1

Filed 7/21/15 In re Jacob F. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

In re JACOB F. et al., Persons Coming Under 

the Juvenile Court Law.

C077890

(Super. Ct. Nos.

SACRAMENTO COUNTY DEPARTMENT JD233373, JD233374)

OF HEALTH AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

TRISHA B. et al.,

Defendants and Appellants.

Anthony F. (father) and Trisha B. (mother) appeal from the juvenile court’s orders 

terminating parental rights as to minors Jacob F. and M.F. (Welf. & Inst. Code, 

§ 366.26.)1 Both parents contend substantial evidence does not support the court’s 

 

1 Undesignated statutory references are to the Welfare and Institutions Code. 
2

finding that the beneficial parental relationship exception to adoption (§ 366.26, subd. 

(c)(1)(B)(i)) does not apply.2 We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On May 29, 2013, the Sacramento County Department of Health and Human 

Services (the Department) filed petitions under section 300, subdivision (b) as to 

Jacob F., then 22 months old, and M.F., then five years old. The petitions alleged that 

mother’s substance abuse and the parents’ domestic violence endangered the minors, and 

the parents had failed to take advantage of services offered in informal supervision.

The detention report alleged that both parents had tested positive for drugs or had 

failed to test numerous times. Mother’s drug history and the family’s history of Child 

Protective Services (CPS) referrals went back to 1998. The minors tested positive for 

methamphetamine at birth. The minors’ older sibling, C.J., was removed from the 

parents’ custody in 2001; the maternal grandmother Peggy J. had had custody of him as 

guardian since 2002. The parents denied being married, but father reported he was the 

minors’ father and had raised them. 

The jurisdiction/disposition report recommended out-of-home placement for the 

minors and reunification services for the parents, but deemed the prognosis for 

reunification poor because the parents had not participated in services or maintained 

contact with the Department. The parents’ twice-weekly supervised visits with the 

minors began in a public venue, but had to be moved to the foster family agency (FFA) 

office because of the parents’ “concerning behaviors.” 

At the contested dispositional hearing on September 19, 2013, the juvenile court 

placed the minors in foster care,3 found the parents’ progress “minimal,” and ordered 

 

2 Father contends he had a beneficial parent relationship with only M.F. 
3

mother into dependency drug court, from which she was later dismissed for repeated 

noncompliance.

The permanency report, filed February 14, 2014, recommended termination of the 

parents’ services and the minors’ adoption by their current foster parents. 

The parents had untreated substance abuse and anger control problems. They had 

not participated in services and did not think they needed to do so.

The minors were placed together. Their foster mother indicated that the minors 

had adjusted remarkably well; they were relaxed in the home, which they had come to 

view as their own, and happy with the foster parents, who loved them and wanted to 

adopt them. A permanency assessment found the minors generally adoptable.

Both minors were reaching their developmental milestones. M.F. had had 

behavioral issues and was in therapy, but had improved dramatically in terms of 

considering others and learning to share with them; she was doing very well in 

kindergarten. Jacob was too young for school and was not in therapy. 

During a visit in December 2013, father demanded the minors’ immediate removal 

from the foster home, claiming they were “being beat up” and he had reported it. When 

the social worker told him all reports would be followed up but the minors could not be 

removed immediately, he became very angry, yelled that he wanted the minors “ ‘fucking 

moved now,’ ” and left.4

 

3 The maternal grandmother was ineligible for placement of Jacob and M.F. due to a 

2006 felony drug conviction. 

4 An addendum explained that separate accidents in October and December 2013 had 

caused the minors to suffer facial marks and scratches, shown in pictures submitted by 

father. No one in the foster home inflicted those injuries. 
4

After a contested permanency hearing in April 2014 (§ 366.21, subd. (e)), on May 

16, 2014, the juvenile court terminated the parents’ reunification services and set a 

selection and implementation hearing for September 2014.

On July 29, 2014, father filed a petition to modify court orders (§ 388), seeking the 

minors’ return or the reinstatement of reunification services. 

On August 8, 2014, the juvenile court denied father’s petition summarily.

The selection and implementation report, filed August 19, 2014, recommended 

termination of parental rights and adoption of the minors.

The minors continued to meet their developmental and educational milestones. 

M.F., about to start first grade, was bright and a good student. Her behavior had 

improved greatly over the last year; however, she still attended biweekly counseling, and 

the foster parents were “working on various social and emotional concerns in addition to 

boundaries and coping skills.”

