Filed 2/10/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re GRACE P. et al., Persons

Coming Under the Juvenile Court 

Law.

______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

M.P. et al.,

Defendants and Appellants.

B275689

(Los Angeles County

Super. Ct. No. DK00969)

APPEAL from an order of the Superior Court of Los 

Angeles County, Robert Draper, Judge. Reversed and remanded 

with directions.

Jack A. Love, under appointment by the Court of Appeal, 

for Defendant and Appellant Father M.P.

Liana Serobian, under appointment by the Court of Appeal, 

for Defendant and Appellant Mother L.R.

Mary C. Wickham, County Counsel, R. Keith Davis, 

Assistant County Counsel, and Jessica S. Mitchell, Deputy 

County Counsel, for Plaintiff and Respondent.

__________________________
2

INTRODUCTION

Father and Mother appeal from the juvenile court’s order 

terminating parental rights to six-year-old daughter, Grace, fiveyear-old son, Marco, and three-year-old son, Michael, pursuant to 

Welfare and Institutions Code1 section 366.26. Father argues 

that the court erred in finding the beneficial parent-child 

relationship exception to termination did not apply and in 

denying him a contested hearing on that issue. Mother did not 

request a hearing to assess her relationship with the children 

and does not have an independent basis for preventing 

termination of her parental rights. Mother adopts Father’s 

arguments on appeal, asserting that the court erred in denying 

Father a contested hearing.

In a matter of first impression, we reverse because the 

juvenile court abused its discretion in denying Father a contested 

selection and implementation hearing under section 366.26. 

When, as here, a parent has consistently and regularly visited his 

or her children and at the selection and implementation hearing, 

offers testimony regarding the quality of their parent-child 

relationship and possible resulting detriment that would be 

caused by its termination, a juvenile court abuses its discretion if 

it denies a contested hearing on the beneficial parent-child 

relationship exception. We reverse and remand for the juvenile 

court to conduct the contested hearing and determine, in the 

context of all of the evidence before it, whether a beneficial 

parent-child relationship exists and prevents the termination of 

parental rights pursuant to section 366.26(c)(1)(B)(i).

1 All subsequent statutory references are to the Welfare and 

Institutions Code.
3

FACTS AND PROCEDURAL BACKGROUND

In September 2013, the court granted the Department of 

Children and Family Services’s (DCFS) request to detain Grace

and Marco after concluding they were at high risk of abuse due to 

the parents’ ongoing domestic violence, Father’s abuse of 

marijuana, their exposure to Father’s drugs, and Father’s gangrelated activities (Father is a member of the Mara Salvatrucha 

gang). Because Mother continued to associate with Father, the 

court detained Michael in February 2014, shortly after his birth. 

In April 2014, the children in this case were adjudged dependents 

of the juvenile court as a result of Father and Mother’s domestic 

violence and Father’s abuse of marijuana.

Upon detention, DCFS assessed that the two older children

had serious mental health, emotional, and developmental issues. 

The eldest, Grace, was with her parents for the first two years

and 11 months of her life. All three children were placed in the 

same foster home and were enrolled in therapy and services to 

address their mental health, behavioral, and developmental 

needs. Over the course of this nearly three-year long dependency 

case, the children’s issues were largely corrected via participation 

in services and the nurturing environment created by the foster 

family. Unfortunately, the children never reunited with their 

parents.

Throughout the dependency case, Father was in and out of 

jail as a result of his gang activities. Although he completed a 

substance abuse program, he did not complete the court-ordered 

domestic violence counseling or drug testing. His weekly 

visitation with all three children remained monitored throughout 

the case, but was consistent. Early on, the visits were three 

hours per week. The foster parent, who monitored the visits,

repeatedly reported that Father was always on time, interacted 

well with the three children and that he was attuned to their 
4

needs. The foster parent reported to DCFS that Father dedicated 

himself to all three children during the visits and the children 

were bonded with him. During visitation, he played with them, 

fed them, and changed Michael’s diapers. Father also 

maintained daily and, then later, weekly phone contact with the 

children and the children stated that they missed their parents.

At the section 366.26 hearing, Father’s counsel requested a 

contested section 366.26 hearing to determine the applicability of 

the beneficial parent-child relationship exception to termination 

of parental rights.2 Counsel asserted that Father has consistently 

and regularly visited all three children, those visits were positive, 

he actively engaged each child during visits, and he has been 

attuned to their individual needs. Counsel stated that Father

“would testify that during his regular visits with the 

kids, he talks to them about school. He has on 

occasion redirected them with regards to behavioral 

issues. He brings food for the children. He also does 

play with them. He tells them he loves them and 

they do articulate that they love him as well and that 

the children call him papa and that they do not call 

anyone else papa, so he does believe that the parentchild exception applies. The children do perceive him 

in a parental role, and he has demonstrated parental 

capacity during these visits. He also believes that 

Grace would testify that she enjoys the visits, that 

she would like them to continue, and that she does 

see him as a father figure and would be sad if he were 

not her father.”

