Filed 9/29/23 In re E.C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re E.C. et al., Persons Coming 

Under the Juvenile Court Law.

 D081944

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

J.J.,

Defendant and Appellant.

 (San Diego County

 Super. Ct. Nos. J520536A-D)

APPEAL from orders of the Superior Court of San Diego County, 

Michael P. Pulos, Judge. Affirmed. 

Donna P. Chirco, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy 

County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff 

and Respondent. 
2

J.J. (Mother) appeals from orders made pursuant to Welfare and 

Institutions Code,1 section 366.26 hearing terminating her parental rights 

with respect to her four children. Her sole contention is that the juvenile 

court erred in declining to apply the parent-child relationship exception to 

adoption. We affirm the orders. 

FACTUAL AND PROCEDURAL BACKGROUND

The Agency’s Petitions

This case involves a mother and her four young children, E.C., J.C.,

V.C., and K.C. In September 2020, the San Diego County Health and Human 

Services Agency (Agency) filed petitions on behalf of the children alleging a 

violation of section 300, subdivision (b). At the time, E.C. was eight years old, 

J.C. was six years old, V.C. was four years old, and K.C. was one year old. 

The Agency had received multiple child abuse referrals alleging domestic 

violence, drug use, and concerns for father’s mental health.2

The Agency’s investigation revealed father’s history of engaging in 

erratic, bizarre, and volatile behavior in front of the children, including 

physically abusing Mother and destroying property. Mother allowed the 

children to be exposed to this behavior. The Agency’s investigation also 

uncovered Mother’s prior deferred judgment for possession of a controlled 

substance and father’s multiple domestic violence charges. 

Initially, the juvenile court ordered the children to remain in Mother’s 

home on the condition that the father remain out of the home. The court also 

1 All further statutory references are to the Welfare and Institutions 

Code unless otherwise stated. 

2 The father is the presumed father of all four children and does not 

appeal. He will be referenced when necessary to address the issues Mother

raises on appeal. 
3

granted Mother a temporary restraining order against the father. However, 

just two months later, the court learned Mother was allowing the father to 

spend time at her home, so it removed the children from Mother’s home and 

placed them with their maternal grandmother. 

In January 2021, the court sustained the children’s petitions and 

entered dispositional orders removing the children from their parents’

custody and ordering reunification services. 

Reunification Period

Although the caregiver initially supervised Mother’s visits, the 

caregiver expressed concern that unsafe individuals were transporting 

Mother to visits. The caregiver also reported that Mother was not adhering 

to visitation timeframes, as she would arrive several hours late or leave to get 

something and not return. The Agency provided Mother multiple referrals to

a family visitation center to coordinate visits, but Mother failed to 

communicate with the center, and it cancelled the referrals. 

At the contested six-month status review hearing in September 2021, 

the court denied Mother’s request for expanded visitation due to her lack of

consistency with the current schedule. The next month, the Agency 

discontinued Mother’s visitation because she was excessively tardy and had 

several no-shows and late cancellations. Even so, the Agency submitted 

another referral to the visitation center in November 2021. Mother also had 

the opportunity to call the children twice a week, but the caregiver reported 

that Mother would call, but then ask to call back later because she was out 

shopping, talking on the other line, or driving. 

In April 2022, at the contested 12-month status review hearing, the 

court terminated the parents’ services while maintaining “liberal” supervised 

visitation. Mother continued to miss and arrive late for visits supervised 
4

either by a social worker or the family visitation center. When she did show 

up, the children were happy to see her, referred to her as “mom” or “mommy,”

hugged her and often said “I love you.” She typically brought activities, gifts, 

snacks, and food, and would remind them to do things like wash their hands, 

brush their teeth, and pick up trash. The children mostly separated easily at 

the end of visits, but sometimes they cried for a few minutes. 

Mother’s Incarceration

In January 2023, Mother was incarcerated for burglary, elder theft by a 

caretaker, and theft of over $950. Just before Mother was incarcerated, the 

visitation center rejected the Agency’s most recent referral:

“This is the 12th time receiving the referral. We get as far as 

setting it up and having the contingency plan for mom to arrive 

at a certain time before we pick up the children; which still 

doesn’t work out. Due to having to wait for [three] 

cancellations/no shows this will take time away from another 

family that could be having visitations as mom has shown time 

and time again that she cannot make these visits.”

The Agency arranged visits consistent with the rules at Mother’s 

facility. Mother had a video visit with the children in March 2023 and was 

scheduled to have an in-person visit the following month. Mother also called 

the children multiple times per week and the caregiver reported the calls 

were appropriate. 

