Filed 7/30/14 In re N.G. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT In re N.G., a Person Coming Under the Juvenile Court Law. H040737 (Santa Clara County Super. Ct. No. JD21466) SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES, Plaintiff and Respondent,

v. N.G., Defendant and Appellant.

The Santa Clara County Department of Family and Chil dren’s Services (Department) brought depende ncy proceedings on behalf of N.G. under Welfare and Institutions Code section 300. 1 Her father, whose initials ar e also N.G., (father) appeals from the juvenile court’s order terminating his parental rights following a section 366.26 hearing. (See § 395.) He claims that th e juvenile court erred in finding that the beneficial parent-child relationship exception to termination of parental rights did not apply. Father also asserts that social wo rker’s failure to facilitate visits between one-year-old N.G. and him while he was incarcer ated in the county jail deprived him of due process.

1 All further statutory references are to the Welfare and Institutions Code unless otherwise stated.2 We affirm the juvenile court’s order terminating parental rights.
I Procedural and Factual History A. Background On October 10, 2012, a juvenile depe ndency petition was filed on behalf of seven-month-old N.G. under sec tion 300, subdivisions (b) (failu re to protect), (c) (serious emotional damage), and (j) (abuse of siblin g). On October 12, 2012, a first amended dependency petitio n was filed on N.G.’s behalf unde r section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). On November 6, 2012, a second amende d petition was filed un der section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). It alleged the following facts. N.G. and an older half-sibli ng, M.G., (the children) had been taken into protective custody pursuant to a warrant on October 10, 2012, because they “were at significant risk of harm in the care of their mo ther . . . and [N.G.’s] fa ther . . . due to the parents’ substance abuse, ongoing domestic violence, and criminal history and the mother’s inability to provide ap propriate care.” On multiple occasions, the children were “exposed to intimate partner violence betw een the mother and [N.G.’s father] and [between] the mother and her previous partners . . . .” That violence included “physical altercations, screaming at each other, and usin g foul language.” “The children’s ongoing and repeated exposure to intimate partner viol ence places them at substantial risk of serious physical harm and emotional damage in the care of the mother and [N.G.’s father].” “[T]he mother ha s a substance abuse problem which negatively impacts her ability to parent her children. The mother began using me thamphetamines approximately 2 1⁄2 years ago, on a daily basi s, including while caring for and/or pregnant with the children. The mother has been unable to secure stable hous ing and has been unable to separate herself from her violent relationshi p with [N.G.’s father ] and his extended3 family. The mother’s untreated substance ab use problem places the children at risk of harm in her care.” Despite mother’s partic ipation in family reunification services and family maintenance services in a prior dependency case brought on behalf of M.G., “mother continues to expose the child ren to violence and substance abuse.” The second amended petition also allege d the following. Approximately three months before the petition was filed, “the moth er left both of the children in the care of [N.G.’s father], who has a history of viol ence and substance abuse, because she was homeless and had nowhere to go.” Father is residing with N.G.’s paternal grandmother and paternal aunt, who “have refused to allo w the mother into th eir home to see her children” and, “[a]s a result, th e mother breaks into the home in the middle of the night, approximately 4 times a week” “to see [N.G.’ s father] and her children.” “The mother and the paternal aunt engage in physical and verbal alterc ations when the mother shows up at their residence, and the children are exposed to and aware of this violence.” The petition further alleged that father has “a substance abuse problem which negatively impacts his ability to parent [N.G.]” and father’s “untreated substance abuse problem places [N.G.] at risk of harm in his ca re.” It stated that father has a criminal history and listed multiple convictions, includi ng many drug-related offenses. It alleged that his “drug-related criminal activity places [N.G.] at ri sk of harm in his care.” On January 25, 2013, the court held a contested jurisdic tion and disposition hearing. The court admitted into evidence the “Jurisdicti on/Disposition Report,” dated November 9, 2012, the “First Addendum Re port,” dated November 30, 2012, and the “Second Addendum Report,” dated December 14, 2012. It found the allegations of the second amended petition true as alleged. The juvenile court ordered N.G. to con tinue under the Department’s care, custody and control for out-of-home placement with an extended family me mber. It ordered family reunifications services for N.G. and her parents. The services for father included,4 but were not limited to, submitting to random testing at least once a week, obtaining a substance abuse assessment and comply ing with the drug treatment programs recommended by the assessment, and completi ng a substance abuse parenting class, a 12-step or approved substance abuse self -help program, and a 52-week batterers’ intervention program. The court also ordered supervised visitation at least once a week for each parent. It gave th e social worker discretion to select the location and the supervisor of the visits. The Interim Review Report, dated March 22, 2013, reported that father had been “visiting on a consistent basis, except for one occasion when he arrived late and the visit was cancelled.” The social worker found that father’s interactions with N.G. to be appropriate during an observed visit on March 7, 2013. Father th ought he should not have to complete a 52-week batterers’ interv ention program because he did not have an issue with domestic violence. He had not ye t obtained a substance abuse assessment or begun substance abuse testing. The “Status Review Report,” dated July 26, 2013, for the six-month review hearing recommended that the court terminate the family reunificati on services. Father had made no effort to drug test. He had attended a drug intervention group most recently on March 6, 2013, but he had not provided any do cumentation of his continued attendance since that date. The report indicated that, although father had been given the contact information, father ha d not obtained a substance a buse assessment. Father had not engaged in the majority of his case plan se rvices. As to superv ised visitation between father and N.G., the Department’s case aide to ld the social worker th at there had been no concerns during visits. Father had missed a visit on May 13, 2013, but he had not called to cancel. An addendum report, dated September 20, 2013, reiterated the Department’s recommendation that the court terminate family reunification services. Since July 26,5 2013, father had drug tested on only one date, July 30, 2013. Father had returned to a men’s drug intervention group as of July 10, 2013, but the social worker had not received documentation that father had co ntinued participating in the gr oup after that date. It was noted that “father, for the most part, plays w ith and engages his daughter during visits.” On September 20, 2013, the court he ld a trial management conference. In an addendum report, dated October 11, 2013, the Department made the same recommendation regarding termination of family reunification services. Father had “not called in to test or tested at all since the da te of the last Court hearing” on September 20, 2013. Father had stopped attending the me n’s drug intervention group. Father had missed two supervised visits with his daughte r, N.G., because of his criminal court case. Father had been convicted of three misdem eanors: (1) violation of Vehicle Code section 14601.1, subdivision (a) (driving with a suspended licen se); (2) violation of Penal Code section 148, subdivision (a)(1) (resi sting or obstructing a peace officer); (3) violation of Vehicle Code section 2800.2, su bdivision (a) (driving in willful or wanton disregard of safety while fleeing a peace officer). He had been sentenced to serve 180 days in county jail. On October 11, 2013, after the contested six-month review hearing, the juvenile court terminated family reunification services . It ordered a selection and implementation hearing pursuant to section 366.26 hearing. The court ordered supervised visitation to continue at least once a week for mother an d for father. It again conferred discretion upon the social worker to select the location and supervis or of the visits. On February 14, 2014, the juvenile court held a contested section 366.26 hearing.
B. Contested Section 366

