Filed 10/25/22 In re E.G. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publicati on or or dered published, except as specified by rule 8.1115(b) . This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION E IGH T

In re E

. G

. , a Person Coming Under the Juvenile Court Law

.

__________

_ _ __________________ LOS A NGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Pla intiff and Respondent
,

v.

KAREN M.,

Defendant and Appellant

. B 31 5855
(Los Angeles Co unt y S uper. Ct. No. 1 9 CCJP0 8012B )

APPEAL from a n order of the Superio r Co u rt of Los Angeles County, Craig S. Barnes , Judge

. Affirmed.

Konrad S. Lee , un der appointment by the Court of Appeal, for Defendant and Appellant

. Dawyn Harrison, Acting Coun ty Couns el, Kim Nemoy, Assistant County Counsel, and Timo thy M . O ’ Crowl ey , D ep u ty County Counsel, for Plaintiff and Respondent.

_________________________2 INTRO DUCTION

K aren M . ( Mother ) challenge s th e juvenile court’s order terminating her parental rights t o h er da ughter E. G

. She
contend s the court wrongly refused he r offe r of p ro of for a contested permanent plan ning hearing, fai led to read and
consider the re port and assessment provided for that hearing

, and did not conduct a correct beneficial parent

- chil d r elati onship analysis as set out in In re Caden C

. (2021) 11 Cal.5th 614 ( Caden C

. )

. She urge s us to reverse the order terminating parental rights and remand the matter for a new hearing under
Welfare and Institutions Code section 366.26

. 1 We affirm.

F ACT UAL A ND PR OCEDURAL BACKGROUND

Mother has three chil dren: A

. L., E.G
., an d L.G. E.G. a nd L.G. have the same father ; A.L. is their half

- sibling. W e discuss
A.L. and L.G. w hen relevant
, but o nly the orders involv ing E.G.

are at issue in this app eal.

I. Previous Dependency Proceedings

A.L. was born in 2006. In 200 8
, the Departm en t of Children and Family S ervices (D CFS ) substa nt iated allegations
that he was exposed to drug use and was living in unsafe conditions in an apartment w her e bl each, paint, scissors, a knife, and methamphetami nes were within his rea ch

. A .L. w as

rem ov ed fro m Mother ’ s custody for one month before bein g released back to her over DCFS ’ s objection

. Mother entered into

a voluntary family main ten ance contrac t and t he petition was
dismissed

.

1 U ndes i gnated statutory references are to the Welfare and Institutions Code.3 E.G. was born in Au g u st 2013. In J uly 2014, police found

m ethamp he t amine in the family ’ s home and a digital scale in
E.G. ’ s cr ib. E.G. ’ s father A

. G

. (Father) and Mother wer e a rres ted and prosecuted

. The famil y ent ere d into a nother volunta r y family maintenance contrac t in September 2014
, but in March
2015
, Mothe r test ed posit ive for metham phe tamine when L.G.

wa s born

. Mother admitted using drug s w hil e pregna n t

. The children were d etain e d , and D CFS filed sect ion 3 0 0 petition s in March 2015

. As to E.G., t he court sustained two alle gations under section 300, subdi vision ( b ) (1)

. First, the court

sust ain e d t he allegation that Mot her ’ s ong oing drug ab use interfered with h er ca re and supervision of E.G.

, and that F ather knew about her drug ab use but failed to protect E .G

. Se con d
, the

court found the parents had creat ed a d et riment al and

en d a nge ring ho me environment for E.G. in that drugs and drug paraphernali a were found i n the home and within he r reach , and that the home environment c reated by the parents threatened
her physical health and safety. Additional allegat ions w er e sust ai ned as to A.L. and L.G.
T he childr en were placed with E.G. a nd L.G. ’ s paternal grand pare nt s from March 2015 until they re unified with Mother
in Feb ruary 2018

. The court terminated juvenile court j urisdict ion in A pr i l 20 19 with a n order giv ing Mo th er leg al and phys ical custody of the children

. I I

. Commencement of Instant D ependency Proceedi ngs
O n Decem ber 11, 2019, DCFS received a report from a

person that four

- year

- old L.G

. appeared malnourishe d and ph ysi call y abused

. P o l i c e r espond ing to the re fe rral f ound she had visible marks and br uises

. L. G. told the poli ce Mother hit her and tied her up. S he said Mother tied her with t ape, caus i ng4

wounds to her le gs and arms

. L.G

. appeared “ in fear and frightened ” when sp eaking a b o u t Mother.
E.G.
, age si x, t old the p olice she had seen Mother hit L.G. and ti e h er up for hours

. A.L., age 13, confirmed to the police
that Mother tied L.G. up , but he was h es i tant and did not want to provide information. It seemed to t he polic e tha t A.L. “ was trying

to defend h is mom and would not articulate the events that took place. ”
The maternal aunt tol d the police that when the children visited h er that day, she noticed L.G. was t hin and fr ail and ate in a desperate manner , as though she had not been fed for days.
She “ d i d not associate well with her s iblings. ” When the

matern al aunt prepared to bathe L.G.
, she discovered ope n

w ound s on L.G. ’ s legs, contusions over her arms, back, legs, an d forehead, a nd a laceration on her wrist from being tied up

. L.G. ’ s bones protru d e d from her body as if she w ere not be ing fed. L.G. wa s taken to the hospital , where it was dis c overed s he
had multiple scabs and abrasio ns to her lower leg s ; one les ion appeared similar to a burn m ark. She had wounds on her left wri st and signi fic ant br ui sing o n the back of one ear. L.G. had a high fe ver and high heart rate ; she was de hydrated, extremely malnourished
, and anemi c ; a nd she was diagnosed as failing to
thrive

. While hospitalized, L.G. wa s observ ed to be “ in starvation mode, ” eating a lot a nd not k nowing when to s top

. She was diagnosed with “ refeeding syndrome
, ” a metabolic dis t urb ance that occurs whe n food is reins ti tut ed to people who have been

sta rved, severely malnourished, or me tabolica lly stressed due to severe illness

. L.G. wa s hi gh ly anxio us

. She was unk empt a nd dirt y

. Although init iall y e xcited about a s hower
, she cried throughout it and wo uld not expl ain why

.5 L.G. to ld ho spital staff Mother hit her with a belt
, t ied her

up with tape , and did no t f eed her

. When in terviewed by DC FS
, L.G. denied feeling safe at h ome and said she was scared of Mother. L.G. r eported Mother “ tape s both feet ” and her siblings
had seen it

. W h e n asked a bout her other m arks and b rui ses , L

. G. put her head do wn and refused to provide in formation. S he s ai d
Mot her made her feel “ sad. ” L.G. later told a nur se she was afraid of her parents , her brother, and her s ister.
L.G. did not speak during a forensic med ica l ex amination but nodded yes when asked if she had been taped at the wri sts

an d ank les. The exami ne r repo rted L.G. jumped w hen she was touched. She had injuries in different stages of healing o n

numer ous parts of he r body

. She probably had hair loss; there was a scar on her face; and s he had red a nd p urple marks on b oth sides of her ear. When a sked if Mothe r fed her, L.G. shoo k her
head no. Physical abuse was highly suspected. Multiple fa mil y me mbers an d Mother ’ s frien d t old DCFS
Mother disliked L.G. and singled he r ou t for harsh treatment. The m aternal au nt said Mother spoke harshly to L.G. and ca ll ed
h er “ a little b i tch ” who “ ea ts ev erything

. ” Mot her told E.G. and
L. G. ’ s pat ernal aunt she could have L.G. Accor ding to family members, A.L

