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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 B RANNON B . et al

, Person s Coming Under the Juven ile Court Law. B 316440

(Los Angeles County Super. Ct. No. 19CCJP02782 A

- C )

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

S ADE W

. et al.,

Defendant s and Appellant s

.

APPEAL from order s of the Sup eri or C ou rt of Los Angeles County, Linda L. Sun

, Judge

. Affirmed

. Neale B. Gold , under appointment by the Court of Appeal, for Defendant and Appellant S ade W

.2 Konrad S. Lee , under appointment by the Court of Appeal, for Defendant and Appella nt R onald B.
D awyn R. Harris on , Acting County Counsel, Ki m Nemo y, Assistant County Counse l

, and Aileen Wong , Senior Deputy
Count y Counsel, for Plaintiff and Respondent.

__________________________________

S ade W. and Ronald B. appeal the November 10, 2021
order termi nat ing 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 I n stitutions Code
section 366.26

, 1 contending t h e juvenile court failed to comply
with the directi ve s of In re Ca de n 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 noncusto d ial parent, also appeals the order

, entered

ea rli er the same day

, de nying her section 388 petition seeking custody of the children and fam il y maintenance services or, in the alternative, additional family reunification services

. We affirm

. FACTUAL AND PR O CEDURAL BACKGROUND

1. Prior History Affecting Cu stody and Vi sit at io n In Sept ember 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 o f them on occasion being the aggressor. Brannon a nd
A ly ssa w e re dec lared dependen ts of the court and r emoved from
th eir parents ’ custody. Sade and Ronald were ordered to participate in family reunification services , which included drug

1 Statutory references are to this cod e.3

test i ng for S ade

. Sade gave birth to Roxanne in April 201 6 , and
S ad e and Ronald a g reed to a voluntary family maintenance case
for the infant . In September 2016 the court made a home

- of

parents order for Brannon and Alyssa ; but the children we r e

remove d from Sade and placed with Ronald in A p r il 2017 after
Sad e f ail ed to p artici pate i n c ourt

- ordered drug test ing

. Roxanne was declared a dependent child of the court under section 300, subdivision (j), in June 2017. The following month the court

t erminate d its jurisdiction and awarded R onald sole physical and
le g al custody o f the childr en and limited Sade to m o nitored
visitation

. In dissolution proceedings that began while the dependency case was still active, t he family court co n firmed R onal d ’ s sole physical and legal custody of the children an d i n June 2 018
issued a domes tic violence re straining or der protecting Ronald
and the children from Sade

. The five

- year restraining order

, which prohibited any contact betwe e n Sade a nd Ronald or the children, followed Sad e ’ s arrest for assaulting Ronald in the presence of the childre n

. 2. The Su stained Petition and Disposition Orders The children were detained from Ronald in April 2019
foll o wing a report of g eneral neglect and placed with the maternal g randfather and step

- grandmother

. I n June 201 9 the juvenile court sustained an a mended petit ion pur suant to
section 300, subdivision (b)(1), alleging Ronald h ad disp layed
mental and emotional problems , including erratic and delusional behavior, which made him unable to provide regular care for th e ch ildren. The court noted at the hea ring that Sa de

, the noncustodial parent, was nonoffen ding.4 Proceeding directly to disposition, t h e court declared the children depend e n ts of t he court, remo ved them from R onald ’ s custody and ordered them suitably placed. The court ordered family reunifi cation servi ces for Ronald includi ng mental health

coun seling an d drug testing and require d he take all prescribed psychotro pic medication

. R onald was allowed monitored
visitatio n. The ch ildren remained with the ir maternal grandparents.
The court asked c ounsel for S ade whether she was seeking custody of the children. Counsel replied, “ Not today, Your
Honor. ” The court approved m onit ored visitation for Sade, but
directe d her counsel to file a section 388 pe tition to modify the restraining order to permit visitation to occur.
3. The R e u nification Period On July 22, 2019 the juvenile court granted S ade ’ s requ est to modify the restraining order and remov ed the children as protected individuals. The court granted Sade monitored
visitation twice a week for two hours ea ch vi s it conditioned on compliance with her court

- ordered case plan

, which incl uded a 24

- week domestic violence program an d individual counseling t o address case issues ( domestic violence )

. On Octob er 31, 2019 Sade filed a section 388 petition

r equ esting the cour t liberalize her visitation and include in t h e record t hat 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 o f circum s tances.
A t the si x

- mo nth review hearing ( § 366 .21, subd. (e)) in January 2020, the court f ound Sade had made only minimal

prog ress and Ronald had mad e partial progress in their case plans. The cour t ordered that family reunif icat i on services5

continu e and set th e m atter for a 12

- month revi ew hearing ( § 366. 21, s ubd. (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 c hild is not part of this case.) In a status r eview report fo r the

re schedule d 12

- month review hearing on Septem ber 10, 2020 , the

s ocial worker for the Los Angeles County Department of Children
and Fami ly Services stated Sade had been reluctant to provide any information abo ut the child ’ s father, Sade ’ s live

- in b o yf riend

, V incent C

. In a last minute information report for the hearing,
the social worker advised the court there was an open child
welfare refe r ra l being investig ated in Neva da Coun t y, where
Sade lived

, alleging general negl ect involving Sa d e and the

n ewb orn child.
At th e 12

- month re view hearing the court found Sade in partial compliance and Ronald in min imal compliance with their case plans

, ordered that family reunific a tion services conti nue, and set the matter for an 18

