Filed 12/29/23 In re A.F. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re A.F., et al., Persons Coming 

Under the Juvenile Court Law.

_________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

CHRISTINA S.,

Defendant and Appellant.

 B330057

 (Los Angeles County

 Super. Ct. No. 19CCJP07874)

APPEAL from orders of the Superior Court of Los Angeles 

County, Mary E. Kelly, Judge. Affirmed.

Lori Siegel, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

County Counsel, and William D. Thetford, Principal Deputy County 

Counsel, for Plaintiff and Respondent.
2

In 2019, the Department of Children and Family Services 

(DCFS) removed A.F. (then age 5) and Me.F. (then age 2) from 

their parents’ custody following the death of their two-month-old 

sibling, Mo.F. After DCFS placed the children with relative 

caregivers, the parents failed to visit the children consistently or 

to make meaningful progress with their court-ordered case plans. 

The juvenile court thereafter terminated parental rights to free the 

children for adoption by their relative caregivers, with whom they 

had lived for over three years.

The children’s mother, Christina S. (Mother), now asks us to 

reverse the juvenile court’s order terminating her parental rights. 

She argues the court erred in failing to apply the parental-benefit 

exception set forth in Welfare and Institutions Code section 366.26, 

subdivision (c)(1)(B)(i).1 That exception bars the termination of 

parental rights where a parent establishes: “(1) regular visitation 

and contact [with the child], (2) a relationship [with the child], 

the continuation of which would benefit the child such that 

(3) the termination of parental rights would be detrimental to 

the child.” (In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.),

citing § 366.26, subd. (c)(1)(B)(i).) Mother urges that she 

established “regular visitation” and that the juvenile court 

improperly obstructed her ability to prove the exception’s two 

remaining requirements by denying her request to present 

testimony from A.F. at the parental rights termination hearing. 

We conclude, however, (1) the record demonstrates that 

Mother failed to establish the requisite “regular visitation,” 

(2) we need not reach the merits of Mother’s argument concerning 

1 Subsequent statutory references are to the Welfare and 

Institutions Code. 
3

the exclusion of A.F.’s testimony, and (3) even were we to do so, 

Mother would not be entitled to relief. We therefore affirm.

FACTUAL AND PROCEDURAL SUMMARY2

A.F. and Me.F. came to DCFS’s attention on December 6, 

2019, when their two-month-old sibling, Mo.F., suffocated

underneath a blanket on a sofa in the family home. Mother and 

Michael F. (Father) had left the three children unattended for 

several hours while they smoked marijuana in another room. The 

parents delayed significantly in calling 911, and the baby arrived

at the hospital after she had been unresponsive for over two hours.

DCFS’s subsequent investigation culminated in the filing of

a section 300 petition on behalf of A.F. and Me.F. on December 10, 

2019. The petition alleged that Father had physically abused

Mo.F., and that both parents had placed all three children “in a 

detrimental and endangering situation” by “fail[ing] to provide . . . 

proper care and supervision.” The petition alleged further that 

both parents had histories of substance abuse and actively abused 

marijuana, and that Mother failed to take prescribed psychotropic 

medications for her diagnosed depression and anxiety. Finally, the 

petition alleged that the parents maintained “a filthy, unsanitary 

and hazardous home environment,” which included the presence 

of electrical wires on the floor that ran to a marijuana growing 

operation in the back of the house. DCFS later filed an amended 

petition that added an allegation that Father had sexually abused

A.F.

2 We limit our summary to the facts and procedural history

relevant to the issues Mother raises on appeal. Father is not a 

party to this appeal, and we therefore discuss his involvement in 

the dependency proceedings only to the extent relevant to Mother’s 

claims.
4

DCFS placed the children with a maternal great aunt and

uncle. The caregivers adeptly managed the children’s special 

needs, and the children thrived in the placement. The symptoms 

associated with A.F.’s diagnoses of attention deficit hyperactivity 

disorder, post-traumatic stress disorder, and pica improved over 

time. Similarly, certain developmental issues associated with 

Me.F.’s autism diagnosis also improved; for example, she began 

to communicate verbally more frequently. The caregivers expressed 

interest in adopting the children.

Over the course of the three-and-a-half-year dependency 

proceedings, Mother failed to visit the children consistently. 

