1

Filed 4/28/14 In re K.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re K.M. et al., Persons Coming Under 

the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT 

OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

S.M. et al.

Defendants and Appellants.

E058604

(Super.Ct.No. RIJ1100622)

OPINION

APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, 

Judge. Affirmed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and 

Appellant S.M.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and 

Appellant K.M.
2

Pamela J. Walls, County Counsel, Raymond M. Mistica, Deputy County Counsel, 

for Plaintiff and Respondent.

INTRODUCTION

This is an appeal by S.M. (mother) and K.M. (father) from the trial court’s orders 

under Welfare and Institutions Code1section 366.26 regarding their three children, Ki., 

Ke., and Ka. Father and mother both challenge the trial court’s July 10, 2013, order 

terminating their parental rights and selecting adoption as the permanent plan for Ka. 

Mother also challenges the trial court’s March 12, 2013, order authorizing reasonable 

visitation with Ke. as directed by the child’s legal guardian. Finally, the parents 

challenge the trial court’s summary denial of their section 388 petition in which they 

asked the court to remove Ki.’s social worker and psychotherapist.

For reasons we now explain, we conclude the claims of mother and father are 

meritless, and we will affirm the challenged orders.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts are undisputed. Therefore, we take our statement of the 

pertinent details from the parties’ respective briefs.

 

1

 All further statutory references are to the Welfare and Institutions Code unless 

indicated otherwise.
3

Los Angeles County Department of Children and Family Services (DCFS) 

initiated this dependency in October 2009 after receiving a referral that then six-year-old 

Ki. and four-year-old Ke. were at risk for physical abuse by father. DCFS filed section 

300 petitions with respect to both boys alleging father abused the children by striking 

them, and by grabbing Ki. around the neck and threatening the child by saying he would 

never see his family again if he told anyone about the abuse. As to mother, the petition 

alleged she failed to protect her children from abuse by father. The trial court placed the 

children with mother. In September 2010, after father completed reunification services 

that included alcohol treatment, anger management, and parenting classes, the trial court 

allowed him to move back into the home with mother and the children.

In March 2011, DCFS received another referral of physical abuse after Ke.

reported father had spanked him with a stick and, as a result, the child was in so much 

pain he could not sit down. The reporter stated the child’s buttocks were severely bruised 

and marked. Based on the referral, DCFS filed a section 387 petition, later superseded by 

an amended petition filed in April, alleging father and mother both had physically abused 

the children by hitting them with belts, causing marks and bruises. The petition further 

alleged father hit the children with a board, tied their hands and feet, and pinched them. 

This time the court removed the children from the parents’ custody, ordered reunification 

services and monitored visits. Because mother and father were living in Riverside 

County, the case was transferred to that county in May 2011.
4

Riverside County Department of Public Social Services (DPSS) placed Ke. with a 

foster family in Moreno Valley. Although Ki. initially had been placed with a foster 

family in Los Angeles, in June 2011, DPSS placed him in the same foster home with Ke. 

DPSS referred Ke. to the county department of mental health after he was suspended 

from school for five days apparently because he had pushed a student, and then banged 

on the classroom window. When he was sent to the principal’s office, Ke. refused to go 

inside, and then flipped over a chair in the school office.

 A psychologist diagnosed Ke. with ADHD combined with oppositional disorder, 

and prescribed psychotropic drugs.

 By October 2011, DPSS recommended the boys be returned to the care of mother 

and father with family maintenance services. At the pertinent review hearing, the trial 

court followed that recommendation.

On March 6, 2012, DPSS received an immediate response referral through the 

child abuse hotline after Ke. ran away from the family’s apartment to the leasing office of 

the apartment complex and reported he was afraid to go home because he gets 

“woopings” from mother and father, but mostly father. The child had a number of small 

bruises on the inside of his left leg that he said were caused by mother hitting him with a 

belt. Ke. also had a large bruise on his buttocks and said father hit him with a wooden 

stick or paddle. Ki. reported he had also been abused by father—father would grab Ki. 

