Filed 8/20/21 In re Z.E. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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This opinion has not been certified for publication or ordered published for purposes of rule 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 TWO

In re Z.E., a Person Coming 

Under the Juvenile Court Law.

 B309527

 (Los Angeles County

 Super. Ct. No. 

 17CCJP02569A)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

R.E.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los 

Angeles County, Jean M. Nelson, Judge. Affirmed.
2

Jesse McGowan, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, Aileen Wong, Senior Deputy County 

Counsel for Plaintiff and Respondent.

This juvenile dependency case is before us for a second 

time. In an earlier appeal, we affirmed the juvenile court’s orders 

adjudging then four-year-old Z.E. (daughter) a dependent of the 

court and removing her from the custody of R.E. (father). We 

concluded sufficient evidence supported the court’s finding that 

father sexually abused daughter (Welf. & Inst. Code,

1 § 300, 

subd. (d)). Daughter’s mother H.L. (mother) was deceased. (In re

Z.E. (Sept. 27, 2019, B292757) [nonpub. opn.].)

This latest appeal stems from the juvenile court’s 

termination of father’s parental rights over now seven-year-old 

daughter. Father does not challenge the sufficiency of the 

evidence underlying the court’s finding that daughter was 

adoptable or that the parental-benefit exception was inapplicable. 

Instead, father argues the court erred in concluding the parentalbenefit exception did not apply without holding a contested 

hearing at which daughter would testify. We affirm.

BACKGROUND

1. Events Leading To Earlier Appeal

Daughter was born in April 2014. Approximately 1:00 a.m. 

on December 14, 2017, mother died after she jumped, fell, or was 

pushed from the top of a six-story parking garage. Father and 

1 Statutory references are to the Welfare and Institutions 

Code unless otherwise indicated.
3

daughter were present at the time. Father was arrested on 

suspicion of murder. By the time of the jurisdiction/disposition 

hearing, father was no longer in custody, but he remained a 

person of interest in mother’s death.

In August 2018, the juvenile court sustained four counts of 

an amended dependency petition filed by the Los Angeles County 

Department of Children and Family Services (Department). 

Those counts alleged father had engaged in domestic violence 

with mother and former wives (§ 300, subd. (b)(2)); father 

suffered from bipolar disorder and anxiety, which he had failed to 

address adequately (§ 300, subd. (b)); father had emotionally 

abused daughter (§ 300, subd. (c)); and father had sexually 

abused daughter (§ 300, subd. (d)). The court declared daughter, 

then four-years-old, a dependent of the court.

Following adjudication, daughter, who had been detained 

from father since the filing of the amended petition, remained 

placed with Maria, one of father’s former wives, and her husband. 

Two of daughter’s half siblings also resided with them. Father’s 

reunification plan required him to participate in counseling 

sessions to address grief, appropriate child discipline, domestic 

violence, appropriate boundaries with children, sex 

abuse/inappropriate sex behavior and conduct with children. 

Father was also ordered to undergo a psychiatric evaluation. He

was granted monitored visitation.

The court also confirmed an earlier order limiting father’s 

rights to make educational and developmental service decisions 

for daughter based upon his refusal to allow her to benefit from 

those services and to the provide necessary information for her 

daycare enrollment. (§ 361, subd. (a).) Those rights were 

transferred to Maria and her husband.
4

2. Earlier Appeal

In an unpublished opinion, we held substantial evidence 

supported the finding of father’s sexual abuse of daughter under 

section 300, subdivision (d). (In re Z.E., supra, B292757.) That 

evidence included: “Daughter’s therapist reported daughter’s 

conduct and statements were not typical for a child her age. 

According to both the therapist and Maria, daughter exhibited 

over-sexualized behaviors. For example, daughter asked whether 

Maria’s husband kissed Maria on her ‘pec pec’ or vagina, 

indicated ‘daddy’ said those types of things, spoke of father 

kissing her on her butt, drew a picture of father’s penis, played 

with an imaginary friend who did not like it when her imaginary 

father kissed her butt and vagina, drew pictures of people and 

said, ‘This is kissing vagina.’ Daughter also expressed distress at 

answering questions about father and revealed she did not want 

father to know she was happy in Maria’s home because he would 

get mad. Additionally, as daughter spent more time in Maria’s 

care, she and her imaginary friend no longer told sexualized 

stories. Daughter and her imaginary friend were both happy 

living with Maria and her family and attending school. In 

addition to daughter’s statements and actions, the juvenile court 

mentioned maternal grandmother’s statement that father rubbed 

daughter from vagina to buttock as well as father’s old 

handwritten journal containing pedophiliac ideations. In light of 

this record, we conclude substantial evidence supports the 

juvenile court’s exercise of dependency jurisdiction under 

subdivision (d).” (In re Z.E., supra, B292757.)

