Filed 12/6/22 In re Brannon B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re BRANNON B. et al, Persons

Coming Under the Juvenile Court 

Law.

 B316440

 (Los Angeles County

 Super. Ct. No. 19CCJP02782A-C)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

SADE W. et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles 

County, Linda L. Sun, Judge. Affirmed.

Neale B. Gold, under appointment by the Court of Appeal, 

for Defendant and Appellant Sade W.
2

Konrad S. Lee, under appointment by the Court of Appeal, 

for Defendant and Appellant Ronald B.

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

Assistant County Counsel, and Aileen Wong, Senior Deputy 

County Counsel, for Plaintiff and Respondent.

__________________________________

Sade W. and Ronald B. appeal the November 10, 2021

order terminating parental rights to their children, nine-year-old 

Brannon B., seven-year-old Alyssa B. and six-year-old 

Roxanne B., pursuant to Welfare and Institutions Code 

section 366.26,

1 contending the juvenile court failed to comply 

with the directives of In re Caden C. (2021) 11 Cal.5th 614 and 

erred in ruling they had failed to establish the beneficial parental 

relationship exception to termination (§ 366.26, subd. (c)(1)(B)(i)). 

Sade, the noncustodial parent, also appeals the order, entered

earlier the same day, denying her section 388 petition seeking 

custody of the children and family maintenance services or, in the 

alternative, additional family reunification services. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prior History Affecting Custody and Visitation

In September 2015 the juvenile court sustained a

dependency petition pursuant to section 300, subdivision (b)(1), 

alleging Sade and Ronald had a history of domestic violence with 

each of them on occasion being the aggressor. Brannon and 

Alyssa were declared dependents of the court and removed from 

their parents’ custody. Sade and Ronald were ordered to 

participate in family reunification services, which included drug 

1 Statutory references are to this code.
3

testing for Sade. Sade gave birth to Roxanne in April 2016, and 

Sade and Ronald agreed to a voluntary family maintenance case 

for the infant. In September 2016 the court made a home-ofparents order for Brannon and Alyssa; but the children were 

removed from Sade and placed with Ronald in April 2017 after

Sade failed to participate in court-ordered drug testing. Roxanne 

was declared a dependent child of the court under section 300, 

subdivision (j), in June 2017. The following month the court 

terminated its jurisdiction and awarded Ronald sole physical and 

legal custody of the children and limited Sade to monitored 

visitation. 

In dissolution proceedings that began while the dependency 

case was still active, the family court confirmed Ronald’s sole 

physical and legal custody of the children and in June 2018 

issued a domestic violence restraining order protecting Ronald 

and the children from Sade. The five-year restraining order, 

which prohibited any contact between Sade and Ronald or the 

children, followed Sade’s arrest for assaulting Ronald in the 

presence of the children. 

2. The Sustained Petition and Disposition Orders

The children were detained from Ronald in April 2019

following a report of general neglect and placed with the 

maternal grandfather and step-grandmother. In June 2019 the 

juvenile court sustained an amended petition pursuant to 

section 300, subdivision (b)(1), alleging Ronald had displayed 

mental and emotional problems, including erratic and delusional 

behavior, which made him unable to provide regular care for the 

children. The court noted at the hearing that Sade, the 

noncustodial parent, was nonoffending. 
4

Proceeding directly to disposition, the court declared the 

children dependents of the court, removed them from Ronald’s 

custody and ordered them suitably placed. The court ordered 

family reunification services for Ronald including mental health 

counseling and drug testing and required he take all prescribed 

psychotropic medication. Ronald was allowed monitored 

visitation. The children remained with their maternal 

grandparents.

The court asked counsel for Sade whether she was seeking 

custody of the children. Counsel replied, “Not today, Your 

Honor.” The court approved monitored visitation for Sade, but 

directed her counsel to file a section 388 petition to modify the 

restraining order to permit visitation to occur. 

3. The Reunification Period

On July 22, 2019 the juvenile court granted Sade’s request 

to modify the restraining order and removed the children as 

protected individuals. The court granted Sade monitored 

visitation twice a week for two hours each visit conditioned on 

compliance with her court-ordered case plan, which included a 

24-week domestic violence program and individual counseling to 

address case issues (domestic violence). 

On October 31, 2019 Sade filed a section 388 petition

requesting the court liberalize her visitation and include in the 

record that she was seeking custody of the children. The court 

denied the petition without a hearing, stating Sade failed to 

allege sufficient new evidence or a change of circumstances. 

At the six-month review hearing (§ 366.21, subd. (e)) in

January 2020, the court found Sade had made only minimal 

progress and Ronald had made partial progress in their case 

plans. The court ordered that family reunification services 
5

continue and set the matter for a 12-month review hearing

(§ 366.21, subd. (f)). On March 20, 2020 the court ordered 

suspension of in-person visits due to the COVID-19 pandemic. 