The minors called the foster parents “mom” and “dad” and had a positive 

relationship toward them. Jacob looked to them to meet his needs; during visits he did 

not appear to enjoy interacting with father and mother and was not engaged with them the 

greater part of the time. M.F. stated she was happy living in her current home; she 

appeared to enjoy her visits with father and mother “when they are engaged and 

appropriate.” The minors had been in the foster home for over a year and had integrated 

into the foster family. 

The foster parents wished to adopt the minors and had recently begun their 

homestudy. There appeared to be no barriers to the completion of the homestudy within 

the next six months and approval of the home for adoption.

Father and mother visited twice a week for an hour at a time until early August 

2014, when the visits were reduced to once a week for an hour. Though regular, they had 
5

not always been beneficial for the minors. The minors did not cry for father and mother 

or ask for them when they were not around. 

In a July 2014 visit observed by the Department social worker, Jacob spent most 

of the time playing alone; at one point he ran to the foster mother and hugged her. At the 

end of the visit, he refused father’s request for a hug. M.F. gave father a hug at his 

request, and both minors hugged mother at her request. The minors were not distressed 

by the end of the visit and easily returned to the foster parents’ care.

The visits had recently deteriorated, and the parents had been reprimanded for 

inappropriate behavior and conversations with the minors. The parents were advised they 

could not discuss things that would make the minors feel bad during visits or phone calls. 

The parents had been seen trying to whisper to M.F. out of the visitation monitor’s 

earshot; as a result, they were no longer allowed to walk the minors to the foster mother’s 

car after visits. On M.F.’s birthday, she was told she should not be calling the foster 

mother “mom”; she then told the foster mother about this, but added, “you are my mom 

and I have to call you ‘ “mom.” ’ ” The parents had argued with the minors in phone 

calls and at visits because the minors called the foster mother “mom.” On Father’s Day, 

father was upset because M.F. said she was happy to have two dads. M.F. reportedly 

hung up the phone in frustration when the parents yelled at her and reprimanded her. 

Recently, she had cut phone conversations with them short or refused to come to the 

phone. 

At a visit on August 8, 2014, father was falling asleep, and then became 

disrespectful to the visitation supervisor; the visit had to be curtailed. Due to this incident 

and the others mentioned above, visits had been reduced to once a week.

On September 12, 2014, the juvenile court ordered a contested selection and 

implementation hearing. The parents’ trial briefs raised the beneficial parental 

relationship exception to adoption.
6

On October 16, 2014, father and the maternal grandmother filed section 388 

petitions seeking the relocation of the minors to the maternal grandmother’s home. The 

petitions alleged that the minors were not happy in the foster home and raised charges 

that included inadequate feeding and clothing, Jacob’s regression to diapers after potty 

training, physical injuries to the minors, possible sexual abuse of M.F., abuse of the 

minors by the foster parents’ 11-year-old foster son, and alienation of the minors’ 

affections from the parents by the foster mother. The petitions also claimed that on 

July 16, 2014, M.F. called father at 9:30 p.m., crying incessantly and telling him she did 

not want to live in the foster home.

The juvenile court set the modification petitions for consideration at the selection 

and implementation hearing.

The juvenile court held the selection and implementation hearing on October 22 

and 23, 2014. At the outset, the court denied the section 388 petitions because “these 

children have been placed in this home for a period of time. The adoption process is 

almost completed, and to change these children’s placement and begin the assessment 

and delay their need for permanency any further was not believed to be in the best 

interests of the children.”

The maternal grandmother, Peggy J., testified as follows:

Peggy J. often accompanied mother and father on visits with the minors. The 

minors were affectionate toward both parents. The minors ran to the parents at the start 

of visits and called them “mommy and daddy.” During the visits, the minors and the 

parents played together.

The minors’ behavior at the end of visits had changed “a lot,” however. Earlier 

they would walk out to the parents’ car to say goodbye, but now they said goodbye and 

walked off. They accepted the visits’ end “fine,” without crying or tantrums. “It’s not 
7

like they make a big deal out of it . . . they know it’s going to happen so they don’t get 

upset about it anymore.” They had stopped getting upset about visits’ end “[p]robably 

about four months into them being with the foster family.” Jacob had “adjusted to it a 

little more than [M.F.]” because he was younger. M.F. used to be upset when visits 

ended because she thought she would be going home with the parents, but once she 

realized that would not happen, she “more or less calmed down to the fact that she’d have 

to wait until they come to see her next time.”

