Filed 9/20/22 In re Ashley A. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ASHLEY A. et al., Persons

Coming Under the Juvenile Court 

Law.

 B319230

 (Los Angeles County

 Super. Ct. No.

 19CCJP04550A-B)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

EDWIN A.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County, Gabriela H. Shapiro, Juvenile Court 

Referee. Affirmed. 
2

Janette Freeman Cochran, under appointment by the Court 

of Appeal, for Defendant and Appellant. 

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, and Navid Nakhjavani, Principal 

Deputy County Counsel, for Plaintiff and Appellant.

______________________________

Edwin A., the presumed father of nine-year-old Ashley A.

and seven-year-old Aiden A., appeals the March 8, 2022 order

terminating his parental rights pursuant to Welfare and 

Institutions Code section 366.26,1contending the juvenile court 

erred in ruling he had failed to establish the beneficial parental 

relationship exception to termination (§ 366.26, subd. (c)(1)(B)(i)). 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Petition and Edwin’s Failed 

Reunification Efforts

The family originally came to the attention of the 

Los Angeles County Department of Children and Family Services 

when Edwin arrived at a police station displaying erratic and 

paranoid behaviors while caring for the children. He was placed 

on a 72-hour hold pursuant to section 5150. Investigation by the 

Department uncovered additional concerns as to Edwin’s mental 

health and his physical abuse of Ashley, as well as mental health 

issues and substance abuse by the children’s mother, Jamie M.

On October 4, 2019 the juvenile court sustained an 

amended dependency petition pursuant to section 300, 

subdivision (b)(1), based on allegations that Edwin and Jamie 

had mental and emotional issues making them incapable of 

1

Statutory references are to this code.
3

caring for the children and placing the children at substantial 

risk of serious physical harm and that, in addition, Jamie had a 

history of substance abuse, including cocaine, methamphetamine 

and marijuana, which created a detrimental home environment 

and endangered the children’s physical and emotional health. 

The court also sustained the amended petition pursuant to 

section 300, subdivisions (b)(1) and (j), based on an allegation 

that Edwin had inappropriately disciplined Ashley, including by 

striking her with a sandal, which placed both Ashley and Aiden 

at substantial risk of serious physical harm.

At the disposition hearing on November 20, 2019, the court 

declared Ashley and Aiden dependent children of the court and

removed them from parental custody, placing them with their 

paternal uncle, Roniel P. The court ordered family reunification 

services for Edwin, but not Jamie. Visitation for both parents 

was to be monitored. Edwin was permitted a minimum of one 

visit per week for two hours per visit; Jamie was allowed a 

minimum of one visit per week for one hour per visit. Edwin and 

Jamie could visit the children at the same time.

2

A combined six- and 12-month review hearing was held 

pursuant to section 366.21, subdivisions (e) and (f)), on 

2

At the November 20, 2019 disposition hearing the court 

found the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 

§ 1901 et seq.) applied to the case in response to notice from the 

Citizen Potawatomi Nation that Ashley and Aiden were enrolled 

members of the tribe, as was their mother. The tribe appeared in 

the proceedings to monitor the matter on behalf of the children. 
4

September 22, 2020.3 During this period Edwin missed 

approximately half of his scheduled visits with the children. The 

paternal uncle reported that Edwin did not notify him in advance 

if he intended to cancel a visit and did not provide explanations 

for missing visits. Ashley and Aiden both stated they liked living 

with the paternal uncle and his wife, Erika G., but missed 

visiting with their father. The court found Edwin was in 

substantial compliance with his case plan and ordered that 

reunification services continue. 

At the contested section 366.22 18-month review hearing on 

March 19, 2021, although the court found Edwin’s progress 

toward alleviating or mitigating the causes necessitating 

placement had been substantial, it also found he was not in 

compliance with the case plan and terminated reunification 

services. The court scheduled a selection and implementation 

hearing pursuant to section 366.26 for July 16, 2021. 

The status review report prepared by the Department 

indicated Edwin continued to miss visits with the children, 

although fewer than in the past, and stated Edwin “will make 

every effort to be more consistent in the future.” The paternal 

uncle and aunt, who monitored Edwin’s visits, reported Edwin 

had attended a majority of the scheduled visits during this review 

period, but added he needed prompting during the visits to meet 

his children’s needs. In addition, the paternal uncle reported 

Aiden displayed concerning behaviors after visits with the 

children and also when Edwin cancelled visits.

