Filed 4/28/14 In re Frank M. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

In re FRANK M. III et al., Persons Coming 

Under the Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN 

SERVICES,

Plaintiff and Respondent,

v.

FRANK M., JR.,

Defendant and Appellant.

F068265

(Super. Ct. Nos. 127685 & 127686)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. William D. 

Palmer, Judge.

David M. Thompson, under appointment by the Court of Appeal, for Defendant

and Appellant.

Theresa A. Goldner, County Counsel, and Kelley D. Scott, Deputy County 

Counsel, for Plaintiff and Respondent.

-ooOoo-

 

* Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
2.

Frank M., Jr. appeals from an order terminating his parental rights under Welfare 

and Institutions Code section 366.261 as to his two sons, now five and six years of age. 

Frank contends the juvenile court erred in declining to apply the exception to adoption 

contained in section 366.26, subdivision (c)(1)(B)(i), hereafter referred to as the 

“beneficial relationship” exception. We affirm.

PROCEDURAL AND FACTUAL SUMMARY

In October 2011, the Kern County Department of Human Services (department) 

removed Frank’s two sons, then three and four, from his custody after substantiating a 

report Frank was using methamphetamine and neglecting the children. The children were 

in Frank’s custody because their mother, Patricia, was a drug abuser. The department 

placed the children together in foster care.

In February 2012, the juvenile court adjudged the children its dependents and 

ordered Frank to participate in child neglect, parenting and substance abuse counseling 

and submit to random drug testing. The court also ordered two hours of weekly,

supervised visits for Frank. The court denied Patricia reunification services.

Frank received 12 months of reunification services but did not make any progress 

toward reunifying with his sons. He did not complete substance abuse counseling, 

regularly tested positive for marijuana and missed numerous visits with the children.

In February 2013, at a contested 12-month review hearing, the juvenile court 

terminated Frank’s reunification services, reduced visitation to every other week for one 

hour and set a section 366.26 hearing. The court also found that Patricia’s whereabouts 

were unknown.

In its report for the section 366.26 hearing, the department recommended the 

juvenile court terminate Frank’s and Patricia’s parental rights and select adoption as the 

 

1 All statutory references are to the Welfare and Institutions Code unless otherwise 

indicated.
3.

permanent plan for the children. The children recognized Frank as their father and 

looked forward to visiting him but did not cry when the visits were over. They did, 

however, express a desire to live with their prospective adoptive family “‘forever.’” The 

department opined that even though there was a relationship between Frank and his sons, 

the benefit of freeing them for adoption outweighed any negative consequences 

termination of Frank’s parental rights would have on them.

The juvenile court conducted the section 366.26 hearing in October 2013. Frank 

testified the children lived with him full-time from birth to their detention and described 

their relationship as “[l]oving.” He did all the things a parent would do, bathed and fed 

them, read stories to them and took them to the park. He testified he completed a 

parenting class during the reunification period and afterward, in August 2013, completed 

an outpatient drug treatment program. Four days later, he violated probation and was 

incarcerated for 45 days.

Frank further testified the children visited him once while he was in custody. He 

believed the visit went well. The children ran to him and hugged him as soon as he 

entered the visitation area. At the end of the visit, the youngest child cried and said “I 

want to come home, daddy.” As they left, the children kept looking back and saying “I 

love you[,] daddy.” Frank said it broke his heart. Frank and the children visited again in 

September after his release. They ran to him and were “all over” him. They played catch 

together and hugged and kissed. The children asked Frank when they were coming 

home.

Frank testified he was living with his wife of two years and their 10-month-old 

son. The children were loving and caring toward their little brother.

Frank said he was a better person and he believed it would be detrimental to the children 

to terminate his parental rights because they were “so close” to him.

Social worker Sarah Warner testified she observed a visit Frank had with the 

children in October 2013. The children were very affectionate toward Frank and at the 
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end of the visit hugged and kissed him. When they saw their adoptive mother, they ran to 

her and said, “mommy, mommy.”

Warner further testified the children interacted with their adoptive mother in a 

very positive way and had a very good relationship with her children and husband.

Lisa T., the prospective adoptive mother, testified she was committed to adopting 

the children. She said the children appeared happy to see Frank when he was not 

incarcerated but did not cry at the end of their visits with him. They just wanted to know 

what they were going to do next.

At the conclusion of the hearing, the juvenile court found by clear and convincing 

evidence that the children were likely to be adopted. It further found that the beneficial 

relationship exception was not applicable and terminated Frank’s and Patricia’s parental 

rights. This appeal ensued.

DISCUSSION

Frank contends the juvenile court erred in failing to apply the beneficial 

relationship exception to termination of his parental rights. We disagree.

Once a dependency case reaches the permanency planning stage, the statutory 

presumption is that termination is in an adoptable child’s best interests and, therefore, not 

detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343–

1344.) It is the parent’s burden to show that termination would be detrimental under one 

of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The 

beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), involves a 

two-part test: did the parent maintain regular visitation and contact with the child, and 

would the child benefit from continuing the relationship.

The Court of Appeal, Fourth Appellate District, Division One interpreted the 

beneficial relationship exception in In re Autumn H. (1994) 27 Cal.App.4th 567 to mean 

“the [parent/child] relationship [that] 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 
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new, adoptive parents. In other words, the court balances the strength and quality of the 

natural parent/child relationship in a tenuous placement against the security and the sense 

of belonging a new family would confer. If severing the natural parent/child relationship 

would deprive the child of a substantial, positive emotional attachment such that the child 

would be greatly harmed, the preference for adoption is overcome and the natural 

parent’s rights are not terminated.” (Id. at p. 575.)

When a juvenile court rejects a detriment claim and terminates parental rights, the 

appellate issue is whether the juvenile court abused its discretion in so doing. (In re 

Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The decision is not reviewed, as Frank 

argues, for substantial evidence that termination would be detrimental.

To conclude there was an abuse of discretion, the proof offered must be 

uncontradicted and unimpeached so that discretion could only be exercised in one way, 

compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota

(1944) 24 Cal.2d 563, 570–571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Based 

on our review of the record, we conclude the juvenile court properly exercised its 

discretion in rejecting Frank’s argument.

In this case, Frank failed to show he satisfied the first of the two-part test; that he 

maintained regular visitation with the children. According to the record, he missed over 

half of the visits (37 out of 71) from the time the children were detained until May 2013. 

Frank concedes but contends he subsequently maintained regular visitation, pointing to 

evidence he missed only three of 10 visits. The juvenile court, however, found Frank 

failed overall to maintain regular visitation and we concur.

Further, the juvenile court found no evidence that terminating Frank’s parental 

rights would be detrimental to the children. Though Frank and the children had a loving 

and affectionate relationship, they separated from him easily and willingly went with 

their adoptive mother, to whom they were attached. Having concluded the children 

would not be harmed by terminating Frank’s parental rights, the juvenile court properly 
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found the benefits of adoption outweighed the benefit to the children from continuing 

their relationship with him.

We find no abuse of discretion in the juvenile court’s failure to find the beneficial 

relationship exception applicable in this case and affirm its order terminating Frank’s 

parental rights.

DISPOSITION

The order terminating Frank’s parental rights is affirmed.