M.F. last asked to go home with the parents “[p]robably the last two or so visits 

ago.” She was not crying, but she hugged mother and asked when she could come home; 

mother said she was “working on it . . . but it’s just not going to happen now.”5

Father testified as follows:

The parents visited the minors twice a week until the last six weeks, when it was 

reduced to once a week. At the start of every visit, the minors would run over and throw 

their arms around the parents, “give big hugs and kisses, and there is a big reunion.” The 

hugging and kissing continued throughout the visits. M.F. was more affectionate than 

Jacob, who preferred roughhousing. Sometimes Jacob was unwilling to give father a hug 

or kiss, but that was normal with children; it might happen “10 percent of the time.” 

M.F. had never refused to give father a hug or kiss. However, three or four weeks ago 

she seemed “standoffish.” She was no longer as outwardly affectionate as before, but 

showed affection in subtle ways.

During visits, the parents and the minors would usually eat food the parents 

brought, play games, and talk about “everything.” The minors called him “daddy.” The 

 

5 Peggy J. also testified about the close ties between the minors and their older sibling, 

C.J. The parents and C.J. testified to the same effect. However, the juvenile court found 

that the sibling exception to adoption did not apply, and the parents do not attack that 

ruling. Therefore we do not discuss the subject further. 
8

only uncomfortable topic of conversation was M.F.’s questioning when she could come 

home. She asked at least once a month; the last time was two weeks ago. She had also 

made phone calls specifically to ask that question. 

The last time M.F. asked to come home during a phone call was three or four 

weeks ago.6 She initiated the call at 9:30 p.m., when she would normally be in bed. She 

was crying and “panicked.” It sounded as though the CPS social worker had told her she 

would be staying in the foster home “forever,” and she did not want that. M.F. asked the 

parents to tell CPS and foster care that she did not want to grow up in a foster home. 

Father recorded the conversation on his cell phone, and still had the recording.7

When father and mother discussed M.F.’s call with the social worker, the social 

worker “dismissed it as nothing” and claimed she had the right to say whatever she 

wanted to say to the minors.

M.F.’s moods fluctuated during visits. After that phone call, she seemed “[a] little 

more withdrawn maybe.” Father suspected it had to do with “inappropriate behavior at 

the foster home,” meaning that she had been “touched in places that she shouldn’t have 

been.” She seemed to be “scratching down in her nether region” and showed reluctance 

to use public bathrooms. She was squirmy and did not want to be touched as much as 

usual. Father did not ask her about it because mother was dealing with it.8

 

6 On cross-examination, father admitted it was “mid to late July” or early August at the 

latest. As mentioned above, father’s most recent section 388 petition alleged the call took 

place on July 16, 2014. Social worker Jessica Karadsheh testified that she and father 

discussed the call at a visit on July 17, 2014. 

7 The recording was not offered in evidence.

8 Father stated that mother had called the Department’s hotline without result. He had 

left messages with the social worker’s supervisor; the social worker was almost 

impossible to reach and did not return his calls. 
9

At the ends of visits, Jacob would sometimes say he did not want to leave; he did 

not cry, but got angry. M.F. would say that more often. She also did not cry “because 

she is a brave soldier,” but would get defiant when told it was time to leave. Father 

disagreed with the social worker’s claim that the minors showed no distress at the ends of 

visits, and wondered how she would know their reactions because she had attended only 

one visit.

Father was never told that he was saying inappropriate things to the minors during 

visits.

Father opposed the termination of his parental rights because he believed he had a 

special bond with the minors. If his rights were terminated, he would be “obliterated,” 

and the minors would also be adversely affected. 

Mother testified as follows:

At visits, the minors ran to her. She played games with them and brought drawing 

materials for M.F. 

Mother recently gave M.F. a necklace with the word “mother” on it; mother had 

one with the word “daughter.” The purpose was for M.F. to “keep mother on her neck,” 

prompting her to think of mother, so as “to keep us close together.” 

In the last month, when visits ended M.F. was “sad” and cried, although not after 

every visit; the last time she cried was about two weeks ago. Jacob hugged the parents 

but did not cry “so much” and “is okay with leaving.” 

 

 Father claimed the social worker had never given him her phone number or card. He 

did not ask how he could get in touch with her because she said her function in the case 

was to get the minors adopted. 
10

Mother had no idea why visits had been reduced from twice a week to once a 

week, or why the parents were no longer allowed to walk the minors to the foster parent’s 

car at the end of visits. 

Mother admitted that at a visit six months ago she told M.F. not to call the foster 

mother “mom”; however, mother was merely reacting to M.F.’s statement that she felt 

she had to call the foster mother “mom” but did not want to. Although M.F. now called 

the foster mother “mom,” as recently as two weeks ago she was still upset about it. M.F. 

was always the one who brought up this topic. 