- m onth review hea r ing ( § 366.2 2). The Department ’ s Marc h 2021 report for the section 366.22 hearing stated Sade had completed her domestic violence course,
but had not satisfactorily partici p ated in therapy. According to the report, her the r a pist recommen ded that Sa de ree nroll “ to
ad dre ss [] her unresolved issues ” and had informed the social
worker “ he believe [d ] that if mother does not re

- enroll in ther apy if thin gs do not work out in m other ’ s current rel ationship mother will repeat the s ame action s as she did w ith father

. ” In additi on,

“ he does not recommend that the chi l d ren return ho me until
mother address es her unresolved issues. ”
Sad e was arrested for an incident of d o mestic violence
inv olving Vincent in mid

- A pril 2021. Responding police off icers6

determined Sade was the aggr ess or and had in jured Vincent, who was granted an emergency protect ive order. The Department ’ s April 28, 2021 l ast minu t e information report also indicated there
had been a prior d ome stic violence incident involving Sade and Vincent in January 20 21.
Also in la te April 2021 Sade ’ s therapist w rote the Department ’ s social worker to explain his earlier co mments

r e garding Sade ’ s participation in the rapy. As he had p revious ly stated, Sade h ad decided to end therapy with him . However, in reviewing his prior corre spo ndence with the Department

, he realized the court had not required any particular number of

s essions a nd the purpose was si mply “ to ‘ address the issu es. ’ ”
Acco rding ly, given Sa de ’ s understanding of the terms of her

t herapy, “ she fulfille d t hem. ” He ad ded

, “ I believe we might have
been able to ‘ fine tune ’ the material discussed in sessions but
with some re flection, I can see that she migh t have felt she completed wh at had been asked of her. ” At the April 29, 2021 section 366.22 hearing th e court foun d b y clear and convincing evidence that return of the
children to the p h ysical c u stody of the parents would create a
substantial r isk of detr iment to them. The court als o found Sade
and Ronald had made only partial progress toward al leviating
the causes n ece ssitating placement of t he children and
terminated r e unification services for both of them. The court

s cheduled a sel ection and i m plementation hearing ( § 366.26) for August 26, 2021. Neither Sade nor Ronald sought writ review of
the court ’ s findings a nd orders. (See Cal. Rules of Court,
rules 8.450, 8.45 2 .) 2

2 References to rul es are to the Califor nia Rules of Court.7 4

. The November 10, 2021 Hearings
In its r eport for the se ction 366.26 hearing , filed July 22, 2021, the Department recommended termination of Sade ’ s and
Ronald ’ s parental rights an d stated the ma ternal gran dparents
were willin g to ado p t all three children and had been approved
for ad option

. The ch ildren told the social worker they loved living with the grandparents, and the social worker observed the children to be happy an d co mfor table in the ho me and the grandparents to be affectionat e and loving toward the child ren. The rep ort continue d

, “ The prospective a doptive parents [the maternal grandparents] are meeting the children ’ s diverse needs and facilitating medical, develop mental, men t al he a l th, while providing a dequate supervision.

. . . [They] are strong adv ocates for the c hildren and are committed to p roviding a permanent
home. ”
Sa de f iled a new section 388 petitio n shortly before August 26, 2021 . Her petition requested cus tody of the ch i l dren with family ma int enance services or , altern atively, in creas ed and

un mon itored visitation. The petition attac hed a dozen exhibits ( design ated A th rough L) in support of her allegation of changed
circumstances.
The cou rt continued the section 366. 26 hearing to Novembe r 1 0, 2021 for a contested h earin g, 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 o n Au gust 26, 20 21 th e court indicat ed it had no t yet seen the section 388 petition, whic h , according to Sade ’ s counsel, h ad been file d t wo days earlier. On Septembe r 3, 2021 the court set a hearing for Septe mber 10, 2021 to d etermine8

e xpressed “ great c oncern 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
vi olence cou r se. The Departme nt al so described the somewhat

un cer t ain nat ure of Sade ’ s participation in, and purported completion of, court

- order ed individual therapy.

a. The section 388 hearing
At the section 388 he aring on November 10, 2021, t he court
admitted into evidence wi thout o bjection Sade ’ s pe titio n with
exh ibits and the Department ’ s Oc tober 27, 2021 respons e, as well as the Department ’ s July 2 2, 2021 section 366.26 report

. Sade ’ s counsel did not a sk th at Sade testify or seek to introduce an y additional evide nce, requ e st ing only the opportunit y to present

ar gument. A t the outset of her argument counsel noted that
Sade was nonoffending and then advised the court, “ We are, a t the very least, asking that the court ord er for reunification
services to be resumed for anot her six months, or reinstate d,
since it ’ s b een termin ated. ” Counsel did not address the petition ’ s request for an immediate re turn of custody of the
ch ildren to Sade.
C ounsel for t he Department, joine d by minors ’ c ounsel, argued S ade had not made a sufficient showing of a change of
circumstance s t o justify gr anting section 388 relief . The Department also pointed out Sade was apparently no l onger seeking custody and had made no show ing that gran ting

whether it sh ould grant or d eny an evide ntiary hearing on the section 388 petition. On September 10, 2021 t he court ordered a heari ng on the pe tition, co nfi rmed the previou sly ordered November 10, 2021 hearing date