3. Reunification Progress

The dependency proceedings in this case lasted over three 

years due in part to unexpected pandemic delays. The juvenile 
5

court held an extended six-month review hearing and a 12-month 

hearing to monitor the reunification process. Both hearings were 

contested. In the meantime, daughter remained placed with 

Maria and her husband, where she was comfortable and 

adjusting well. The couple wanted to adopt daughter should 

father’s reunification efforts prove unsuccessful.

During the reunification process, father remained steadfast 

in his desire to regain custody of daughter. Although his request 

for unmonitored visitation was denied, father consistently 

engaged in twice-weekly monitored visitation at a park without 

incident. The two of them made drawings, read books, and 

played on the swing set together. Daughter enjoyed her visits 

with father, whom she called exclusively by his full name. 

However, she repeatedly expressed her desire to live with Maria 

and Maria’s husband and still visit father. Daughter stated she 

did not want to live with father. At school, daughter gained more 

self-confidence “both academically and socially.” She always 

looked forward to attending school.

By the extended six-month review hearing on April 30, 

2019, father had completed 20 parent education group counseling 

sessions and 15 sessions of individual therapy. At the conclusion 

of the hearing, the juvenile court found father had partially 

complied with the reunification plan and ordered additional 

individual therapy sessions.2

In June 2019, daughter, now five years old, appeared 

uncomfortable talking about father. During this time, she 

reverted to displaying over-sexualized behavior, including 

2 There is no reporter’s transcript of these proceedings in 

the record on appeal.
6

touching the clothed breasts of her therapist and her half sister’s 

friends. In August 2019, daughter told a Department social 

worker that she wanted to live with Maria “forever,” but that 

father, whom she still called by his full name, said, “No,” and was 

“angry.”

That same month, the Department asked father about his 

plans for daughter’s continued schooling and therapy if he were 

to regain custody. Father stated school was not compulsory for 

children before the age of seven years and he planned to home 

school daughter. Father also intended to wait until daughter had 

“decompressed” prior to enrolling her in school or continuing her 

therapy.

The contested 12-month review hearing occurred on 

October 16, 2019. Two witnesses, a Department social worker 

and father’s therapist, testified on behalf of father. No witnesses 

were called by the Department.

At the conclusion of the hearing, the juvenile court 

terminated father’s family reunification services, finding father 

was not in substantial compliance with his reunification plan 

because he continued to deny having sexually abused daughter. 

The court observed that father’s interactions with the 

Department and his therapist consistently demonstrated father’s 

feeling that “he is the victim here.” The court added that in 

refusing to acknowledge his misconduct, father “simply believes 

he does not need to change anything about him or how he raises 

his child.” The court ordered a permanent plan of adoption for 

daughter.

4. Post-reunification Period

From January through October 2020, daughter made clear 

her waning interest in having contact with father. In January 
7

2020, daughter told Maria she did not want to live with father 

and had nightmares about going back to him. Daughter told a 

social worker she would have no friends and no school if she went 

to live with father. All she would do is play with him. Daughter 

said she enjoyed father’s visits, but she did not want to live with

him.

In-person monitored visits changed to “Zoom” visits in July 

2020 and decreased in regularity. On August 14, 2020, daughter 

said she disliked Zoom visits with father because they were 

“boring.” Daughter preferred the park visits, but she wanted to 

go there with Maria and not see father anymore. Twelve days 

later, daughter again stated she wanted to go to the park with 

Maria (“mom”) and Maria’s husband (“dad”) because father 

“smelled” and she did not miss him. When told father wanted to 

see her and their visits were court ordered, daughter replied, 

“well, duh, but I don’t miss him.”

During a monitored visit in September 2020, daughter 

displayed a disturbing lack of respect for father and seemed 

angry with him. Father appeared tired, increasingly frustrated 

with daughter, and disinterested in active play. After the visit, 

daughter characterized father as “mean” and said she no longer 

wished to see him for that reason.

