Filed 1/11/23 In re Andrew W. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

In re ANDREW W. et al., 

Persons Coming Under the

Juvenile Court Law.

 B318745

 (Los Angeles County

 Super. Ct. No. DK10292B-C)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ANDREW W.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Susan Ser, Judge. Affirmed.

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

for Defendant and Appellant.
2

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

Assistant County Counsel, and Tracey Dodds, Deputy County 

Counsel, for Plaintiff and Respondent.

* * * * * *

Andrew W. (father) appeals from an order terminating his 

parental rights over Andrew (born 2008) and Khailan (born 

2009). He contends the order must be reversed because the 

beneficial parent-child exception to terminating parental rights 

applies.

We affirm the juvenile court’s order.

BACKGROUND

Detention, Welfare and Institutions Code1 section 300 

petition, and adjudication

Andrew and Khailan were six and five years old, 

respectively, when they and their younger siblings Camiyah and 

Kamerhon2 were detained from father and their mother, Candi C. 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.

2 The juvenile court terminated father’s and mother’s 

parental rights as to Camiyah and Kamerhon in 2019. We 

affirmed that order in a nonpublished opinion. (In re 

Camiyah W. (Jan. 29, 2020, B297759).) During this case, father 

and mother had another child, Kayhlin (born 2018), who was 

removed from parental custody after the juvenile court sustained 

a section 300 petition on her behalf. (See In re Kayhlin W. 

(Nov. 4. 2020, B302895) [nonpub. opn.].)
3

(mother)3 in March 2015. Only Andrew and Khailan are subjects 

of this appeal.

In June 2016, the juvenile court sustained an amended 

petition under section 300, subdivision (b), that the children were 

at substantial risk of harm because of the parents’ substance 

abuse. Both parents were accorded monitored visits and family 

reunification services. The court ordered the parents to 

participate in a drug rehabilitation program with random testing, 

parenting classes, and individual counseling.

Review period and termination of reunification services

In August 2016, the Department reported that the parents 

visited weekly with the children. The parents were attentive 

during the visits, and the children appeared to be happy and 

comfortable in their parents’ presence.

Following a child and family team meeting in February 

2017, the Department reported that the parents had positive 

interaction with the children during their monitored visits. 

There was conflict, however, between the parents and the 

children’s caregiver, who complained they were not adhering to 

the visitation schedule and were intimidating her. The 

Department initiated action to have the children replaced with a 

different caregiver.

By September 2017, neither parent had complied with their 

case plans. Khailan and Andrew were exhibiting behavioral 

problems that worsened after visits with their parents. Khailan’s 

behavior at school was so extreme that he was placed on home 

study. The school principal reported that father and mother were 

3 Mother is not a party to this appeal.
4

seen loitering near the school campus and asked the Department 

to seek a restraining order to keep the parents away from the 

children’s school. The juvenile court terminated reunification 

services on September 25, 2017, and set a section 366.26 hearing. 

Section 366.26 proceedings

In January 2018, the Department reported that the parents 

visited regularly with the children and brought food for the 

children to eat. The children appeared happy to see the parents, 

and father played football with Andrew and Khailan. The 

parents had trouble controlling the children’s behavior at times, 

but most of the visits were appropriate. Both parents visited 

consistently with the children through August 2018. They were 

affectionate and appropriate but failed to progress to 

unmonitored visitation because of noncompliance with court 

orders.

In May 2018, the Department reported that Andrew and 

Khailan’s caregiver was willing to become the children’s legal 

guardian but was not interested in adoption. Andrew had 

initially exhibited behavioral issues when first placed with the 

current caregiver, but his behavior had since improved. Khailan 

was still on home study because of behavioral issues at school. 

The Department recommended continuing the section 366.26 

hearing for 120 days for additional time to find an adoptive home 

for Andrew and Khailan.

Andrew and Khailan were placed with a new caregiver, 

Ms. N., in July or August 2018.