, and again ordered the Department to pre pare a re sponse by October 27, 2021.9

additional reuni fication service s would be in th e children ’ s best
interest.
The cou rt denied th e p etition, noting i t had “ consider ed all
the evidence in this m atter and counsel ’ s argument s ” and f ound
Sade “ did no t meet her b urden, not even the prima facie bu rden,
to have th e court sustain the 388 petition. ” First, the court ruled,
Sade had not demo nst rated her ci rcu mstances had changed, observing that her April 2021 arrest for domestic v iolenc e s howed
sh e had not le arned how to apply skills addresse d in her domesti c violence class es. 4 In addition, the court noted

, Sade ’ s therapist
had e xpressed con cer n that there were unresolved issues that

m ight resurface if Sade did not resume individu al counseling

. Sec ond, the court found Sade had fail ed to establish that gr anting
fu rther reunification services would be in the best inter e st s of the

c hildren. Du rin g Sade ’ s in

- person vis its the two older childre n, although happy to see her, w ere allowed to mi sbehave beca use S ade did not set boundaries an d then made no e ffort to correct
them. Consisten t with the arguments of counsel, the court did

not address the req uest made in Sade ’ s petition for an immediate
return of the childre n to her cust ody

. b. T he section 366. 26 hearing
The section 366.26 hearing on the Department ’ s recommendation to terminate parental rights began immed iately
afte r the heari ng on Sade ’ s se ction 388 pe tition. Sade t e stified
she had regularly seen the c hildren every oth er weekend fo r 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 crimin al charges had been dropped, but stated that did not negate the fact that the in cid ent of domestic violence had occurred.10

due to Sade ’ s tran s port ati on prob lems), she w ould communicate
direc t l y with the m aternal grandfath er or the socia l worker.
Sade described t he ch ildren as excited to see her at the v isits

, which l asted from th ree to five hours . Asked if the children
sho w ed her physi c al affectio n , Sade res po nded, “ Absolutely.

. . . O u r bond is incredibly stro ng. We talk t hree 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

a nd the m ater nal gran dfa t her did not have a good relationshi p; he did not invi te her to parti cipate in the children ’ s medical appointmen ts ; and she did not ask if she could do so because she
knew he would not allow an y contact that was not ordered by the

co urt or a utho rized by th e social worker.
Minors ’ c ou nsel, who acknow ledged that Sad e had visited consistently with the childre n, argued Sade had not show n a sufficient bond with the children to establish an exception to the preference for adoption and urged t he co urt to termi nat e parental rights. Her visits, he o bserved, focuse d only on having fun with
the children ; and h e emphasized that Sade had testified the
children did n ot cry or otherwise express any emotional upset
when h er visits end ed

, a point also made b y the Depart men t. Sade ’ s counsel ar g u e d termination would be detrimental to
the children “ because of the parent

- child bond e xception. ”
R esponding to minors ’ counsel ’ s jus t

- having

- fun comment, she

a rgued that, g iven the lim ited time Sade had for visits

, ha ving
f un w it h h er children was a ne cessary part of developing an

em otion al attachment. Counsel then argued

, “ Balancing the

paren t s ’ interest in reunification with the child ’ s need for
stab ility and per manen cy, rig ht now the kids do have

— they

are

— they have st ab i lity w ith the foster pa rent. ” Because of11

S ade ’ s strong i nterest in reunifying with the children , she concluded, the court should “ allow[] a little more time in approaching this. ”
For his part, Ro nald ’ s counsel , while genera lly opposing the
De part ment ’ s recom men da tion to terminate parental rights, did

n ot argu e t he parental relationship exception applied to his client. Rather, without explaining his rationale, he urged the

court to hav e the Depart ment invest igate whether leg al guardianship wou ld b e a more app rop ri ate plan

. Counsel then asked the court, if it adopted the Department ’ s recommendation,
to ord er the Department to refer the matter for development of a
post

- adoption visita tio n agreement to permit Ronald to continue

to see the childre n if he sought a nd re ceived proper mental health

t reatment. The court found by clear and convincing evidence that Brannon, Alyssa and Roxanne were adoptable and no exception to adopti on applied ; ter minated Sade ’ s and Ronald ’ s parental rights ; tr ansferred car e c u s tod y an d c ontrol of the children to the Department for adoptive planning and placement; and designated the children ’ s current caregivers (the maternal grandparents) as prospect ive adoptive pa rents. Wi th respect to the p arental relationship exception to terminati on, the court
found that none of the three elements had been met.
The court b riefly discuss ed the quality of Ronald ’ s monitored , virtual or telephone v isits with the children

, no ting he
had frequent ly displayed aggres si ve and inappropriate b ehavior
lead ing to termin ation of the visits , but did not otherwise address the parental relationship exception as it applied to him.
As to Sad e, a lthough the court recognized she h ad regular
in

- person visits with the child ren , the court found her phone or12

video vis its during recent months had not been consistent. Even
with those vis its, the court continued, Sade had not proved the

c hi l dren w ould b enefit from the continuati on of the rela tionshi p :

“ The mere fact [o f] the mothe r ’ s loving and frequent rela tionshi p is not enough to overcome th e need for s tability for the children

. ”
The court noted the children had been with the maternal

gr andparents for two years ( since 2019) and had been out of
Sade ’ s cus tody for four years because R onald had sole cus tody
between 2017 an d 201 9. In addition, the c ourt pointed out , while Brannon and Alyssa said they enjoyed visiting wit h Sade becau se she brought fun things to play with , the childr en and the grandpa rents all indicated Sade was unable to set boun daries
and had no rules fo r t he visits. And, as had counsel for the children and the Department, the court e mphasized that t he

c hildren did not show any emotional ups et when visits with Sade
ended.