In early October 2020, daughter began drawing pictures of 

mother and asking why she had died. After a monitored visit 

with father, daughter stated she believed father “did it” and 

“pushed [mother] because he is Evil!” Daughter added that 

father probably wanted “to live alone without [mother] and 

without me.” Daughter stated if she found out father had pushed 

mother, she would “spank his butt for a long time.”
8

For his part, Father exhibited some unusual behavior 

toward daughter during this period. Following a June 19, 2020 

monitored visit, daughter asked Maria if mother was at the home 

of father (using his full name). Daughter said father had talked 

about mother, but she knew mother was dead. Daughter asked 

Maria why everyone thought father had killed mother.

During another visit on July 1, 2020, a monitor noticed 

father kept talking about needing to “go [to] the bank to transfer 

money [to] avoid [a] penalty,” and to expect a “huge surprise” and 

“something big” the following week. When she left the visit, 

daughter commented that she would soon be seeing father every 

day. Daughter told the monitor she did not know what the 

surprise was or the reason for it.

At the Department’s behest, on July 17, 2020, the juvenile 

court ordered that two monitors be present during father’s 

visitation, and that father arrive after daughter and the 

monitors, and that he leave before the daughter and the 

monitors. Father was also ordered not to discuss with daughter 

“the petition allegations,” “mother,” or “returning home to 

father.”

5. Exclusion of Daughter’s Testimony and Termination

of Parental Rights

Daughter’s counsel filed a motion to exclude now six-yearold daughter from testifying at the pending section 366.26 

hearing. Counsel argued the issues to be resolved at the hearing 

would not be materially affected by daughter’s testimony and the 

psychological harm to daughter from testifying would outweigh 

any potential benefit. In support of the motion, counsel 

submitted a report from daughter’s therapist indicating daughter 

suffers from adjustment disorder. The therapist stated daughter 
9

“appeared to have increased defiance, difficulties falling asleep, 

[and] lack of focus/disruptive behavior since the Covid-19 

quarantine and irregular visitation with father.” The therapist 

therefore recommended that daughter’s involvement in the court 

proceedings be “reconsider[ed] or limit[ed]” to “reduce the risk of 

retraumatization.”

In written opposition, father’s counsel argued questioning 

of daughter would be limited to her relationship and visitation 

with father to establish the parental-benefit exception to the 

termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) The 

focus would be the reason for daughter’s negative view of father 

since July 17, 2020, when father’s visitation was ordered to have 

two monitors. Counsel maintained father had a due process right 

to such testimony and measures could be taken to ensure 

daughter would suffer no psychological harm.

At the November 18, 2020 hearing, the juvenile court heard 

and granted the motion of daughter’s counsel after considering an 

offer of proof made by father’s counsel. (See Discussion, post.)

Daughter would be excluded from testifying at the permanency 

planning hearing.

On December 7, 2020, the juvenile court convened the 

permanency planning hearing. No witnesses were called to 

testify. The court terminated parental rights, found by clear and 

convincing evidence that daughter was adoptable and that there 

were no legal impediments to adoption, and found adoption was 

in daughter’s best interest. The court found the permanent plan 

of adoption was appropriate, ordered adoption as the permanent 

plan, and designated Maria and her husband as the prospective 

adoptive parents. Father filed a timely notice of appeal.
10

DISCUSSION

Parental rights may be terminated only upon a finding the 

child is adoptable and no statutory exception to adoptability 

applies. (§ 366.26, subds. (b) & (c)(1).) Father does not attack the 

sufficiency of the evidence underlying the juvenile court’s 

findings that daughter was adoptable or that the parental-benefit 

exception did not apply. Instead, father argues the juvenile court 

erred in terminating parental rights without a contested hearing 

at which daughter would testify in support of the parental-benefit 

exception.

1. Additional Background

Before ruling on the motion of daughter’s counsel to exclude 

her testimony, the juvenile court requested an offer of proof from 

father’s counsel in support of the application of the parentalbenefit exception. The court asked counsel for “facts” not already 

reported from the period before daughter’s view of father turned 

negative that would show her relationship with him was more 

than “just friendly visits between a parent and child.” Father’s 

counsel proffered daughter’s testimony that father helped teach 

her to read, draw, and play, and that he brought daughter 

snacks, assisted her with “different projects” and “answer[ed her]

questions regarding the world as she has grown.”

In granting the motion to exclude daughter from testifying, 

the juvenile court ruled the offer of proof was insufficient. The 

court explained much of the proffered testimony would not 

significantly change what the Department had reported and was 

not probative as “compelling” evidence of the requisite “parental

bond” for the parental benefit to apply. Citing In re Jennifer J.

(1992) 8 Cal.App.4th 1080 (Jennifer J.), the court further found 

that forcing daughter to testify would be too traumatizing for her
11

based on her therapist’s report, father’s sexual abuse, and 

mother’s death.

