Filed 12/31/13 In re I.O.. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re I.O., a Person Coming Under the 

Juvenile Court Law.

 B249624

 (Los Angeles County Super. Ct.

 No. CK87805)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

C.R.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Annabelle 

G. Cortez, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, and Anne E. 

Fragasso, Staff Attorney, under appointments by the Court of Appeal, for Defendant and 

Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and 

Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.

____________________________
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C.R. (mother) appeals from the dependency court’s May 16, 2013 order 

terminating her parental rights under Welfare and Institutions Code section 366.261 and 

selecting adoption as the permanent plan for her daughter, I.O. Mother contends the trial 

court erred when it terminated her parental rights and when it prevented her from 

testifying about I.O.’s relationship with maternal relatives. We affirm.

FACTS AND PROCEDURAL HISTORY

Mother and I.O. came to the Department of Children and Family Services’ 

attention on May 6, 2011, through a referral alleging that mother used drugs and 

neglected I.O. When a social worker went to the address, she found I.O. playing in the 

front yard of a house. I.O. had dust and dirt on her face. The social worker asked to see 

mother. I.O. took her back to a small wooden shed that served as home for mother and 

I.O. The shed had no electricity, plumbing, bathroom, or kitchen. Mother appeared to be 

under the influence of drugs. While the social worker was talking to mother, a friend 

took I.O. away, preventing the Department from detaining I.O. on that day. 

On May 9, 2011, mother brought I.O. to the Department as instructed, and I.O. 

was detained. A social worker observed that I.O. “appeared parentified as evidenced by 

her trying to comfort mother when mother became tearful due to the detention of the 

child.” I.O. was comfortable with strangers and was not upset when the social worker 

explained her detention. When I.O. arrived at her foster home, “she expressed joy for 

having a room and her own bed. Out of excitement, the child exclaimed to [the social 

worker]—‘Will you tell my mom that I have all of this!’” 

I.O. described the living conditions before her detention, explaining that she 

sometimes had to climb through a window into the main house to use the bathroom and 

also had to defecate into a bucket. She slept in a “blanket bed” on the floor, while mother 

 

1

 All further statutory references are to the Welfare and Institutions Code unless 

otherwise stated. The section 366.26 hearing is referred to as the permanency hearing.
3

and mother’s boyfriend slept on a real bed. She was sometimes hungry and would wake 

mother up to let her know. She reported that mother would sometimes spank her on the 

buttocks very hard. Mother explained that I.O. (age 5 at the time of detention) was not 

enrolled in school because father had destroyed I.O.’s birth certificate, and mother made 

no attempt to obtain a new birth certificate. 

On May 12, 2011, the Department filed a petition under section 300, subdivisions 

(b) and (g), alleging that mother has a history of substance abuse, currently uses illicit 

drugs, and is unable to provide I.O. with regular care and supervision; mother and child 

reside in a six-by-seven foot shed with no running water, no bathroom, plumbing, 

electricity, or cooking area; J.O., presumed father of I.O.,2 has a history of drug abuse 

and drug convictions; father has another child who is a dependent of the court; and father 

has failed to provide I.O. with food, clothing, shelter, or medical care. At the detention 

hearing, the dependency court appointed counsel for mother, ordered I.O. detained, and 

gave the Department discretion to place I.O. with any appropriate relative. The court also 

ordered reunification services for both parents and monitored visitation three times a 

week, three hours per visit. 

On July 14, 2011, parents reached a mediated agreement with the Department. 

The dependency court declared I.O. a dependent under subdivision (b) of section 300, 

ordered monitored visitation to continue; gave the Department discretion to liberalize 

visits to include overnight and weekends while mother was in a residential treatment 

program; parents to submit to drug and alcohol testing every other week and random 

testing; participate in drug and alcohol counseling; and take parenting classes. I.O. would 

remain in foster care, but the Department would evaluate maternal and paternal relatives 

for possible placement.

Mother began inpatient drug treatment on July 5, 2011, but she was critical of the 

program, lacked insight into the impact drug abuse had on her life, and wanted to leave 

the program because her daughter could not reside with her at the inpatient facility. The 

 

2

 Father is not a party to this appeal.
4

program only allowed two-hour weekly visits. Mother was discharged from the program 

on August 31, 2011, because she failed to follow program guidelines and engaged in 

inappropriate conduct with others in the program. She later enrolled in an outpatient drug 

treatment program. 