Permanency Planning Hearing

In April 2023, the juvenile court held a contested 366.26 hearing and

received into evidence the Agency’s report, seven addendum reports, and 

Mother’s three exhibits, including a visitation calendar, a document 

containing strategies for abused women, and a letter from Mother’s 

stepmother. 
5

Mother testified that the children generally knew why she was in 

custody. Since she has been in custody, she has phoned her children as often 

as possible and has had one video visit and one in-person visit. She has 

called them five or six different days, taking turns during each time to speak 

with each child for 15 minutes. At the in-person visit, the children were very 

excited to see her and jumped up and down. “It’s four of them, one of me, and 

they [were] all going crazy for my attention.” They played with toys and 

wanted to style her hair. They cried at the end of the visit and suggested 

they would not see her again. She wished she could visit with them more 

frequently. 

Mother testified that she consistently visited her children before she 

was in custody. She visited them “at least once a week” unless she could not 

see them because, for example, the children had lice. There were also one or 

two months she could not see them when her visits were being supervised by 

the family visitation center. There was another month she did not see the 

children because she failed to maintain contact with the Agency. She 

acknowledged that her visits were not as consistent because she “was not 

very easy to get a hold of.” She also acknowledged that her children felt “sad 

and worried” when she failed to show up for the visits. 

According to Mother’s testimony, she played with the children and 

brought them gifts and activities, such as arts and crafts, before she was in 

custody. They watched movies in the park and had picnics, “slumber 

part[ies]” and “spa day[s].” Unless they were distracted by a fun activity, the 

children cried at the end of the visits. They also had video visits a couple 

times per week unless she did not make it home in time for the call, called 

late or was shopping. She felt she was “pretty consistent” in talking to them. 
6

Mother acknowledged that she had “made mistakes” in her past where 

she put herself ahead of her children and placed them in danger by staying in 

the relationship with the father. She said the children needed her in their 

lives, that they had a close relationship and bond, and that it was “the worst 

feeling in the world to not have my children.” She “would do anything for 

them” and wanted to tell them she was sorry.

The Juvenile Court’s Ruling

The juvenile court found that the children were generally and 

specifically adoptable. Once the court made that finding and determined that 

adoption was available, adoption was the “preferred permanent plan” unless 

an exception applied. The court set forth elements that Mother was required 

to prove to establish that the parent-child relationship exception applied, 

including “regular visitation and contact,” the “continuation” of a beneficial 

relationship, and that the “termination of parental rights would be 

detrimental” to the children. The court then analyzed whether Mother 

proved each element. 

Regarding the first element, the court explained that the evidence “very 

clearly” demonstrated that “visitation was not consistent and regular.” The 

court gave credit to Mother’s efforts to visit while incarcerated but found that 

she failed to visit consistently when she was “out in the free world.” The 

court pointed out that Mother was late and failed to show up for visits, failed 

to take advantage of extra visitation that had been offered to her, missed 

phone calls, and was distracted and not engaged when she did participate in 

phone calls. The court, therefore, found that Mother failed to satisfy the first 

element. 

Regarding the second element, while the court found there was a

relationship, it did not find any evidence the relationship was beneficial to 
7

the children. The court acknowledged the children’s attachment and love for 

Mother, but found the attachment was not beneficial. The children longed for 

Mother who was “absent,” which created “complicated feelings” that, on the 

one hand, could illustrate they need her. However, the court determined

“[i]t’s also longing for a relationship that just isn’t there because of the 

absence and the inconsistencies.” The court did not find “evidence . . . that 

this relationship is beneficial, and that’s what needs to be shown to the 

Court.” Although the children referred to Mother as “mom,” that is “a fact” 

and the court cannot “change[ ] that biological connection.” That does not 

speak to the “beneficial nature of the relationship” and determined Mother 

failed to satisfy the second element. 

Finally, the court analyzed the third element and found that the benefit 

of a new adoptive home would outweigh any harm the children would 

experience, even assuming they had a significant positive emotional 

relationship with Mother. The court acknowledged that the children would 

likely suffer “feelings of loss” and “grief,” but pointed out this could be “offset 

by the stability that adoption in general offers” and therapy. It further 

acknowledged that it could not consider that the children’s caregiver was a 

relative. 

The court terminated parental rights and referred the children for 

adoption. 

DISCUSSION

Mother contends the juvenile court erred in finding the beneficial 

parent-child relationship exception did not apply. We disagree. Substantial 

evidence supports the court’s findings that Mother did not visit the children 

consistently and that the children did not have a significant, positive, 
8

emotional attachment to her such that they would benefit from a continuing 

relationship. 