In June 2020 Sade gave birth to a baby girl. (The child is 

not part of this case.) In a status review report for the

rescheduled 12-month review hearing on September 10, 2020, the 

social worker for the Los Angeles County Department of Children 

and Family Services stated Sade had been reluctant to provide

any information about the child’s father, Sade’s live-in boyfriend, 

Vincent C. In a last minute information report for the hearing, 

the social worker advised the court there was an open child 

welfare referral being investigated in Nevada County, where 

Sade lived, alleging general neglect involving Sade and the 

newborn child.

At the 12-month review hearing the court found Sade in 

partial compliance and Ronald in minimal compliance with their 

case plans, ordered that family reunification services continue, 

and set the matter for an 18-month review hearing (§ 366.22).

The Department’s March 2021 report for the section 366.22 

hearing stated Sade had completed her domestic violence course, 

but had not satisfactorily participated in therapy. According to 

the report, her therapist recommended that Sade reenroll “to 

address[] her unresolved issues” and had informed the social 

worker “he believe[d] that if mother does not re-enroll in therapy 

if things do not work out in mother’s current relationship mother 

will repeat the same actions as she did with father.” In addition,

“he does not recommend that the children return home until 

mother addresses her unresolved issues.”

Sade was arrested for an incident of domestic violence 

involving Vincent in mid-April 2021. Responding police officers 
6

determined Sade was the aggressor and had injured Vincent, who 

was granted an emergency protective order. The Department’s 

April 28, 2021 last minute information report also indicated there 

had been a prior domestic violence incident involving Sade and 

Vincent in January 2021. 

Also in late April 2021 Sade’s therapist wrote the 

Department’s social worker to explain his earlier comments 

regarding Sade’s participation in therapy. As he had previously 

stated, Sade had decided to end therapy with him. However, in 

reviewing his prior correspondence with the Department, he

realized the court had not required any particular number of 

sessions and the purpose was simply “to ‘address the issues.’” 

Accordingly, given Sade’s understanding of the terms of her 

therapy, “she fulfilled them.” He added, “I believe we might have 

been able to ‘fine tune’ the material discussed in sessions but 

with some reflection, I can see that she might have felt she 

completed what had been asked of her.”

At the April 29, 2021 section 366.22 hearing the court 

found by clear and convincing evidence that return of the 

children to the physical custody of the parents would create a 

substantial risk of detriment to them. The court also found Sade

and Ronald had made only partial progress toward alleviating 

the causes necessitating placement of the children and 

terminated reunification services for both of them. The court

scheduled a selection and implementation hearing (§ 366.26) for 

August 26, 2021. Neither Sade nor Ronald sought writ review of 

the court’s findings and orders. (See Cal. Rules of Court, 

rules 8.450, 8.452.)2

2 References to rules are to the California Rules of Court.
7

4. The November 10, 2021 Hearings

In its report for the section 366.26 hearing, filed July 22, 

2021, the Department recommended termination of Sade’s and 

Ronald’s parental rights and stated the maternal grandparents 

were willing to adopt all three children and had been approved 

for adoption. The children told the social worker they loved living 

with the grandparents, and the social worker observed the 

children to be happy and comfortable in the home and the 

grandparents to be affectionate and loving toward the children.

The report continued, “The prospective adoptive parents [the 

maternal grandparents] are meeting the children’s diverse needs 

and facilitating medical, developmental, mental health, while 

providing adequate supervision. . . . [They] are strong advocates 

for the children and are committed to providing a permanent 

home.”

Sade filed a new section 388 petition shortly before 

August 26, 2021. Her petition requested custody of the children 

with family maintenance services or, alternatively, increased and

unmonitored visitation. The petition attached a dozen exhibits 

(designated A through L) in support of her allegation of changed 

circumstances.

The court continued the section 366.26 hearing to 

November 10, 2021 for a contested hearing, set Sade’s section 388 

petition for a hearing on the same day, and ordered the 

Department to file a response to the petition by October 27, 

2021.3 The Department’s 25-page response (plus attachments)

3 At the hearing on August 26, 2021 the court indicated it 

had not yet seen the section 388 petition, which, according to 

Sade’s counsel, had been filed two days earlier. On September 3, 

2021 the court set a hearing for September 10, 2021 to determine 
8

expressed “great concern for the mother’s ability to exercise new 

skills and or abilities to refrain from engaging in domestic 

violence,” notwithstanding her completion of a 26-week domestic 

violence course. The Department also described the somewhat 

uncertain nature of Sade’s participation in, and purported 

completion of, court-ordered individual therapy. 

a. The section 388 hearing

At the section 388 hearing on November 10, 2021, the court 

admitted into evidence without objection Sade’s petition with 

exhibits and the Department’s October 27, 2021 response, as well 

as the Department’s July 22, 2021 section 366.26 report. Sade’s 

counsel did not ask that Sade testify or seek to introduce any 

additional evidence, requesting only the opportunity to present

argument. At the outset of her argument counsel noted that 

Sade was nonoffending and then advised the court, “We are, at 

the very least, asking that the court order for reunification

services to be resumed for another six months, or reinstated, 

since it’s been terminated.” Counsel did not address the 

petition’s request for an immediate return of custody of the 

children to Sade.

