in the 

parent’s custody, the ‘positive’ or ‘negative’ effect of interaction 

between parent and child, and the child’s particular needs . . . .”

(In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “[A] parental

relationship is necessary for the exception to apply, not merely a 
16

friendly or familiar one.” (In re Jasmine D. (2000) 78 Cal.App.4th 

1339, 1350 (Jasmine D.).) “Evidence of frequent and loving 

contact is not enough to establish a beneficial parental 

relationship.” (Noah G., supra, 247 Cal.App.4th at p. 1300.) “The 

juvenile court may reject the parent’s claim simply by finding 

that the relationship maintained during visitation does not 

benefit the child significantly enough to outweigh the strong 

preference for adoption.” (Jasmine D., supra, 78 Cal.App.4th at 

p. 1350.)

B. Standard of Review

There is a split of authority regarding the appropriate 

standard of review for determining whether the parental benefit 

exception to the termination of parental rights applies. (See In re 

Caden C. (2019) 34 Cal.App.5th 87, 106, review granted 

July 24, 2019, S255839.) “We apply the substantial evidence 

standard of review to the factual issue of the existence of a 

beneficial parental relationship, and the abuse of discretion 

standard to the determination of whether there is a compelling 

reason for finding that termination would be detrimental to the 

child.” (Anthony B., supra, 239 Cal.App.4th at p. 395.)

C. Analysis

Mother failed to establish either that she maintained 

regular visitation and contact with the child or that the child

would significantly benefit from continuing the relationship. 

Mother’s visits with the child were sporadic. At times, such as 

when the child initially lived with maternal grandmother, mother 
17

visited regularly. But often mother was late for or missed visits. 

Due to her conduct, for the nearly two and a half years leading up 

to the section 366.26 hearing, mother had only two, two-hour 

visits a month. (In re C.F. (2011) 193 Cal.App.4th 549, 554 

[“Sporadic visitation is insufficient to satisfy the first prong of the 

parent-child relationship exception to adoption”].) Mother also 

failed to maintain regular telephone contact with the child

between visits.

As for the benefit prong, there is no doubt that mother and 

the child love each other, enjoy spending time with one another,

and share a bond. But mother failed to show she had a parental 

relationship with the child. (Jasmine D., supra, 78 Cal.App.4th 

at p. 1350.) The juvenile court removed the child from mother’s 

custody on August 15, 2016, nearly three and a half years prior to 

the section 366.26 hearing. For the nearly two and a half years 

before the hearing, mother’s contact with the child was, on 

average, something less than four hours a month. As mother 

admitted in her testimony, she was not involved with the child’s 

daily care—feeding or bathing him—and did not attend his 

medical appointments or contact his doctors to check on his wellbeing. Mother’s relationship with the child was not so significant 

and compelling in the child’s life that the benefit the child would 

have received in preserving it outweighed the stability and 

benefits of adoption. (Anthony B., supra, 239 Cal.App.4th at 

p. 396.)
18

IV. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.