. was Mother ’ s favorite
child

. Father was concerned that Mother lack ed patience with
E .G. and L.G. and pu nished t hem mo re than A .L. Mo ther spanke d E.G. and L.G. ’ s bottoms and legs and pulled thei r hair. DCFS learned from E. G. and L.G. ’ s pat ernal aunt that A.L. had told her Mother said L.G. was “ the worst kid and she deserves it
because she is a lways breakin g thin gs , figh tin g, a nd stealing food. ” Th e maternal aunt had heard A. L. tell L.G. she was eating

too muc h.6 The m ater nal aun t reported to DCFS that L.G. was required to ask to use the bathroom and sometimes urinated and
defecated on herself. If L .G. did not ask for fo od Mother woul d

not feed her. L.G. told the maternal aunt Moth er ta ped her feet together
, and E. G. confirmed it had happened. L.G. had told t he

mater nal aunt she did not want to go home with Mother.
D CFS interviewed A.L. and E.G.
, both of w hom said they felt sa fe li ving with M othe r , were fed r egularly, t ook regular showers, and sle pt well at ni ght. Both children were clea n and had no visible marks or bruises. A.L. den ied emo ti onal , physical, and sexual abuse, domestic violence, and exp osu r e to dru g s or al cohol

. He said L.G. was given meals throughout the day and loved to eat

. Both children at t ributed L. G. ’ s marks and bruises to
L.G. falling while we ari ng h er shoes on the wrong f eet ; A.L. called her “ clumsy

. ” E.G. als o said L.G. had m ar ks because she

p icked at scab s. A.L . said the dog hurt L.G. when it got on top o f her , but E.G. d eni ed th e dog got on top of L.G. DC FS conc luded
A.L . and E.G. lacked credi bility and expres sed concern that Mother ha d persuaded them to recant their prior sta tements. M othe r told DCFS she t reat ed her three children the sa me

w ay. Sh e denied a busing , p hysically dis cipli nin g, o r using dero gatory language to t hem

. S he denied tapin g any par t of
L.G. ’ s body a n d said L.G. had fallen and hurt her ankles when the dog pushed h er on the stairs

. The prior month, L.G

. had
bruised her back when she fell aga ins t a f en ce. Mother denied L.G. had bruises or marks other tha n t h ose o n her back, an kles, and right wrist. She said L.G. had birth marks and th at her s kin peel ed beca use she pic ked at it. Mother attributed L.G. ’ s thinness to a p ast case of pneumonia

. She reported L.G. ate a lot
and had e aten “ six r egular sliced p iz zas in one sitting. ”7 The children were detained , and DCFS f iled a dependency petition alleging th e c hild ren came wit hi n t he jurisdiction of the juv enil e court unde r section 300, subdivision s (a) ( serious physical harm ), (b) (1) ( failure to protec t ), (e) (severe physical

a buse of a child under age five); (j) ( abuse of s ibling )

. L.G. was initially placed w ith the mate rnal a unt, while E.G . an d A.L. were placed in foster ca re. D C FS spoke with A.L. and E.G. on Dec ember 15 , 2019. A.L. aga in attributed L.G. ’ s marks and bruises t o her f alling or being pushed by the do g

. He denied Mot her taped or tied L.G

. at th e an kles and claim ed L.G. was ly ing so she could return to her grandpare nts. A

. L. said Mo ther fed L.G. “ all the time ” and L.G. would sneak into the kitche n for more fo o d. E. G. also denied t hat
Mother ta ped or wrapped anything aro und L.G. ’ s feet, and s he

s aid Mother did no t hu rt L.G

. DCFS consid ere d A.L. and E.G. ’ s

s tatem ents not cre d ible.
T he court removed E.G. from her parents a t the dete ntion hearing in Dec ember 2019

. Mother was granted monitor ed visi tation with E.G. a minimum of three time s per wee k for two hour s p er visit.

I I I

. I nvestigati on and Report f or Initi al Jurisdictional Hearing
Date
The jurisdictional hear ing was set for February 2020. When DCFS interviewed A.L. be fore the hearing , he said L.G.
had b een s cratched on the ear whe n they w ere p la yi ng outsi d e

sev era l months earlier

. A.L. claimed h e w as with her when it happened, but he did not know if she fell o r was scratched by the dog

. A.L. bl a me d L. G. for her injuries . H e said L.G. failed to appreciate that their dog was “ hyper ” and she ra n ar ound wit h a
ba ll , pro mpting the dog to jump on her and s ome times scratch8

her. He stated
, “ ‘ Another bad habit of [ L.G. ’ s] is that she likes put tin g on her shoes backwards
, [] for her , that ’ s n ormal, that ’ s how she wal ks in the m. When she puts t h em on regu lar, she fall s down a lot, so s he is always trippin g and runs a round a lot. ’ ”
A.L. denied seeing L.G. tied or taped up , and when asked if L.G

. had ever told him that h appened, he said, “ ‘ I ne ver knew that

. S he never told me. ’ ” He den i ed any of th e ch ildren w ere ev er hit. A.L. sai d “ we ” wo uld feed L.G. a lot “ ‘ but it seems like she never got full. She just kept eating an d ea ting. She would never get ful l. Sometimes she would sneak food f rom the k i tchen, but we woul d feed her every da y. We nev er u nd erstoo d why she would

eat s o much. She always ate and she was always skinny. She would eat all the time, I would be th ere whe n she ate. We ate
three times a day, and sometimes s he would e at extra. ’ ” E.G. sai d Mother did not hit them and den ied ev er s eeing
L. G

. wit h her hands or legs taped or tied t oge ther. She also denied that L.G. had ever dis close d h avi n g been taped up

. E .G.
said the mar ks on L.G. ’ s body wer e fro m th e dog, who bit peop le and tackle d L.G. to the f lo or

. According to E.G., L.G. had once bee n hurt when the dog “ hit his paw on her leg
, ” but t hat was the

on ly time t he dog hurt L.G. by tackling her. E.G. said L.G. “ eats good ” a nd d id no t miss me als

— b ut if she did m iss any meals, “ it
was beca use she didn ’ t fee l like eating it. She e ats a lot. But, w e all eat the same amount like her , so we all ea t a lot. ”
D uring a January 2020 forensic assessment , L.G. said, “ My

mom m y didn ’ t fee d me nothing and I got these [indicating healed marks on the bottom of her left leg, above her ankle, and on h er left arm]
, my mom di d these

. . . it made me sad. ” L. G. also said that th e fa mily dog was big but not mean

. She repor ted that the9

dog had once p ushed her to the g round but she was not hurt. The dog ha d once s cratched he r ear, and it bled a lit tle

. L

. G. made discl o s ur es abou t Mother during a January 2020 examination

. L.G. sai d s he had be en tied up, kicked, p ut in a
closet
, threate ned with having her ha nd b ur ned on the stove, and placed in a cold da rk shower

. S he had slept in t he dog bed and in
th e ca r. L.G. had b oth healed marks and open wou nds that were hea ling

. L.G. said the marks on her ears were caused by tape. She pointed to her neck, indica ting Mother had put tape on and around her neck. She i d ent ifie d a num ber of healed wou nds that had been cau sed by t ap e. E .G. and L.G. ’ s paterna l grandm other
, w ith whom they had been p laced from 2015 to 2018, said Mother had allowed her to see the children only twic e after t hey reunified with Mo the r in
2018