Counsel for the Department, joined by minors’ counsel, 

argued Sade had not made a sufficient showing of a change of 

circumstances to justify granting section 388 relief. The 

Department also pointed out Sade was apparently no longer

seeking custody and had made no showing that granting 

whether it should grant or deny an evidentiary hearing on the 

section 388 petition. On September 10, 2021 the court ordered a 

hearing on the petition, confirmed the previously ordered 

November 10, 2021 hearing date, and again ordered the 

Department to prepare a response by October 27, 2021. 
9

additional reunification services would be in the children’s best 

interest. 

The court denied the petition, noting it had “considered all 

the evidence in this matter and counsel’s arguments” and found 

Sade “did not meet her burden, not even the prima facie burden, 

to have the court sustain the 388 petition.” First, the court ruled, 

Sade had not demonstrated her circumstances had changed, 

observing that her April 2021 arrest for domestic violence showed 

she had not learned how to apply skills addressed in her domestic 

violence classes.4 In addition, the court noted, Sade’s therapist 

had expressed concern that there were unresolved issues that 

might resurface if Sade did not resume individual counseling. 

Second, the court found Sade had failed to establish that granting 

further reunification services would be in the best interests of the 

children. During Sade’s in-person visits the two older children, 

although happy to see her, were allowed to misbehave because 

Sade did not set boundaries and then made no effort to correct

them. Consistent with the arguments of counsel, the court did 

not address the request made in Sade’s petition for an immediate 

return of the children to her custody.

b. The section 366.26 hearing

The section 366.26 hearing on the Department’s 

recommendation to terminate parental rights began immediately 

after the hearing on Sade’s section 388 petition. Sade testified

she had regularly seen the children every other weekend for two 

years, either flying or driving down from her home in Nevada 

City. If a visit needed to be cancelled (because a child was ill or 

4 The court recognized that criminal charges had been 

dropped, but stated that did not negate the fact that the incident

of domestic violence had occurred. 
10

due to Sade’s transportation problems), she would communicate

directly with the maternal grandfather or the social worker. 

Sade described the children as excited to see her at the visits, 

which lasted from three to five hours. Asked if the children 

showed her physical affection, Sade responded, “Absolutely. . . . 

Our bond is incredibly strong. We talk three times a week. . . 

We’re always happy to see each other, whether it’s in phone or in 

person. We can’t get enough time together.” Sade explained she 

and the maternal grandfather did not have a good relationship; 

he did not invite her to participate in the children’s medical 

appointments; and she did not ask if she could do so because she 

knew he would not allow any contact that was not ordered by the 

court or authorized by the social worker. 

Minors’ counsel, who acknowledged that Sade had visited 

consistently with the children, argued Sade had not shown a 

sufficient bond with the children to establish an exception to the 

preference for adoption and urged the court to terminate parental 

rights. Her visits, he observed, focused only on having fun with 

the children; and he emphasized that Sade had testified the 

children did not cry or otherwise express any emotional upset 

when her visits ended, a point also made by the Department. 

Sade’s counsel argued termination would be detrimental to

the children “because of the parent-child bond exception.”

Responding to minors’ counsel’s just-having-fun comment, she 

argued that, given the limited time Sade had for visits, having 

fun with her children was a necessary part of developing an 

emotional attachment. Counsel then argued, “Balancing the 

parents’ interest in reunification with the child’s need for 

stability and permanency, right now the kids do have—they

are—they have stability with the foster parent.” Because of 
11

Sade’s strong interest in reunifying with the children, she 

concluded, the court should “allow[] a little more time in 

approaching this.”

For his part, Ronald’s counsel, while generally opposing the 

Department’s recommendation to terminate parental rights, did 

not argue the parental relationship exception applied to his 

client. Rather, without explaining his rationale, he urged the 

court to have the Department investigate whether legal 

guardianship would be a more appropriate plan. Counsel then 

asked the court, if it adopted the Department’s recommendation, 

to order the Department to refer the matter for development of a 

post-adoption visitation agreement to permit Ronald to continue

to see the children if he sought and received proper mental health 

treatment. 

The court found by clear and convincing evidence that

Brannon, Alyssa and Roxanne were adoptable and no exception 

to adoption applied; terminated Sade’s and Ronald’s parental 

rights; transferred care custody and control of the children to the 

Department for adoptive planning and placement; and 

designated the children’s current caregivers (the maternal 

grandparents) as prospective adoptive parents. With respect to 

the parental relationship exception to termination, the court 

found that none of the three elements had been met. 

The court briefly discussed the quality of Ronald’s

monitored, virtual or telephone visits with the children, noting he

had frequently displayed aggressive and inappropriate behavior

leading to termination of the visits, but did not otherwise address

the parental relationship exception as it applied to him. 

As to Sade, although the court recognized she had regular

in-person visits with the children, the court found her phone or 
12

video visits during recent months had not been consistent. Even 

with those visits, the court continued, Sade had not proved the 

children would benefit from the continuation of the relationship: 

“The mere fact [of] the mother’s loving and frequent relationship

is not enough to overcome the need for stability for the children.”