. 26 Hearing The juvenile court reviewed and admitted into evidence the section 366.26 report, dated January 17, 2014.6 In the report, social work er Tania Carbajal recommended that the court terminate parental rights and select a permanent plan of adoption for N.G., who was almost two years old, and M.G. Following his recent re lease from custody, fath er had begun visiting N.G. again. The prospectiv e adoptive parent had indicate d her willingness “to supervise visits for the parents in the fu ture” provided the pa rents “had made some efforts regarding substance abuse treatment.” Carbajal stated in the report that it “appears that the mother and the fathers continue to struggle with the i ssues that have brought this family to the Court’s attention.” Carbajal, who was recognized as an expe rt in permanency planning for dependent children by the court, testified at the hearin g. She had reviewed the visitation service logs. During father’s visits with N.G., father and N.G. were affectiona te with each other. N.G. “chatter[ed]” and had conversations with father. N.G. normally ran up to father when she saw him. She sometimes called fath er “daddy” when she saw him. N.G. had not appeared hesitant around father and she pl ayed with him. Father had gotten down on the floor to play with her. N.G. had soug ht out father’s atten tion during visits and brought toys to him for their play. Some of their play was educa tional. Father had changed her diapers. Carbajal testified that, for the most part , father had regularly visited with N.G. Although father had no visits with N.G. while he was in cu stody, he requested visitation when he was released in January 2014 and visits recommenced. Father had failed to show up for approximately four visits w ithout calling to reschedule, including a visit scheduled for January 31, 2014. In Carbajal’s opinion, father had appropri ately interacted with N.G. during visits. Father testified that he wanted to keep seeing N.G.7 Father had not, however, progressed beyond supervised visits with N.G. because he made insufficient efforts to address the issues that bro ught the case to the court’s attention. When father visits with N.G., a ca se aide and visitation m onitor is in the room. Carbajal acknowledged that N.G. was a playful child. If she was with someone she knew and there were toys, N.G. played a nd chatted with the person and played with the toys. She was affectionate with her brot her and extended family. N.G.’s relationship with father was playful. The degree of pl ayfulness between N.G. and father was about the same as between N.G. a nd her cousins or her brother. Carbajal testified that N.G. does not re ally have a parent-child relationship with father. She knows him, refers to him as “daddy” when she se es him, and appears to enjoy his visits but father had not provided for he r care since she was removed from parental custody and N.G. looks to her current caregiver to meet all her daily wants and needs. In her opinion, based on N.G.’s age and the leng th of time out of her father’s care, it was more important for N.G. to ha ve a permanent home than to have an ongoing relationship with father. In addition, the benefits of a permanent, stable home ou tweighed the benefits of N.G.’s relationship with father. It was Carbajal’s assessment that N.G. would not suffer detriment or serious harm to her emotional wellbeing if father’s parent al rights were terminated. N.G. was very bonded to her current caregiver. Given he r age and her bond to the caregiver, N.G. would be able to overcome any loss resulti ng from termination of contact with father. Father testified he saw N.G. every week . N.G. called him “pa” or “daddy.” He believed that his daughter benefitted from seei ng him and, on visitation days, she was at the door waiting for him. They talked during vi sits. But he had not been allowed to go to her doctor’s appointments and he had not been invited to partic ipate in her education. He loved N.G. very much. He wa nted to continue seeing her.8 Father acknowledged that he had gone in to custody on November 20, 2013 and he restarted visits around the first week of Januar y 2014. He had not seen N.G. for a period of about six weeks. At the end of the section 366.26 hearing, the juvenile court found by clear and convincing evidence that it was li kely N.G. would be adopted. The court determined that the beneficial parent-child relationship excep tion to termination of parental rights was not established. The court terminated parental rights and selected a permanent plan of adoption for N.G. It referred her to the c ounty adoption agency fo r adoptive placement.
II
Discussion A. Termination of Parental Rights “Under section 366.26, the statutory prefer ence is to terminate parental rights and order the child placed fo r adoption. (§ 366.26, subd. (b)(1).)” ( In re C