2 Mother did not request a hearing on the applicability of 

this exception as to her relationship with the children. Mother’s 

parental relationship with the children is not at issue in this 

appeal. Nonetheless, Father’s ability to successfully assert a 

beneficial parental relationship impacts whether Mother’s (as 

well as Father’s) parental rights are terminated.
5

Mother’s counsel joined in Father’s request for Father to have a 

contested hearing.

After the court ascertained from counsel that Father visits 

the children weekly and that the visits are monitored, the court 

indicated that the offer of proof was insufficient. The court 

stated,

“Accepting your offer of proof at full value, I 

would have to find that what father has described is 

a stronger bond and more important bond than they 

have with their caregivers, and I don’t believe based 

on the evidence that you have suggested, I would 

obviously make that finding. I’m specifically 

referring to the statement in M.W.3 that the father 

would need to prove that the child has developed 

such a substantial positive relationship with the 

father that the child would be greatly harmed or 

there would be substantial detriment to the child if 

parental rights were terminated, and that the court 

in M.W. expressly directs the court to consider the 

strength of the relationship with the children in 

determining what would be the most appropriate life 

for the children.

“So, I believe, that your offer of proof is 

inadequate and I’m denying the request for a 

contest.”

The court then admitted DCFS’s reports into evidence, and 

found by clear and convincing evidence that the children were 

adoptable and that there were no impediments to adoption. The 

court found that no exception to adoption applied and terminated 

the parental rights of Father and Mother to the children.

3 Based on our own research, we believe that M.W. refers to 

In re M.W. (2015) 238 Cal.App.4th 1444. This case is inapt as it 

addresses jurisdictional findings, not termination proceedings.
6

DISCUSSION

Father appeals the termination of his parental rights 

arguing that the court erred in denying him a contested selection 

and implementation hearing to present evidence on the 

applicability of an exception to termination of parental rights. 

Mother also appeals, joining in Father’s arguments but not 

asserting any other basis for our review. We review the court’s 

denial of a contested hearing for an abuse of discretion. (In re 

A.B. (2014) 230 Cal.App.4th 1420, 1434; Ingrid E. v. Superior 

Court (1999) 75 Cal.App.4th 751, 759.)

1. A Parent’s Right to Present Evidence at the Selection 

and Implementation Hearing

“The selection and implementation hearing under section 

366.26 takes place after the juvenile court finds that the parents 

are unfit and the child cannot be returned to them.” (In re Josue 

G. (2003) 106 Cal.App.4th 725, 732.) Section 366.26 governs

termination of parental rights. Subdivision (b) of this section 

states: “At the hearing, . . . the court . . . shall review the report 

[required by statute], shall indicate that the court has read and 

considered it, shall receive other evidence that the parties may 

present, and then shall make findings and orders.” (§366.26,

subd. (b), italics added.)

If the parents have failed to reunify and the court has 

found the child likely to be adopted, the burden shifts to the 

parent’s to show exceptional circumstances exist such that 

termination would be detrimental to the child. (In re Autumn H. 

(1994) 27 Cal.App.4th 567, 574 (Autumn H.).) Parents can 

request a contested hearing on this issue to present evidence 

supporting their claim that an exception to termination of 

parental rights exists.
7

Here, the parents contend that the juvenile court violated 

their due process rights when it denied Father’s request for a 

contested hearing on the application of the beneficial parent-child 

relationship exception to the termination of parental rights under 

section 366.26(c)(1)(B)(i). (See § 366.26, subd. (c)(1)(B)(i) [The 

juvenile court shall not terminate parental rights where it “finds 

a compelling reason for determining that termination would be 

detrimental to the child [because] [¶] (i) The parents have 

maintained regular visitation and contact with the child and the 

child would benefit from continuing the relationship.”].)

A parent has a right to due process at a section 366.26 

hearing resulting in the termination of parental rights, which 

includes a meaningful opportunity to be heard, present evidence, 

and confront witnesses. However, these procedural rights are

subject to evidentiary principles. Due process is “a flexible 

concept dependent on the circumstances.” (In re Tamika T.