by the neck and tell him to pay attention. Ki. had a bruise on his neck and reported 

having other bruises on his upper thigh.
5

DPSS filed a supplemental petition on March 8, 2012, later superseded by an 

amended petition, with respect to both Ke. and Ki. Among other things, DPSS alleged 

mother and father physically abused both children causing injury to each of them. The

petition further alleged Ke. refused to go home to his parents. According to the social 

worker’s detention hearing report, Ke. said his mother “whooped” him because he 

misbehaved at school. Mother admitted she “whooped” the child with a belt. The social 

worker noted the parents had both been advised many times not to use physical discipline 

on the children. The social worker also reported the parents did not agree that Ke. had 

ADHD and did not believe in psychotropic medication. They apparently had taken Ke. 

off his medication and, as a result, Ke. engaged in very disruptive behavior at school.

Dr. Vivanco examined both children on March 8, 2012, at Riverside County 

Regional Medical Center. The doctor reported Ki. and Ke. had suffered severe physical 

abuse. Both Ki. and Ke. had scars on their necks the doctor believed had been caused by 

fingernails and which were consistent with strangulation. They both had other patterned 

scars on the neck, chest, back, arms, thighs, and legs. Those scars were consistent with 

having been inflicted by a belt. According to Dr. Vivanco, both Ki. and Ke. described

severe and repetitively inflicted trauma. At the detention hearing on March 9, 2012, the 

trial court ordered the children detained and removed them from the physical custody of 

both parents.
6

After Ki.’s caretaker reported the child broke out in hives when he was told he was 

going to visit with his parents, DPSS referred the child to Dr. Klebel. Another time, Ki.

urinated on himself just as he was about to leave for a visit with his parents. Ki. told the 

social worker he was “scared” of father; he was afraid father would “whoop” him with a 

belt or choke him out by putting his hands around Ki.’s neck.

Dr. Klebel diagnosed Ki. with Posttraumatic Stress Disorder (PTSD), as evidenced 

by the child’s report that he has daily memories of abuse, and nightmares several times 

each week. Dr. Klebel also attributed Ki.’s bedwetting to PTSD. In the doctor’s opinion, 

the fact Ki. breaks out in hives before a visit with his father is “a sure sign” the child is 

“very much emotionally and physically afraid of his father.” Dr. Klebel recommended 

Ki. be allowed to decide whether he wanted to visit with father, but if the child breaks out 

in hives, he should not see father even if Ki. says otherwise.

Ki. also reported he did not want to see his younger brother, Ke., because Ke. had 

been touching Ki.’s “private areas” while Ki. was sleeping.

Dr. Klebel reported in a May 2012 progress report for Ke. that the child had drawn 

a picture of himself tied to a chair, and then lying face down on a bed, being beaten with 

a belt. Ke. drew many scars on his body. Dr. Klebel reported both Ki. and Ke. had said 

father told them “what happens in the family stays in the family.” Dr. Klebel was 

particularly bothered by the fact that Ke. apparently had been sexually abusing his older 

brother, Ki., for many years, including during the times the children lived with their 

parents. Dr. Kozman evaluated Ke. and diagnosed PTSD, ADHD, conduct disorder, and 
7

depression. The doctor prescribed Clonidine and Vyvanse for the child, which his 

caregiver reported resulted in a big improvement in Ke.’s behavior.

On July 18, 2012, the trial court found the allegations of the amended section 387 

petition to be true as to both Ki. and Ke. Among other things, the court denied 

reunification services to mother and father because they had made minimal progress on 

their respective case plans and the time for services had expired. The trial court set the 

section 366.26 selection and implementation hearing for November 15, 2012.

In August 2012, mother gave birth to Ka. DPSS filed a petition on the infant’s

behalf alleging jurisdiction under section 300, subdivisions (b) and (j), because mother 

and father had engaged in multiple acts of physical abuse of Ki. and Ke., they had 

received services since 2009 but had not benefited from those services, they had failed to 

reunify with Ke. and Ki. and, as a result, Ka. was at risk of similar physical abuse. At the 

detention hearing, the trial court detained Ka., and placed the infant in the same foster 

home with Ki.

By the time of the jurisdiction hearing on November 13, 2012, DPSS had placed 

Ka. with the child’s paternal great aunt and uncle, and the infant had been living in their 

home for nearly two months. The trial court removed Ka. from her parents’ custody, and 

denied them reunification services.