. The first time the p aternal grandmothe r sa w t hem was

soon after reunification ; they looked u nhappy but p hysically fine

. T he second ti me she saw the children was when she went to Mo ther ’ s home to ask to see the childr en. Mother ref used , but E.G. spotted the paternal grandmothe r and cr ied , sa ying, “ W hy

c an ’ t I s ee my mom [meaning the paternal grandmother ] ? ”
Mother “ d idn ’ t care , she just closed the d oor. ” The paternal grandmothe r recalled Mo the r te lephon ing her
while incarcerat ed to announce she was pregnan t with L.G. Mother calle d it “ bad news, ” and she did not want the baby.
E.G. and L.G. ’ s paternal grand father said that when he saw the children for t he first time aft er they were re uni fied with Mother
, L.G. ate all the food he brought “ wit h n o cont rol. ” L.G.
had been thin ; E.G. looked “ okay. ” The seco nd time he saw the children, E. G . t old h i m A. L. hit L.G. with a belt
, a nd L.G. ha d
small marks on her ear t hat looked li ke lines.10 E.G. and L.G. ’ s paternal gran dfather s aid of the two children
, “ [T] hey need us. We raised them for thr ee years to the
da y the y walked away from us to go to the mom. This is their house. They w ere born h ere. [ L.G

. ] w as taken away from her
mom after she was born and brought h ere to us. They

. . . feel that this is their ho use. They as k for their stu ff and they ask to

come bac k home t o thei r to ys

. . . to their room. They call my w ife Mommy and I am Popp y . We were in th e a dopt ion stage with
them in 201 8. The kids were here for 3

- 1/2 years. ” E.G a nd L.G. wanted to live with their grand parents ; E.G. had said
, “ ‘ I want to tal k to the soc ia l wor ker, I want to go home. ’ ”
Father , who lived with his pa ren ts, told DCFS that E.G. and L.G. said they d id not want to be with Mot her and w anted to

come home with him because they fe l t safe with hi m. As of Februa ry 2020, Mother had no t vi s it ed th e chil dren.
E.G. told the s oci al w orker
, “ We don ’ t see [ M ] ommy. ” A. L

. had no contact wi th M oth er. Mother had telephone d L.G. once but then stopped calling. DCFS recommen ded the juvenile court take jurisdiction over the children , remove them from th eir p ar ents , deny Mother
reunification service s, and allow Mother monitore d visita tion with A. L. and E.G

. DCFS recommended monitored visitation for
Mother with L. G. when deemed appropriate by L.G. ’ s therapist.

I V

. Amended Dependen c y P etit ions and Furth e r Pre

A djudic ation Reports
In February 2020, DC FS fi led a fi rst amended petition add ing the a llegation that the children c ame within the juris diction of th e juvenil e court pursuant to section 300, sub division (i) (cruelty ) based on Mother ’ s fa il ure to fee d L.G

. I n A pri l 2021 , DCFS filed a second amend ed petit ion in which it11

rephrased one of the failure to pro tect allegations
, the cruelty allegation , an d one of the abuse of sibling allegations to more thoroughly describe Mother ’ s abu se o f L.G. T he ch ildren wer e
ag ain de tai ned
, and t he jurisdictional hear ing was set for August 24, 2020

. A

. July 2020 Report

L.G. and E.G. were placed with their pat ern al grandpare nts in M arch 2020

. Mot her was arrested in May 2020 and charged with tortu re and willful child en da nger me nt

. DCF S filed a supplemental report in July 2020 advisin g the court Father had ask ed to terminate the reunification proces s so his
mother could adopt E. G . and L. G. The paternal gran d parents

w e re willing to adopt E.G. and L. G. The report did not d ocum ent

any vi s itation by Mother

. DCFS continued to recommend no reunification services for M other , monito red visitati on fo r Mother
wi th A

. L. and E.G., and monitored visitation for Mother with L.G. when de eme d app ropriate by L.G. ’ s therapist.

B

. August 20 20 L ast Min ute Information

In late Au gust 2020, DCFS ad vised the ju venile cour t that A.L. ’ s careg iver wa s willing to mo nito r Mother ’ s calls to A.L. and
that Mother contac ted A.L. twice per w eek. DCFS reported E.G. and L.G. ’ s pater nal grandpare nts had agre ed t o monit or tel ep ho nic visits between Mother and E.G

. T he repor t did not state if Mother wa s c onta cting L.G., or if so, how f requently.

C

. S ep tember 2020 R eport

The jurisdictional hearin g was continued , and in
Se pte mber 2020 DCFS submitted a sup plementa l re port de scr ibing its interview of Mot her

. Mother told DCF S
, “ I ’ m not12

guilty. I do not starve my kids and I did not t orture he r. ” She said she spanked L.G. on the bottom with an open hand but did

not leav e bruises or m arks. Mother denied taping L.G. ’ s le gs, han ds, or feet together , and she sai d sh e did n ot know why L.G.
would believe she had been bound with tape. Mother claimed not

to remem ber any injury to L.G. ’ s ear a nd said the marks on her legs and wri sts happened when the dog caused her to fall on t he stai rs

. She a ttr ibut ed the bru ises on L.G. ’ s back to L.G. falling

on to a bent fenc e on the side of the house

. Moth er had not taken L.G. t o the doctor because she did not b eli eve her injuries were seri ou s. Instead, M other clean ed them and appl ied a dhe sive
ba nda ges , but L.G. remove d them a nd peel ed her scab s. Mother s aid L.G. did not consider Mother to be her mother
, probably because s he h ad been removed f rom Mother ’ s custody at birth

. When they reuni fied

, L.G.
, t hen age three, to ld M other she
did not want to be with her. Mothe r said L.G. “ didn ’ t want to have nothing to do wit h me ” and liked “ being with anyone but

me

. ” L.G. cr ied and thr e w tantrums when she could not see her grandmo ther

. Mother s ai d L. G. had always eate n quic kly

. She fed L. G.
thr ee t i m es pe r d ay, w ith two snacks. Mother said, “ She would wake up in the m i d dle of the n ig ht and eat. She ate a lot. May be
I should have taken her to the doctor becaus e she did ha ve an

o bsession with food. The w ay she ate it. She was al ways eati n g , l ike it w a s goi ng to run away from her plate. But I never thought

no t hing of it because s he was always skinny. ” Mother said E.G.

was not a b ig eater and g a ve L.G. her le fto ver s. The report did not m ention Mothe r visiting or cont a cting the chi ldren

. DCFS cont inued t o r ecommend Mother be denied
reunification ser vices
, allowed monitored visitation with A .L. and13

E. G. , and g iven monitored visitation wit h L .G. when L.G. ’ s t herapist deem ed it appropria te.

V

. J ur isdictional Hearings
The jurisdictional hearing beg an S e ptembe r 2 4, 2020

. That day, the co urt direc ted DCFS to fa cilitate tele phonic contact for Mother with E.G. and to provid e M othe r with a written
tel ep honic visitation schedule

. The hearing w as then continu ed

to November 2020.
I n l a t e O c t o b e r 2 0 2 0
, D CF S s u bmitted a proposed visitation

s chedule to the court that would have allow ed Mother two weekly

t e lep h on ic visits with E.G

. monitored b y E .G

. ’ s paternal grand mothe r

. DC FS , however, recommended Mother not be allowed to contact the children because the co urt in M oth er ’ s cri minal case had issued a prote ctive order barring her from personal, el ectr onic, telephonic, or written cont act with the
children until in May 2023

. The hearing w as continued to December 2020 and the n to Feb ruary 2021

. In the cou rt ’ s Dec embe r 7, 20 20 order, the court ordered DCFS to prov ide Mot her w ith a written s chedule for

te lephonic contac t with E.G. that includin g holiday contact
, subject to the protective order