A. Legal Principles and Standard of Review

“After reunification services have terminated, the focus of a dependency 

proceeding shifts from family preservation to promoting the best interest of

the child including the child’s interest in a ‘placement that is stable, 

permanent, and that allows the caretaker to make a full emotional 

commitment to the child. [Citation.]’ ” (In re Fernando M. (2006) 138 

Cal.App.4th 529, 534.) At a permanency plan hearing, the court may order 

one of three alternatives: terminate parental rights and order adoption, 

appoint a legal guardian, or place children in long-term foster care. If the 

dependent child is adoptable, there is a strong preference for adoption over 

the alternative permanency plans. (Ibid.; In re B.D. (2021) 66 Cal.App.5th 

1218, 1224.) Once the juvenile court finds the child is adoptable, the burden 

shifts to the parent to demonstrate that a statutory exception applies. (Id. at 

p. 1225; § 366.26, subd. (c)(1).) If the parent does not establish the 

applicability of a statutory exception, the juvenile court must terminate 

parental rights. (In re Katherine J. (2022) 75 Cal.App.5th 303, 316 

(Katherine J.).)

One exception is when a beneficial parent-child relationship exists.

(§ 366.26, subd. (c)(1)(B)(i).) It applies when “[t]he court finds a compelling 

reason for 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.” 

(Ibid.) This exception requires the parent to prove three elements: “1) 

regular visitation and contact [with the child,] taking into account the extent 

of visitation permitted; (2) a substantial, positive, emotional attachment to 
9

the parent—the kind of attachment implying that the child would benefit 

from continuing the relationship; and 3) a showing that terminating the 

attachment would be detrimental to the child even when balanced against 

the countervailing benefit of a new, adoptive home.” (In re M.G. (2022) 80 

Cal.App.5th 836, 847.)

“We review the juvenile court’s findings as to whether the parent has 

maintained regular visitation and contact with the child, as well as the 

existence of a beneficial parental relationship, for substantial evidence.” (In 

re B.D., supra, 66 Cal.App.5th at p. 1225 [citing to In re Caden C. (2021) 11 

Cal.5th 614, 639–640 (Caden C.)].) We do “ ‘not reweigh the evidence, 

evaluate the credibility of witnesses, or resolve evidentiary conflicts’ ” and 

will not disturb the juvenile court’s findings even where substantial evidence 

to the contrary also exists. (Caden C., at p. 640, citations omitted.) “[T]he 

ultimate decision—whether termination of parental rights would be 

detrimental to the child due to the child’s relationship with [the] parent—is 

discretionary and properly reviewed for abuse of discretion.” (Ibid.) A court 

abuses its discretion “ ‘ “ ‘by making an arbitrary, capricious, or patently 

absurd determination.’ ” ’ ” (Id. at p. 641.) 

B. Analysis

Mother acknowledges that she “missed some visitation and was late to 

visits resulting in her visitation referral being canceled at the visitation 

center multiple times.” Nevertheless, she argues that, “despite these 

problems,” she maintained regular visitation and contact with the children

through phone calls, in-person visits and zoom meetings. She asserts that 

she is “not to blame for the lack of visits at the facility” during her current 

incarceration and, before then, she was “actively in” the children’s lives, 

except for when the children had head lice, when she was “hard to get a hold 
10

of,” and when she “missed some visits and [there was] a week in November 

when she was incarcerated.” 

Although the court found Mother’s visits since incarceration were 

“more consistent,” it also determined that her visits before incarceration were 

inconsistent and irregular. The court correctly pointed out that Mother was 

routinely late and failed to show for visits, that she did not take advantage of 

additional visits, that she was often distracted and unengaged when she 

called the children and sometimes failed to call them at the arranged time. 

The Agency initially attempted to coordinate visits outside the center but had 

to discontinue them due to Mother’s excessive tardiness and no-shows. 

Mother continued to miss and arrive late for visits supervised either by a 

social worker or the family visitation center. The visitation center 

discontinued Mother’s visits when she repeatedly cancelled and failed to 

show for scheduled visits. When Mother did call the children, she prioritized 

other aspects of her life and often made excuses to call back later. The court 

correctly found that the evidence “bears out very clearly” that Mother’s 

“visitation was not consistent and regular.”

Based on our own review of the record, we conclude that the parentchild relationship exception does not apply because substantial evidence 

supports the court’s finding that the first element was not met. (Caden C., 

supra, 11 Cal.5th at p. 636 [“[T]he parent asserting the parental benefit 

exception must show . . . regular visitation and contact.”].) Even though that 

could end our analysis, we nevertheless also consider “evidence showing 

whether the parent’s actions or inactions ‘continued or developed a 

significant, positive, emotional attachment from child to parent.’ ” (In re B.D.,

supra, 66 Cal.App.5th at p. 1230 [italics added].) Courts consider factors 

including the age of the child, the amount of time the child spent in the 
11

parent’s custody, the interaction between parent and child, and the child’s 

needs. (Caden C., at p. 632.) The court should also examine “how children 

feel about, interact with, look to, or talk about their parents.” (Ibid.) We look 

at the evidence supporting what the court did find—even though there may 

be evidence in the record which might have supported a different conclusion. 