Phone conversations with the minors were supposed to happen twice a week, but 

lately they had been only once a week. M.F. would always ask about what the parents 

were doing. 

M.F. told mother about a “tickle in her nether regions” three or four weeks ago. 

Mother thought that either M.F. had been touched inappropriately or she did not know 

how to wipe herself properly. Mother reported the incident to the Department’s abuse 

hotline, but no one called back. She did not report it to the social worker because it was 

impossible to get ahold of her and she did not return calls; her supervisor was also 

unreachable. Mother admitted, however, that she had the social worker’s phone number 

and had given it to father. The parents did not live together. 

Mother felt it would be detrimental to the minors to terminate her parental rights 

and “not have a connection with me.” She requested guardianship or permanent foster 

care.

Called as a rebuttal witness, CPS social worker Karadsheh, the adoptions social 

worker and author of the selection and implementation report, testified as follows:

Karadsheh was assigned to the case in May or June 2014. She supervised a visit 

on July 17, 2014, and attended another on August 7, 2014. 
11

The parents’ visitation was reduced to once a week around August 7, 2014, due to 

“multiple complaints” from the FFA social worker and the regular visitation supervisor. 

Karadsheh was told that the parents had inappropriate conversations with the minors 

during visits and phone calls. Once father had fallen asleep during a visit, then acted 

argumentatively and aggressively toward the visitation supervisor. According to the FFA 

social worker, the parents tried “multiple times” to keep M.F. separated from the others at 

the ends of visits and talked about things directly related to placement or other topics that 

would upset her, “such as don’t call the foster mother ‘mom.’ ” During one visit, the 

parents got into an argument in front of the minors, and the visit ended early. M.F. 

became more upset about these things than Jacob.

Karadsheh met with mother on August 7, 2014, and told her the visits would be 

reduced due to these ongoing concerns, but phone calls would not be reduced. Asked if 

she knew why phone contact had been occurring only once a week, Karadsheh did not 

answer directly.9

As part of her assessment, Karadsheh spoke twice to M.F. about adoption. In the 

first conversation, on July 14, 2014, Karadsheh explained, in answer to M.F.’s questions, 

that adoption meant “she would be here forever.”10 M.F. “didn’t really have much of a 

response about it”; she was playing and did not appear upset. The second conversation, 

in August, was similar; M.F. “just kept playing and was, like, okay. She was very 

nonchalant.” The foster mother was not present during either conversation. However, 

when Karadsheh asked the foster mother if she had seen any sign of distress in M.F. on 

 

9 Karadsheh cited an alleged statement by the foster mother about the date of the most 

recent phone call. After a sustained hearsay objection, counsel dropped the subject. 

10 Karadsheh did not recall saying adoption would mean M.F. would never see her 

parents again; Karadsheh would have no way of knowing if that was true. However, if 

that happened, it would not be detrimental to M.F. 
12

this topic, the foster mother mentioned that “about three days later during a [phone] 

conversation with her mother . . . there was some upset in that conversation.”11 The 

foster mother was present during that call and told Karadsheh about it. 

On July 17, 2014, father addressed Karadsheh about the phone call; she told him 

that she would talk to M.F. about it, and did so. Father’s testimony as to what M.F. said 

in the call “wasn’t the gist of the conversation that I’m aware of.”

When Karadsheh returned from a six-week medical leave, she saw a report about 

M.F.’s supposed tickle in her vaginal area. The report stated that the CPS “worker of the 

day” called the Department’s hotline, but they did not open a case based on mother’s call 

because “there wasn’t an actual allegation, so mom just has a concern.” But according to 

another social worker who followed up on the matter, M.F. “reported she had never been 

inappropriately touched in this home or any other home and is happy in the home.”

Karadsheh recommended that the minors be adopted as a sibling set by their 

current foster parents, although they were generally adoptable and could be adopted 

separately. It would not be against the minors’ best interests to terminate parental rights. 

Legal guardianship would be inappropriate because the acrimony between the parents 

and the foster parents would not be beneficial to the minors. 

On November 14, 2014, the trial court issued an oral and written ruling. As 

relevant to the beneficial parental relationship exception to adoption, the ruling stated:

“Pursuant to the requirements of . . . Section 366.26 [fn. omitted], the court must 

select a plan of adoption if the court can find by clear and convincing evidence that the 

children are adoptable, unless there is a compelling reason to determine that termination 

of parental rights would be detrimental to the child due to one of the enumerated 

 

11 Presumably this was after Karadsheh’s July 14 conversation with M.F.
13

exceptions listed in 366.26(c)(1)(B). In the present case, the court heard the testimony of 

parents and relatives of the child[ren]. The primary arguments following the close of 

evidence addressed the detriment to the children of terminating parental rights . . . .