DISCUSSION

1. The Juvenile Court Did Not Comm it Legal Error or Abuse Its Discreti on in Denying Sade ’ s Section 388 P etition

a. Governing law and stand ard of review
Sec tion 388 provide s for modification of juven ile court
orders when the m oving party (1) p resents new evidence or a change of circumstan ce and (2) demonstrat es m odification 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 C al.4th 295, 317; In re Y.M

. (2012) 207 Cal.A pp.4th 892, 919; see
rule 5.570(e); see also I n re Zacharia D . (1993) 6 Cal.4th 435 , 4 55 [“‘[s]ection 388 provides the “escape mechanism” that . . . must be13

built into the p rocess to al low the court to consider n ew information’”].) When, as here, a sectio n 388 petition is filed a fter family
reunifica tion services have been t erminated, t he juvenile court’s overriding concern is the child’s best intere st. ( In re Stephanie M., supra , 7 Ca l.4th at p. 317.) The par ent’s interest s in the care, custody and comp anionship of the child ar e no longer paramount ; and the focus shifts to the needs o f t he child for permanency and stability. ( Ibid .; In re Malick T

. (2022)

73 Cal.App.5th 1 109, 1123.) Nonetheless, a parent may rebut the presumption that

, once family reun ification services have b een terminated, reunification is not in the be st interest of the child by showing that circumstances have changed and that the best
interest of the child warran t s further reunification s ervices. ( In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Stephanie M., a t

p. 317.) “[B]est interests is a compl ex idea” tha t r equires consideration of a variety of factors. ( In re Kimberly F . ( 1997)
56 Cal.App.4th 519, 53 0 ; see In re Jacob P . (2007)

157 Cal.App.4th 819, 832

- 833 .) In determining whet her a
section 388 petitio ner has made the requisite showing, the juvenile cou rt may consider the entire factual and procedural history of the case, including factors such as the serious ness of
the reason leading to the child’s remova l, the reason the probl em was not resolved, the pass age of time since the child’s remova l,
the relat ive strength of the bonds with the child, the nature of the change of c ircumstan ce, and the reas on the chang e was not made

soon er. (

In re Mickel O . (2011) 197 Cal.App.4th 586, 61 6; In re Aaliyah R . (2006 ) 13 6 Cal.App.4th 437, 446

- 447; In re Ju stice P

. (20 04) 123 Cal.App.4th 181, 188

- 189.)14 If the juvenile court has ruled the parent f ailed to carry h is

or her in itial burden to dem onstrate new evidence or chan ged circumstances, the first step of the an alysi s, the question for the reviewing court is whether t hat finding is erroneous as a matter
of law. (See Almanor Lakeside Vil las Owner s Assn. v. Carso n (2016) 246 Cal.App.4th 761, 7 69 [where the issue on appeal turns
on a failure of proof at trial, “the ques tion for the reviewing court [becomes] ‘ “whether the ev idence compels a finding in favor of the appellant as a matter of law” ’”]; In r e Aurora P . (201 5)

241 Cal.A pp.4th 1142, 115 6 [same].) We review the cour t’s decision to grant or deny a section 388 petiti on based on its best interest finding for abuse of di scretion and may disturb the exercise of that discretion only in the r are case when the court
h as made an a rbitrary or irra tional determination. ( In re Stephanie M., supra , 7 Ca l.4th at pp. 318

- 319 ; In re Malick T.,

su pra, 73 Cal.App.5th at p. 1123; In re I.B. (2020) 53 Cal.App.5th 133, 153 .) We do not inquire whether subs tantial e videnc e supports the order, nor do we reweig h the evidence and
substitute our judgment for that of the juvenile court

. ( In re
Ste phanie M. , at pp . 318

- 319 .) We ask only whe the r the juvenile court abused its discretion with respect to the order it actu ally
made

. ( In re M.H. (2018) 21 Cal.App.5th 1 296, 1305 .)
b. The juvenile c ourt did not commit legal error in failing to find it wo uld be detrimental to the childr en to return cu stody to Sade Sade does not argue on appeal that the court abused its
discre tion in denying her r equest for additional reun ification
services

— the only is sue addressed by her coun sel at the hearing
on her secti on 388 petition

— or in finding mo re generally th at she
had not esta blish ed the children ’ s best int erests would be
furthere d by the modification s requested in her petition

. Rather,15

focusing solely on t he petit i on ’ s request for an imme d i at e re t u rn of the chi ldren to her custody, she conten ds the c ourt di d not conduct a proper h earing o r apply the correct legal standard.
The fo undation for Sade ’ s argument i s rule 5 .570(h)(2 ), which provides the section 388 hea ring “ must be cond u c ted as a dispositional hearing under rules 5.690 a nd 5.695 if : [¶]

. . . [¶ ] (B) There is a due process ri ght to confront and cr oss

- examine
witnesses

. [¶] Other wise, proo f may be by declaration and other
docume ntary evidence, or by testimony, or bo th, a t the dis cretion
of the court. ” According to Sade, because she wa s a nonof fen ding

nonc ustodial parent , the court was require d, as it would be at a disposition hearing p ur su ant to secti on 361.2, subdiv is ion (a), to place the childr en with her unless it fou nd by cle ar and convincing evidence it w ould be det rimental to the children to do

so

. It was le gal error, Sade co ntends, for the cour t to instead apply the best intere sts standard to deny her petit i on. 5