The court noted the children had been with the maternal 

grandparents for two years (since 2019) and had been out of 

Sade’s custody for four years because Ronald had sole custody 

between 2017 and 2019. In addition, the court pointed out, while 

Brannon and Alyssa said they enjoyed visiting with Sade because 

she brought fun things to play with, the children and the 

grandparents all indicated Sade was unable to set boundaries 

and had no rules for the visits. And, as had counsel for the 

children and the Department, the court emphasized that the 

children did not show any emotional upset when visits with Sade

ended.

DISCUSSION

1. The Juvenile Court Did Not Commit Legal Error or 

Abuse Its Discretion in Denying Sade’s Section 388 

Petition

a. Governing law and standard of review

Section 388 provides for modification of juvenile court 

orders when the moving party (1) presents new evidence or a 

change of circumstance and (2) demonstrates modification of the 

previous order is in the child’s best interest. (In re Jasmon O. 

(1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 

295, 317; In re Y.M. (2012) 207 Cal.App.4th 892, 919; see 

rule 5.570(e); see also In re Zacharia D. (1993) 6 Cal.4th 435, 455 

[“‘[s]ection 388 provides the “escape mechanism” that . . . must be 
13

built into the process to allow the court to consider new 

information’”].) 

When, as here, a section 388 petition is filed after family 

reunification services have been terminated, the juvenile court’s 

overriding concern is the child’s best interest. (In re 

Stephanie M., supra, 7 Cal.4th at p. 317.) The parent’s interests

in the care, custody and companionship of the child are no longer 

paramount; and the focus shifts to the needs of the child for 

permanency and stability. (Ibid.; In re Malick T. (2022) 

73 Cal.App.5th 1109, 1123.) Nonetheless, a parent may rebut the 

presumption that, once family reunification services have been 

terminated, reunification is not in the best interest of the child by 

showing that circumstances have changed and that the best 

interest of the child warrants further reunification services. 

(In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Stephanie M., at 

p. 317.) 

“[B]est interests is a complex idea” that requires 

consideration of a variety of factors. (In re Kimberly F. (1997) 

56 Cal.App.4th 519, 530; see In re Jacob P. (2007)

157 Cal.App.4th 819, 832-833.) In determining whether a 

section 388 petitioner has made the requisite showing, the 

juvenile court may consider the entire factual and procedural 

history of the case, including factors such as the seriousness of 

the reason leading to the child’s removal, the reason the problem 

was not resolved, the passage of time since the child’s removal, 

the relative strength of the bonds with the child, the nature of the 

change of circumstance, and the reason the change was not made 

sooner. (In re Mickel O. (2011) 197 Cal.App.4th 586, 616; In re 

Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447; In re Justice P. 

(2004) 123 Cal.App.4th 181, 188-189.) 
14

If the juvenile court has ruled the parent failed to carry his 

or her initial burden to demonstrate new evidence or changed 

circumstances, the first step of the analysis, the question for the 

reviewing court is whether that finding is erroneous as a matter 

of law. (See Almanor Lakeside Villas Owners Assn. v. Carson

(2016) 246 Cal.App.4th 761, 769 [where the issue on appeal turns 

on a failure of proof at trial, “the question for the reviewing court 

[becomes] ‘“whether the evidence compels a finding in favor of the 

appellant as a matter of law”’”]; In re Aurora P. (2015) 

241 Cal.App.4th 1142, 1156 [same].) We review the court’s 

decision to grant or deny a section 388 petition based on its best 

interest finding for abuse of discretion and may disturb the 

exercise of that discretion only in the rare case when the court 

has made an arbitrary or irrational determination. (In re 

Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Malick T., 

supra, 73 Cal.App.5th at p. 1123; In re I.B. (2020) 53 Cal.App.5th 

133, 153.) We do not inquire whether substantial evidence 

supports the order, nor do we reweigh the evidence and 

substitute our judgment for that of the juvenile court. (In re 

Stephanie M., at pp. 318-319.) We ask only whether the juvenile 

court abused its discretion with respect to the order it actually 

made. (In re M.H. (2018) 21 Cal.App.5th 1296, 1305.)

b. The juvenile court did not commit legal error in 

failing to find it would be detrimental to the children 

to return custody to Sade

Sade does not argue on appeal that the court abused its 

discretion in denying her request for additional reunification 

services—the only issue addressed by her counsel at the hearing 

on her section 388 petition—or in finding more generally that she 

had not established the children’s best interests would be 

furthered by the modifications requested in her petition. Rather, 
15

focusing solely on the petition’s request for an immediate return

of the children to her custody, she contends the court did not 

conduct a proper hearing or apply the correct legal standard. 