(2002) 97 Cal.App.4th 1114, 1122.) Since due process does not 

authorize a parent “to introduce irrelevant evidence, due process 

does not require a court to hold a contested hearing if it is not 

convinced the parent will present relevant evidence on the issue 

he or she seeks to contest.” (Ibid.) “The trial court can therefore 

exercise its power to request an offer of proof to clearly identify 

the contested issue(s) so it can determine whether a parent’s 

representation is sufficient to warrant a hearing involving 

presentation of evidence and confrontation and cross-examination 

of witnesses.” (Ibid.) The parent’s offer of proof “must be specific, 

setting forth the actual evidence to be produced, not merely the 

facts or issues to be addressed and argued.” (Id. at p. 1124.)
8

2. The Offer of Proof for the Beneficial Parent-Child 

Relationship Exception to Termination of Parental Rights

Thus, at issue is whether Father’s offer of proof was 

sufficient to warrant a contested hearing on the applicability of 

section 366.26(c)(1)(B)(i), i.e. the beneficial parent-child 

relationship exception (also known as the parental visitation 

exception). Application of the beneficial parent-child relationship 

exception consists of a two-prong analysis. (In re Aaliyah R. 

(2006) 136 Cal.App.4th 437, 449-450.) The first prong inquires 

whether there has been regular visitation and contact between 

the parent and child. (Id. at p. 450.) The second asks whether 

there is a sufficiently strong bond between the parent and child 

that the child would suffer detriment from its termination. (Ibid.)

The first prong is quantitative and relatively 

straightforward, asking whether visitation occurred regularly 

and often. (See 1 Seiser et. al., Cal. Juvenile Courts Practice and 

Procedure (Matthew Bender 2014) Selecting and Implementing 

an Alternative Permanency Plan § 2.171[5][b][ii][A], pp. 2-590 to 

2-591 [“The first prong is somewhat self-explanatory. The second 

is not.”].) It is not an inquiry into the quality of visitation; this 

prong simply evaluates whether the parent consistently had 

contact with the child. (In re I.R. (2014) 226 Cal.App.4th 201, 

212 [“Regular visitation exists where the parents visit 

consistently and to the extent permitted by court orders.”].)

In contrast, the second prong involves a qualitative, more 

nuanced analysis, and cannot be assessed by merely looking at 

whether an event, i.e. visitation, occurred. Rather, the second 

prong requires a parent to prove that the bond between the 

parent and child is sufficiently strong that the child would suffer 

detriment from its termination. (In re Aaliyah R., supra,

136 Cal.App.4th at p. 450). In applying this exception, the court 

must take into account numerous variables, including but not 
9

limited to: 1) the age of the child, 2) the portion of the child’s life 

spent in the parent’s custody, 3) the “ ‘positive’ ” or “ ‘negative’ ” 

effect of interaction between parent and child, and 4) the child’s 

unique needs. (Autumn H., supra, 27 Cal.App.4th at p. 576.).

This is particularly challenging because, as the court in 

Autumn H. noted, “[i]nteraction between natural parent and 

child will always confer some incidental benefit to the child,” 

requiring the balancing of the natural parent relationship

against the benefit of a stable, permanent adoptive home. 

(Autumn H., supra, 27 Cal.App.4th at p. 575.) The application of 

the beneficial parent relationship exception requires a robust 

individualized inquiry given that “[p]arent-child relationships do 

not necessarily conform to a particular pattern,” and no single 

factor–such as supervised visitation or lack of day-to-day contact 

with a noncustodial parent–is dispositive. (In re Jasmine D. 

(2000) 78 Cal.App.4th 1339, 1350; In re S.B. (2008) 164 

Cal.App.4th 289, 294-300 [reversing termination of parental 

rights even though father only had supervised visitation with 

daughter]; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [“Day-today contact is not necessarily required, although it is typical in a 

parent-child relationship.”].)

3. Father’s Offer of Proof was Sufficient to Warrant a 

Contested Hearing 

In this case, Father’s offer of proof with respect to the first

prong (about visitation and contact) was undisputedly sufficient: 

the proposed testimony addressed the consistency of his weekly 

visitation with the children. In addition, it appears from the 

record that DCFS’s reports likewise support the conclusion that 

Father maintained regular visitation. The juvenile court also 

acknowledged this fact and stated that, “Father has had regular 

contact with the child.”
10

As to the second prong, Father offered his testimony about

the positive quality of his visitation, how he parented all three

children during visits, and how the children considered him to be 

a father figure. Father also offered Grace’s testimony regarding 

how she enjoyed visits with Father, saw Father as a parent, and 

would be sad if visitation with Father ended.4 The juvenile court 

opined this offer of proof was not sufficient to warrant a contested 

hearing. We disagree.