5 Because the court s tated Sade had n ot even met he r pr ima faci e burden under section 38 8, Sade argues the court failed to consider any ev idence , denying t h e petition based solely on her pleading , whi ch

, she asse rts , violated the requirement that the h earing be conducted as a disposition hea r ing

. Ev en a cursory reading of the court ’ s ruling belies that conte ntion. As discussed,
t he court adm itted into evidenc e not only Sade ’ s pe tition , which included Sade ’ s de cl ara tion and multiple exhibits

, but also the section 388 and 36 6 .26 repo rts , o ffered the p arties an opportunity to present additional evidence and lis tened to oral argument. The cour t then expressly sta ted it had considered the ev idence (and ar gument) and fou nd Sade h ad not carried her burden to demons trate the eleme n ts neces sary f or section 3 88 relief. That is the manner in which many (if not most) d is p osition hearings are conducted. The additional reference to Sade ’ s p rima facie burden was n ot h ing more tha n a grace note.16 Even if not forfeited because it was not raised i n the juvenile court (see In re S.B. (2004) 32 Cal.4th 1287, 129 3 [forfeitur e d octrine applies in dependency proceedings]; I n re Elijah V. (2005) 127 Cal.App.4th 57 6, 582 [ “ [a] parent ’ s failure to
raise an issue in the juvenile court prevents him or her fr om presenting the issue to the appellate court ” ]; see also In re Wilford J. (20 05) 131 Cal.App.4th 742, 754 ]), S a d e ’ s a r g u m e nt the court applied the wrong legal sta ndard i s unp ersuasive

. By its terms section 361.2 generally applies only at the
di sposition hearing when a c hild is first formally removed from
the care of the custodi al parent. ( In re Zacharia D

. , supra , 6 Cal.4t h at p. 453 [ “Nothing in this sta t ute sug gests that c ustody

mu st be immediately awarded to a noncustodial parent regardless of when in the dependen cy process the parent comes
forward. Rather, its language sug ges ts that the statute is applicable only at the time the child is first removed from t h e 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 dep endency proc eed ing, when the
court first elects to remove th e child from the custody of the
custodi a l parent ” ] .) Nonethe less, courts have on occasion applied
the principles of sectio n 361.2 pos tdisposition to avoid prejudice

to a noncustodial nonoffending parent who did not know about
the dependency proceeding unt il after the di sposition hearing or who did not requ est custo dy until after the disposition hearing in
order to establish p resumed fat her status. (See

, e.g., In re Liam L. (2015) 240 Cal.App.4th 1068, 1083 [ fat her appeared
before disposition hearing and re quested custody after disposition
hear i ng to establ ish pres umed father status and develo p a relationship with the child] ; In re Jonath an P. (201 4)17

226 Cal.App.4th 1240, 1255

- 1256 [ social services agency fail ed to adequately search for the parent ]; In re Su hey G. (2013)

221 Cal.App.4th 732, 744

- 745 [agency failed “ to properly serve [the parent,] depriv[ing] him of the opportun ity to appea r at the disposition hearing and obtain custody under the sec tion 361.2
f ram ework ”].)

In In re Liam L.

, supra , 240 Cal.A pp.4th 1068 the court of appeal held i n these situa tions, w hen a noncustodial parent see k s

a post disposition change in a c hild ’ s plac ement by means of a section 388 petition

, the general best int erests test doe s
not apply : “[ G] iven the underlying presumpt ion in California ’ s dependency scheme t hat a minor should b e placed with a noncustodial pa rent, absent a finding of detrim ent, such a placement is inherently in the minor ’ s best interests. ” ( Id. at

p. 1073, f

n

. omitted.) Therefore, “ [a] noncustodial paren t

. . . makes a prima facie case of b e st interests [] under section 388

, when the noncusto dial parent requests custody of t he dependent
child postdisposition. This minimal burden reflects the

no ncustodial p are nt ’ s constitutional right to care and custody of
the child and the law ’ s presumption t hat the chil d shoul d be placed with his or her par ents whenever possible. A court considering the noncustodial parent ’ s [section 388] petition must place the child wi th the noncustodial parent unless the opposing part y establishes that the placement woul d be detrimen tal to the
child ’ s safety, protection, or physical or emotional well

- be ing. ” ( Id. a t pp. 1085

- 1086.)
The Liam L. court , however, explained th at in this c ont ext

“ a finding of detriment is equivalent to a f inding that placing the dependent chi l d with the n oncusto dial parent is not in the child ’ s18

best interests ” (

I n re Liam L.

, supra , 240 Cal.App.4th at p. 1086) 6

a nd e xpressly st ated it was not ho lding th e pr esu mption that placement with the noncustodial paren t would be in the minors ’
best inter e sts applied “ i f the nonc ustodial parent p articipat es in
reunification serv ices, the parent fails to make substantial progress, the court terminates those s ervices, and th e court sets a selection and implementation heari ng under section 366.26. ” ( I bid. ) T hat is preci sely th e circumsta nce here. Sade thro ugh
counsel advised the court she was not seeking custody at t he disposition hearing (because there was s till in plac e a no

- contact d o m estic violence re straining order); sh e subsequently participated in, and f

ailed to sa t isfactorily comple te
, her court

ord ered case plan; and the court termin ated r eunification services
and scheduled the se lection and implement ation hearin g. Moreover, at the six