(In re Dakota H. (2005) 132 Cal.App.4th 212, 230.) 

The court found that the children are “attached to” and “love” Mother. 

They enjoyed their visits, were affectionate toward her and sometimes cried

at the end of the visits. The court, however, did not find that the attachment 

was “a beneficial attachment” or that the relationship was “beneficial.” 

Rather, the children were “longing for a relationship that just isn’t there 

because of the absence and the inconsistencies.” 

The court’s determination is a reasonable inference from the evidence 

that Mother did not visit regularly and consistently, and that the children 

enjoyed visiting with her when she did visit and experienced sadness when 

she had to leave. (Caden C., supra, 11 Cal.5th at p. 641 [where the trial court

makes an inference that “can reasonably be deduced from the facts, the 

reviewing court has no authority to substitute” its own inference for that of 

the trial court].)

Finally, if a beneficial parent-child relationship existed, then the abuse 

of discretion standard of review would apply to the court’s determination of 

whether termination of parental rights would be detrimental to the child. 

When making this discretionary determination, the court weighs the harm to 

the child of losing the relationship against the benefits of placement in a new, 

adoptive home. (Caden C., supra, 11 Cal.5th at p. 640.) 

Here, the court found that the children “need stability” and 

“consistency in their lives,” and that the “feelings of loss, feelings of grief” 
12

would be “offset by the stability that adoption in general offers and therapy 

and so forth.” With that, the court did not find that the children would suffer 

detriment if their relationship with Mother was terminated. The court’s 

finding is supported by the record of Mother’s inconsistent and irregular 

visits, as discussed above, and by the Agency’s conclusion that Mother’s 

inconsistencies “impacted the quality of the parent-child relationship” and 

exposed the children to a “cycle of instability.” The children “expressed their 

worry” for Mother when she failed to attend visits or was late. 

The Agency also was concerned that Mother abused substances. She 

had another baby in May 2022 and they both tested positive for 

methamphetamine. Her substance abuse “affected her ability to form 

relationships with her children.” Because she failed to address her substance 

abuse, she could not demonstrate that she can “safely parent” her children 

and did not progress to unsupervised visits. Additionally, Mother also 

continued to “make false promises to the children about returning home to 

her care.” 

The court did not abuse its discretion when it found the benefit of a 

new adoptive home outweighed any detriment the children would suffer if the 

relationship were terminated. (See, e.g., In re J.C. (2014) 226 Cal.App.4th 

503, 533 [concluding that the court did not abuse its discretion where 

“[n]othing in the record suggests the benefit [the child] might gain by 

continuing her relationship with Mother is outweighed by the well-being she 

would gain from having a permanent home.”].) 

The cases cited by Mother do not help her. In contrast to In re Amber 

M. (2002) 103 Cal.App.4th 681, the court here addressed each element of the 

exception, understood it could not consider that the caregiver was a relative 

and evaluated substantial evidence of Mother’s relationship with the 
13

children. (Id. at pp. 689–691 [reversing order terminating parental rights

where it examined exception in “no more than a cursory manner and did not 

look at the long-term effect on the children of terminating Mother’s parental 

rights.”].) In In re S.B. (2008) 164 Cal.App.4th 289, unlike here, the father’s 

regular and consistent contact and visitation there was undisputed. (Id. at 

p. 298 [reversing order terminating parental rights where “[t]he parties agree 

[the father] maintained regular, consistent and appropriate visits with [the 

child] throughout the dependency proceedings.”].) Moreover, we have made 

clear that “S.B. is confined to its extraordinary facts.” (In re C.F. (2011) 193 

Cal.App.4th 549, 558 [S.B. “does not support the proposition a parent may 

establish the parent-child beneficial relationship exception by merely 

showing the child derives some measure of benefit from maintaining parental 

contact.”].) Similarly, Mother’s reliance on In re E.T. (2018) 31 Cal.App.5th 

68, is misplaced because here, in contrast to In re E.T., the court made clear

it “can’t even consider” the fact that the children’s caregiver was a relative.

(Id. at p. 78 [reversing order terminating parental rights where the court 

might have “considered that the children may have contact with Mother even 

though her rights were terminated.”].)

The record here does not support a conclusion that this is an 

extraordinary case where preservation of the parent’s rights should prevail 

over the Legislature’s preference for adoptive placement. (In re J.C. (2014) 

226 Cal.App.4th 503, 533.) Accordingly, the court did not abuse its discretion 

terminating Mother’s parental relationship after declining to apply the 

beneficial parent-child relationship exception to adoption. 
14

DISPOSITION

The orders are affirmed. 

McCONNELL, P. J.

WE CONCUR:

O’ROURKE, J.

BUCHANAN, J.