3

Jamie passed away on June 12, 2020. At the 

September 22, 2020 hearing the court ordered grief counseling for 

the children. 
5

A last minute information for the court filed by the 

Department just prior to the hearing reported that Ashley and 

Aiden said felt they safe under the care of the paternal uncle and 

aunt and, while they loved and cared for their father, they did not 

want to reunify with him. Ashley explained her desire to 

continue living with Roniel and Erika was based on her past 

experience when in Edwin’s care, which included living in cars 

and having little to eat. The social worker also reported, “Ashley 

and Aiden hoped that if they remain long-term with the [paternal 

aunt] and [paternal uncle] they hope to maintain a relationship 

[with] the father and see him during visits.” 

2. The Section 366.26 Selection and Implementation 

Hearing

In the Department’s initial report for the section 366.26 

hearing filed July 9, 2021, the social worker stated Ashley and 

Aiden had developed a strong attachment to their paternal uncle 

and aunt with whom they had been placed since August 2019 and 

“have started to view them as parental figures.” The report noted 

the uncle, aunt and children had recently moved and were now 

living with the paternal grandmother, which provided additional 

family connections. The children continued to visit with Edwin 

and “respond well toward the father and appear happy during 

their visitation.” Although Edwin still canceled a few of his 

scheduled visits, he now communicated with the paternal uncle 

and aunt prior to cancelling. The paternal uncle and aunt, who 

wished to adopt the children, indicated they hoped to maintain 

ties with Edwin so that he remained in the children’s lives
6

regardless of the outcome of the dependency proceedings.4The 

Department recommended the court terminate Edwin’s parental 

rights and place the children for adoption. 

The section 366.26 hearing was continued several times 

and was finally held on March 8, 2022. In its status review 

report for that hearing the Department stated the children had 

confirmed they wanted to remain with their paternal uncle and 

aunt but also to maintain a relationship with their father. The 

Department described Edwin’s visits, based on feedback from the 

paternal uncle and aunt as the approved monitors, as “slightly 

consistent” with a few cancellations. No issues during the visits 

were reported. The Department recommended adoption by the 

current relative caregivers as the permanent plan for the 

children, “as they have developed a strong foundation and 

routine. Ashley and Aiden have continuously shared their 

request to remain there long-term.” The Department also 

reported the children have a strong bond with the caregivers and 

“view[] them as parental figures, who[m] they approach for their 

needs.” 

Edwin did not appear at the hearing on March 8, 2022. His 

counsel stated she had no objection to notice but requested a 

continuance to allow Edwin to be present. The court found notice 

proper and denied the request for a continuance. 

The children’s counsel joined the Department’s 

recommendation to terminate parental rights, stating no 

exception to adoption applied. Edwin’s counsel objected to 

4

The uncle and aunt, however, advised the Department they 

did not wish to enter a post-adoption contract with Edwin 

regarding contact and visitation. 
7

termination based on the parental relationship exception. He 

argued, “Father has maintained consistent visitation with the 

children, and the children have voiced wanting to continue to see 

the father. There have been no negative or concerning feedbacks 

regarding the visits, and it would be in the best interest of the 

children to continue the relationship.” Counsel for the 

Department responded there was not sufficient evidence in the 

record to establish a bond under In re Caden C. (2021) 11 Cal.5th 

614 (Caden C.) such that the children would benefit more from 

continuing their relationship with their father than from the 

permanency provided them by adoption. 

After reviewing the three elements of the parental 

relationship exception as articulated by the Supreme Court in 

Caden C., the court ruled Edwin had failed to establish the 

exception applied in this case. The court first noted Edwin’s 

visitation might have been consistent, but it was only two to 

three times per month, not weekly. Edwin visited his children 

“not regularly enough,” the court found, that the relationship 

between Edwin and the children would be harmed if he was not 

their legal parent. Moreover, the court stated, while the 

interaction between the children and Edwin may be positive, the 

children had spent the majority of their lives with the paternal 

uncle and aunt, and there was no evidence in the record the 

children’s relationship with Edwin outweighed the benefit of the 

adoptive home, which would provide consistency and stability. In 

addition, the court explained, the children would not experience 

the loss of a significant emotional relationship with Edwin 

because the prospective adoptive parents were his brother and 

sister-in-law, who intended to continue the relationship. 
8

The court terminated Edwin’s parental rights and 

transferred care, custody and control of Ashley and Aiden for 

adopting planning and placement. The children’s current 

caregivers, Roniel and Erika, were designated prospective 

adoptive parents.5

Edwin filed a timely notice of appeal.

