Filed 2/5/24 In re David V. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re DAVID V. et al., Persons

Coming Under the Juvenile Court 

Law.

 B328454

 

 (Los Angeles County

 Super. Ct. No. 18CCJP05847)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

DAVID V.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County, Debra R. Archuleta, Judge. Conditionally 

affirmed with directions.

Joseph T. Tavano, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and David Michael Miller, Senior

Deputy County Counsel, for Plaintiff and Respondent. 

____________________________________

INTRODUCTION

David V. appeals from an order under Welfare and 

Institutions Code section 366.26 terminating his parental rights 

to his sons, David V. (D.V.) and Aiden V.

1 David argues the 

juvenile court erred in ruling the parental-benefit exception 

under section 366.26, subdivision (c)(1)(B)(i), did not apply. We 

conclude the court did not err because substantial evidence 

supported the court’s finding David failed to maintain regular 

visits with D.V. and Aiden. 

David also argues the Los Angeles County Department of 

Children and Family Services failed to comply with its duty of

inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 

et seq.) (ICWA) and related California law. Following an appeal 

by D.V. and Aiden’s mother raising the same issue, we ordered 

the Department to comply with ICWA and related California law. 

(See In re David V. (Aug. 8, 2023, B327092).) We direct the 

juvenile court to provide the same relief in this case. Therefore, 

we conditionally affirm the juvenile court’s order with directions 

to ensure compliance with ICWA.

1 Undesignated statutory references are to the Welfare and 

Institutions Code. 
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The Juvenile Court Declares D.V. and Aiden

Dependent Children of the Court

In September 2018 the Department filed a petition in the 

juvenile court on behalf of D.V., who was two years old, and

Aiden, who was one year old, alleging in counts under 

section 300, subdivisions (a) and (b), that David and the 

children’s mother Kristian E. had a history of engaging in violent 

altercations in the children’s presence and that the children’s 

home was filthy and unsanitary. The juvenile court detained 

D.V. and Aiden, placed them with their maternal grandmother

Maria L., and ordered monitored visitation for a minimum of 

three times per week for three hours per visit.

In October 2018 the juvenile court, after dismissing a count 

alleging Kristian had a history of substance abuse, sustained the 

petition, declared D.V. and Aiden dependent children of the court,

and removed them from David and Kristian. The court ordered 

reunification services and monitored visitation. The reunification 

plan included a domestic violence program, individual counseling, 

and parenting classes. 

B. The Juvenile Court Terminates Reunification Services 

and Sets a Hearing Under Section 366.26

In April 2019 the Department reported David had not 

participated in any court-ordered programs or responded to the 

Department’s efforts to contact him. At that time, D.V. and 

Aiden were temporarily placed with their paternal grandmother, 

but they moved back to Maria’s home in September 2019 and 
4

remained there throughout the dependency proceedings. The 

juvenile court terminated reunification services in May 2019.

In February 2021 the juvenile court granted Maria legal 

guardianship and terminated jurisdiction. In March 2022, 

however, Maria filed a section 388 petition asking the court to 

terminate the legal guardianship because she believed a younger 

person would be “better equipped” to care for D.V. and Aiden,

who were then five and four years old. Maria asked the court to 

consider placing the children with a maternal cousin in Florida. 

David opposed the request to place D.V. and Aiden with 

Kristian’s cousin in Florida. He told the Department that he had 

recently enrolled in parenting and domestic violence classes and 

that he had not enrolled earlier because “his pride got in the 

way.” He said that he had moved to Desert Hot Springs, 

California and did not have transportation to visit D.V. and 

Aiden as often as the court had permitted, but that he called 

them regularly and now had a car, which would allow him to visit

them more often. He also said he wanted to complete the courtordered programs and reunify with the children. After a hearing, 

the juvenile court granted Maria’s section 388 petition, reinstated 

jurisdiction, and ordered an expedited assessment of the 

maternal cousin. The court also set the matter for a section 

366.26 hearing. 