“In the Report dated September 12, 2014, the social worker concluded . . . that the 

children were generally adoptable. They are young, healthy, with no behavioral 

concerns, and are currently meeting their developmental milestones. They have resided 

with a foster parent for over one year who desires to adopt both children and who has 

begun a home study. The social worker’s opinion was that there were no barriers to the 

adoption of these children. There was no evidence presented to the contrary. Therefore,

the court finds the evidence is clear and convincing that the children are likely to be 

adopted within a reasonable time period.

“The parents . . . argued that it would be detrimental to the children if parental 

rights were terminated. The court disagrees and finds that although the parents have 

visited regularly, they have failed to prove that the children would benefit from 

continuing the parent-child relationship with their parents. The originating situation 

which brought the children to the attention of CPS was the mother’s alcohol addiction 

and the parents’ domestic violence . . . . After almost a year of making reasonable 

services available to the parents, they failed to participate and make any substantive 

progress. The parents continued to show signs of aggression toward each other even 

during their monitored visits with the children. The . . . social worker . . . reported the 

following:

“ ‘There have been incidents of the parents arguing at the visits upsetting the 

children with inappropriate subjects and a lack of engagement by the parents towards the 

children, mostly Jacob, during many of the visits. [The children] easily separate from the 

parents at the end of the visits with no distress for their parents, only from the parents’ 
14

behaviors. The children don’t cry for the parents or ask for the parents when they are not 

around.’

“This statement was corroborated by the testimony presented to the court. The 

children’s grandmother confirmed that the children accept when the visit will end and are 

not upset; that their behavior changed about four months after they were removed (i.e., in 

2013). Although in the parents’ testimony they discussed their concerns about the 

children’s care by the foster parents, their concerns about the actions of the employees of 

[CPS], and their feelings about being the only ones who can truly understand and 

properly care for their children, the court is not persuaded. Having heard and weighed all 

the testimony, the court can find no compelling reason to determine that these children 

would benefit from a continuing relationship with their parents to such a degree as to 

outweigh the well-being that the children would gain in a permanent home with new, 

adoptive parents. Having balanced the strength as well as the quality of the relationship 

that these children have had with their parents in their young lives, and having considered 

the possible harm that would come from severing the natural parent-child relationship, 

the court concludes that the parents have failed in their burden to persuade the court that 

the preference for adoption has been overcome.” 

DISCUSSION

The parents contend substantial evidence does not support the juvenile court’s 

rejection of the beneficial parental relationship exception to adoption. We disagree.

“ ‘At the selection and implementation hearing held pursuant to section 366.26, a 

juvenile court must make one of four possible alternative permanent plans for a minor 

child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ 

[Citations.] If the court finds the child is adoptable, it must terminate parental rights 

absent circumstances under which it would be detrimental to the child.” (In re Ronell A.

(1996) 44 Cal.App.4th 1352, 1368.)
15

There are only limited circumstances permitting the court to find a “compelling 

reason for determining that termination [of parental rights] would be detrimental to the 

child . . . .” (§ 366.26, subd. (c)(1)(B).) One of these is where the parent has maintained 

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

the relationship, often referred to as the beneficial parental relationship exception. 

(§ 366.26, subd. (c)(1)(B)(i).) The benefit to the child must promote “the well-being of 

the child to such a degree as to outweigh the well-being the child would gain in a 

permanent home with new, adoptive parents. In other words, the court balances the 

strength and quality of the natural parent/child relationship in a tenuous placement 

against the security and the sense of belonging a new family would confer. If severing 

the natural parent/child relationship would deprive the child of a substantial, positive 

emotional attachment such that the child would be greatly harmed, the preference for 

adoption is overcome and the natural parent’s rights are not terminated.” (In re 

Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); accord, In re C.F. (2011) 

193 Cal.App.4th 549, 555 (C.F.); In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235; 

In re Helen W. (2007) 150 Cal.App.4th 71, 81; In re L. Y. L. (2002) 101 Cal.App.4th 942, 

953.) Even frequent and loving contact is not sufficient to establish this benefit absent a 

significant, positive, emotional attachment between parent and child. (C.F., at p. 555; 

Autumn H., at p. 575.) 

“Because a section 366.26 hearing occurs only after the court has repeatedly found 

the parent unable to meet the child’s needs, it is only in an extraordinary case that 

preservation of the parent’s rights will prevail over the Legislature’s preference for 

adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 

(Jasmine D.).) 