At the December 11, 2019 detention hearing, the court granted

Mother monitored visits three times per week. Initially, Mother

visited the children regularly. In November 2021, however, the

caregivers and children moved from Los Angeles to Murietta, 

California. Following the move, Mother’s visits decreased 

significantly. DCFS reported that, despite providing Mother 

approximately $900 in transportation funds, she visited the 

children no more than six times throughout 2022. In addition, 

at the conclusion of one such visit, the relative caregiver reported 

that Mother pressured her to write a letter to the juvenile court 

falsely stating that Mother had been visiting and calling the 

children regularly. Mother also declined to participate in A.F.’s

April 2022 individualized education program meeting.

On September 12, 2022, the juvenile court terminated 

Mother’s reunification services due to her failure to make 

adequate progress with her court-ordered case plan. After the 

court terminated services, Mother began calling the children three 

times a week. DCFS reported, however, that Mother sometimes

made inappropriate statements during the calls. For example,

A.F.’s therapist reported that, during one call, Mother told A.F. 
5

that Me.F. had caused Mo.F.’s death by sitting on the baby’s chest. 

In addition, the children’s therapist reported that Mother’s calls 

appeared to induce emotional distress in both children. A.F.’s

therapist noted, for example, that her “most recent response to the 

calls was an act resulting in near loss of a finger, where she tied her 

middle finger with a rubber band for a long period of time causing 

loss of circulation, medical attention, and several hospital and 

urgent care visits.”

In December 2022, Mother moved to Ohio. She had given 

birth to another baby in May 2022, and explained the move to 

Ohio would allow her to obtain affordable housing and additional 

support. The move made it more difficult for Mother to see A.F. 

and Me.F. in person, and she visited the children only twice

between January and June 2023.

Based on Mother’s sporadic visitation record and failure to

make progress with her case plan, DCFS recommended termination 

of parental rights pursuant to section 366.26. In support of its

recommendation, DCFS submitted several reports, including a 

March 15, 2023 addendum report describing a February 15, 2023 

meeting between an adoption social worker and the children. 

During the meeting, the social worker “spoke to [A.F.] about 

adoption in an age[-]appropriate manner. [A.F.] reported she likes

living with the [relative caregivers] and feel[s] safe. . . . [Me.F.]

[was] too young to provide a meaningful statement regarding 

adoption[, but] . . . did report she like[s] living in the home.”

After several continuances, the section 366.26 hearing 

commenced on May 31, 2023. Mother argued that the

parental-benefit exception applied to bar termination of her 

parental rights. She testified concerning her bond with the 

children and claimed the relative caregivers made it difficult for 

her to participate in telephone calls with the children. Children’s
6

Social Worker (CSW) Joe Eisenfeld also testified, contradicting 

Mother’s testimony that the caregivers obstructed Mother’s efforts 

to contact the children. In addition, CSW Eisenfeld testified

concerning the children’s wishes for their permanent plan: 

“[CSW Eisenfeld:] The children are young and the youngest 

child is autistic, so there is a limit to their understanding of the 

difference of the permanent plan. They understand that their 

mother is their mother and always will be their mother, but they 

have made statements that they are comfortable where they are, 

and they have made negative statements, at least [A.F.] made 

negative statements about the mother’s home. . . . She keeps on 

making statements about the filth in the home, the rodents in 

the home, those things are still coming up two or three years after 

detention.

“[¶] . . . [¶]

“The Court: . . . You asked [A.F.] if she wanted the 

[caregivers’] home to be a forever home? 

“[CSW Eisenfeld]: Yes. Yes, Your Honor.

“The Court: All right. And what was her answer? 

“[CSW Eisenfeld]: She said ‘yes,’ Your Honor.”

At the conclusion of CSW Eisenfeld’s testimony, the court continued 

the remainder of the section 366.26 hearing to June 13, 2023.

On June 9, 2023, DCFS submitted a last minute information 

filing to the court reiterating CSW Eisenfeld’s testimony that the 

children were in favor of remaining in their current placement. 

The filing noted that CSW Eisenfeld “ha[d] not observed during 

visits that the children ask about their mother or request phone 

or in-person contact from her.” Instead, when CSW Eisenfeld 

asked about Mother, the children “consistently responded with 

ambivalence.” In addition, the filing noted that, during CSW 

Eisenfeld’s visits to the caregivers’ home, A.F. “stated that she 
7

was in support of [the] plan to remain in [the] care of her relative 

caregivers permanently.”