C. David Visits D.V. and Aiden Inconsistently

For the first three weeks after the children’s detention,

David visited D.V. and Aiden pretty much as permitted by the 

juvenile court. In the Department’s April 2019 six-month review 

report, however, the children’s paternal grandmother (with whom 

the children were temporarily placed) reported that David visited 
5

the children only once a week for two to three hours, less than 

one-third the amount the juvenile court had authorized. David 

did not respond to communications from the Department during 

this six-month period. 

In September 2019, after the court terminated reunification 

services, the children’s paternal grandmother reported that 

David had stopped visiting altogether. By December 2019, David 

had resumed visiting the children two to three times per week. 

In May 2020, when the children were again living with Maria, 

Maria said David visited the children “consistently on a weekly 

basis” until the pandemic began. After that, she said, David 

visited them only twice.

In February 2021 the juvenile court reduced David’s 

visitation to one visit per week. Maria reported in April 2022 

that David had “intermittent contact” with D.V. and Aiden

because he commuted from Desert Hot Springs where he lived 

with his mother. Maria said that there was “no consistent 

schedule,” but that he had visited in the last week and a half. 

In May 2022 Maria took the children to Desert Hot Springs 

to visit David. They swam at a hotel pool, drove “Go-Karts,”2 and 

“had a lot of fun.” It was also in May 2022 that David told the 

Department he had a car and planned to visit the children more 

often. But in June 2022 David did not see D.V. and Aiden for 

several weeks, and in July 2022 Maria again had to take the 

2 A “go-kart is ‘a small low motor vehicle with four wheels 

and an open framework . . . .’” (State ex rel. Town of Richmond v. 

Roode (R.I. 2002) 812 A.2d 810, 814.) It is “typically driven on a 

closed course.” (Spot on Evergreen III, Inc. v. Washington State 

Liquor and Cannabis Bd. (Wash.Ct.App. 2020) 13 Wash.App.2d 

1008 [2020 WL 1853075, p. 5].)
6

children to Desert Hot Springs to visit David. The record does 

not indicate whether David visited D.V. and Aiden at any other 

time in July 2022. In August 2022 David attended the children’s 

birthday party at Maria’s home. Again, the record does not state

whether David visited the children at any other time in August. 

In a November 2022 status review report, the Department 

stated David visited D.V. and Aiden once or twice per month, 

which was less than half the visits the court had allowed. The 

Department’s January 2023 section 366.26 report stated David 

maintained “regular contact” with the children, including phone 

calls, video calls, and in-person visits. Maria said David visited 

the children every other day when he was in Los Angeles, but the 

report did not indicate how long David typically stayed in Los 

Angeles. During his visits, David helped bathe and dress the 

children and ate meals with them. David spent approximately 

two weeks in Desert Hot Springs between visits to Los Angeles.

D. The Juvenile Court Terminates David’s Parental 

Rights to D.V. and Aiden, and David Timely Appeals

At the section 366.26 hearing Maria testified and confirmed

much of what she told the Department about David’s visits with 

D.V. and Aiden. Maria said the children would be “sad” if they 

could not visit with their father, but not “traumatized.” She 

explained that David was “in and out” and did not visit

consistently, that this was “normal” for the children, and that

they were not sad when David leaves. To the contrary, she said,

when David leaves, the children “continue like nothing”

happened and “just pick up where they left off.” 

The juvenile court found that D.V. and Aiden were 

adoptable and that the parental-benefit exception to adoption did 
7

not apply. The court ruled David did not maintain regular 

visitation with the children, finding that “at times there’s been 

regular visitation and contact,” but that “at other times it’s been 

sporadic.” The court said that, when David is in Los Angeles “he 

drops in and sees the kids,” but that when he is not in 

Los Angeles, “he doesn’t particularly drop in and see the kids.”