By comparison, In re Jeanette V. (1998) 68 Cal.App.4th 811, 

is instructive. There, as here, the appellant father sought a 

contested section 366.26 hearing to prove that the beneficial 

parent-child relationship exception proscribed termination of his 

parental rights. The father solely sought to cross-examine the

social workers regarding their reports on the quality of his 

visitation. (Id. at p. 815.) However, the father had no contact 

with the child for more than two years and thus, “could not deny 

[his] failure to satisfy the ‘maintain regular visitation and

contact’ element, and could only suggest that cross-examination 

[of the social worker who authored the reports] would reveal 

something about [the father’s] visitation during an unspecified 

earlier period.” (Id. at p. 817.) The appellate court noted that the 

beneficial relationship exception required both prongs and thus 

the trial court did not err in denying the contested hearing. 

(Ibid.) Essentially, evidence of the nature of the visits would be 

ineffective in proving a beneficial parent-child relationship, 

where the parent failed to maintain consistent and frequent

4 Other than his own testimony, Father only offered 

testimony from Grace. That he did not offer testimony from the 

two younger children does not undercut his claim of a beneficial 

parental relationship to all three children. The other two 

children were very young, and Father’s testimony was intended 

to address his relationship with all three children.
11

contact with the child. (See In re I.R., supra, 226 Cal.App.4th at 

p. 212 [Significant lapses in visitation “fatally undermine any 

attempt to find the beneficial parental relationship exception.”]; 

In re C.F. (2011) 193 Cal.App.4th 549, 554 [“Sporadic visitation is 

insufficient to satisfy the first prong of the parent-child 

relationship exception to adoption.”].)

In contrast, since Father satisfied the first prong in the 

case at bar, his proffered evidence was consequential to and 

probative of the issue of his relationship with the children and 

the detriment they would suffer by its severance. As we mention 

above, this qualitative inquiry regarding the nature of the 

relationship between the parent and child cannot be as directly

and summarily assessed as the first prong regarding contact. 

The second prong requires the court’s careful assessment of the 

child’s relationship with the parent. Because this is an 

individualized inquiry and parenting styles and relationships 

differ greatly between families, the juvenile court must take 

caution before denying a contested hearing on this issue when a 

parent has clearly maintained regular contact with the child.

We note even when a parent makes a prima facie case and 

obtains a contested selection and implementation hearing under 

section 366.26, the juvenile court continues to exercise its 

discretion to limit the hearing to relevant evidence. (See Stephen 

Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758 

[ A trial court has “ ‘inherent power to control litigation.’ ”]; In re 

Tamika T., supra, 97 Cal.App.4th at p. 1122.) In addition, that a 

parent satisfies a prima facie showing does not guarantee the 

court finding the existence of the exception: the court may still 

find that the parent-child relationship is not significant enough 

to “outweigh the well-being the child would gain in a permanent 

home with new, adoptive parents.” (Autumn H., supra,

27 Cal.App.4th at p. 575.) The contested hearing solely provides 
12

the parent the opportunity to make his or her best case regarding 

the existence of a beneficial parental relationship that has been 

fostered by the continued and regular contact.

DCFS argues that the offer of proof was insufficient 

because the proposed testimony would not provide new 

information to the court since DCFS’s reports documented 

Father’s interactions with the children. DCFS also argues that 

based on its own reports, Father was incapable of proving a 

sufficiently strong relationship with the children to satisfy the 

exception. DCFS’s arguments are based entirely on the evidence 

it offered at the selection and implementation hearing. Father’s 

proposed evidence, which purported to address the existence of a 

beneficial parent-child relationship, was not admitted. Without 

such evidence, we cannot conclude that Father was incapable of 

proving the exception. Without the evidence, we cannot conclude 

that Father’s and Grace’s testimony would be duplicative of the 

DCFS reports. On the contrary, the offer of proof indicated that 

Father and Grace would expound on the details of the 

relationship that has been positively (though concisely) 

documented by DCFS.

Based on the foregoing analysis, we conclude that the trial 

court abused its discretion in denying the contested selection and 

implementation hearing.
13

DISPOSITION

We reverse the termination of parental rights. We remand 

for the juvenile court to conduct the contested hearing and 

determine whether a beneficial parent-child relationship exists 

and prevents the termination of parental rights pursuant to 

section 366.26(c)(1)(B)(i). We express no opinion how the trial 

court should exercise its discretion.

CERTIFIED FOR PUBLICATION

GOSWAMI, J.*

We concur:

ALDRICH, Acting P. J.

LAVIN, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.