The foundation for Sade’s argument is rule 5.570(h)(2),

which provides the section 388 hearing “must be conducted as a 

dispositional hearing under rules 5.690 and 5.695 if: [¶] . . . [¶]

(B) There is a due process right to confront and cross-examine 

witnesses. [¶] Otherwise, proof may be by declaration and other 

documentary evidence, or by testimony, or both, at the discretion 

of the court.” According to Sade, because she was a nonoffending

noncustodial parent, the court was required, as it would be at a 

disposition hearing pursuant to section 361.2, subdivision (a), to 

place the children with her unless it found by clear and 

convincing evidence it would be detrimental to the children to do 

so. It was legal error, Sade contends, for the court to instead 

apply the best interests standard to deny her petition.5

5 Because the court stated Sade had not even met her prima 

facie burden under section 388, Sade argues the court failed to 

consider any evidence, denying the petition based solely on her 

pleading, which, she asserts, violated the requirement that the 

hearing be conducted as a disposition hearing. Even a cursory 

reading of the court’s ruling belies that contention. As discussed, 

the court admitted into evidence not only Sade’s petition, which 

included Sade’s declaration and multiple exhibits, but also the

section 388 and 366.26 reports, offered the parties an opportunity 

to present additional evidence and listened to oral argument. 

The court then expressly stated it had considered the evidence 

(and argument) and found Sade had not carried her burden to 

demonstrate the elements necessary for section 388 relief. That 

is the manner in which many (if not most) disposition hearings 

are conducted. The additional reference to Sade’s prima facie 

burden was nothing more than a grace note.
16

Even if not forfeited because it was not raised in the 

juvenile court (see In re S.B. (2004) 32 Cal.4th 1287, 1293

[forfeiture doctrine applies in dependency proceedings]; In re

Elijah V. (2005) 127 Cal.App.4th 576, 582 [“[a] parent’s failure to 

raise an issue in the juvenile court prevents him or her from 

presenting the issue to the appellate court”]; see also In re

Wilford J. (2005) 131 Cal.App.4th 742, 754]), Sade’s argument 

the court applied the wrong legal standard is unpersuasive.

By its terms section 361.2 generally applies only at the 

disposition hearing when a child is first formally removed from 

the care of the custodial parent. (In re Zacharia D., supra, 

6 Cal.4th at p. 453 [“Nothing in this statute suggests that custody 

must be immediately awarded to a noncustodial parent 

regardless of when in the dependency process the parent comes 

forward. Rather, its language suggests that the statute is 

applicable only at the time the child is first removed from the 

custodial parent or guardian’s home”]; In re Z.K. (2011) 

201 Cal.App.4th 51, 70 [“[s]ection 361.2 is designed to apply at 

the disposition phase of the dependency proceeding, when the 

court first elects to remove the child from the custody of the 

custodial parent”].) Nonetheless, courts have on occasion applied

the principles of section 361.2 postdisposition to avoid prejudice

to a noncustodial nonoffending parent who did not know about

the dependency proceeding until after the disposition hearing or

who did not request custody until after the disposition hearing in

order to establish presumed father status. (See, e.g., In re

Liam L. (2015) 240 Cal.App.4th 1068, 1083 [father appeared

before disposition hearing and requested custody after disposition

hearing to establish presumed father status and develop a

relationship with the child]; In re Jonathan P. (2014) 
17

226 Cal.App.4th 1240, 1255-1256 [social services agency failed to 

adequately search for the parent]; In re Suhey G. (2013) 

221 Cal.App.4th 732, 744-745 [agency failed “to properly serve 

[the parent,] depriv[ing] him of the opportunity to appear at the 

disposition hearing and obtain custody under the section 361.2 

framework”].) 

In In re Liam L., supra, 240 Cal.App.4th 1068 the court of 

appeal held in these situations, when a noncustodial parent seeks

a postdisposition change in a child’s placement by means of a

section 388 petition, the general best interests test does

not apply: “[G]iven the underlying presumption in California’s

dependency scheme that a minor should be placed with a

noncustodial parent, absent a finding of detriment, such a

placement is inherently in the minor’s best interests.” (Id. at

p. 1073, fn. omitted.) Therefore, “[a] noncustodial parent . . .

makes a prima facie case of best interests[] under section 388,

when the noncustodial parent requests custody of the dependent

child postdisposition. This minimal burden reflects the

noncustodial parent’s constitutional right to care and custody of

the child and the law’s presumption that the child should be

placed with his or her parents whenever possible. A court

considering the noncustodial parent’s [section 388] petition must

place the child with the noncustodial parent unless the opposing

party establishes that the placement would be detrimental to the

child’s safety, protection, or physical or emotional well-being.”

(Id. at pp. 1085-1086.) 

The Liam L. court, however, explained that in this context

“a finding of detriment is equivalent to a finding that placing the 

dependent child with the noncustodial parent is not in the child’s 
18

best interests” (In re Liam L., supra, 240 Cal.App.4th at p. 1086)6

and expressly stated it was not holding the presumption that 

placement with the noncustodial parent would be in the minors’

best interests applied “if the noncustodial parent participates in 

reunification services, the parent fails to make substantial 

progress, the court terminates those services, and the court sets a 

selection and implementation hearing under section 366.26.” 

(Ibid.) That is precisely the circumstance here. Sade through 

counsel advised the court she was not seeking custody at the 

disposition hearing (because there was still in place a no-contact 

domestic violence restraining order); she subsequently 

participated in, and failed to satisfactorily complete, her courtordered case plan; and the court terminated reunification services 

and scheduled the selection and implementation hearing. 