At a review hearing on November 28, 2012, the court ordered Ki. and Ke.

maintained in their respective placements, with the goal of legal guardianship as the 

permanent plan. The social worker reported Ki. had been severely traumatized by his 

parents and, even though he did not have contact with father, his visits with mother or 
8

other relatives would cause him to remember the terror he experienced in his parents’ 

home. Ki. would regress to the age of a four-year-old child, break out in hives, and wet 

the bed.

After several continuances, and changes in the recommended permanent plans, the 

trial court conducted the selection and implementation hearing for Ke. on March 12, 

2013, and ordered legal guardianship with his current caretaker as the permanent plan. 

On July 10, 2013, the court conducted the selection and implementation hearings for both 

Ki. and Ka. With respect to Ki., the court ordered legal guardianship as the permanent 

plan. After finding Ka. was likely to be adopted, the court terminated the parental rights 

of mother and father, and ordered adoption as the permanent plan.

DISCUSSION

1.

BENEFICIAL RELATIONSHIP EXCEPTION TO PARENTAL RIGHTS 

TERMINATION

Mother and father both contend the beneficial relationship exception to 

termination of parental rights set out in section 366.26, subdivision (c)(1)(B)(i), is 

applicable with regard to Ka. Therefore, they contend the court erred in terminating their 

parental rights. We disagree.

Section 366.26, subdivision (c)(1), provides if clear and convincing evidence 

establishes it is likely the child will be adopted, the court shall terminate parental rights 

and order the child placed for adoption. Section 366.26, subdivision (c)(1)(B)(i), creates

an exception to termination of parental rights if “[t]he court finds a compelling reason for 
9

determining that termination would be detrimental to the child” because “[t]he parents 

have maintained regular visitation and contact with the child and the child would benefit 

from continuing the relationship.” The court in this case found the exception did not 

apply. Mother and father contend the court erred.

It is well-settled, to prevail in establishing the beneficial relationship exception, 

the parent must demonstrate both that he or she has maintained regular visitation and 

contact with the child and that a continued parent-child relationship would “promote[] the 

well-being of the child to such a degree as to outweigh the well-being the child would 

gain in a permanent home with new, adoptive parents. . . . If severing the natural 

parent/child relationship would deprive the child of a substantial, positive emotional 

attachment such that the child would be greatly harmed, the preference for adoption is 

overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 

Cal.App.4th 567, 575; see In re S.B. (2008) 164 Cal.App.4th 289, 297.) “The factors to 

be considered when looking for whether a relationship is important and beneficial are: 

(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 the parent and child, and (4) the 

child’s particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) “[T]he 

parent must show more than frequent and loving contact, an emotional bond with the 

child, or pleasant visits. . . . [T]he parent must prove he or she occupies a parental role in 

the child’s life . . . . [Citations.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) 

The parent must also show more than a relationship which may be beneficial to the child 
10

to some degree but does not meet the child’s need for a parent. (In re Jasmine D. (2000) 

78 Cal.App.4th 1339, 1348.)

The burden of proof is on the party seeking to establish one of the exceptions to 

the adoption preference. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Accordingly, 

unless the evidence compels a finding in favor of the parent, the challenge to the court’s 

finding that the exception does not apply must fail. (In re Bailey J. (2010) 189 

Cal.App.4th 1308, 1314.)

In this case, neither mother nor father testified at the selection and implementation 

hearing. Moreover, neither of them asserted the beneficial relationship exception at that 

hearing. Therefore, the facts set out in the social worker’s reports are the only evidence 

pertinent to their claim. Those facts show, as the court observed, both parents had

“consistent visitations with [Ka.]”

In addition, father cites this court to the social worker’s observation that both he 

and mother were “appropriate, bonded, attentive, and caring during their interaction with 

Ka.” He argues this evidence establishes a beneficial relationship with Ka. Mother also 

points out the court permitted her to breast-feed Ka. or provide breast milk to the infant’s 

caretakers. Mother and father have not cited any other facts relevant to establishing the 

previously noted Angel B. factors.
11

The social worker’s observation, combined with the court’s finding, establish 

mother and father maintained consistent visits with Ka. during which they were loving, 

caring, and behaved appropriately.