DISCUSSION

1. Governing Law and Standard of Review

The express purpose of a section 366.26 hearing is “to 

provide stable, permanent homes” for dependent children. 

(§ 366.26, subd. (b).) Once the court has decided to end parentchild reunification services, the legislative preference is for 

adoption. (§ 366.26, subd. (b)(1); In re S.B. (2009) 46 Cal.4th 529, 

532 [“[i]f adoption is likely, the court is required to terminate 

parental rights, unless specified circumstances compel a finding 

that termination would be detrimental to the child”].)

Section 366.26 requires the juvenile court to conduct a twopart inquiry at the selection and implementation hearing. First, 

it determines whether there is clear and convincing evidence the 

child is likely to be adopted within a reasonable time. (Caden C., 

supra, 11 Cal.5th at p. 630; Cynthia D. v. Superior Court (1993) 

5 Cal.4th 242, 249-250; In re J.W. (2018) 26 Cal.App.5th 263, 

266.) 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 

5

The qualified expert witness report submitted by the 

Citizen Potawatomi Nation stated adoption by the paternal uncle 

and aunt constituted an ICWA-compliant kinship placement. 
9

termination can demonstrate one of the enumerated statutory 

exceptions applies. (§ 366.26, subd. (c)(1)(A) & (B); see Caden C., 

at p. 630; In re B.D. (2021) 66 Cal.App.5th 1218, 1224-1225.)

One of the statutory exceptions to termination is set forth

in section 366.26, subdivision (c)(1)(B)(i), which permits the court 

to order a permanent plan other than adoption if “[t]he parents 

have maintained regular visitation and contact with the child 

and the child would benefit from continuing the relationship.” As 

the Supreme Court explained in Caden C., supra, 11 Cal.5th 614, 

the exception requires the parent to establish, by a

preponderance of the evidence, (1) the parent has maintained 

regular visitation and contact with the child, “taking into account 

the extent of visitation permitted”; (2) the child has a substantial, 

positive, emotional attachment to the parent such that the child 

would benefit from continuing the relationship; and 

(3) terminating the relationship “would be detrimental to the 

child even when balanced against the countervailing benefit of a 

new, adoptive home.” (Id. at p. 636; see id. at p. 630 [“[t]he 

language of this exception, along with its history and place in the 

larger dependency scheme, show that the exception applies in 

situations where a child cannot be in a parent’s custody but 

where severing the child’s relationship with the parent, even 

when balanced against the benefits of a new adoptive home, 

would be harmful for the child”].) 

When the benefits of a stable, adoptive, permanent home 

outweigh the harm the child would experience from the loss of a 

continued parent-child relationship, the court should order 

adoption. (Caden C., supra, 11 Cal.5th at p. 634.) However, “‘[i]f 

severing the natural parent/child relationship would deprive the 

child of a substantial, positive emotional attachment such that,’
10

even considering the benefits of a new adoptive home, 

termination would ‘harm[]’ the child, the court should not 

terminate parental rights.” (Id. at p. 633.)

We review the juvenile court’s findings as to whether the 

parent has maintained regular visitation and contact with the 

child and the existence of a beneficial parental relationship for 

substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-

640; cf. In re R.V. (2015) 61 Cal.4th 181, 200-201 [“[t]here is, 

however, no single formulation of the substantial evidence test 

for all its applications”; where a party fails to meet its burden on 

an issue in the juvenile court, “the inquiry on appeal is whether 

the weight and character of the evidence . . . was such that the 

juvenile court could not reasonably reject it”].) We review the 

third step—whether termination of parental rights would be 

detrimental to the child due to the child’s relationship with his or 

her parent—for abuse of discretion. (Caden C., at p. 640.)

2. The Juvenile Court Did Not Abuse Its Discretion in 

Concluding Edwin Failed To Establish the Parental 

Relationship Exception to Adoption

As discussed, it was Edwin’s burden to establish all three 

elements required for the parental relationship exception to 

apply in this case. He failed to do so.