. B . (2010) 190 Cal.App.4th 102, 121.) As a general rule, a j uvenile court must terminate parental rights and order the child placed fo r adoption if it determines “by a clear and convincing standard, that it is likely the child will be adopted . . .” af ter a section 366.26 hearing. (§ 366.26, subd. (c)(1).) “A few statutory exceptions to this rule permit the juvenile c ourt not to terminate parental rights when compelling reasons show termination would be detrimental to the child. ([§ 366.26], subd. (c)(1)(B)(i)-(vi).)” ( In re K

. C . (2011) 52 Cal.4th 231, 237, 255.) “Once the court determines the child is likely to be adopted, the burden sh ifts to the parent to show that termination of parental rights would be detrimen tal to the child under one of the exceptions listed in sect ion 366.26, subdivision (c)(1). ( In re Zachary G

. (1999) 77 Cal.App.4th 799, 8 09 [92 Cal.Rptr.2d 20].)” ( In re C

. F . (2011) 193 Cal.App.4th 549, 553.) “[I]t is the parent ’s burden to show exceptional circumstances exist. [Citation.]” ( In re Autumn H . (1994) 27 Cal.App.4th 567, 574 ( Autum H .).)9 Section 366.26 provides an exception to the statutory preference for termination of parental rights and adoption where the juve nile court “finds a compelling reason for determining that termination would be detrim ental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 3 66.26, subd. (c)(1)(B)(i).) The phrase “benefit from continuing the [parent-child] relationshi p” means “the relationship promotes 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.” ( Autumn H ., supra , 27 Cal.App.4th at p. 575.) “In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against th e security and the sense of belonging a new family would confer. If seve ring the natural parent/child relationship would deprive the child of a su bstantial, positive emotional atta chment such that the child would be greatly harmed, the preference fo r adoption is overcome and the natural parent’s rights are not terminated.” ( Ibid .) On appeal, father is not challenging th e juvenile court’s finding that it is likely N.G. will be adopted. Rather, he contends he and minor had “a parent-child bond” and they had “an emotionally significant relationshi p.” He asserts that “[t]he evidence was insufficient to support the juvenile court’s determina tion the beneficial relationship exception did not apply . . . .” This court has concluded that both th e substantial evidence and the abuse of discretion standards apply to a review of a juvenile court’s determination whether a statutory exception to terminati on of parental rights applies. 2 (See In re C

. B . (2010) 190

2 There is a split of opinion as to the proper standard for reviewing a juvenile court’s determination whether an exception to te rmination of parental rights applies. (See e.g., In re J

. C . (2014) 226 Cal.App.4th 503, 530-531 [F ourth Dist., Div. 3, follows Sixth Dist.]; In re K

. P . (2012) 203 Cal.App.4t h 614, 621-622 [Second Dist., Div. 7, follows (continued)10 Cal.App.4th 102, 123 ( C

. B .); In re Bailey J . (2010) 189 Cal.Ap p.4th 1308, 1314 ( Bailey
J .).) “[T]he substantial evidence test applies to pure findings of f act. [Citations.]” ( C

. B ., supra , at p. 123.) “Since the proponent of the exception bears the burden of producing evidence of the existen ce of a beneficial parental . . . relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court’s determination.” ( Bailey J ., supra , at p. 1314.) In contrast, a “juvenile court finding th at the relationship is a ‘compelling reason’ for finding detriment to the child is based on the facts but is not primarily a factual issue.” ( Bailey J ., supra , 189 Cal.App.4th at p. 1315.) “I t is, instead, a ‘quintessentially’ discretionary decision, which calls for the ju venile court to determine the importance of the relationship in terms of th e detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the ch ild of adoption. ( In re
L

. Y

. L . (2002) 101 Cal.App.4th 942, 951 . . . .) Because this component of the juvenile court’s decision is discretionary, the abuse of discretion standard of review applies.” ( Ibid .) “ ‘The appropriate test for abuse of di scretion is whether the trial court exceeded the bounds of reason. When two or more in ferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citation.]” ( In re Stephanie M . (1994) 7 Cal.4th 295, 318-319.) Father repeatedly cites In re S

. B . (2008) 164 Cal.App.4th 289 ( S

. B .). In that case, S.B.’s father had been her “pri mary caregiver for three years.” ( Id . at p. 298.) “When S.B. was removed from his care, [the fa ther] immediately reco gnized that his drug

Sixth Dist.]; In re Jasmine D . (2000) 78 Cal.App.4th 1339, 1351 [First Dist., Div. 3, adopted abuse of discretion standard of review]; Autumn H ., supra , 27 Cal.App.4th at pp. 576-577 [Fourth Dist., Div. 1, applied substantial evidence test].) As a general rule, in this context, “[t]he practical differences between the two standards of review are not significant.” ( In re Jasmine D ., supra , at p. 1351.)11 use was untenable, started services, main tained his sobriety, sought medical and psychological services, and maintained consiste nt and regular visitation with S.B. He complied with ‘every aspect’ of his case plan.” ( Ibid .) A social worker noted that “ ‘[the father] consistently puts his daughter[’]s needs and safety before his own.’ ” ( Ibid .) “For the first year after she was removed from pare ntal custody, S.B. co ntinued to display a strong attachment to [her father]. She was unhappy when visits ended and tried to leave with [her father] when the visits were over.” ( Id . at p. 298.) There had been a bonding study of the father and S.B., which “conclu ded that, because the bond between [the father] and S.B. was fairly strong, there was a potential for harm to S.B. were she to lose the parent-child relationship.” ( Id . at pp. 295-296.) The Court of Appeal deciding S