At approximately 5:00 p.m. on June 12, 2023, Mother’s 

counsel emailed the children’s counsel to request for the very 

first time that A.F.—then eight years old—testify at the continued 

section 366.26 hearing set for the next day. Mother’s counsel 

reiterated her request for A.F.’s testimony at the outset of the 

June 13 hearing, arguing that DCFS’s June 9 filing contained new

information concerning the children’s purported “ambivalen[ce]” 

toward Mother. Mother’s counsel argued that earlier reports 

contained “conflicting information [that] . . . the children get upset 

when they can’t visit the Mother[

3]. . . . So I do believe that the 

court should entertain some testimony about what exactly these 

children feel when it comes to this.” Children’s counsel opposed 

the request as untimely and unreasonable, but cited no authority 

in support of its position.

The juvenile court therefore took a brief recess to conduct 

its own legal research on the issue. It then resumed the 

proceedings and denied Mother’s request for A.F.’s testimony, 

explaining: 

“I do not think that, given everything this child has been 

through in this case, and the totality of the circumstances, and 

the late request for this examination, that it is warranted, and I 

3 For example, in a May 2022 report, DCFS informed the 

court that “[w]hen asked directly by [a social worker] if she 

want[ed] to return to her parents, [then-]seven-year[-]old [A.F.] 

state[d] that she [did] indeed want to return to her mother and 

father. However, it is worth noting, that if not solicited with this 

question, [A.F.] [did] not ask about her father or mother. Further, 

she [did] not exhibit any distress about separation from her parents 

[nor] lack of visits or phone calls from her parents.”
8

am going to deny the request. I don’t think it’s—I don’t think it’s 

a denial of due process. I think this child would be traumatized. 

She’s already been traumatized enough during this hearing, and 

Mother—we don’t even get to the first prong[,] as far [as] this 

court is [concerned][,] of Caden C., because visitation has not been 

consistent. Whatever visitation—Mother chose to move out of 

the area. She’s not had in-person visits with the children. After 

[termination of reunification services] and she was facing the 

potential of having [her parental] rights terminated, she did start 

having some video visitation with her, but that—the fact that those 

are video was all Mother’s doing. She chose to move out of the area 

and that was her choice. The visitation has not been, in the court’s 

view, beneficial or consistent, . . . and I don’t think that asking the 

child—telling the child the difference between legal guardianship 

and adoption would be fruitful. The request is late, and at some 

point the child deserves permanency.”

The court then concluded the parental-benefit exception 

did not apply and terminated Mother’s parental rights.

Mother timely appealed.

DISCUSSION

Mother contends the trial court erred in terminating her 

parental rights at the section 366.26 hearing because (1) she proved 

the “regular visitation” requirement, and (2) the court’s purportedly 

incorrect decision to exclude A.F.’s testimony prevented her from 

establishing the two other requirements of the parental-benefit 

exception.

A. Applicable Law and Standard of Review 

The parental-benefit exception set forth in section 366.26, 

subdivision (c)(1)(B)(i) is “an exception to the presumptive rule of 
9

terminating parental rights after reunification efforts have failed, 

in order to free a child for adoption.” (See In re Eli B. (2022) 73 

Cal.App.5th 1061, 1067 (Eli B.), boldface & underscoring omitted.) 

“It applies where ‘[t]he court finds a compelling reason for 

determining that termination would be detrimental to the child due 

to one or more of the following circumstances: [¶] (i) The parents 

have maintained regular visitation and contact with the child and 

the child would benefit from continuing the relationship.’ ” (Caden 

C., supra, 11 Cal.5th at p. 631, quoting § 366.26, subd. (c)(1)(B)(i).) 

The parent therefore must prove: “(1) regular visitation and 

contact, (2) a relationship, the continuation of which would benefit

the child such that (3) the termination of parental rights would be 

detrimental to the child.” (Caden C., supra, at p. 631.) 

We review a juvenile court’s findings with respect to “regular 

visitation” for substantial evidence. (Caden C., supra, 11 Cal.5th at 

pp. 639–640.) “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.’ 

[Citations.]” (Ibid.) 

B. The Juvenile Court Properly Concluded the 

Parental-Benefit Exception Does Not Apply

Mother argues the juvenile court erred by refusing to apply 

the parental-benefit exception. The record, however, contains 

substantial evidence supporting the court’s determination that 
10

Mother failed to establish the requisite “regular visitation.”

4 

(Caden C., supra, 11 Cal.5th at p. 631.) 

The visitation requirement “is straightforward. The 

question is just whether ‘parents visit consistently,’ taking 

into account ‘the extent permitted by court orders.’ [Citation.]” 