a. Regular visitation and contact

Although the juvenile court observed that Edwin’s 

visitation had become relatively consistent by the time of the 

section 366.26 hearing, it had not been so for much of the 

dependency proceedings. For more than a year following the 

disposition hearing, Edwin missed nearly as many scheduled 

visits as he attended, and he generally provided no advance 

notice or after-the-fact explanation for failing to appear. Edwin 
11

conceded this lack of consistency and promised the social worker 

he would work on the problem. While slightly better in the 

subsequent months, the issue of missed visits continued through 

the section 366.22 hearing in March 2021. Thereafter (that is, 

once reunification services were terminated), Edwin participated 

in most of the planned visits. But the court’s evaluation of 

visitation for purposes of the parental relationship exception 

properly considers the entire time the children have been 

removed from parental custody, not simply the period 

immediately before the hearing at which termination of parental 

rights is at issue. (See In re C.F. (2011) 193 Cal.App.4th 549, 554 

[“Sara was more consistent with visitation as the section 366.26 

hearing neared, but we agree with the Agency’s assessment that 

overall her visitation was sporadic. Sporadic visitation is 

insufficient to satisfy the first prong of the parent-child 

relationship exception to adoption”]; see also In re J.C. (2014) 

226 Cal.App.4th 503, 531 [considering lapses in visitation that 

had occurred prior to the last six weeks of dependency as 

supporting the finding there was not regular visitation and 

contact].)

In addition, as the court noted, even when he stopped 

missing a significant number of scheduled visits, Edwin still saw 

the children only two or three times a month, not weekly. While 

Edwin is correct that weekly visitation, in the abstract, is not a 

requirement for the parental relationship exception to apply, the 

Caden C. Court instructed that, for purposes of proving this 

element of the exception, the parent’s visitation must be assessed 

“taking into account ‘the extent permitted by court orders.’” 

(Caden C., supra, 11 Cal.5th at p. 632.) Court orders in effect 

beginning in November 2019 allowed Edwin at least one visit per 
12

week. His decision to visit the children for no more than half of 

the time allowed by the court fully supported the court’s finding 

Edwin failed to prove the first required element.

b. Beneficial relationship

The second element of the parental relationship exception 

has two components: The child has a positive emotional 

attachment to the parent, and the child would benefit from 

continuing the relationship. (See Caden C., supra, 11 Cal.5th at 

p. 636.) Ashley’s and Aiden’s desire to continue to visit with 

Edwin, even though they did not want to reunite with him, 

indicated a positive relationship existed between the children and 

Edwin. But the record is devoid of evidence the children would 

actually benefit from continuing that relationship. (See 

Caden C., at p. 632 [whether “‘the child would benefit from 

continuing the relationship’” with his or her parent is shaped by 

factors “such as ‘[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 Katherine J. (2022) 75 Cal.App.5th 303, 

317.) Edwin did not appear at the section 366.26 hearing, and 

his counsel offered no evidence to support a finding the children 

actually benefited from occasional visits with their father, 

however pleasant they may have been. To the contrary, the 

paternal uncle reported Aiden displayed concerning behaviors 

after visits and also when Edwin cancelled visits. Roniel also 

reported Edwin had difficulties responding to the children’s 

emotional needs during their visits. 

c. Detriment from termination of the relationship

The final question is not simply how regularly and 

consistently Edwin visited the children or whether they enjoyed a 
13

positive, beneficial relationship with him, but whether the 

benefits of stability and permanence through adoption by the 

paternal uncle and aunt—with whom the children had been 

living for most of the past three years and felt safe—was 

outweighed by the harm that would be caused by severing the 

children’s relationship with Edwin. As the Supreme Court in 

Caden C. cautioned, the legislative preference—the “norm”—is 

for adoption; the parental relationship exception, like the other 

exceptions to termination of parental rights, applies only in 

“‘exceptional circumstances.’” (Caden C., supra, 11 Cal.5th at p. 

631; accord, In re Celine R. (2003) 31 Cal.4th 45, 53.) 

Here, the juvenile court, expressly applying the correct 

Caden C. analysis, concluded there was no evidence in the record 

that the children’s relationship with Edwin outweighed the 

benefits of consistency and stability in the adoptive home of their 

paternal uncle and aunt. Moreover, as the court explained, the 

prospective adoptive parents intended to allow the children to 

continue to visit with Edwin, so “the relationship will continue as 

it is. But they will at the same time benefit from an adoptive 

home where they have parents who are consistent in their lives 

and able to provide for them.” 

Edwin disputes the court’s determination, arguing a 

permanent plan of legal guardianship would better serve the 

children’s interests. He has not, however, demonstrated the 

court’s finding was arbitrary or irrational. To the contrary, in 

light of the minimal evidence that would support application of 

the parental relationship exception, that decision was well within 

the court’s discretion.
14

DISPOSITION

The juvenile court’s March 8, 2022 order terminating 

parental rights is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.