. In early April 2021, a fter another continuance, DCFS
submitte d a last m i nute inform a ti on advising the court th at Moth er claimed the careg ivers were not regularly ma king E.G.
avai lable for tel ephonic visits. E.G. ’ s pater nal gran dmother denied Mother ’ s claim. Mother
, who was in custody, provided a

t elephone l o g fr om Janua ry 20 21 t o early Ma rch 2 021 tha t indicated she had s poken with E.G. four times in that period

. On

sev e n occas ions, Mother had been unable to call. On eight da tes, th e phone for E. G. was not answer ed. On six other dates, Mother14

noted she did not sp eak with E. G., but she pr ovided no explanatio n wh y

. DCFS submitted a March 2021 written
schedule that stat ed Mother was p ermitted to phone E.G. twic e per week. As of May 2021, Mother reported she “ cont inue s to experienc e i ssu es c oncerning telephone contact with [ E.G

. ] d ue to h er fluctuating inmate sche dule con flic t ing with th e written visitation sc h edule

. . . . The mother did state[,] however, that
sh e has been able to maintain telephone c onta ct w ith ” A.L.
E .G. ’ s car egi vers state d they were willing to be flexible and adjust the written visitat ion sc hedul e to accom mo date Mother ’ s changing schedule.
In May 202 1
, t he juvenile court am ended the second amended complaint by inter lineation to (1) elimina te all

a ll ega tion s against F ather and (2) remove A.L and E.G. fro m th e alleg ati o ns of cruel ty and s e vere phy sical abuse of a child under the age of five ( § 300, subd s

. (e) a nd (i) ) , leavi ng those allegations in place only as to L.G. The court the n fo und true as to all three children the allegatio ns that Mother engaged in p hysical ab u se, failure to pr otect, and abuse of a sibling ( § 300, subd s

. (a), (b)(1),
& (j))

. Additiona l ly, for L.G. , t he court su sta ined the alleg ations of cruelty and se ve re phy sical abuse of a child under the age of
five ( § 300, subd s

. (e) & (i).) The court dec l are d the chil d ren depende nt s and set a dispositional hearing for June 10 , 2021

. V I

. D isp ositional Hearing

On June 10, 2 021, a t t he dispositional hearing , c ounsel fo r each c hild joined in DCFS ’ s recom mendation that Mother be
denied reunification services

. M ot her argued for reunification services with all th e chi ldre n, but especially with A. L

. and E.G.,
whom s he asserted were treated well an d ha d “ a close, posi tive15

relationship ” with her

. Mother contended she had “ tried to

m aintain a healthy rela t ionship ” with A.L. and E.G. a nd argued
it wou ld be d etrimental to Mother to bypass reunification services.
E.G. ’ s counsel stro ngly opposed reunification services for Mother, noting that E .G. had witness ed M other ’ s torture of L.G.
and had tried to feed L.G

. when she was t ied u p fo r h ours at a time

. It was E.G. ’ s position that “ there would b e absolu tely no
bene fit to ” her from reunification services

. E.G. ’ s counsel

a cknow led ged M other was tryin g to keep up a relationship with E.G. by p hone
, but “ e ver y time Mother call s from jail

, [ E.G. ]
doesn ’ t want to p ick up t he phone. S he doesn ’ t want to speak to [M other ]

. ” E.G. w as “ read y to move o n

. ” A.L. also did not want
reunification service s. Th e c ourt observed t hat while L.G. was the chi ld who had
been torture d
, A.L. and E.G . were p erci pi ent witnesses who had tried to intercede to protect her
, wi th l imited success. They were put in the middle be tween the s ibling they tried to s a ve and the mother with whom they had “ some degree of connection. ” The

c ourt said, “ [ T] hat connect ion b ecame large ly frayed because they
were drawn into this and, in fact, quit e conflicted

, ” and noted that A.L. and E.G. had
, at different ti mes , bot h covere d for
Mother and ad mitted what she had done

. The cour t g ave w eight

to the children ’ s desire to mo ve on with their live s without trying to reunify with Mother

, not ing that A

. L. was 15 years old and that E.G.
, “ although y oun ger, appears to have suffered through the rav ages of what [ L.G. ] had experience d. ”
The court concluded DCFS had “ more than adequate ly set forth by clear an d convi ncing evide n ce the req uisite element s ” for bypa ssing r e unification se rvi ces

. Mother was denied16

reunifi catio n serv ices w ith E.G. and A .L. purs uant to section
36 1.5, subdivision (b)(6) , which provides that reunif i cation
servic es may be denied when th e child i s dec lared a dependen t as a result of “ the inflict ion of severe physical harm to the child, a sibling, or a half sibling by a parent

. . . , and the court makes a factual finding that it would not benefit the c hil d to pursu e reunifica tion s ervices with the offen ding parent

. ” Mother was d eni ed r eunification services with L.G. purs uant to section 361.5, subdivision (b)( 5) , whic h allows for bypass of re unification services t o a parent when a child wa s brought wit h in the j urisd iction of the court under subdivision (e) of s ection 300
because o f t he c onduct of that parent

. A.L. wanted to maintain a relatio nship wi th Mother, so his counsel agreed w ith the case plan allowing monitored visits at Mother ’ s p lace of incar c erati o n. E.G. ’ s counsel oppo se d visit ation
with Mot h er , and particularly object ed that in

- person visit ation

w ould be “ extremely de trimenta l ” to E.G. Counsel said, “ The
focus now sh ould be on what the permanent plan for [E.G.] should be. [¶] Additionally , You r Honor, the phone calls ha ve b een sporadic at best. At this point, as the c ourt did point out,
she was a percipi ent witness a nd she is tryi ng to get over all of this. And the cont inued relationship with Mother by phone calls
or visits or in

- person visit s is just going to hold bac k [E .G. from] going forward without some t ype of join t counseling or (ina udi ble )
in a t herapeutic se tting [ ,] wh ich is impossible at this point. Mother asked for at le ast monitor ed phone calls with E.G., reminding the court t hat she had re ported having “ a phone
conversation with [E.G.] las t time

. ” Mother argued that completely precluding in

- per son visit s for E .G. would be
detrimental bec ause E.G. was still a child and some times did17

want to talk with Mother

. Sh e argued E.G

. m ight later wan t to resume in

- person visits and asked f or a written schedule o f in

person visits so that she could visit in person if she c hose

. The court orally ordered Mother would have “visits [with
E. G.] in a therapeutic setting in person if recommen d ed by the therap ist consist ent with the facility ’s protocol as well as virtual
vi sits if recommended by the therapist in a therapeutic setting, the Department to help facilitate the visitation schedule

con sis tent with the facility ’s protocol. ” T his order wa s record ed
i n the mi nute order as an ord er o f monitored visitation in a therapeutic sett ing. The permanency planning hearing for E. G. and L.G. was set for October 6, 2021.