. B . (Fourth District, Division 1) concluded that the father “had a continuing bene ficial relationship with his da ughter within the meaning of the statutory exception to termination of parent al rights” and reversed the juvenile court’s order terminating parental rights. ( S

. B ., supra , 164 Cal.App.4th at pp. 293, 303.) The same appellate court subsequently stated in a different case: “The S

. B . opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal when ever there is ‘some measure of benefit’ in continued contact between parent and child.” ( In re Jason J . (2009) 175 Cal.App.4th 922, 937.) In this case, unlike S

. B ., there was no bonding study a nd no expert testifying that there was a potential for detriment to N.G. fro m the loss of her relationship with father. To the contrary, the social worker, testifying as an expert, indicated that N.G. would not suffer detriment or serious emotional harm from the termination of father’s parental rights. “The [beneficial parent-child relations hip] exception must be examined on a case-by-case basis, taking into account the ma ny variables which affect a parent/child12 bond. The age of the child, the portion of the child’s life spent in th e parent’s custody, the ‘positive’ or ‘negative’ effect of intera ction between parent and child, and the child’s particular needs are some of the variables wh ich logically affect a parent/child bond.” ( Autumn H ., supra , 27 Cal.App.4th at pp. 575-576.) The record does not reflect that the cour t found father had not maintained regular visitation and contact with N.G. or they did not have a po sitive, beneficial relationship to some degree. Rather, it appears that the c ourt impliedly found that father’s relationship with N.G. did not constitute “a compelling re ason for determining th at termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) We discern no abuse of discretion. N.G. had been out of father’s care for mo st of her life. She was almost two years old at the time of section 366. 26 hearing. Father behaved appropriately during visitation but he had never progressed beyond supervised visitation and, unlike the father in S

. B ., he had not complied with his case plan. He and N.G. had an a ffectionate, playful relationship. While their interactions were pleasant, there was no evidence that N.G. had any special needs that could be met by only fa ther. There was no evidence that N.G. was upset when the visits ended. As indicated, it was the opinion of the social worker, who testified as an expert, that the benefits of a permanent, stable home that would be afforded N.G. through adoptio n outweighed the benefits of an ongoing relationship with father. The juvenile court could reasonably conclu de that the benefits of adoption with respect to N.G.’s wellbeing significantly outweighed the benefit of a father-daughter relationship and termination of that pare ntal relationship would not result in any significant harm to N.G. (See Autumn H ., supra , 27 Cal.App.4th at p. 575.) The court did not abuse its discretion in finding the be neficial parent-child relationship exception inapplicable and terminating father’s parental rights.13 B. Visitation Father asserts that “denial of visitation” while he was in jail for approximately six weeks “violated [his] due process right.” He claims that “the uns anctioned denial of visitation” by social worker Carbajal while he was in custody “fatally impaired [his] ability to maintain his ongo ing bond with his daughter a nd therefore establish the applicability of the parent-child relationshi p exception to adoptio n.” He argues that “Carbajal usurped the role of the juvenile co urt thereby depriving [him] of his right to visit his child with the conseq uence that, in the eyes of th e court, he could not show a bond with his child.” Father points to social wo rker Carbajal’s testimony at th e section 366.26 hearing. She testified that, before father went into custody, Carbajal asked him to let her know whether he was able to participate in th e PACT program, which impliedly would have facilitated visitation. It had been expected that father would be in custody for three months but he was released mu ch sooner. Carbajal explai ned that she “did not make arrangements to transport the child N.G. fo r a window visit, because [she] thought it would be very difficult for a ch ild so young to have a window visit.” She stated that father was “provided a visit almost immediat ely upon contacting [her] office after his release.” Father also refers us to the court’s co mments concerning the gap in his visitation while he was in custody: “The 6-week gap in visits . . . while you were incarcerated is an interesting fact to the court. Your attorney says, . . . you didn ’t get window visits and that wasn’t really your fault, but the court fails to see how you could ha ve stood in a parental role with a window visit, so I don’t see that as a significant issue here. What I see is that you absented yourself for 6 weeks in a very important time when your counsel wanted to make an argument about how significant your atta chment is to your ch ild. 6 weeks in the life of a 2-year-old is a long time.”14 In our view, father has forfeited his due pr ocess contention by not raising it below. “Dependency matters are not exempt fro m [the forfeiture] ru le. (See, e.g., In re Dakota S . (2000) 85 Cal.App.4th 494, 502 [102 Cal.Rptr.2 d 196] [failure to obtain supervising agency’s assessment of prospective guardian under § 366.22, subd. (b)]; In re Lorenzo C