The Department evaluated relatives for placement, but encountered obstacles. For 

example, maternal grandfather refused to submit to live scan fingerprinting, and paternal 

great grandmother was not an option because father was living with her and she was in 

poor health and would have difficulty transporting I.O. to and from school. I.O. was 

happy and well-adjusted in her foster home placement. Mother had weekly monitored 

visits with I.O. at the park.

At the six-month review hearing on January 11, 2012, the court ordered the 

Department to continue providing reunification services to parents. The Department 

contacted mother in April 2012 to explain the court orders and to arrange parenting 

classes and drug and alcohol testing. There is no evidence mother enrolled in a parenting 

class, and she failed to appear for drug testing multiple times. Mother stated to a social 

worker that she does not see herself reunifying with I.O.

After efforts to approve various relatives for placement proved unsuccessful, the 

Department placed I.O. with her paternal aunt in July 2012. Paternal aunt (Mrs. B.) and 

her partner (Mr. G.) both have expressed their willingness to adopt I.O. from the first 

contact by the Department and have not wavered in their commitment to do so.

Both maternal grandmother and maternal aunt were approved to monitor mother’s 

visits with I.O. Mother visited I.O. only sporadically while I.O was living with a foster 

mother. Mother’s calls to I.O. ranged from once a week to two or fewer times a month. 

After I.O. began living with Mrs. B., mother visited I.O. every other weekend for sixhour visits. I.O. returned home crying after her first visit because she wanted to stay with 

mother but was happy after all other visits. 

The dependency court terminated reunification services at a 12-month review 

hearing on August 23, 2012, finding that neither mother nor father were in compliance 

with the case plan. The court scheduled a permanency hearing under section 366.26. 
5

Between August and December 2012, mother continued to visit I.O. every other 

week for six hours. I.O was happy living with Mrs. B. and Mr. G. She enjoyed school, 

has a lot of friends, and has a positive relationship with her cousins (her caregiver’s 

children). 

On December 20, 2012, the dependency court continued the permanency hearing 

to permit the adoptive home study to be completed. The court identified adoption as the 

goal for I.O. Based on a request from mother, the court also directed the Department to 

explore the option of an open adoption, permitting continued contact between I.O. and 

her parents. 

The Department discussed with Mrs. B. and Mr. G. the idea of maintaining contact 

with I.O.’s maternal family members, offering to refer the matter to a program that could 

help negotiate a Postadoption Contact Agreement, but Mrs. B. and Mr. G. did not feel it 

was needed. They were open to informally maintaining relationships with I.O.’s 

extended maternal family as long as the individuals respected their boundaries and did 

not present any safety issues. 

At the permanency hearing on May 16, 2013, the dependency court admitted the 

Department’s reports dated December 20, 2012, February 21, 2013, and May 16, 2013. 

Mother testified that she visited I.O. every other week for six hours, and they would 

watch TV, eat, or play. She spoke to I.O. on the phone “everyday or every other day 

when I do have a phone.” They would talk about school, but mother did not know I.O.’s 

teacher’s name. Mother did not elaborate how often she lacked a telephone. When 

counsel asked mother if I.O. was close to any maternal relatives, the court sustained the 

Department’s objection that I.O.’s relationship with maternal relatives was not relevant to 

the question of I.O.’s adoptability or the parental relationship between mother and I.O. 

Mother’s counsel argued that mother’s regular and consistent contact with I.O. 

supported the parental relationship exception and asked the dependency court not to 

terminate mother’s parental rights. I.O.’s counsel pointed to evidence contradicting 

mother’s testimony about the frequency of her contacts with I.O. She also pointed out 

that the prospective adoptive parents have not objected to continued contact between I.O. 
6

and her mother or maternal relatives. She argued that mother’s relationship did not

outweigh the benefit of adoption and stability for I.O. Counsel for the Department also 

argued that the parental relationship exception did not apply because the benefits of a 

continued relationship between I.O. and mother do not outweigh the benefits of adoption. 