The party claiming the exception has the burden of establishing the existence of 

any circumstances that constitute an exception to termination of parental rights. (C.F.,
16

supra, 193 Cal.App.4th at p. 553.) The factual predicate of the exception must be 

supported by substantial evidence, but the juvenile court exercises its discretion in 

weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th 

614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)

“On review of the sufficiency of the evidence, we presume in favor of the order, 

considering the evidence in the light most favorable to the prevailing party, giving the 

prevailing party the benefit of every reasonable inference and resolving all conflicts in 

support of the order.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) “ ‘[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.’ ” 

(Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

Given the Legislature’s strong preference for adoption, where adoptable minors 

are placed with a prospective adoptive family to which they have bonded and which 

meets their needs, that almost ends the discussion. (In re Dakota H. (2005) 

132 Cal.App.4th 212, 228-229, 231; Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Such 

is the case here. As the juvenile court found, the minors were generally adoptable, had 

lived for over a year with foster parents who wished to adopt them, and were thriving in 

their foster home. So far as the parents presented evidence of problems or mistreatment 

of the minors in the foster home, the court impliedly rejected that evidence as not 

credible, and we may not reweigh that finding. The evidence the court recited, when 

reviewed with the deference due on appeal, was sufficient to support its ruling. 

(Jasmine D., supra, 78 Cal.App.4th at p. 1351; Autumn H., supra, 27 Cal.App.4th at 

p. 576.)

Both parents attack the sufficiency of the evidence to support the juvenile court’s 

ruling by disregarding the deferential standard of review we must apply and recounting 

the evidence most favorably to themselves. Mother simply omits the evidence supporting 
17

the ruling, such as the social worker’s report and testimony, and recites only the parents’ 

evidence.12 Father acknowledges the existence of opposing evidence, but only to assert 

baldly that it should be rejected as “general” or “conclusory,” or to try to explain it away 

with pure speculation. 

Mother asserts that because certain evidence favorable to the parents was 

uncontradicted, the juvenile court was required to accept it. Mother is mistaken. A trier 

of fact need not accept any evidence as true merely because it is uncontradicted. Some of 

the evidence mother cites was not uncontradicted. And even the genuinely 

uncontradicted evidence mother cites is not enough to show that insufficient evidence 

supported the juvenile court’s ruling. 

Mother relies on Krause v. Apodaca (1960) 186 Cal.App.2d 413 (Krause), which 

quotes older decisions, as holding that “ ‘testimony which is not inherently improbable 

and is not impeached or contradicted by other evidence should be accepted as true by the 

trier of fact’ ” (id. at p. 417), and that “ ‘ “the uncontradicted testimony of a witness to a 

particular fact may not be disregarded, but should be accepted as proof of the fact.” ’ ” 

(Ibid.) However, the same decision also acknowledges “the general rule that . . .

‘[p]rovided the trier of the facts does not act arbitrarily, he may reject in toto the 

testimony of a witness, even though the witness is uncontradicted.’ ” (Id. at p. 419.) The

evidence at issue in Krause was uncontradicted and compelling expert testimony, 

apparently rejected by the trier of fact in favor of an inference the experts had 

conclusively rebutted. (Id. at pp. 417-419.) In our view, Krause cannot be extended 

beyond its peculiar facts to support a rule that any uncontradicted evidence, no matter 

 

12 It is immaterial that mother’s brief mentions opposing evidence in passing in its 

statement of facts. To make a proper insufficient evidence argument, an appellant must 

confront that evidence squarely and show why it is inadequate. (See Foreman & Clark 

Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) 
18

how implausible, is binding on the trier of fact, and more recent case law has made clear 

that there is no such rule. (See, e.g., In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) 

Furthermore, some evidence mother calls uncontradicted is not so. Mother asserts 

that the maternal grandmother’s testimony about the minors’ open display of affection 

toward the parents during visits was uncontradicted. In fact, the social worker’s report 

states that during the visit she observed, Jacob spent most of his time playing alone and 

refused father’s request for a hug at the end of the visit, while spontaneously running to 

the foster mother and hugging her during the visit; even M.F. hugged father only at his 

request. Furthermore, the maternal grandmother’s testimony, so far as it aimed to show 

the depth of the bond between the parents and minors, contradicted itself to some extent: 

The maternal grandmother testified, consistent with the social worker’s view, that the 

minors had come to accept the end of visits as “not . . . a big deal” after four months in 

the foster home.