- month review hearing on Janua ry 6, 2020, the 12

- month r e view heari n g on September 10, 2020, and
the 1 8

- month review hearing on April 29, 2021 the court found by clear and convincing evidence that returning custo dy of t he
children to th eir parents wo uld create a substantial risk of
det r iment to th e m , fully rebutting a ny presumption it would be in
the childre n ’ s best i nterests to be placed with Sade

. Given those findings, it was Sade ’ s burden under section 388 to present
evidence of a substantial chan ge in circumstance justifying a

6 The difference, th erefore, between a t y pic al sect ion 388 hearing and the one en visioned by the Liam L. court is not in the

na ture of the required finding, bu t whether the petitioner has the burden of provin g by a preponder ance of the evi dence t hat modifying custody is in the best interest of t he child or t h e party

oppo sing the petition has the burden of pro ving b y clear and

con vincing evidence it is not

.19

modi f ication of t he prior r ulings a nd that, notwiths tanding repeated i n stances of domest ic violence , it was in the children ’ s best inter ests to be returned to her custody. She did not.
Finall y , i n additi on to the findings of detriment at the three
review hea r ings , at th e selection and imp lementation heari ng held immediately after the sectio n 388 hearing, the court once again found by clear and convincing evidence that i t would be
detrimental t o the childr en to be returned t o their parents. Any possib l e error in failing to make that fin ding a few minutes
earlier was neces sarily har m less.
Sade ’ s argument the juvenile court committed reversible error by failing to state on the record the factual basis for i t s

o rder, as required by rule 5.695( a )(7) for de c isions regarding custody made at a disposition hearing, is similarly fl awed. As
di scussed, the court explained in detail why it was denying Sade ’ s request for additional reunification services. The court

r e aso nably understood from counsel ’ s a rgument at t he hearing that Sade was no longer pursui ng her request for an immediat e
ret urn of custody and that no express findings as to that issue were required.

2. The Ju venile Cour t Did Not Abuse Its Discretion in Finding the Be neficial Parental R elationship Exception to Termination of Parent a l Rights Did N ot Apply

a. Governing law and stand ard of review The express purpose of a section 366.26 hearing is “to provide stable, perma nent homes” fo r depen dent childr e n. (§ 366.26, subd. (b).) Once th e court has d ecided to end parent

child reunific ation services, the legislative pref erence is for adopti o n. (§ 366.26, subd. (b)(1); In re S.B . (2009) 46 Cal.4th 529, 532 [“[i]f adoption is likely, t he court is required to terminate20

parental rights, unles s specified c ircumstances compel a finding
that termination would be detrimental to the child”].)
Sectio n 366.26 requires the juvenile court to conduct a two

part inquiry at the selection and implemen ta t ion he aring. Fir s t,
it determines whether there is c l ear and co nv incing evidence the child is likely to be adopted within a reasonable t ime. ( In re
C aden C

. , supr a , 11 Cal.5th at p. 630 ; Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 249

- 250 ; In r e J.W. ( 2 018)

26 Cal

. App .5th 263, 266 .) Then, if the co u rt finds b y clear and convincing evidence the c hild is likely to be adopted, the st atute mandates judic ial termination of parental rights unless the parent opposing termination can demonstrate one of the

enu m erated stat u tor y exceptions appl ies. (§ 366.26

, subd. (c) (1 )(A) & (B); see In re Cade n C

. , at p. 630 ; In re B.D. (2021) 66 Cal.App .5th 1218, 122 4

- 1225 .) One of the statutory exceptions to termination is set forth in section 366.26, subdivision (c )(1)(B)(i ), wh i ch pe r mit s the court
to order a permanent plan other t han adoption if “[t]he parents
have maintained regular visitation and c ontact with th e chil d and the child would benefit from continuing the relationship.” As the Supreme Court explained in I n re Ca den C.

, s upr a , 11 Cal.5th 614, t he except ion requires t he parent to establish, by a preponde rance of the evidence, (1) the paren t has maintain ed

reg ular visitation and contact with the child, “taking into account the extent of visitation permit ted” ; (2) the child h as a substantial, positive, emot ion a l attachme nt to the parent such that the child would benefit from continuing the re lationship ; an d (3) terminating the relationship “would be detrimental to the

c hild even when balanced against the c ounter vai ling benefi t of a new, adoptive home.” ( I d. at p. 636; se e id . at p. 630 [“[t]he21

language of t his exception, along with its histor y and place in the
l arger dependency scheme, show that the exception applies in
situations where a child cannot be i n a pa ren t ’ s custody but
where severing the child ’ s rela t ionship wi th the parent, even when balanced aga inst the benefits of a new adoptive home,
would be harmf

ul for the child”].) When the benefits of a stable, adoptive, permanent home outweigh the harm the c hil d would exp e rie nce fr om the loss of a
continued parent

- chi ld relationship, the court should ord er adoption. (

In re C aden C.