Section 388 petition and reinstatement of reunification 

services

Father filed a section 388 petition to have his reunification 

services reinstated. In March 2019, the juvenile court granted 
5

the petition and accorded father an additional six months of 

reunification services. From March through May of 2019, both 

parents continued to visit consistently with the children. 

Andrew and Khailan remained placed with Ms. N. The 

children referred to Ms. N. as “mom” and appeared to be loving 

and comfortable with her. Andrew reported that he enjoyed 

living with Ms. N. and wanted to continue to do so. Khailan 

similarly reported that he enjoyed living with Ms. N. and felt safe 

and loved in her home. Both children consistently stated that 

they love being with Ms. N. but that they love their parents also. 

Andrew and Khailan said they wanted final decisions to be made 

regarding their placement and permanency. 

Ms. N. said she wanted to adopt Andrew and Khailan. She 

expressed her commitment to maintaining the children’s 

relationship with their siblings and said she would continue to 

facilitate sibling visits after the adoption is finalized. 

Second termination of reunification services

Father’s reunification services were again terminated on 

February 6, 2020. His visits remained monitored, and the 

juvenile court set a section 366.26 hearing.

Section 366.26 proceedings

The children’s court appointed special advocate submitted a 

report in February 2021 informing the juvenile court that Ms. N. 

had purchased a home in Lancaster and that she and the 

children would be moving there in the spring. Andrew and 

Khailan were looking forward to the move, as each would have 

his own room. Both children reported that they enjoy living with 

Ms. N. and feel loved, secure, and well cared for. The children 

said they loved their parents, but if reunifying with them was not 

possible, they wanted to remain with Ms. N. The special 
6

advocate recommended that Ms. N. be considered the children’s 

prospective adoptive parent.

In February 2021, the Department reported that an 

adoptive home study for Ms. N. was pending and requested a 

120-day continuance to allow the home study to be completed. 

The Department reported in June 2021 that father’s last 

visit with the children had been in November or December 2020. 

Ms. N. reported that Andrew and Khailan were both on 

basketball teams, and they attended the games together as a 

family. She said she spent as much time with the children as she 

could. The family went out to dinner together, played games, and 

watched movies together.

Ms. N. was building a three-bedroom, two-bath home that 

would be ready in May 2021. She and the children currently 

lived in her parents’ home. Ms. N. reported that Andrew and 

Khailan were very close to her parents and to her older sister. 

Ms. N.’s extended family members viewed Andrew and Khailan 

as part of the family.

In August 2021, the Department reported that Andrew and 

Khailan were both doing well in school. They participated in 

extracurricular activities such as basketball and played in 

tournaments throughout the county. Both children said they 

enjoyed living with Ms. N. and felt safe and loved in her home. 

They referred to Ms. N. as “mom” and said they wanted to be 

adopted and to continue living with her. Andrew and Khailan 

both said they loved their parents, but they also wanted 

permanency and were waiting for the adoption process to be 

completed.
7

Section 366.26 hearing

Father was present at the section 366.26 hearing held on 

October 8, 2021 but did not testify. The children’s counsel told 

the juvenile court that she had spoken with Andrew and Khailan 

prior to the hearing. Both children stated that they love their 

parents but they are comfortable with Ms. N. and do not want to 

be removed from her care. Andrew and Khailan both understood 

that Ms. N. wanted a closed adoption. They did not want 

anything to derail their placement with her. The children’s 

counsel joined with the Department’s request to terminate 

parental rights.

Father’s counsel objected to the termination of parental 

rights. He said that father spoke to Andrew and Khailan weekly 

via FaceTime and shared a relationship with them. Counsel 

pointed out that because the children’s caregiver wanted a closed 

adoption, terminating parental rights would preclude Andrew 

and Khailan from seeing or speaking to father until they were 18 

years old.