At the section 366.26 hearing, father’s counsel asserted the 

exclusion of daughter as a witness “materially affected this 

hearing” and then argued the parental-benefit exception should 

apply. The court disagreed, stating father could not demonstrate 

the requisite parent-child bond. The court explained that 

daughter never referred to father as “father,” but instead called 

Maria’s husband “father.” Additionally, the court found daughter 

had developed a “deep and loving” relationship with Maria and 

her husband, which had helped her overcome the trauma of her 

sexual abuse. The court, accordingly, terminated father’s

parental rights.

2. Offer of Proof and Parental-benefit Exception

(In re Caden C. (2021) 11 Cal.5th 614)

A parent has a due process right to present evidence at a

permanency planning hearing where parental rights are at stake.

The due process right to present evidence is limited to relevant 

evidence of significant probative value to the issue before the 

court. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) The

juvenile court may require a parent to make an offer of proof as 

to what evidence would be adduced at a contested hearing and 

why that evidence is “relevant . . . on the issue [the parent] seeks 

to contest.” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122;

In re Earl L. (2004) 121 Cal.App.4th 1050,1052–1053; In re Grace

P. (2017) 8 Cal.App.5th 605, 612.) A contested hearing is not 

necessary if the proffered evidence will have no effect on that 

issue. (In re Grace P., at p. 614.) We review the denial of a

contested hearing for an abuse of discretion. (In re Grace P., at

p. 611.)
12

The issue here was whether the parental-benefit exception

applied to preclude termination of father’s parental rights. The 

elements of that exception have recently been clarified by the 

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

614 (Caden C.), which was issued in the midst of briefing in this 

case. Caden C. specifies that under the parental-benefit 

exception, a parent “must show, by a preponderance of the 

evidence, three things. [First,] [t]he parent must show regular

visitation and contact with the child . . . . [Second,] the parent

must show that the child has a substantial, positive, emotional

attachment to the parent—the kind of attachment implying that

the child would benefit from continuing the relationship. And

[third,] the parent must show that terminating that attachment

would be detrimental to the child even when balanced against the

countervailing benefit of a new, adoptive home. When the parent

has met that burden, the parental-benefit exception applies such

that it would not be in the best interest of the child to terminate

parental rights, and the court should select a permanent plan

other than adoption.” (Caden C., at pp. 636–637.)

Even without the benefit of Caden C., the juvenile court’s 

analysis of both the quality of father’s offer of proof for a 

contested hearing on the exception and the applicability of the 

parental-benefit exception here comport with the newly clarified 

elements of the exception as articulated in the recent Supreme 

Court opinion. Therefore, remand for the juvenile court to 

reconsider its rulings in light of Caden C. is unnecessary.

3. Juvenile Court Did Not Abuse Its Discretion in

Refusing to Conduct a Contested Hearing

In requesting a contested hearing, father’s counsel made an 

offer of proof relating to the second element of the parental-
13

benefit exception—whether daughter had “a substantial, 

positive, emotional attachment to [father]—the kind of 

attachment implying that [daughter] would benefit from 

continuing the relationship.”3 (Caden C., supra, 11 Cal.5th at 

p. 636; see also In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) 

This element is influenced by numerous factors: “The age of the 

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

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

child, and the child’s particular needs are some of the variables 

which logically affect a parent/child bond.” (In re Autumn H., at 

p. 576; accord, Caden C., at p. 632.) Yet, the only factor 

suggested by father’s offer of proof was that he and daughter had 

some positive interactions consisting of conversations and shared 

activities in a series of visits, which the Department had already 

reported. This clearly was not significantly probative of the 

requisite emotional attachment. To invoke the parental-benefit 

exception, a parent must do more than exhibit “frequent and 

loving contact” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 

1418) or that the parent and child mutually enjoy their visits (In 

re Elizabeth M. (1997) 52 Cal.App.4th 318, 324). “A biological 

parent . . . may not derail an adoption merely by showing the 

child would derive some benefit from continuing a relationship 

3 It is undisputed that father satisfied the parental-benefit 

exception’s first element, “ ‘regular visitation and contact.’ ” The 

Department reports documented father’s visitation as consistent,

without significant lapses, and occurred to the extent permitted 

by court orders and pandemic conditions. (See In re I.R. (2014) 

226 Cal.App.4th 201, 212.)
14

maintained during periods of visitation with the parent. 