2

Ka. was 11 months old at the time of the selection and implementation hearing in 

July 2013. Ka. was only two weeks old when the court removed her from the custody of 

her parents and placed her in the home of her caretakers. Although it is undisputed the 

parents maintained consistent visits with the baby during which they behaved 

appropriately, they simply have failed to meet their burden to demonstrate they occupied 

a parental role in Ka.’s life such that termination of that relationship would be detrimental 

to Ka.

2.

VISITATION ORDER

Mother contends the court abused its discretion at the March 12, 2013, selection 

and implementation hearing for Ke. by ordering “reasonable” visitation “as directed by 

the legal guardian.” According to mother, the order improperly delegates discretion over 

 

2

 Father claims the court might have based the decision to terminate his parental 

rights on the fact that Ka.’s adoptive caretakers, who are family members, could continue 

to allow the parents to visit. Father bases this claim on the court’s observation that Ka. 

“is with family and the parents make consistent visitations with her,” and subsequent 

statement, “[t]he Court will indicate that the caregivers continue to have the authority to 

allow parental visitation.” Neither comment supports the inference father would have us 

draw. The first is merely a statement of fact; the second is directed at visitation during 

the interim between the section 366.26 hearing and such time as a petition for adoption is 

granted.
12

every aspect of visitation to the legal guardian. Mother did not raise this objection in the 

trial court and, therefore, has not preserved the issue for review on appeal.3

 The general rule is that a parent’s failure to raise an issue in the trial court forfeits 

the issue for appellate review. (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by 

statute on other grounds as stated in In re M.R. (2005) 132 Cal.App.4th 269 [Fourth Dist., 

Div. Two].) Although we have the authority to overlook a party’s failure to raise an 

objection in the trial court, the California Supreme Court has explained, “[T]he appellate 

court’s discretion to excuse forfeiture should be exercised rarely and only in cases 

presenting an important legal issue. [Citations.] Although an appellate court’s discretion 

to consider forfeited claims extends to dependency cases [citations], the discretion must 

be exercised with special care in such matters. ‘Dependency proceedings in the juvenile 

court are special proceedings with their own set of rules, governed, in general, by the 

Welfare and Institutions Code.’ [Citation.] Because these proceedings involve the wellbeing of children, considerations such as permanency and stability are of paramount 

importance. [Citation.]” (In re S.B., at p. 1293.)

 

3

 DPSS contends mother’s appeal is untimely because she did not file her appeal 

until August 2013. Mother filed a timely appeal from the March 12, 2013, order 

selecting legal guardianship as the permanent plan for Ke. In August 2013, she filed an 

appeal from the court’s orders issued at the July 10, 2013, selection and implementation 

hearing for Ki. and Ka.
13

There is no important legal issue to be resolved in this case. Mother did not object 

at the selection and implementation hearing when the court issued the visitation order. 

Therefore, she has forfeited her right to challenge that order on appeal. The purpose of 

the rule requiring an objection in the trial court “is to encourage parties to bring errors to 

the attention of the trial court, so that they may be corrected.” (In re S.B., supra, 32 

Cal.4th at p. 1293.)

3.

DENIAL OF SECTION 388 PETITION

At the section 366.26 hearing on July 10, 2013, the court ordered monthly visits 

between Ki. and mother, and visits with father in a therapy setting to begin the end of 

July 2013. On August 7, 2013, DPSS filed a petition to modify that order. DPSS alleged 

after a visit with father on July 10, 2013, Ki. had “episodes of encopresis, . . . nightmares, 

night terrors, flashbacks to abuse and witness to same. In order to gain the most benefit 

from therapy, [Ki.] requires no visitation with the patents [sic] as he walks towards [sic] a 

favorable recovery.” To support the allegations in the petition, DPSS appended a letter 

dated July 30, 2013, from Ki.’s psychotherapist, Edmund Kasner, in which he 

recommended Ki. not have any contact with his biological parents in order to facilitate 

and promote the child’s recovery from his serious emotional, mental, and behavioral 

deficits. The court set a hearing on the petition for September 12, 2013.
14

On August 12, 2013, mother and father jointly filed a petition to change Ki.’s

psychotherapist, social worker, and “legal guardianship.” Both parents alleged the social 

worker and psychotherapist were biased against them. On that basis, they asked the trial 

court to issue an order directing Ki. be treated by a therapist not affiliated with DPSS, and 

for DPSS to assign Ki. a different social worker. The trial court summarily denied the 

petition, finding the requested change did not promote the best interests of the child. 