, supra , 11 Cal.5th a t p. 6 34.) However,

“ ‘[i] f severing the natural parent/child relationship would deprive
the child of a substan tia l, posit i ve em o tional at tachment such that, ’ even consi de ring the benefits of a new adoptive home,
termination would ‘ harm[] ’ th e child, the c ourt s hould not terminate parental rights. ” ( Id. at p . 633.) We review the juvenile court’s findings as to whe the r the

pa r ent h a s maintai ned regular visitati o n and cont ac t with the
child and the existence of a beneficial parental relationshi p for
substant ial ev idence. ( 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 o f parental r ights
would b e detr imental to the c hild due to the child ’ s relationship with his or her parent

— for abuse of discret ion. ( In re C aden C

. ,

a t p. 640.)

b

. The finding that termina tion o f Sade ’ s par e ntal right s wo uld not be detrimental to the ch i ldren was

we ll within the juvenile court ’ s disc retion 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 primar ily intende d to allow a child to continue22

to be n efit from a positive relationship with his or h er parent in
sit uati ons where that p arent is unable to regain custody of the child. (See id. at p. 630.) It is not an alternative method for

see king additional reunificat i on services after a failed sec tion 3 88 petitio n

. Yet , as discussed, at the section 366.26 hear ing Sade ’ s counsel asked the court to balance Sade ’ s in t erest in reunification, not the children ’ s interest in maint aining the ir
relat ionship with he r, against t he children ’ s need for stability

an d permanenc y

. Having failed to even a ssert that the nature of
the childre n ’ s relationship with Sade outweighed the benefits of

s tability and perman ence through adoption by their grandparents, let alone to ide ntif y eviden ce in the record to

suppor t such a co nc lusion, it would be difficult for u s to hold the juv enile court erred i n ruling Sade failed to establish the exception applied

. Notwithstanding counsel ’ s faulty approach to the issue, however, the juveni le court exp res sly considered each of t he
three e le ments of the parental relationship exception as discussed in In re Ca de n C.

, supra , 11 Cal.5th 614, and found
Sade had failed to sati sfy any of them. Th ere was no reversible

error. As to the first element

, regular vi sit ation and contact

, alth o ugh the co ur t acknowledged Sade had regular in

- person visits

, it found , based on th e Department ’ s reports, that her

remote (tele p honic or vide o) visitation had been i nconsistent

. The court thus concluded Sade failed to establish th is essential
element of the pa rent al relationship exception

. On appe al Sade contends the evidence suppor t ed the contrary finding and notes that minors ’ counsel agreed Sa de ’ s visitation had been regu lar. S ade misconstrues the subst anti al23

evidence sta nda rd of review: The issu e is not wh et her the court
could have found in S ade ’ s favor on this element, but whe ther the finding actually m ade lack ed evidentiary support. It did not. (See In re Caden C.

, supra , 11 Cal.5th at p. 640 [ “I n revi ewi ng factual d ete rminations for substant i al evid enc e, a reviewing court
should ‘ not rewe igh the evidence, evaluate the credi bility of witnesses, or resolve evidentiary conflicts. ’ [Citation.] The
determinations should ‘ be upheld if

. . . su pported by su bst antial
evide nce , even though substanti a l evide nce t o the contrary also
exists and the trial court might have reached a dif ferent result
had it believ ed other evidence ’ ” ]; cf. In re R.V. (2015) 61 Cal.4th 181, 200

- 201 [ “ [t]here is, however, no single for mul ation of the

su bstantial evidence test for all it s applications ” ; where a party
fails to meet its burden on an issue in th e juvenile court, “ the inqui ry on appeal is whether the weight and character of the evidence . . . was such that the juvenile court co uld not

reas ona bly reject it ” ].)
As s tated i n the most recent status review report bef ore the
court, filed October 15, 2 021, “ During this period of supervision,

mo ther has been inconsistent with telephon e visits with the
children and consistent with in per son visits. Mo ther has st a ted
she is either tired or h as an e ngage ment that confli cts with telephone visits. T he CSW has atte m p t ed to add ress the inconsistent phone calls however, mother is either unwilling or
unabl e to speak with the CSW. ” That informat ion was suff ici ent to support th e court ’ s conclus ion S ade ’ s visitation ha d not bee n consi stent
, even taking into account the limitations imposed on Sade by court orders. (See I n re Caden C.

, supra , 11 Cal.4th at

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

- 1 0 71 [substantial evi dence supporte d finding tha t parent did n ot24

regularl y visit child ; although “ he had visited regula rly ‘ for the
most par t ’ for two years, ” his visitation was often “ sporadic and also entailed significant gaps ” ]

. )
The second e lement of th e p arental relations hip exception
ha s two compo nents: The ch ild has a positive emotional attachment to the parent, an d the child would benefit from continuing the relationship. (See Caden C., supra , 11 Cal.5th at

p. 636.) The evidence here i nd icated Bra nno n and A lyssa, the
two older chi ld ren, had fu n and enjoye d 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, a lthough happy to see Sade

, n one of the
childr en reacted neg at ively (that is, display ed emotional upset)
when the visits ended

. W hen evaluating this limited evidence in
terms of the strength of the attachment between Sade and the
children and the ben efit of continuing the ir relati ons hip , th e court pr operly conside re d the age o f the childr en (at this point, Brannon was eight years old

, Aly ssa six a nd Roxanne five) and
the fact the y had not lived with Sade for four years

— the majority
of their lives. (See i d. at p. 632.) Weighing the se factors the court concluded, on b alance, th e record did no t establish the type of
substantial beneficial emotional a ttachment necessary for of the parental relationship exception to apply . On appeal Sade again

argue s the record support ed a finding that th e child ren shared
such a relati on ship with h er, but she fa ils to demonstrate, as is her burden, that there was not s ubstantial evidence for the juvenile court ’ s contrary conclusion. Finally, even if we were to accept Sad e ’s arguments that
sh e proved con sis tent vi sitation a nd the childre n ’ s substanti al, positive e motional attachment to her, the record is devoid of25

eviden ce that would justify the exceptional conclusion that maintaining a relationship with Sade outweighed the benefits of
stabili ty and perma nen ce thro ugh adopti on by the chil dr en ’ s grandp arents

. (Se e In re Caden C.