[Citation.] A child [, especially a young child,] . . . should not be 

deprived of an adoptive parent [where, as here,] the natural 

parent has maintained a relationship that may be beneficial to 

some degree, but that does not meet the child’s need for a 

parent.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

Father claims his hands were tied by the juvenile court’s

order prohibiting him from “discussing case issues” with

daughter. According to father, the court thus faulted him

unreasonably for not proffering more “compelling” evidence, and

his only option was to have daughter testify. The order to which

father refers prohibited him from discussing with daughter “the 

petition allegations,” “mother,” or “returning home to father” 

following his erratic behavior on July 17, 2020. Whether the 

parental-benefit exception applies, however, does not hinge on 

the parent’s having discussed the section 300 allegations with the 

victimized child. Indeed, the test is not what the child says about 

the parental abuse or neglect, but whether the child has a strong, 

significant, and positive relationship with the parent 

notwithstanding the parental abuse or neglect. (See Caden C., 

supra, 11 Cal.5th at p. 633.) Father’s offer of proof was 

insufficient to justify a contested hearing on the parental-benefit 

exception. The juvenile court’s refusal to conduct one was not an 

abuse of discretion.

4. Father Could Not Carry His Burden to Prove the

Parental-benefit Exception Applied

More to the point, father could not establish the second 

element of the parental-benefit exception because he could not 

show daughter had a substantial, positive, emotional attachment 

to him such that she would benefit from continuing their
15

relationship. Daughter had become hostile toward father and 

anxious about having ongoing contact with him, which 

aggravated the symptoms of her adjustment disorder. Apart 

from a short period between the first and second detention 

hearings, daughter lived with Maria and her husband during the 

three-plus years of dependency proceedings, which, at the time,

was more than half daughter’s young life. Throughout these 

years, daughter called father only by his full name, while she 

began to call Maria “mom” and Maria’s husband “dad.” Daughter 

also was adamant that she remain with Maria and her husband 

and only visit father, until she ceased wanting to visit him at all. 

It is also uncontroverted that daughter’s bond with Maria and 

her husband strengthened as daughter’s deep-seated concerns 

about continued contact with father grew.

As for the third element, whether “termination would be 

‘detrimental to the child due to’ the child’s beneficial

relationship,” the issue is whether it would be harmful to the 

child to sever the relationship and choose adoption. (Caden C., 

supra, 11 Cal.5th at pp. 633–634.) We agree with the juvenile 

court. Far from suffering a detriment if her relationship with 

father were terminated, the record reveals daughter would not 

only gain a stable homelife, but she would also continue to make 

progress in overcoming the trauma of her sexual assault. (See In 

re N.S. (2020) 55 Cal.App.5th 816, 854.)

5. Additional Issues

Father raises two additional issues. He contends the

juvenile court erred in refusing to allow daughter to testify,

contrary to In re Amy M. (1991) 232 Cal.App.3d 849 (Amy M.),

which held the parents’ due process rights were violated when

the juvenile court refused to allow the child to testify despite the
16

parents’ request. (Id. at p. 867.) Amy M. noted that claiming the

child’s presence was “not necessary” was insufficient to meet the

parents’ due process rights; further, there was no adequate

substitute for the child’s testimony such as earlier testimony or

reported statements and no showing was made the child was

unavailable within the meaning of Evidence Code section 240. 

(Amy M., at pp. 865–866.) We do not reach the issue of whether

daughter’s testimony was mandated by Amy M. because father

failed to make the threshold showing that he was entitled to a

contested hearing for daughter to testify.

In excluding daughter from testifying, the juvenile court

relied on Jennifer J., supra, 8 Cal.App.4th 1080, which held that 

despite the lack of statutory or case law authority, a court has the 

power based on the overriding goal of protecting the child to 

carefully weigh whether the child’s testimony would materially 

affect the issues to be resolved against the possible psychological 

harm to the child caused by testifying. (Id. at p. 1089.) Father 

argues the court’s reliance on Jennifer J. was misplaced because 

it conflicts with controlling California Supreme Court precedent 

and Evidence Code section 240. Father forfeited this argument 

by failing to assert it in the juvenile court (In re S.B. (2004) 32 

Cal.4th 1287, 1293; In re Elijah V. (2005) 127 Cal.App.4th 576, 

582). For the same reasons discussed above, we decline to 

exercise our discretion to reach the merits of this claim despite 

the forfeiture.
17

DISPOSITION

The juvenile court’s order is affirmed.

NOT TO BE PUBLISHED.

LUI, P.J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.