V I I

. Tra vel Orders

In S e ptember 2021 the court au thorized E.G. and L.G. to
trav el in ternation all y wit h their paternal grandmother f or one month (September 21, 2021 through October 21, 2021)

. DCFS
advised the court the chi ldr en w ould ha ve telephone contact with the ir paren ts once or twice pe r week while they wer e away

. V I I I

. P ermanency Pl anning H earing Report

DCFS submitted a report to the co urt con tainin g a
permanency planning assessment for ei ght

- y e a r

- o l d E. G

. a nd s i x

y ear

- old L.G. DCFS adv ised the court that Mother “ mainta in s
regu lar monito red telephon e contac t with [E.G.] from her p la ce of
inca r cer ation. ” All vi sit s had been by telephone

. The report did not provide i nfo rmat ion abou t the frequency or quality of the telephonic visits, or the nature of the rel a tionshi p between
Moth er and E.G

. . Similarly, E.G. ’s concurr ent p lanning

a s se ssment stated Mother did not ha ve in

- person v is i ts with her

.18

A lt hough the form asked for th e number of contacts or visits with Mother o ver th e prior six months , th e box wa s left bla nk

. DCFS re commended a permanent p lan of termin ation of parent al rights an d adoption for E.G. a nd L.G

. A dopti on was

“ highly likely ” because the paternal grandparent s were

“ extremely mo tivated ” to adopt
, and they had complet e d all adoption assessments

. T he grandparents love d the children and the children were very fond o f th e m. I n Aug ust 20 2 1 E.G. and
L.G. told the soc ial worker they were very happy with their grandp arents a nd wanted to liv e with them “forever. ” They called their grandmo ther “Mami ” and their grand father “Papi. ”
The children wer e observed t o h ave a “healthy

, p o sitive attach me nt ” to their grandpare nts and to be comfortable in their

care.
V I X

. P ermanency Planning Hearing

Th e per manency planning hearing for E.G. and L.G. pursuant took place o n Octo ber 6, 20 21

. Mother wa s b roug ht to
court from h er place of inca r ce ration

. Sh e c on f erre d with counsel and then elected not to be present fo r the hearing

. Mother ’ s counsel waived her appearance

. At the start of the hearing, t he cour t stated it had con fer red with coun sel before calling the case an d M othe r ’ s counsel h ad

re que sted a cont ested hearing on the bene ficial p arental relationsh ip exce ption to the t ermination of parental rights. Father declined to join Mot h er ’ s req uest for a contested hearing

, and h e submitted on DCFS ’ s r eco mmendation. “ And the Dep artm e nt ’ s re comm endation is t o terminate parental rights for
M other and Fa ther
, ” sa id the court.19 The attor neys fo r E .G., L.G. , and DC FS all requested an offer of proof before a co nte s ted heari ng was s et

. C ounsel for
DCFS reminded the court of the sustained al l e gations of severe phy s ic al a buse and cruelty an d the protective order barring
Mother fr om cont act ing L.G

. She sa id E.G. “ has had minimal telephonic co n tact with [ Mother ] at Mother ’ s p lace of
incarce ration. ” C ounsel argued “ visitation is a maj or compone n t for the [ beneficial par ental relat ionship ] exception

. Mo ther has not had any visits with her children

. ” Ap pare nt ly r efe rring to the u nre port ed conference between the court and co unsel before the case wa s called, counsel for
DCFS noted that Mothe r ’ s cou n sel had rai sed the “ issue th at the

re por t di d not add ress the [ beneficial parental relat ionshi p ] exception. I would ar gue it ’ s Mother ’ s burden to show th at that exception ap plies , an d the Department would n ot be able to have any facts to put in the repor t because Mo ther has not h ad any

conta ct with either child. So I don ’ t see why we would put th is
over for an other rep or t when the Department does not have any in formation to indicate that there is a bond. ”
T he court asked M other ’ s counsel for an o ffer of p roof

. Moth er ’ s counsel d id not make an offer of proof w ith respect to L.G.
, st ati ng that Mother objected to the termination of p arental

r i ghts but under stood why the co urt would proceed. Mother ’ s

co u nsel continued
, “ Regarding [E.G.], I w oul d ju st ask fo r a suppleme ntal report to at least give or provide de tails o r to interview the monitors of the monitored visitation that Moth e r is having with [E.G.]. ” Mo ther ’ s counsel noted the perm anency planning report merely stated M oth er a nd E.G. had monitored tele p hone contac t but inclu ded no deta ils about th e c ontact

. Counsel o bserv ed tha t i n “ any other report that t he court is given20

there are always de tai ls regarding how th ose visi ts are occur ring. So we would j ust ask to proceed on that, Your Honor. I don ’ t k n ow if I hav e any ad dition al off er of proof. ” The court said its tentative decision was to deny the request for a contested hearing because Mother ’ s offer of p roof was insuffici ent

. I t asked E.G. ’ s attorney to respond to Moth er ’ s contentio n she mainta ined “ suf ficient conta ct that it would be enough for Mother to be able to present [ the beneficial parental relationship exception ]

. ” E.G. ’ s co unsel submitt ed on t he t entative but noted that Mother ’ s visitat ion with E.G. was s upposed to b e therapeutic and
that h ad not occu rred ; there ha d only bee n “ sporadic phone calls

. ” The c ourt den ied the request for a conteste d hear ing
, exp lain ing
, “ I d on ’ t think tha t Mother has set forth t h e requisite sh owing fo r [ the bene ficial par en tal relationship ] exception to appl y. A n d, if I add ress it based on the information today, t he finding would be that she has not main tained re gular visitation.
There ar e, i n f

act, impediments to that based on the previo us

o rders limi t ing Moth er ’ s contact with the minors which gave rise

. . . f

r om the sust ained petition that include d [counts under section 300, subdivision s (e) and (i) ]

. ” The cou rt continued
, “ T he

c ou rt finds that Mother has not maintained vi sits or establishe d
a sufficien t bond under the [bene ficial parental relationship]

excep t ion and any benefit from there would be far outweigh ed by
the benefits of permanence and stability thro ugh ad opt ion. ” The court terminated parental r i ghts to E.G. and L .G. M other ’ s counsel asked the court to note her objection to the ruling.
Mother app e als.21 DISCUS SION

I. Failur e to Describ e on the R ecord the Evi den ce C onsidered

At the permanency planning hearing, t he court is require d to revi ew the report prepared for t he heari ng, indica te it has read
and consider ed it, and receive other evidence that t h e parties

m ay present bef

ore making i ts findings and orders. ( § 36 6.26, subd. (b).) Here, a t the hearing, the co urt e rred by fail in g to decl are i t had received , read, and considered th e report , in
violation of section 366.26, su bdivision (b)

. 2 Mother ac k nowledges t he order termi nating pare n t al rights

may only b e r ever sed if it i s reasonably probable that a result

more favor able t o her would hav e been reached i n the absence of th is error. (

Peopl e v. Watson (1956) 46 Cal.2d 818, 836.) Mother argues the e r ror was n ot harmless

. On the premise that th e

c our t ’ s failure to make a re cord that it had read and co nsidered
the report mean s t he court di d not read and consider it, s he

ar gue s reversal is required beca use without the court f ormally receiving evid ence, and withou t the cour t sta ting that it read an d

c onsi dered the re port, no s ubst antial evidence supp orts the

cour t ’ s ruling and i t c a n not be d etermin ed upon what facts the
court b a sed i ts order

. I f Mother had been concerned about noncompliance with
section 3 66.26, subd ivision (b) , s he co uld hav e and should have raised the issue at the hearing , at which tim e th e court cou ld

2 Th e minute order from th e hearing stat es that the court

“ has read, consi dered, and a dmits into evidence the socia l worker ’s report dated 9/16/ 2021 and any other information reviewed including the ad option as sessment , ” but the court did not make this statemen t during t he hearing

.22

easily have reme died th e probl e m she now raises on appeal

. “ [ A] reviewing court ordinarily will not con sider a challenge to a

r uling if a n objection could have be en bu t w as n ot made in the trial court. [Citation.] The purpose of this ru le is to enc our age parties to bring errors to the attention of the tria l court, so that they may be corrected. ” ( In re S. B . (2004) 32 Cal.4th 1287, 1293
, f ootnote omi tted
, supersed ed by st atut e on other grounds as stated i n In re S.J . (2008) 167 Cal.App.4 th 953, 962