Moreover, at the six-month review hearing on January 6, 

2020, the 12-month review hearing on September 10, 2020, and 

the 18-month review hearing on April 29, 2021 the court found by 

clear and convincing evidence that returning custody of the 

children to their parents would create a substantial risk of 

detriment to them, fully rebutting any presumption it would be in 

the children’s best interests to be placed with Sade. Given those 

findings, it was Sade’s burden under section 388 to present

evidence of a substantial change in circumstance justifying a 

6 The difference, therefore, between a typical section 388

hearing and the one envisioned by the Liam L. court is not in the 

nature of the required finding, but whether the petitioner has the 

burden of proving by a preponderance of the evidence that

modifying custody is in the best interest of the child or the party 

opposing the petition has the burden of proving by clear and 

convincing evidence it is not.
19

modification of the prior rulings and that, notwithstanding 

repeated instances of domestic violence, it was in the children’s 

best interests to be returned to her custody. She did not.

Finally, in addition to the findings of detriment at the three 

review hearings, at the selection and implementation hearing 

held immediately after the section 388 hearing, the court once 

again found by clear and convincing evidence that it would be 

detrimental to the children to be returned to their parents. Any 

possible error in failing to make that finding a few minutes 

earlier was necessarily harmless.

Sade’s argument the juvenile court committed reversible 

error by failing to state on the record the factual basis for its 

order, as required by rule 5.695(a)(7) for decisions regarding 

custody made at a disposition hearing, is similarly flawed. As 

discussed, the court explained in detail why it was denying Sade’s 

request for additional reunification services. The court

reasonably understood from counsel’s argument at the hearing

that Sade was no longer pursuing her request for an immediate 

return of custody and that no express findings as to that issue 

were required.

2. The Juvenile Court Did Not Abuse Its Discretion in 

Finding the Beneficial Parental Relationship Exception 

to Termination of Parental Rights Did Not Apply

a. Governing law and standard of review

The express purpose of a section 366.26 hearing is “to 

provide stable, permanent homes” for dependent children. 

(§ 366.26, subd. (b).) Once the court has decided to end parentchild reunification services, the legislative preference is for 

adoption. (§ 366.26, subd. (b)(1); In re S.B. (2009) 46 Cal.4th 529, 

532 [“[i]f adoption is likely, the court is required to terminate 
20

parental rights, unless specified circumstances compel a finding 

that termination would be detrimental to the child”].)

Section 366.26 requires the juvenile court to conduct a twopart inquiry at the selection and implementation hearing. First, 

it determines whether there is clear and convincing evidence the 

child is likely to be adopted within a reasonable time. (In re 

Caden C., supra, 11 Cal.5th at p. 630; Cynthia D. v. Superior 

Court (1993) 5 Cal.4th 242, 249-250; In re J.W. (2018) 

26 Cal.App.5th 263, 266.) Then, if the court finds by clear and 

convincing evidence the child is likely to be adopted, the statute 

mandates judicial termination of parental rights unless the 

parent opposing termination can demonstrate one of the 

enumerated statutory exceptions applies. (§ 366.26,

subd. (c)(1)(A) & (B); see In re Caden C., at p. 630; In re B.D. 

(2021) 66 Cal.App.5th 1218, 1224-1225.)

One of the statutory exceptions to termination is set forth

in section 366.26, subdivision (c)(1)(B)(i), which permits the court 

to order a permanent plan other than adoption if “[t]he parents 

have maintained regular visitation and contact with the child 

and the child would benefit from continuing the relationship.” As 

the Supreme Court explained in In re Caden C., supra, 11 Cal.5th 

614, the exception requires the parent to establish, by a

preponderance of the evidence, (1) the parent has maintained 

regular visitation and contact with the child, “taking into account 

the extent of visitation permitted”; (2) the child has a substantial, 

positive, emotional attachment to the parent such that the child 

would benefit from continuing the relationship; and 

(3) terminating the relationship “would be detrimental to the

child even when balanced against the countervailing benefit of a 

new, adoptive home.” (Id. at p. 636; see id. at p. 630 [“[t]he 
21

language of this exception, along with its history and place in the 

larger dependency scheme, show that the exception applies in 

situations where a child cannot be in a parent’s custody but

where severing the child’s relationship with the parent, even 

when balanced against the benefits of a new adoptive home, 

would be harmful for the child”].) 

When the benefits of a stable, adoptive, permanent home 

outweigh the harm the child would experience from the loss of a 

continued parent-child relationship, the court should order 

adoption. (In re Caden C., supra, 11 Cal.5th at p. 634.) However, 

“‘[i]f severing the natural parent/child relationship would deprive 

the child of a substantial, positive emotional attachment such 

that,’ even considering the benefits of a new adoptive home, 

termination would ‘harm[]’ the child, the court should not 

terminate parental rights.” (Id. at p. 633.)