(Caden C., supra, 11 Cal.5th at p. 632.) “ ‘ “ ‘Sporadic visitation is 

insufficient.’ ” ’ ” (In re I.E. (2023) 91 Cal.App.5th 683, 691 (I.E.).) 

The record here reflects that Mother did not consistently visit the 

children. Instead, Mother’s in-person visits became less frequent

over time, notwithstanding that DCFS provided her with nearly 

$900 in transportation funds. In addition, the record indicates 

that—although Mother telephoned more frequently following 

the termination of reunification services—she called the children

only sporadically over the course of the three-and-a-half-year 

proceedings. Substantial evidence thus supports the court’s 

finding that Mother failed to maintain regular visitation and 

contact with the children. (See Eli B., supra, 73 Cal.App.5th at 

p. 1070 [“ ‘regular visitation’ ” not established where “[the] father’s 

visitation with his children throughout the years-long dependency 

proceeding was sporadic and also entailed significant gaps”];

In re Breanna S. (2017) 8 Cal.App.5th 636, 647 [affirming order 

terminating parental rights where there was “ample” evidence 

parent visited “only sporadically during the first 18 months of the 

dependency proceedings” even though visits became more regular 

during final six months before section 366.26 hearing], disapproved 

4 Mother contends “the juvenile court seemed to find [she]

met the element ‘of regular visitation and contact.’ ” Mother 

is mistaken. In denying her request to present testimony from

A.F., the court stated expressly that Mother’s “visitation ha[d]

not been . . . beneficial or consistent.”
11

on other grounds in Caden C., supra, 11 Cal.5th at pp. 637, fn. 6 & 

638–639, fn. 7.)

Because Mother failed to prove “regular visitation,” we

need not resolve whether exclusion of A.F.’s testimony improperly 

prevented Mother from establishing the two remaining 

requirements of the exception. Even were we to reach Mother’s

argument on this issue, however, we would reject it. 

The juvenile court has a “mandatory duty . . . to ‘consider 

the child’s wishes to the extent ascertainable’ prior to entering 

an order terminating parental rights.” (In re Leo M. (1993) 

19 Cal.App.4th 1583, 1591; see § 366.26, subd. (h)(1) [“[a]t all

proceedings under this section, the court shall consider the wishes 

of the child and shall act in the best interests of the child”].) The 

court nonetheless “can, consistent with a parent’s due process 

rights, refuse to compel the testimony of a child who is otherwise 

available when ‘the possible benefit derivable from [the] testimony 

would not warrant the [psychological] injury it would cause.’ 

[Citation.]” (In re Daniela G. (2018) 23 Cal.App.5th 1083, 1086 

(Daniela G.); see In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1089.) 

“The child’s testimony can properly be excluded where ‘the child’s 

desires and wishes can be directly presented without live testimony, 

where the issues to be resolved would not be materially affected by 

the child’s testimony, and where it is shown that the child would be 

psychologically damaged by being required to testify.’ [Citations.]” 

(Daniela G., supra, 23 Cal.App.5th at p. 1092.)

Here, DCFS presented evidence concerning A.F.’s wishes for

permanency through statements she made to the adoption social

worker in February 2023, as well as through CSW Eisenfeld’s 

live testimony at the section 366.26 hearing. (I.E., supra, 91 

Cal.App.5th at p. 694 [“ ‘[e]vidence of a child’s wishes may, but 

need not, be in the form of direct testimony at the parental rights 
12

termination hearing; such evidence may also appear in [DCFS’s] 

reports’ ”].)

Moreover, Mother does not argue that A.F. would have 

provided testimony relevant to the “regular visitation” requirement

of the parental-benefit exception. The excluded testimony therefore

would not have “materially affected” the court’s determination 

that Mother had failed to prove the first requirement of the 

exception and, by extension, the exception’s overall applicability.

(Daniela G., supra, 23 Cal.App.5th at p. 1092.)

Finally, evidence in the record—including a letter from A.F.’s 

therapist—documenting the eight-year-old’s special needs and 

emotional distress following telephone calls with Mother supports 

the court’s finding that requiring the child to testify would have 

caused her psychological trauma. (See Daniela G., supra, 23 

Cal.App.5th at pp. 1088, 1095 [rejecting argument that a medical

expert opinion is required to establish a child would be traumatized 

by testifying].)

Accordingly, we conclude the juvenile court did not err in 

rejecting Mother’s arguments concerning the parental-benefit 

exception.
13

DISPOSITION

The orders Mother challenges on appeal are affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.