. ) Mother forfeited this issue by failing to object on t his ground in the juvenile court. In any event, w e are not persuaded reversal is requir e d

. T he rec ord from the h ear ing sh o ws al l parties and the court were

a ware of th e report , its conten ts, and th e fact that the report was being considered by the j uvenile court at the hearing. At th e start of the hearing, F ather advised the court he did n o t seek a

co ntested hearin g a nd woul d submit on DCFS ’ s recommendation

. The court responded by stating DCFS ’ s recommendation , which
had been contained in its r eport

. T he court ’ s statement i ndicat es its fa miliarity with th e report an d its con ten ts

. During the hearing
, counsel for Mother sought a supp lemental report, and

c ounse l for DCFS argued there was no additional information to put in a nother report

. T o decide whether to order a supplemental report and to rule on the req u est for a con tested hearing, t h e court nec essarily had t o review the report in question. L ater in
the heari ng, the c ourt referred to “ the in formation today, ” and si n ce no additional evidence was presente d at th e hearing, we
understand t h e co urt to ha ve been referring to the informatio n in the rep ort prepared f

or th e hearing. G iven t h at the court and the parties clea rly were familiar with , discuss ed
, and rel ied upo n the

repor t , we reject Mother ’ s argument that the court did not23

properl y r ead and c onsider it . W e conclude i t is not rea s o nably proba ble t hat a res ult m ore favorable to Mother would have be en

re ached if the co urt had fulfilled its obliga tion to state on the record at the hearing that it had read and considere d it

. I I

. Failur e t o Se t a Contest ed Hearing

Mother asked for a c o n t est ed perma nency planning
hear ing

. “[A] parent has a right to ‘due process’ at the hearing under section 366.26 wh ich results in the ac tual termination of parental rights.” (

In re Jeanette V

. (199 8) 68 Cal .App .4th 811,
816 .) However, “ d ue proc e ss doe s n ot require a court to hol d a contested hearing if it is not convinced the pare nt will present
relevant eviden ce on the issue he or she seek s to contest. ” ( In re Tamika T

. (2002) 97 C al .App. 4th 1114, 112 2 ( T amika T

.) .) The court may request an offe r of pro of to i dent ify contested issues so it can “determine whether a pa rent ’ s r epresentation is
sufficient to warrant a hear ing involving pres entation of evidence and confrontation and cross

- examination o f w itne sses.” ( Tamika
T

. , supra , 97 C al .App. 4th a t p. 112 2 .) “The o ffer o f proof must be specific, setting forth the actual evidence to be produced, not

mere ly the facts or issues to be add ressed and argued.” ( Id . at

p. 1124.) “ The offer of proof must con sist of ‘ “ testimony, writin gs, mat er ial o bject s, or ot her things presen ted to t he senses. ” ’ [ C itation.] It may not cons ist of simply ‘ th e substance of f acts to be proved

. . . , since facts do not constitute evidence

. ’ [ C itation.]
The material in t he offe r of proof must be admissible, a nd it

‘ “ mu s t be s

pecific in its indi cation of the purpose of the testimony, th e name of the witness, and the content of the answer to be elicited. ” ’ ” ( In re A.G. (2020) 58 Cal.App.5th 973,
1006

– 1007

. ) The court ’ s ru lin g whether to grant a c ontested hearing is r ev iewed for ab use o f discretion. ( I d

. at p. 1003. )24 When the cour t r equested an o ffer of proof , Mother ’ s

co un sel said, “ Regarding [E.G.], I would just ask for a supplemental report to at least give or provid e d eta ils o r to interview the monitors of the mon it ored v isitation t hat Moth er is having with [E. G.]. ” Mo ther ’ s counsel noted the perma nency planning report merely stated M other and E.G. had monitored telephone co ntact and it included no de t a il s about that contact. Counsel o bserv ed i n reports “ there are always details re gar ding
how th ose visi ts are occur ring. So we would just ask to proceed on that, Your Honor. I don ’ t know if I have any addit ional offer of proof. ” Mo ther ’s offer o f pr oof was simply a request for a
continuance so t hat an ad ditional rep ort co uld be prep ared, without a ny represent ation of what that additional r eport would

prov e. She did not identify a ny wi tness es, an y actual evidence to b e pro duced
, or any facts t hat woul d be elicited at a contested hearing. Mother d id n ot assert that s he had an y eviden ce to support the existence of an exception to adoption
, nor did she
clai m a supplemental report wou ld have co ntaine d facts support ing th e b ene ficial parental relationship ex ception

. Under these circumstances, we cann ot say the court ab us ed its
discretio n in denying Mo ther ’ s reques t for a c ontested hearing.

I I I

. Permanency Planning Hearing

“ A finding under subdi vision (b )

. . . of Section 361 .5 that reunification services sha ll not be offered

. . . shall constitute a

s ufficient basis for t er mina tion of par ental rights. ” ( § 366.26
, subd. ( c) (1)

. ) At a se ction 366.26 permanency planning hearing
, the court determin es by clear and c onvincing e vid enc e whether the child is likely t o b e adopted. If the court so finds, the co urt is statutorily r eq u ire d to termin ate parental r ights unles s t here is a compelling reason to find that termination of parent al rights25

would be d etrimental under one of the six ex ceptions enumerated in section 366 .26, subdivision (c)(1)( B). ( In re Mary G. ( 2007)
151 Cal.Ap p. 4 th 184, 206

– 20 7). One of th e excep tio ns is the beneficial parental relationship excep tion in section 366.26
, subdivisio n (c)(1)(B)(i), which ap plies wh e n a p are nt has maintained regular vi sitation and contact, has established a posi tive emotional bond with t he chil d, a nd the child w ould benef it from c onti nuing the relationship to such a degree that th e child wou ld be great ly harmed by terminatio n. ( In r e S .B

. (2 008) 164 Cal.App.4th 289, 29 7.) Three elements must be satisfied to est ablish the beneficial

paren tal re la tio nship exceptio n: 1) re gular visitat ion and contact, taking into account the extent of vis itation permit t ed; 2) a substantial, positive , e mot ion al attachm ent to the parent

— th e kind of attachment implying that the child would benefit from

co ntinui ng the rela t ionship; and 3) a sho wing that ter min ating the attachment would be detrimental to the ch ild even when
b alanced against the countervai lin g b ene fit of a n ew, adoptive home. ( Cade C.

, supr a , 11 Cal.5th at p. 636 .) When the parent has met that b urden, the par ental

- benef it excepti on applies suc h
tha t it would not be in the best inte res t of the child to terminate parental rights. In th at case the co u rt must select a permanent pla n o the r t han adopti on. ( Id. at pp. 636

– 637.) The parent has the burd en to show the sta tutory exception applies. (

In re Derek W

. (1999) 73 Cal.App.4th 82 3, 826

. ) When a parent has presented evidence to support his or her claim that

t he exc eption applies
, we re view th e ju venile court’s findings using a hybrid a pproa ch : f or the first two el ements , which require factual f indings (parental vis itation and the child’s emotional

att achment), we apply the s ubstantial e vidence standard of26

revi ew ; an d for the court ’ s weig hing of the relative harms and benefits of termin ating parenta l rights, w e use the abus e of
discretion standar d. ( Cad en C.