We review the juvenile court’s findings as to whether the 

parent has maintained regular visitation and contact with the 

child and the existence of a beneficial parental relationship for 

substantial evidence. (In re Caden C., supra, 11 Cal.5th at 

pp. 639-640; In re A.L. (2022) 73 Cal.App.5th 1131, 1154.) We 

review the third step—whether termination of parental rights 

would be detrimental to the child due to the child’s relationship

with his or her parent—for abuse of discretion. (In re Caden C.,

at p. 640.)

b. The finding that termination of Sade’s parental 

rights would not be detrimental to the children was 

well within the juvenile court’s discretion

As explained in In re Caden C., supra, 11 Cal.5th 614, the 

section 366.26, subdivision (c)(1)(B)(i), exception to termination of 

parental rights is primarily intended to allow a child to continue 
22

to benefit from a positive relationship with his or her parent in 

situations where that parent is unable to regain custody of the 

child. (See id. at p. 630.) It is not an alternative method for 

seeking additional reunification services after a failed section 388 

petition. Yet, as discussed, at the section 366.26 hearing Sade’s

counsel asked the court to balance Sade’s interest in 

reunification, not the children’s interest in maintaining their

relationship with her, against the children’s need for stability 

and permanency. Having failed to even assert that the nature of 

the children’s relationship with Sade outweighed the benefits of 

stability and permanence through adoption by their 

grandparents, let alone to identify evidence in the record to 

support such a conclusion, it would be difficult for us to hold the 

juvenile court erred in ruling Sade failed to establish the 

exception applied.

Notwithstanding counsel’s faulty approach to the issue,

however, the juvenile court expressly considered each of the 

three elements of the parental relationship exception as 

discussed in In re Caden C., supra, 11 Cal.5th 614, and found 

Sade had failed to satisfy any of them. There was no reversible 

error.

As to the first element, regular visitation and contact,

although the court acknowledged Sade had regular in-person 

visits, it found, based on the Department’s reports, that her 

remote (telephonic or video) visitation had been inconsistent. 

The court thus concluded Sade failed to establish this essential 

element of the parental relationship exception. 

On appeal Sade contends the evidence supported the 

contrary finding and notes that minors’ counsel agreed Sade’s 

visitation had been regular. Sade misconstrues the substantial 
23

evidence standard of review: The issue is not whether the court 

could have found in Sade’s favor on this element, but whether the 

finding actually made lacked evidentiary support. It did not. 

(See In re Caden C., supra, 11 Cal.5th at p. 640 [“In reviewing 

factual determinations for substantial evidence, a reviewing court 

should ‘not reweigh the evidence, evaluate the credibility of 

witnesses, or resolve evidentiary conflicts.’ [Citation.] The 

determinations should ‘be upheld if . . . supported by substantial 

evidence, even though substantial evidence to the contrary also 

exists and the trial court might have reached a different result 

had it believed other evidence’”]; cf. In re R.V. (2015) 61 Cal.4th 

181, 200-201 [“[t]here is, however, no single formulation of the

substantial evidence test for all its applications”; where a party 

fails to meet its burden on an issue in the juvenile court, “the 

inquiry on appeal is whether the weight and character of the 

evidence . . . was such that the juvenile court could not 

reasonably reject it”].)

As stated in the most recent status review report before the 

court, filed October 15, 2021, “During this period of supervision, 

mother has been inconsistent with telephone visits with the 

children and consistent with in person visits. Mother has stated 

she is either tired or has an engagement that conflicts with 

telephone visits. The CSW has attempted to address the 

inconsistent phone calls however, mother is either unwilling or 

unable to speak with the CSW.” That information was sufficient 

to support the court’s conclusion Sade’s visitation had not been 

consistent, even taking into account the limitations imposed on 

Sade by court orders. (See In re Caden C., supra, 11 Cal.4th at 

p. 632; In re Eli B. (2022) 73 Cal.App.5th 1061, 1070-1071

[substantial evidence supported finding that parent did not 
24

regularly visit child; although “he had visited regularly ‘for the 

most part’ for two years,” his visitation was often “sporadic and 

also entailed significant gaps”].)

The second element of the parental relationship exception 

has two components: The child has a positive emotional 

attachment to the parent, and the child would benefit from 

continuing the relationship. (See Caden C., supra, 11 Cal.5th at 

p. 636.) The evidence here indicated Brannon and Alyssa, the

two older children, had fun and enjoyed their visits with Sade. 

But both children also said Sade did not have any rules during 

visits, and Brannon confirmed reports that he did not listen to 

Sade. Moreover, although happy to see Sade, none of the

children reacted negatively (that is, displayed emotional upset) 

when the visits ended. When evaluating this limited evidence in 

terms of the strength of the attachment between Sade and the 

children and the benefit of continuing their relationship, the 

court properly considered the age of the children (at this point, 

Brannon was eight years old, Alyssa six and Roxanne five) and 

the fact they had not lived with Sade for four years—the majority 

of their lives. (See id.at p. 632.) Weighing these factors the court

concluded, on balance, the record did not establish the type of 

substantial beneficial emotional attachment necessary for of the 

parental relationship exception to apply. On appeal Sade again 

argues the record supported a finding that the children shared

such a relationship with her, but she fails to demonstrate, as is 

her burden, that there was not substantial evidence for the 

juvenile court’s contrary conclusion.