. (1997) 54 Cal.App.4th 1330, 13 38-1339 [63 Cal.Rptr.2d 562] [failure to request court to order bonding study]; In re Kevin S . (1996) 41 Cal.App.4th 88 2, 885-886 [48 Cal.Rptr.2d 763] [failure to challenge setting of § 366. 26 permanency planning hearing when court determined that no reasonable reunifi cation efforts were made].)” ( In re S

. B . (2004) 32 Cal.4th 1287, 1293.) “[A] reviewing court ordi narily will not consider a challenge to a ruling if an objection could have been bu t was not made in the trial court. ( People v

. Saunders (1993) 5 Cal.4th 580, 589-590 [20 Cal. Rptr.2d 638, 853 P.2d 1093].) The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. ( Saunders , at p. 590.)” ( Ibid ., fn. omitted.) In any case, the claim must be rejected on its merits. The Fourteenth Amendment to the United States Constitution provides that no state shall “d eprive any person of life, liberty, or property, without due process of law.” “The touchstone of due process is protection of the individual against arbitrary action of government . . . [citation].” ( Wolff

v
. McDonnell (1974) 418 U.S. 539, 5 58 [94 S.Ct. 2963].) “[T]he Due Process Clause was intended to prevent government offi cials ‘ “ ‘from abusing [their] power, or employing it as an instrument of oppression.’ ” ’ [Citation.]” ( County of Sacramento v

. Lewis (1998) 523 U.S. 833, 846 [118 S.Ct. 1708].) “[The United States Supreme Court has] long recognized that the Amendment’s Due Process Clause, like its Fifth Amendmen t counterpart, ‘guarantees more than fair process.’ Washington v

. Glucksberg , 521 U.S. 702, 719, 117 S.Ct. 2258 (1997). The Clause also includes a subs tantive compon ent that ‘provides heightened protection against government interferen ce with certain fundamental ri ghts and liberty interests.’15 Id ., at 720, 117 S.Ct. 2258; see also Reno v

. Flores , 507 U.S. 292, 301- 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).” ( Troxel v

. Granville (2000) 530 U.S. 57, 65 [120 S.Ct. 2054].) The substantive comp onent “bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the pro cedures used to implement them.’ Daniels v

. Williams , 474 U.S., at 331, 106 S.Ct., at 664.” ( Zinermon v

. Burch (1990) 494 U.S. 113, 125 [110 S.Ct. 975].) “[T]he interest of parents in the care, cu stody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.” ( Troxel v

. Granville , supra , 530 U.S. at p. 65.) “Alth ough a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state intere st, the welfare of a child is a compelling state interest that a state has not only a ri ght, but a duty, to protect. [Citations.] The Legislature has declared that California has an interest in providing stable, permanent homes for children who ha ve been removed from parental custody and for whom reunification efforts with their parent s have been unsuccessful. [Citations.] This interest is a compe lling one. [Citation.]” ( In re Marilyn H . (1993) 5 Cal.4th 295, 307.) Father is essentially clai ming that social worker Carbajal deprived him of due process by failing to facilitate visits with N.G. at the window while he was in jail. We are not persuaded. The record does not show that the social worker acted unreasonably in determining that, given N.G.’s very young ag e, it would be “very difficult” for N.G. to have a window visit with father and visita tion impliedly should not take place there. 3

3 Parental visitation must be consistent with the well-being of the dependent child. (See § 362.1, subd. (a)(1)(A).)16 She apparently believed that visitation might be facilitate d through the PACT program while father was in jail. Visitation resu med soon after father’s release from jail. The United States Supreme Court has “emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ [citation], whether the fault lie s in a denial of fundamental procedural fairness, [citation], or in the exercise of po wer without any reasonable justification in the service of a legitimate governme ntal objective, [citation].” ( County of Sacramento v