, sup ra , 11 Cal.5th at pp. 639

– 641.) Howe ver, when a party with the burden of proof did not carry that b urd en , “ the question for a review ing court becomes whether the evidence compe ls a finding in favor o f the a ppellant
as a matter of law. [ Citation s.] Sp ecifically, the question becomes whether the appellant ’ s evidence w as (1) ‘ uncontradicted and unimpeach ed ’ an d (2) ‘ of such a character and weight as to leave no room for a judicia l determinati on that it was in sufficie nt to support a finding

. ’ ” ( In re I.W

. (2009) 180 Cal.App.4th 1517, 1528, disapproved of on other grounds by Conservatorship of O.B

. (2020) 9 Cal .5th 989, 1010, fn. 7.)
Whe n deciding whether to set a contested hea rin g, the juveni le cour t i n dicated it s te ntati ve intent to den y Mo ther ’ s request because the court did not b elieve she had made a

“ suffici ent showing that the contact [between Mother an d E .G. ] is of the nature and q uality that would support ” th e pare ntal
bene fit exception

. Ultimat e ly, the court ruled Mo ther ha d not set forth “ t he re quisite showing for [the parental benefit ] exception to apply. ” 3 The co urt was correct in concludi ng Mother ha d failed to

3 I mmedia tely after rul ing that Mother ha d n ot made a sufficient s ho wing that the beneficial relationship exception applied
, the court
, while makin g the findings prel i minary to the termination of parental rights
, also said Mother had not maintained visits or estab lishe d a su fficient bond for the par en t al bene fit ex ception and that any benefit con ferred by E .G. ’s

re lationship with Mother would be far outwei ghed by the be nefits of adoption. This ra ises the question whether to interpret the court ’ s ruling th at the excepti on was not app li c abl e as a determi nation that M other had not car ried her burden of proof or27

meet her burden to p rove the except ion appli ed
, because when Mother wa s given th e o p portunity t o describe the evidence she would present at a contested hea ring to establish the applicability of the e xce pti on , s he was unable to do so

. “ A prop er offer of proof gives the trial court a n oppo rtunity to determine if, in fact, the re really i s a contested issue of fact. ” ( Tamika T

. ,

s upra , 97 Cal.App.4 th at p. 112 4.) Here, as we have concluded above
, Mothe r h ad failed to demonstrate that there really was

any contested issue of fact with respect to the beneficial parental

r elations hip except i on

. Because th e court con cluded Mother failed to carry her
burden of provi ng the exception applied, we determine on ap pea l

w h ether the evidence comp els a finding in her favor as a matter of law. ( In re I.W

. , supra , 180 Cal.App.4th at p. 1528 .) Mother ha s f ailed to sho w that the evidence below, taken as a whole, compelled a fin ding in her favor.

as the resul t of substant ive factual findings and a weigh ing of the relative harms and benefits of terminating parental rights

. While we ackno wledge the ambiguity, we underst and t he ruling to be ba sed on Mother ’ s fail ure to carry her bu rden of proof b ecause of its co nt ext : t he court had just afford ed Mother th e opportunity to make a showing of the specific info r mation she b elieved wou ld prov e th e excep tion ; Mother d id not do s o ; a nd as a result, the court expressly stated she had not made a showing suff icient to warr ant a n evidentiary hearing

. We f ind it implausible that the court would r ule that Mother had not made a showing that woul d merit a contest ed evidentiary hearing, b ut t hen make the r uling s that woul d be made after a n evidentiary hearing

.28 A. Regular Visitation and Co nt a ct

O n the first elemen t, regul ar visitation and contact, taking into accou nt the extent of vis itation permitted ( Caden C.

, s upra , 11 C a l. 5th at p . 63 6 )
, there was scant evidence that Mother had maintaine d regular contact with E.G

. I n Dec ember 20 19
, Mot her

wa s granted monitored visitat ion a minimum of three time s per

wee k for tw o hours per visit. As of February 2020, Mother ha d

not tele p honed or visit ed E.G. at all

. Mother claims in her opening brief that she visited E.G. telephoni cal ly from May 2020 to October 20 21 as jail conditions permit ted

. N one of the citation s to the r ecord provided by Mother

s tates that she visit ed tel ep honic all y with E.G. dur ing 2 020. No
contact b etween Mother and E.G. was re ported i n t he July 2 020

re port

. The p ossibil i ty of telephonic visitation arose i n the August 2020 report , in which DCFS in formed the court that E.G ’s pater nal grandpare nts had a greed to m o nitor te l ep hon e calls
between Mother and E.G

. T h e report di d n ot state t hat a ny calls with E .G. had yet taken place , in contrast to A.L.
, for whom DCFS reported not only that his caregiver had agreed to monitor
calls but also that Mother and A. L. were no w speaking twic e week ly

. DCFS ’ s report filed in September 2020 si mil arly did not

m e ntion any vi sit ation by Mother. I n Septem ber 2020 , the court

or dered DCFS to fa cilitate calls with E.G. an d to give Mother a writt en sche dule for telephon e visit s

. In Octob er 2020
, DCF S
advised the cou r t t hat “ [ M]other ’s proposed tele p hone visitation is scheduled ” for two days p er week, and that E.G. ’ s grandmother

“ will serv e ” a s the monitor

. ( I n contrast to the future tense use d

to describe the monitor selected for E.G. ’ s calls, DCFS ad vised th e c ourt in the present tense t hat A. L. ’ s caregiver “ serves as the29

mon itor ” for his calls with Mother. ) The report did n ot indicate that any calls between Mother and E .G. had yet occurred.
I n December 2 020 , the court ordere d M oth er to be provided

w ith a sched ule for calls with E.G

. , but provided that v isitation

was s ubject to any active crimin al protective order. While the record does not pinpoint when Mother began telephoni ng E.G., t he first telephone call between Mo the r an d E.G. we a re able to i de ntify in the record took place in J anua ry 20 21. A s of early 2021 Mother was schedule d for two calls per week with E. G.
, b ut she submitted a phone log in March 2021 show ing she had spoken with E.G. onl y four ti mes be tween Jan uary a nd Marc h

. Although Mot he r alleged E.G. was not being made avai lable for her calls
, her log showed th at the
missed telep honic visits were caused by Mother being unable to call almost as many times as they were caused b y n o o ne answering the phon e at E

. G

. ’ s residence (seven times M other could no t call vers us eight dates wit h no ans wer). Mo ther lis ted

s ix other dates when she did not talk to E.G. but she offered no

reason why

. As of May 2021 Mothe r s aid she was still having issue s with calls to E.G. because of conflict s be twee n he r schedule and th e written visitation sc hedule

. E .G. ’ s grandparent s agreed to adjust the sc hedule to accom mo date h er

. I n June 2021, E.G. ’ s counsel a c kn owl edg ed M other was trying to keep up a relation ship with E.G. by phone
, b ut E.G. did

not wa nt to speak wi th Mother when she called

. E.G

. ’ s counsel desc ri bed Mo ther ’ s calls as “ sporadic at best

. ”
Mother ’s counsel tol d t he court in June 2021 that Mother “did have a phone conversation with E .G. ” and E.G. was

some times willing to speak w ith her

. T he co urt ord er ed virtual30

and in

- person visits in a therapeutic setting if recommended by the therap ist

. T he chi ldren were t rav eling for a month starting in Se pt ember 2021 ; arra ngements for telephoni c visit s during that
time were in place , but th e reco rd do es not state w hether Mother and E.G

. had any contact.
At the October 2 021 pe rmanency planning hearing
, c ounsel for DCFS and for E.G. described Moth er ’s telephone cal ls with
E.G. as “s poradic

. ” There had been no in

- person visits. T he

r epo rt for the perman ency plannin g hearing state d , without elab ora tio n, that Mother had maintain ed “regular monito red telephone contac t ” wit h E.G