In denying the applicability of the parental relationship exception, the dependency 

court adopted the arguments of counsel for the Department and I.O. regarding mother’s 

failure to meet the burden of showing the parental relationship exception applies. It 

stated it “is not going to repeat everything that [counsel] said, but it does point out that 

the caregiver . . . has indicated that she is interested in continuing contact with the 

relatives” so long as it does not represent any safety or boundary issues. Finding the 

potential interference with a continued relationship between I.O. and mother did not 

outweigh the benefit of adoption, the court found that no exception applied. The court 

terminated parental rights and ordered the Department to proceed with adoptive 

placement for I.O. 

DISCUSSION

Substantial Evidence Supports the Parental Relationship Exception to Adoption 

Does Not Apply

Mother contends the dependency court erroneously terminated her parental rights 

based on insufficient evidence the benefits of adoption outweighed a continued

relationship between herself and I.O. She argues that her relationship with I.O. falls 

within the exception to termination of parental rights under section 366.26, subdivision 

(c)(1)(B)(i). We disagree.

We apply the substantial evidence standard of review when a party challenges the 

dependency court’s determination that the exception under section 366.26, subdivision 

(c)(1)(B)(i) does not apply. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; In re 

Autumn H. (1994) 27 Cal.App.4th 567, 576; compare In re Bailey J. (2010) 189 
7

Cal.App.4th 1308, 1314-1315 [applying both substantial evidence and abuse of discretion 

standards of review in a two-step process]; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 

449 [abuse of discretion standard of review].)3 If supported by substantial evidence, the 

judgment or finding must be upheld, even though substantial evidence may also exist that 

would support a contrary result and the dependency court might have reached a different 

conclusion had it determined the facts and weighed credibility differently. (In re Dakota 

H. (2005) 132 Cal.App.4th 212, 228.) “We do not reweigh the evidence or exercise 

independent judgment, but merely determine if there are sufficient facts to support the 

findings of the trial court. [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 

321.)

Under section 366.26, subdivision (c)(1)(B)(i), if the dependency court terminates

reunification services and finds the child is adoptable, it must terminate parental rights 

unless it “finds a compelling reason for determining that termination would be 

detrimental to the child due to [the circumstance that the parent has] [¶] . . . maintained 

regular visitation and contact with the child and the child would benefit from continuing 

the relationship.”

The parental relationship exception “does not permit a parent who has failed to 

reunify with an adoptable child to derail an adoption merely by showing the child would 

 

3 “The practical differences between the two standards of review [(substantial 

evidence and abuse of discretion)] are not significant. ‘[E]valuating the factual basis for 

an exercise of discretion is similar to analyzing the sufficiency of the evidence for the 

ruling. . . . Broad deference must be shown to the trial judge. The reviewing court 

should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in 

support of the trial court’s action, no judge could reasonably have made the order that he 

did.’ . . .”’ [Citations.] However, the abuse of discretion standard is not only traditional 

for custody determinations, but it also seems a better fit in cases like this one, especially 

since the statute now requires the juvenile court to find a ‘compelling reason for 

determining that termination would be detrimental to the child.’ (§ 366.26, subd. 

(c)(1)[(B)].) That is a quintessentially discretionary determination. The juvenile court’s 

opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a 

high degree of appellate court deference.” (In re Jasmine D. (2000) 78 Cal.App.4th 

1339, 1351.)
8

derive some benefit from continuing a relationship maintained during periods of 

visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) “A 

parent must show more than frequent and loving contact or pleasant visits. [Citation.] 

‘Interaction between natural parent and child will always confer some incidental benefit 

to the child. . . .’ [Citation.] The parent must show he or she occupies a parental role in 

the child’s life, resulting in a significant, positive, emotional attachment between child 

and parent. [Citations.] Further, to establish the section 366.26, subdivision (c)(1)(B)(i) 

exception the parent must show the child would suffer detriment if his or her relationship 

with the parent were terminated. [Citation.]” (In re C.F. (2011) 193 Cal.App.4th 549, 

555.) The type of parent-child relationship that triggers the exception is a relationship 

which “‘promotes the well-being of the child to such a degree as to outweigh the wellbeing the child would gain in a permanent home with new, adoptive parents. . . .’ 