Mother contends the trial court abused its discretion.4

We begin our discussion with the general principle, “A party may petition the 

court under section 388 to change, modify or set aside a previous court order. The 

petitioning party has the burden of showing, by a preponderance of the evidence, that 

(1) there is a change of circumstances or new evidence, and (2) the proposed change is in 

the child’s best interests. [Citations.] The petition must be liberally construed in favor of 

its sufficiency. [Citations.] ‘The parent need only make a prima facie showing to trigger 

the right to proceed by way of a full hearing.’ [Citation.] ‘“[I]f the petition presents any 

evidence that a hearing would promote the best interests of the child, the court will order 

the hearing.” [Citation.]’ [Citation.] ‘However, if the liberally construed allegations of 

the petition do not make a prima facie showing of changed circumstances and that the 

proposed change would promote the best interests of the child, the court need not order a 

hearing on the petition. [Citations.] The prima facie requirement is not met unless the 

 

4

 Although father joined in the section 388 petition and also joins in mother’s 

brief to the extent “it inures to [his] benefit,” we nevertheless refer only to mother in 

addressing this issue.
15

facts alleged, if supported by evidence given credit at the hearing, would sustain a 

favorable decision on the petition.’ [Citation.] In determining whether the petition 

makes the necessary showing, the court may consider the entire factual and procedural 

history of the case. [Citation.]” (In re Jackson W. (2010) 184 Cal.App.4th 247, 257-

258.)

Assuming without actually deciding (1) that a section 388 petition is the 

appropriate procedural device for accomplishing the goals mother sought in her petition 

and (2) that mother’s showing was sufficient to establish changed circumstances, her 

showing failed to establish the second prong, that the requested change was in the best 

interests of Ki. Her insistence otherwise notwithstanding, mother has failed to 

demonstrate that either requested change would be in the best interests of Ki.

Mother alleged in the section 388 petition that changing Ki.’s therapist would be 

in the child’s best interests because Ki.’s “mental health status is a top priority for us and 

we feel that the therapist he is currently seeing is not concern[ed] with that, their only 

concern is to separate [Ki.] from his family, which he testif[ied] in court he wants to be 

with.”5 In the lengthy letter submitted by mother and father to support their section 388 

petition, they purported to cite facts to support the view that Ki. wanted to be with his 

family, and fulfilling that desire was in Ki.’s best interests.

 

5

 According to the social worker, Ki. told his caretaker he asked to visit with his 

father in court at the hearing on July 10, 2013, “because he felt ‘safe’ since there were 

other adults in the Court room including a police officer.”
16

Stated bluntly, mother’s “belief” that Ki. wanted to continue to visit with her 

cannot trump the informed expert opinion of the child’s psychotherapist regarding 

whether such visits are currently in Ki.’s best interests. The record is replete with 

evidence to show Ki. feared his father and that his visits with mother, even though 

pleasant, triggered negative emotions in the child. Likewise, mother’s view that the 

social worker is biased against her, even if true, does not demonstrate removal of the 

social worker is in the best interests of Ki. Simply put, and despite mother’s lengthy 

argument to the contrary, mother failed to demonstrate that replacing Ki.’s social worker 

and/or psychotherapist would be in the best interests of Ki. We must conclude mother 

failed to make a prima facie showing and, therefore, the trial court did not abuse its 

discretion by denying mother’s section 388 petition.

DISPOSITION

The order terminating the parental rights of mother and father to Ka. is affirmed.

The order directing reasonable visitation between the parents and Ke. as directed 

by his legal guardian, is affirmed.

The order denying the parents’ section 388 petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

KING

J.