. The report did not de fine “regul ar ” or d escribe the amount and nature of E.G. ’ s contact w it h Mo the r. T he concurrent p la nning rep ort left bla nk the b ox whe re the number of E. G

. ’ s con t acts wit h Mother in the prior six month s sh ould have been entered

. While Mother is corre ct that t he assessment should have
included a “ review of the amount and natu re of any contact between t he child an d t he child ’ s parents

. . . si nce the time of placement ” (§ 36 1.5, subd

. (g)(1)(B) )
, here, informati on about the

amount and natu re of E.G. ’s contact w ith Mother was fully and equally available to Mother. She could easily have provi ded

e vidence to the juv e ni le court abo ut how often sh e and E.G. spoke on the ph one

. Instead, s he declined to atten d the hearing w here
she cou ld have offered information about con tact with E.G. to the

court ; and when making an offer of proof, her counsel asked for DCF S to pre par e a n ad ditio nal repo rt about v isitation rather
than identify ing any eviden ce Mother had engaged in regular contact with E.G. Based on this record , we cannot say th at as a
matter o f law t h e record compelled a finding that Mother had31

en gaged in r egular visit ation an d c ont act, taking i nto accou nt the

ext ent of visits permitted

. ( In re I.W

. , sup ra , 180 Cal.App.4th at

p. 1528 .)

B. Emotional Attachment to Parent

The s econd element of the parental benefit exc eption is “ a substantial, posi tiv e , emotional attachm ent t o the pa ren t

— t he
kind of attachment implying that the child would benefit from

cont inuing the relat ionship

. ” ( Caden C.

, supra , 11 Cal.5th at

p

. 636 .) In determining whether a positive emotional relationship has formed, the foc us is on the chi ld’s age and particu lar ne eds, the length of time the child h as spent in parenta l custody
, and the positive and neg ative effects of interactions between pare nt and child , as well as how the child speaks about, interacts with, or feels about hi s p arent s

. ( Id

. at

p. 63 2.)
The cou rt found that Mot her had not “ establis hed a sufficient bond ” under the p arental benefit exception. Here again, the record does not compel a finding as a matter of law that E.G. had a substantia l, pos iti ve , emotional attach ment to Mo t he r. We ar e unable to id entify a nything in the recor d that

su gge sts such an attachment

. E.G. lived with Mother for approximately her first 20 mo nths but was then removed from
Mot h e r ’ s custody for nearly three years

. 4 M other reunified w ith

4 We are dismayed by Mother ’ s counsel ’ s misstateme nt s of the time E.G. was in an d out of maternal cu stody. In her opening brief

, Moth er ’ s counsel stated “ M ot her cared fo r E.G. un t il she

was remo ved at age six years, ” “ Mother took care of her child for almost si x years, ” and E.G. “ had lived with mother

— exce pt f or a

s hort time

— from birth in 2013 to the fall of 2019

. ” I n fa ct, E.G. was out of Mothe r ’ s custody for nearly hal f of her first s ix years of32

E.G. in 20 1 8
, but in 2019 E.G. w as ag ai n removed due to Mother ’ s abuse of L.G

. At the ti me of the permanency planning hearing in October 2021, E.G. was eight years old. She had been in Mother ’s custo dy for only th re e and one

- half yea rs of her l ife

. E.G. , as the juve nile cour t f ound, had suf

f ered from witnessing the torture Mother inflicted on her yo unger sister. Mother ’ s

con duct was so extre me that the c ourt found that it would n ot ben efit E.G. t o attempt reunifica tion with M other

. E. G. did not
want to speak with o r visit Moth er

. Mother fau lts the asses sment for not including details

a bout how Mother and E .G. ’ s visits w ent, but just as w ith t h e visitat ion elem e nt of the ex ception, if E.G. had a substanti al, posit ive attachment to Mother, Mother cou ld have presented

e vidence of th at attac h men t in her offer of proof

. Mother was well

- situ ated to pres ent evidence of her relationship wi th E .G

. , th e nature and quality of their a ttachment
, E. G. ’ s particular needs, and t he effects on E. G. of their interactions

. But Mother
, despite hav ing been t rans ported from jail to court for the he aring
, absented herse lf before it began

. And ju s t a s with the first

e lemen t of th e be neficial par ental relationship, w hen asked for an offer of proof

, Mother ’ s counsel did not identify any evid ence

life : she was removed from Mother fro m March 2015 to F ebruary 2018. Mother ’ s counsel also misstates the duration of E.G. ’ s

remov al prior to this case as two years, wh en in fact it w as just under three years

— a sign ificant differ ence when discus sing a six

year

- old child

. “ ‘ It is the duty of an atto rney ’ to ‘ employ, for the purpose of maintaining the causes confided to him or her tho se means only as are consistent with truth, and neve r t o seek to mislead the judge o r any judicial officer by an a rtifice or false statement of fact or law. ’ (Bus. & Prof

. Code, § 6068, subd. (d).) ” ( In re S.C . (2006) 138 Cal.App.4th 396, 419 .)33

Mother could p res ent that woul d support a finding that E.G. had

a s ub stantial , po sitive attachment to h er

. The evidence does not compel a finding in Moth er ’ s f avor on this element as a matter of law.

C. Detriment from Terminati ng the Parenta l

Relationsh ip

I f a pare nt establi shes th e first two elements of t he benefi cial p arental relations hip e x c eption, the court then proceeds to determine whether termin ating the a ttachment would be detrimental to the ch ild even when balanced against the

counte rvai ling ben efit of a n e w, adoptiv e ho me

. ( Caden C.

, supra , 11 Cal.5th at p . 63 6 .) As Mother fai led to meet her burden with

r espect to the first two e lements of th e exceptio n , th e detr iment analysis c ould not be performed. The juvenile court implic it ly recognized t his when it described th is element with a counterfa ctual cond iti onal p hra se: the court fo un d that if t here

w ere any benefit to E.G. from her relationship with Mot her , it

“ would be far outw eighed by the benefits of permanence and stability th rough adoption. ” (Ita lics added.) A ccor dingly, we conclude Mother has not demonstr ate d that the ev idence compelled a finding in her favor on the parental bene fit exception as a matter of law

. F inally, w e note Mother claims the juvenile court “ter minated [her ] appellate rights by f ailing to ensu re a report existed regarding the nature an d q ua lity o f E.G. ’s relationship, ” and t he court was therefore “unab le to ap ply the care ful a nal ysis required by Caden C. ” Mother doe s not explain , nor can we conceive
, how the juv enile court coul d possibly h ave terminated her appellate right s

. T o any extent Mother i s arguing the c ourt abused its discretion in proce eding with the section 366.2634

hearing based on an incomplete assessment
, she did not object on this basis below . Certainly, Mother ’s co unsel obse rved reports

“ always ” include “ d e t a i ls regarding how th ose visi ts are

occu r ring
, ” and this one did n ot

. But Mother asked on ly for a supplemental report ; she did not object to proceeding with the hearing on the basis that th e report s ubmitt ed to the court was ina deq ua t e to satisfy the statutory requirements for an adoption

assessment. (

In re Urayna L . (1999) 75 Cal.App.4th 883, 886 ; In
re M.M . (2022) 81 Cal.App.5th 61
, 67

– 68
, rev. granted Oct. 12, 2022, S27 6099 .)

D I SPOSITION

The order terminatin g pa rental rig hts is affir med

.



### NOT TO BE PUB LI SHE D IN TH E OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES
, J.

HARUTUNIAN , J

. 

 Judge of the San Diego Superior Court, assigned by th e Chi ef Justice pursuant to article V I, section 6 o f the California Constitution.