. Lewis , supra , 523 U.S. at pp. 845-846.) “[The court’s] cases dealing with abusive executive action have repeated ly emphasized that only the most egregious official conduct can be said to be ‘arbitrary in th e constitutional sense,’ [citation] . . . .” ( Id . at p. 846.) “[T]he substantive component of the Due Process Clause is violated by executive action only when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’ ” ( Id . at p. 847.) Father has not made any such showing here. In re David D . (1994) 28 Cal.App.4th 941 ( David D .), which father cites, is both factually and legally distinguishable. The principle issue in that case was whether adequate family reunification services, partic ularly visitation, had been provided. ( Id . at p. 943.) During the reunification period, a referee had suspended mo ther’s visitation until she provided medical and psychiatric records. ( Id . at p. 945.) The referee had also suspended telephone contact between the mother and her children. ( Ibid .) The referee terminated family reunification services, se t the section 366.26 h earing “nearly four months” later, and allowed mother only a single visit during that period. ( David D ., supra , at pp. 949, 955, fn. 10 .) Even with the gaps in visitation, there was “overwhelming evidence of the minor s’ bond with their mother.” ( Id . at p. 955.) The appellate court in David D . determined that “inadequate reunification services were provided to this family, and also conc lude[d] the juvenile court erroneously denied17 regular visitation between this mother and her children after terminating reunification services, thus both violating the statutory directive and depriving the mother of the opportunity to come within the exception to adoptive placement expressly permitted when a parent has maintained a regular visitation schedule.” ( David D ., supra , 28 Cal.App.4th at p. 943.) It concluded that, “[u]nder the circ umstances of this case, an additional six months of reunifi cation services are warranted, during which [mother] must be provided an opportunity to reestablish regul ar visitation with the minors. [Citation.]” ( Id . at p. 956.) In this case, in contrast, the juveni le court consistently mandated a minimum number of visits. 4 Father’s reliance upon David D . is misplaced because father is not claiming that reasonable family reunification se rvices were not offered or provided to him. (See § 366.26, subd. (c)(2 )(A) [“The court shall not terminate parental rights if . . . [a]t each hearing at which the court was re quired to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.”].) David D . was not a due process case.

In this case, unlike David D ., the court’s visitation orders prior to the section 366.26 hearing did not prevent father from bringing himself within the beneficial parent-child relationship exce ption (§ 366.26, subd. (c)(1)(B )(i)). Father did not timely

4 To the extent father imp lies that any juvenile court order regarding visitation was improper, we reject the contention. The cour t did not improperly delegate the authority to decide whether to grant vis itation to the Department. (See In re Christopher H . (1996) 50 Cal.App.4th 1001, 1008-1009.) It properly authorized the social worker to determine the location of fathe r’s visits. (See In re S

. H . (2003) 111 Cal.App.4th 310, 317 [“the child’s social worker may be given responsibility to manage the actual details of the visits, including the power to determine the ti me, place and manner in which visits should occur. [Citation.]”].) The juvenile court was not required to make findings of detriment since it did not discontinue vi sitation upon terminating fam ily reunification services and setting the matter for a section 366.26 hearing. (See § 366.21, subd. (h) [“The court shall continue to permit the parent . . . to visit the child pending the [section 366.26] hearing unless it finds that visitation would be detrimental to the child”].)18 challenge the Department’s implementation of the court’s order by seeking modification of the order on grounds of chan ged circumstances (see § 388).

Father asserts that “[i]t was error fo r the court to sanction the department’s unauthorized exercise of a judicial function with the resulting negativ e impact on Father’s parental rights.” We do not read the court’ s remarks as ratifying the social worker’s determination that the jail’s visitor window was not an a ppropriate location for visiting with N.G. Rather, we understand the court’s statements as a rebuke for father’s criminal conduct that resulted in his incarceration and interfered with meaningf ul visitation. The court clearly did not think six weeks of window visits would have ma de any difference in this case.

Father has failed to show that he was denied due process of the law.19 DISPOSITION The juvenile court’s order termin ating parental rights is affirmed

_______ _______________ ___________ ELIA, J.

WE CONCUR:

________________ _______________ RUSHING, P. J.

________________ _______________ PREMO, J.