After hearing argument from counsel, the juvenile court 

admitted into evidence documents submitted by the Department 

and took judicial notice of the electronic case file. The court then 

made the following findings:

“Regarding the parental bond exception, the 

parents must show by preponderance of the evidence 

that the parental relationship would benefit the 

child. It has to be a significant benefit. The parents 

need to show a parental role towards the child, more 

than just an emotional bond. I know the parents love 

the child—the children, and the children love the 

parents. That’s evident. But, it has to be more than 
8

just that emotional bond, and also that terminating 

parental rights would be detrimental to the children.

“The children have been with the current 

placement since 2019, and as [childrens’ counsel] 

indicated, they are doing well and wish to remain in 

their care.”

The juvenile court found that any benefit to the children 

from maintaining the relationship with their parents was 

outweighed by the physical and emotional benefit they would 

have through adoption. The court found by clear and convincing 

evidence that the children were adoptable and that no exception 

to terminating parental rights applied. The juvenile court 

terminated parental rights and ordered the children freed for 

adoption.

This appeal followed.

DISCUSSION

I. Applicable law and standard of review

Once a juvenile court has terminated reunification services 

and determined that a child is adoptable, the court is required to 

terminate parental rights unless it finds an applicable exception. 

(§ 366.26, subd. (c)(1).) The exception at issue here, sometimes 

referred to as the beneficial parent-child exception, 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.” (§ 366.26, subd. (c)(1)(B)(i).)

The parent bears the burden of proving that the exception 

applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) To 
9

do so, the parent must prove three statutory elements: “(1) 

regular visitation and contact, (2) a relationship, the continuation 

of which would benefit the child such that (3) the termination of 

parental rights would be detrimental to the child.” (In re 

Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)

For the first element, visitation, the question is simply 

whether the parent visited consistently, as permitted by court 

orders. The focus is not on punishing or rewarding parents for 

their behavior in visiting or maintaining contact but on the best 

interests of the child. (Caden C., supra, 11 Cal.5th at p. 632.)

As to the second element, whether the child would benefit 

from continuing the relationship, “the parent must show that the 

child has a substantial, positive, emotional attachment to the 

parent—the kind of attachment implying that the child would 

benefit from continuing the relationship.” (Caden C., supra, 11 

Cal.5th at p. 636.) The parent must also show that “the 

relationship promotes 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.” (In re Autumn H.

(1994) 27 Cal.App.4th 567, 575.) Relevant factors in assessing 

the parent-child relationship include “[t]he age of the child, the 

portion of the child’s life spent in the parent’s custody, the 

‘positive’ or ‘negative’ effect of interaction between parent and 

child, and the child’s particular needs.” (Id. at p. 576.) For the 

third element, whether termination would be detrimental to the 

child, the court must determine “how the child would be affected 

by losing the parental relationship—in effect, what life would be 

like for the child in an adoptive home without the parent in the 

child’s life.” (Caden C., supra, at p. 633.)
10

We review the juvenile court’s findings concerning 

visitation and whether the child would benefit from continuing 

the relationship with the parent for substantial evidence. 

(Caden C., supra, 11 Cal.5th at pp. 639-640.) Whether 

termination of parental rights would be detrimental to a child 

because of the child’s relationship with the parent is a question 

we review for abuse of discretion. (Ibid.)

II. No abuse of discretion

Father did not sustain his burden of proving that his 

relationship with Andrew and Khailan promoted the children’s 

well-being to such a degree as to outweigh the benefits they 

would gain in a permanent adoptive home with Ms. N.