Though not asserting that the juvenile court should have accepted any evidence 

merely because it was uncontradicted, father puts great stress on his account of M.F.’s 

late-night July phone call in which she allegedly cried, sounded panicked, and insisted 

she did not want to stay in the foster home forever. Father also states that the social 

worker “corroborated” that account. The last point misrepresents the record. The social 

worker corroborated that the call was made, but stated that father’s version of what M.F. 

said “wasn’t the gist of the conversation that I’m aware of”; the social worker also noted 

that she had heard about the call from the foster mother, who was present while it 

happened, and who consistently indicated that M.F. was happy and well adjusted in her 

home. 

But even uncontradicted testimony that the minors showed affection and enjoyed 

the parents’ visits did not show by a preponderance of the evidence that the benefit of 

continuing the parental relationship would outweigh the benefit of adoption (see C.F.,
19

supra, 193 Cal.App.4th at p. 555; Autumn H., supra, 27 Cal.App.4th at p. 575)—nor did 

a phone call from M.F., whatever its contents, which took place over two months before 

the selection and implementation hearing, and which the juvenile court had to set against 

the abundant evidence that M.F. was happy in the foster home as of the hearing date. 

The parents raise additional legal contentions that we reject.

First, the parents assert that the case law construing section 366.26, subdivision 

(c)(1)(B)(i) has improperly added conditions to the statute, making the parents’ burden 

greater than the Legislature intended. This contention is unsupported by authority and 

inconsistent with the statutory scheme. 

The parents note that the statute requires proof that the child would “benefit” from 

continuing the parental relationship, but does not specify that the benefit must be 

“substantial,” that the minor must be “greatly harmed” by severing the parental 

relationship, or that the benefit of preserving the parental relationship must “greatly 

outweigh” the benefit of adoption. Thus, in the parents’ view, if they have shown any

benefit to the minors from continuing the parental relationship, they should prevail, and 

this court should disregard the Autumn H. balancing test as a judicial excrescence on the 

statute’s plain meaning. Unsurprisingly, they cite no authority supporting their position, 

and we know of none. (Cf. People v. Stanley (1995) 10 Cal.4th 764, 793 [legal 

propositions asserted without developed argument and apposite authority forfeited].)13

 

13 Mother cites In re K.H. (2011) 201 Cal.App.4th 406 for the premise that the statute’s 

“plain meaning” controls, but that decision does not discuss the beneficial parental 

relationship exception. (Id. at pp. 414-420.) Father cites a dictionary definition of 

“benefit” as “anything contributing to an improvement or advantage,” but does not show 

that the Legislature had that definition in mind when it enacted section 366.26, 

subdivision (c)(1)(B)(i). 
20

In any event, the juvenile court may not assess “benefit” under section 366.26, 

subdivision (c)(1)(B)(i) in a vacuum: It must do so in light of the Legislature’s clearly 

stated preference for adoption. (§ 366.26, subd. (b)(1)-(6) [setting out order of preference 

for placement, with adoption first].) A court cannot decide whether children would 

benefit from continuing a parental relationship sufficiently to avoid the Legislature’s 

preference for adoption without assessing the strength of that benefit and weighing it 

against the benefit from adoption. Thus, we see no reason to reject the Autumn H.

balancing test, which has been consistently followed by later courts.

Citing psychological studies of adopted children (which are not authority for this 

court), father asserts: “[A] comparison of a parental relationship to the perceived benefits 

of adoption and permanence is not possible because the actual benefits of adoption versus 

maintaining a relationship with the natural parents is [sic], in the end, unknowable.” But, 

by requiring courts to choose adoption unless a statutory exception applies, section 

366.26 requires them to make and resolve the comparison father calls “not possible.” 

Thus, like the parents’ previous point, this contention is at odds with the statutory 

scheme.

Mother asserts the juvenile court should have ordered legal guardianship as the 

permanent plan, claiming that it provides “all of the necessary and desired stability and 

permanence that a child requires.” This premise ignores the statutory preference for 

adoption when minors have been found adoptable, as here. It also ignores the social 

worker’s opinion, impliedly accepted by the juvenile court, that if the foster parents 

became the minors’ legal guardians, the parents’ animosity toward the foster parents 

would undermine the minors’ sense of stability and permanence. 

Lastly, the parents rely heavily on three appellate decisions: In re Brandon C.

(1999) 71 Cal.App.4th 1530 (Brandon C.), In re S.B. (2008) 164 Cal.App.4th 289 (S.B.),
21

and In re Scott B. (2010) 188 Cal.App.4th 452 (Scott B.). These decisions are clearly 

distinguishable. 