Finally, even if we were to accept Sade’s arguments that 

she proved consistent visitation and the children’s substantial, 

positive emotional attachment to her, the record is devoid of 
25

evidence that would justify the exceptional conclusion that

maintaining a relationship with Sade outweighed the benefits of 

stability and permanence through adoption by the children’s

grandparents. (See In re Caden C., supra, 11 Cal.5th at p. 631 

[“‘[t]he statutory exceptions merely permit the court, in 

exceptional circumstances [citation], to choose an option other 

than the norm, which remains adoption’”]; accord, In re

Celine R. (2003) 31 Cal.4th 45, 53.) Other than repeating that 

the children were happy to see Sade and asserting without 

supporting evidence that they “will be devastated when they are 

not longer permitted to see their mother,”

7 Sade has presented

nothing that suggests the court’s evaluation of the relative 

benefits of adoption versus preserving the parental relationship 

was arbitrary or irrational. To the contrary, given the ample 

evidence the children were happy and comfortable in the

prospective adoptive home and the grandparents, who wanted to 

provide a permanent home for the children, were nurturing and 

affectionate toward them, the decision that the parental 

relationship exception did not apply was well within the juvenile 

court’s discretion.

c. Ronald forfeited any claim the beneficial parental 

relationship exception applied to him

Although the juvenile court conducted the three-element 

analysis required by In re Caden C., supra, 11 Cal.5th 614 with 

respect to Sade’s contention her bond with the children justified 

application of the beneficial parental relationship exception to 

7 Sade cites her own testimony that she believes the 

maternal grandfather will not allow her to see the children once

they are adopted, but provides no evidence of the impact on the 

children of such a decision were it to be made.
26

termination of parental rights, Ronald argues the court erred in 

failing to make a comparable analysis of his bond with the 

children. That omission is not surprising, nor was it error. It

was Ronald’s burden to assert the exception applied. (See In re

Rachel M. (2003) 113 Cal.App.4th 1289, 1295 [“The juvenile court

does not have a sua sponte duty to determine whether an

exception to adoption applies. [Citations.] The party claiming an

exception to adoption has the burden of proof to establish by a

preponderance of evidence that the exception applies”]; In re 

Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [same].) Ronald did 

not do so, raising only a general objection to adoption at the 

section 366.26 hearing and requesting the court order the 

Department to evaluate legal guardianship as the permanent 

plan for the children.

As the court explained in In re Erik P. (2002)

104 Cal.App.4th 395, “The application of any of the exceptions

enumerated in section 366.26, subdivision (c)(1) depends entirely

on a detailed analysis of the relevant facts by the juvenile court.

[Citations.] If a parent fails to raise one of the exceptions at the

hearing, not only does this deprive the juvenile court of the

ability to evaluate the critical facts and make the necessary

findings, but it also deprives this court of a sufficient factual

record from which to conclude whether the trial court’s

determination is supported by substantial evidence.” (Id. at

pp. 402-403.)

Because Ronald failed to raise the beneficial parental

relationship exception in the juvenile court, it was not error for

the court to address Sade’s bond with the children but not

Ronald’s. In addition, having failed to raise it in the juvenile

court, Ronald has forfeited the issue on appeal. (In re Daisy D.
27

(2006) 144 Cal.App.4th 287, 292; In re Erik P., supra,

104 Cal.App.4th at pp. 402-403; see In re Elijah V., supra, 

127 Cal.App.4th at p. 582.) Ronald concedes he did not contend

in the juvenile court that the exception applied to him but insists

there was no forfeiture because a parent is not required to object

to the social service agency’s failure to carry its burden of proof to

preserve the issue for appeal.

While an accurate statement of the law, Ronald’s argument

is misplaced because it was his burden, not the Department’s, to

establish the exception applied, as made absolutely clear in In re

Caden C., supra, 11 Cal.5th at page 636: “[T]he parent asserting

the parental benefit exception must show, by a preponderance of

the evidence, three things.” (Accord, In re B.D., supra,

66 Cal.App.5th at pp. 1224-1225 [“‘[o]nce the court determines 

the child is likely to be adopted, the burden shifts to the parent to 

show that termination of parental rights would be detrimental to 

the child under one of the exceptions listed in section 366.26,

subdivision (c)(1)’”].) Thus, although it is true, as Ronald asserts,

a parent who does not challenge a finding of adoptability may 

argue on appeal that substantial evidence does not support such 

a finding (see, e.g., In re Gregory A. (2005) 126 Cal.App.4th 1554, 

1560-1561 [because the social services agency has the burden of 

proof of adoptability, a parent is not required to object to the lack 

of substantial evidence in order to preserve the issue for appeal]), 

a parent who did not assert the parental relationship exception in 

the juvenile court has no right to do so on appeal. (In re 

Rachel M., supra, 113 Cal.App.4th at p. 1295; In re Erik P., 

supra, 104 Cal.App.4th at p. 403.)
28

DISPOSITION

The juvenile court’s November 10, 2021 orders denying 

Sade’s section 388 petition and terminating parental rights are 

affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.