[Citation.]” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; accord, In re Jasmine 

D., supra, at pp. 1347-1350.)

The dependency court’s finding that the parental relationship exception under 

section 366.26, subdivision (c)(1)(B)(i) does not apply in this case is supported by 

substantial evidence. First, there was substantial evidence that mother did not meet the 

first prong of the parental relationship exception—regular visitation and contact. (In re 

C.F., supra, 193 Cal.App.4th at p. 554.) Mother’s visits with I.O. while she was in foster 

care were sporadic, and her telephone contact was infrequent. Mother’s visits became 

more regular once I.O. was placed with Mrs. B., but they still amounted to 12 hours per 

month, and the visits were always monitored by a maternal relative. The court could 

reasonably infer from such facts that mother’s visitation and contact was insufficient to 

meet the requirements of the parental relationship exception. 

Substantial evidence also establishes that mother did not satisfy the second prong 

of the parental relationship exception because her relationship with I.O. did not promote 

I.O.’s well-being “‘to such a degree as to outweigh the well-being the child would gain in 

a permanent home with new, adoptive parents. . . .’ [Citation.]” (In re Brandon C., 

supra, 71 Cal.App.4th at p. 1534.) Mother argues that because I.O. lived with her until 
9

she was five, the value of a continued relationship is strong. This argument ignores the 

fact that even when I.O. was living with mother, mother was not meeting I.O.’s basic 

needs. “The significant attachment from child to parent results from the adult's attention 

to the child’s needs for physical care, nourishment, comfort, affection and stimulation.” 

(In re Autumn H., supra, 27 Cal.App.4th at p. 575.) When I.O. was living with mother, 

she did not have adequate food and had to wake her mother when she was hungry. The 

housing her mother provided did not even have a bathroom. I.O.’s excitement at the 

prospect of having her own bed and her own room demonstrates the fact that her own 

mother was not meeting her needs. Because of her ongoing drug problems, mother never 

achieved unsupervised visits with I.O. She did not know the name of I.O.’s teacher, and 

when she visited I.O., they would eat, play, and watch television. To the extent I.O. 

derives some benefit from a continued relationship with her mother, it is incidental rather 

than significant. (See ibid. [incidental benefit from visits between natural parent and 

child insufficient to trigger exception].) We recognize that the court’s action terminating 

mother’s parental rights will mean that I.O.’s adoptive parents have the legal right to end 

mother’s visits should they choose to do so. (See In re S.B. (2008) 164 Cal.App.4th 289, 

300 [“[w]e do not believe a parent should be deprived of a legal relationship with his or 

her child on the basis of an unenforceable promise of future visitation by the child’s 

prospective adoptive parents”].) However, we do not second-guess the dependency

court’s determination that the benefit of permanency outweighs any possible benefit of 

legally preserving the relationship between I.O. and mother. The court’s determination 

the parental relationship exception does not apply in this case is supported by substantial 

evidence.

Testimony of I.O.’s Relationship With Maternal Relatives Was Not Relevant

The dependency court did not err in sustaining the Department’s objection to 

testimony about I.O.’s relationship with her extended maternal relatives. We review 

decisions on whether to permit or exclude evidence for abuse of discretion. (In re Cindy 
10

L. (1997) 17 Cal.4th 15, 35.) Evidence Code section 352 permits the court to exclude 

evidence if the probative value of the evidence “is outweighed by the tendency to unduly 

prolong the proceedings and lead to extraneous issues.” I.O.’s relationship with her 

maternal relatives was not relevant to the matters being decided at the permanency 

hearing. The purpose of the hearing was to make findings about I.O.’s adoptability and 

to determine whether any exception applied that would preclude termination of mother 

and father’s parental rights. Even if the excluded testimony had shown a strong bond 

between I.O. and maternal relatives, such a bond is not recognized as a reason to preclude 

termination of parental rights.

DISPOSITION

The order is affirmed.

KRIEGLER, J.

We concur:

MOSK, Acting P. J.

MINK, J.*

 

* Retired judge of the Los Angeles County Superior Court assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.