, supra , 11 Cal.5th at p. 631 [ “ ‘ [t]he statu tory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, wh ich remains ado ption ’ ” ]; accord, In re Celine R. (2003) 31 Cal.4th 45, 53

. ) Other than re peating that
the children were happy to s ee Sade and asserting without supporting e vidence that they “ will be deva sta ted when they are not longer permitted to see the ir mother

, ” 7 Sa de has presented nothing that s ug gests the c ourt ’ s ev alu at ion of the relative
benefits of a doption versus preserving the parental relationship was arbitrary or irrational. To the contrary, given the ample
evidence the children were h appy an d comfortabl e i n the

p rospectiv e adoptive home a nd the gran dpar ents , wh o wanted to provide a permanent home for the children, were n u r turing and
affection ate t oward them, the decision t h at the parental relationship exception did not apply was well within t he juvenile

cou rt ’ s di scretion.

c

. Ronald for

fe ited any cl aim the beneficial pare nt al relationship exception applied to him Although the juve nile court conducted th e three

- element analysis r equired by In re Caden C.

, supra , 11 Cal.5th 614 wi th respect to Sade ’s conte nti on her bond with t he childr en justified

ap pl ication of the beneficial parental r elationship exc eption to

7 Sade cites h er own testimony that she believes the maternal grand father will not allow her to see the children once they are adopted

, but p rov ides no evid ence of the impact on the children of s uch a deci sion were i t to be made.26

termination of parental rights, R onald argues the court erred in failing to make a comp arable analysis of his bond with the
children. T hat omission is not surprising, nor was it e rror . It
was Ronald ’ s b ur den to asse rt the excep ti on applied. (Se e In re Rachel M

. (2003) 113 Cal.App.4th 1 289, 1295 [ “T he juvenil e court does not have a sua sponte d uty to determine whether an exception to ado ption applie s. [Cit ations.] The party clai ming an exception to ado pt ion has the burden of p ro of to establish by a preponderance of evidence that the ex ception applies ”] ; In r e Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [same] .) R onald did not do so, r ai sing only a gen eral objection to adoption at the

se ction 366.26 hear in g and r eque sting the co ur t or der the Department to evaluate legal guardianship as t he permanent plan for t he children.
As the court explained in In re Erik P. (2002)

104 Cal.App.4th 395, “ The applic ati on of any of the exceptions

e numerat ed in section 366 .2 6

, subdivis ion (c)(1) d ep ends entirely

on a detailed analysis of the relevant facts by the juve nile court. [Citations.] If a parent fails to raise one of the exceptions at the hearing, not only do es this deprive the juvenile cou rt of t he ability to eva lu ate the cri tical facts an d make the necessary findings, but it also deprives this c ourt of a suff icient fa ctual
record from which to conclude whether the trial court ’ s determination is s upported by sub stantial evidence. ” ( I d. at

pp. 402

- 403 .)
Because Ronald failed to raise the bene ficial parental relationship exception in the j uv enile court
, it was not error for
the court to address Sade ’ s bond with the children but n ot Ronald ’ s

. In add ition, havin g f ailed to raise it in the juvenile

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

( 2006) 1 44 Cal.App.4th 2 87, 292 ; In re Erik P.

, su pr a , 1 04 Cal.App.4th at pp. 402

- 403 ; see I n re Elijah V.

, su

pra , 127 Cal.App.4th at p

. 582

. ) Ronald co nce des he did not contend
in the juvenile court that the exception applied to him but insists
the re was no forf

eiture because a pa rent is not required to o bject

to the social service agency ’s failure to ca r ry its burden of proof to

pre ser ve the issue for a ppe al.
While a n accurate statement of the law, Ronald ’s argument
is misplaced because it was hi s burden

, not the De p art ment ’s, to establi sh th e exception applied

, as made a bsolutely clear in In re Caden C

. , supra , 11 Cal.5th at p age 63 6 : “ [ T ] he parent a sse rting
the parental benefit exception mus t show, by a preponderance of
the evidence

, three th ings

. ” ( Accord, In re B. D.

, supra, 66 C al.A pp.5th at pp. 1224

- 1225 [ “ ‘ [o]nce t he court determines
the child is l ikely to be adopted, the burden shif ts to the pa ren t to show that termination of parental rights would be detrimental to
the child under one of the e xceptions listed in s ect ion 366.26,

su bdivision (c)(1) ’ ” ] .) Thus, although it is true, as Ronald a sserts
, a pa rent who does not cha llenge a fi nding of ado pta bility may

argue on appeal that substantial evidence does not support such

a fi nding (see, e.g., I

n re G regory A. (2005 ) 1 26 Cal.App. 4th 1554,
15 60

- 1561 [

because the social services agency has the burden o f proof of adoptability, a parent is not require d t o object to the lack of substantial evidence in order to preserve the issue for appea l] ),
a parent who d id not assert t he parental re lat ionship e xc eption in the juvenile court has no right to do so on appe al. ( In re
Rachel M.

, su

pra , 1 13 Ca l.App.4th at p. 1295 ; In re Erik P.

,

s upra , 104 Cal.App.4th at p. 403.)28 DISP OSITION The juve nile court ’ s November 10, 2021 orders deny ing Sade ’ s sect io n 388 peti tion and terminating parental rights are aff irmed.

PERLUS S , P. J. We concur:

SEGA L , J.

FEUER, J.