In Brandon C., supra, 71 Cal.App.4th 1530, the appellate court affirmed an order 

of legal guardianship, appropriately applying the deferential substantial evidence standard 

of review. (Id. at pp. 1532, 1534.) The minors’ caretaker, the paternal grandmother, 

preferred to adopt the children but was willing to be their legal guardian. She believed it 

was in the children’s best interest to continue a relationship with their mother and father.

(Id. at pp. 1532-1533.) The agency, which appealed from the order, presented no 

evidence that the bond between the mother and the minors was not close or that 

continuing contact would not be beneficial to the minors. (Id. at p. 1537.) As the facts 

and the procedural posture of Brandon C. are entirely different from those of the present 

case, Brandon C. does not support the parents’ position.

In S.B., supra, 164 Cal.App.4th 289, the appellate court reversed an order 

terminating parental rights because the father had fully complied with his case plan and 

the appellate court found the minor would benefit from continuing contact with him; the 

court found it insufficient to justify termination of parental rights that the minor also had 

a strong relationship with her caretaker and the caretaker promised continued visitation 

with father. (Id. at pp. 293, 298-301.) However, so far as S.B. purported to hold that 

“some measure of benefit” from the father’s visits was sufficient to avoid the termination 

of parental rights (id. at pp. 300-301), an argument made by father in reliance on S.B., it 

has been repeatedly distinguished or criticized by later decisions, including two from the 

district that decided S.B. 

Thus, in In re Jason J. (2009) 175 Cal.App.4th 922 (Jason J.), the court that 

decided S.B. stated: “The S.B. opinion must be viewed in light of its particular facts. It 

does not, of course, stand for the proposition that a termination order is subject to reversal 
22

whenever there is ‘some measure of benefit’ in continued contact between parent and 

child.” (Jason J., at p. 937.)

Two years after Jason J., the same court reiterated this point with some 

exasperation: “Our effort in Jason J. to discourage the improper and inaccurate use of 

our opinion in S.B. has not been successful. Following Jason J., in literally dozens of 

unpublished opinions various panels of this court and courts in other appellate districts 

have been required to distinguish S.B. on its facts and repeatedly reject the notion a 

parent can prevent termination of parental rights by merely showing there is some 

measure of benefit in maintaining parental contact. We have not found any case, 

published or unpublished, in which a reviewing court, relying on S.B., provided relief to a 

litigant whose parental rights were terminated. [¶] . . . [¶] In light of these 

circumstances, we once again emphasize that S.B. is confined to its extraordinary facts. It 

does not support the proposition a parent may establish the parent-child beneficial 

relationship exception by merely showing the child derives some measure of benefit from 

maintaining parental contact. As Autumn H. points out, contact between parent and child 

will always ‘confer some incidental benefit to the child,’ but that is insufficient to meet 

the standard. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Moreover, given the 

unwarranted burden placed on this court and other courts by appellate counsel’s reliance 

on S.B. when the facts are not even arguably similar, we observe: ‘Counsel should not 

forget that they are officers of the court, and while it is their duty to protect and defend 

the interests of their clients, the obligation is equally imperative to aid the court in 

avoiding error and in determining the cause in accordance with justice and the established 

rules of practice.’ ” (C.F., supra, 193 Cal.App.4th at pp. 558-559; accord, In re J.C.

(2014) 226 Cal.App.4th 503, 529-530.) 

We note with disapproval that the parents fail to cite C.F. or In re J.C., and 

although father cites Jason J., he overlooks its remarks on S.B.
23

Finally, in Scott B., supra, 188 Cal.App.4th 452, the appellate court reversed an 

order terminating parental rights where the minor was 11 years old, autistic, and 

emotionally unstable, and failed to understand that adoption might mean the end of 

contact with his mother, to whom he had been closely bonded and with whom he had 

lived for almost his whole life. (Id. at pp. 471-472.) The court found that, given his 

strong emotional attachment to mother, his precarious emotional state, and his history of 

regressing or running away when stressed, the termination of parental rights entailed “a 

very good chance that he will have a meltdown if his usual frequent visitation with 

[m]other does not continue”—“the chance of a danger not worth taking.” (Id. at p. 472.) 

The court found further that, on these extraordinary facts, “[t]ermination of parental 

rights is unnecessary given that a legal guardianship will provide Scott with stability in 

his life.” (Ibid.) Because these facts in no way resemble the facts of the present case, 

Scott B. does not assist the parents. 

DISPOSITION

The orders terminating parental rights are affirmed.

 BUTZ , J.

We concur:

 BLEASE , Acting P. J.

 HULL , J.