4

At the time of the section 366.26 hearing, Andrew and 

Khailan had been removed from father’s care for approximately 

six and a half years—more than half of their lives. Father had 

never progressed beyond monitored visitation and had no in 

person visits with the children for almost a year before the 

section 366.26 hearing. Both children were closely bonded with 

their prospective adoptive mother, Ms. N., and wished to remain 

in her care. Although the children said they loved their parents, 

they also said they wanted finality in their placement and wished 

4 The parties dispute whether father met his burden of 

showing consistent visitation. Father must establish all three 

elements of the beneficial parent-child exception. (Caden C., 

supra, 11 Cal.5th at p. 631.) He did not sustain his burden of 

proving that he and the children shared a substantial positive 

attachment that outweighed the benefits of a permanent adoptive 

home. We therefore need not address the juvenile court’s finding, 

or absence thereof, with respect to the first element—whether 

father maintained consistent visitation throughout the case.
11

to be adopted by Ms. N. The children’s counsel informed the 

juvenile court that Andrew and Khailan understood that Ms. N. 

wanted a closed adoption, and both children wished to remain 

with Ms. N.

There is substantial evidence in the record that the 

children’s interests would be best served by the stability of 

adoption with their current caregiver, who met the children’s 

daily physical and emotional needs. Ms. N. provided the children 

with a permanent and stable home; accompanied them to their 

extracurricular activities, therapy sessions, and medical 

appointments; and shared their daily experiences. The children 

were loving and comfortable with Ms. N. and said they wanted to 

be adopted and to live with her.

Father’s claim that the juvenile court erroneously based its 

decision on the fact that he did not occupy a “parental” role in the 

children’s lives is unavailing. Some appellate courts have 

expressed concern that a juvenile court’s use of that term or 

similar terms such as “parental relationship” in the context of the 

beneficial parent-child exception suggest that an improper legal 

standard was applied. (See In re J.D. (2021) 70 Cal.App.5th 833, 

864 [juvenile court’s conclusory determination that mother’s 

relationship with child did not “‘amount to a parental bond’” did 

not address whether child had a substantial, positive emotional 

attachment to parent]; In re B.D. (2021) 66 Cal.App.5th 1218, 

1229-1230 [questioning whether juvenile court improperly 

“equated a parental role, as it related to application of the parentchild relationship exception, with the ability to parent ‘on a 

fulltime basis’”].) That concern is not present here.

The juvenile court here stated on the record the court’s 

findings regarding father’s relationship with the children, and 
12

the benefits of continuing that relationship did not outweigh the 

benefits the children would have from adoption. The juvenile 

court’s observation that the parents needed to show a “parental 

role” does not persuade us that the court applied an incorrect 

legal standard in this case. The juvenile court did not abuse its 

discretion in finding that the beneficial parent-child exception to 

terminating parental rights did not apply.

Any error in the juvenile court’s reasoning or basis for its 

decision was harmless in any event. Father was given a full and 

fair opportunity to present evidence on a contested issue. He 

presented no evidence at the section 366.26 hearing that the 

children had a “‘substantial, positive emotional attachment’” to 

him that would outweigh the benefits of adoption. (In re J.R. 

(2022) 82 Cal.App.5th 526, 533.)

We reject father’s contention that the juvenile court erred 

by not considering legal guardianship as the children’s 

permanent plan. Adoption is the preferred permanent plan once 

a finding of adoptability has been made. (§ 366.26, subd. (c)(1); 

In re S.B. (2009) 46 Cal.4th 529, 532.) Legal guardianship is an 

alternative to adoption when a “child is living with a relative who 

is unable or unwilling to adopt the child because of circumstances 

that do not include an unwillingness to accept legal or financial

responsibility for the child, but who is willing and capable of 

providing the child with a stable and permanent environment 

through legal guardianship.” (§ 366.26, subd. (c)(1)(A).) Those 

circumstances do not exist here. The children’s caregiver here, 

Ms. N., was strongly committed to adopting the children.
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DISPOSITION

The order terminating parental rights is affirmed.

___________________________

CHAVEZ, Acting P. J.

We concur:

_______________________________

HOFFSTADT, J.

_______________________________

BENKE, J.*

* Retired Associate Justice of the Court of Appeal, Fourth 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.