The court also found David failed to establish “a bond” with 

D.V. and Aiden. The court ruled that “any benefit accruing to 

these children from their continued relationship with their father 

is outweighed by the physical and emotional benefit the children 

will receive through permanency and stability of adoption and 

that adoption is in the best interests of the children.” Regarding 

whether terminating parental rights would be detrimental to the 

children, the court, without making an affirmative, express 

finding to that effect, stated: “It appears to the court that [David] 

was a mere playmate to these children. He also did not 

participate in medical appointments, [and] he did not participate 

in school activities . . . . He would show up on occasion, share a 

meal with his sons, and play with them, and that seemed to be 

the nature and the extent of the contact and the bond with the 

children. There doesn’t seem to be great issues with the boys 

detaching from . . . father when the visits terminate. . . . We 

don’t have outward signs of trauma to the children.” The court 

found “it would be detrimental to these children to be returned to 

the parents” and terminated David’s parental rights. David 

timely appealed. 
8

DISCUSSION

A. The Juvenile Court Did Not Err in Ruling the 

Parental-benefit Exception Did Not Apply

1. Applicable Law and Standard of Review

The purpose of a hearing under section 366.26 is “‘to select 

and implement a permanent plan for the child’” after the juvenile 

court has terminated reunification services. (In re Caden C.

(2021) 11 Cal.5th 614, 630 (Caden C.); see In re Christopher L.

(2022) 12 Cal.5th 1063, 1076; In re D.M. (2021) 71 Cal.App.5th 

261, 268.) If the court determines “the child is likely to be 

adopted,” the court must “terminate parental rights to allow for 

adoption.” (Caden C., at p. 630; see § 366.26, subd. (c)(1); In re 

I.E. (2023) 91 Cal.App.5th 683, 690.) “But if the parent shows 

that termination would be detrimental to the child for at least 

one specifically enumerated reason, the court should decline to 

terminate parental rights and select another permanent plan.” 

(Caden C., at pp. 630-631; see § 366.26, subd. (c)(1)(B), (4)(A).) 

One of those reasons, the parental-benefit exception, requires the 

parent to establish by a preponderance of the evidence (1) “the 

parent has regularly visited with the child,” (2) “the child would 

benefit from continuing the relationship,” and (3) “terminating 

the relationship would be detrimental to the child.” (Caden C., at 

p. 629; see § 366.26, subd. (c)(1)(B)(i); In re M.V. (2023) 

87 Cal.App.5th 1155, 1183.)

“The first element—regular visitation and contact—is 

straightforward. The question is just whether ‘parents visit 

consistently,’ taking into account ‘the extent permitted by court 

orders.’” (Caden C., supra, 11 Cal.5th at p. 632; accord, In re 
9

M.V., supra, 87 Cal.App.5th at p. 1183; see In re I.R. (2014) 

226 Cal.App.4th 201, 212 [“Regular visitation exists where the 

parents visit consistently and to the extent permitted by court 

orders.”].) “Visits and contact ‘continue[ ] or develop[ ] a 

significant, positive, emotional attachment from child to parent.’ 

[Citation.] Courts should consider in that light whether parents 

‘maintained regular visitation and contact with the child’ 

[citation] but certainly not to punish parents or reward them for 

good behavior in visiting or maintaining contact—here, as 

throughout, the focus is on the best interests of the child.” 

(Caden C., at p. 632; see In re Eli B. (2022) 73 Cal.App.5th 1061, 

1069-1070.) Thus, “the visitation element is to be understood in

light of the overall purpose of the beneficial relationship 

exception.” (Eli B., at p. 1070.)

A juvenile court’s decision that a parent has not satisfied 

his or her burden to establish the parental-benefit exception 

applies “may be based on any or all of the component 

determinations,” including “whether the parent has maintained 

regular visitation.” (In re Breanna S. (2017) 8 Cal.App.5th 636, 

646-647, disapproved on another ground in Caden C., supra, 

11 Cal.5th at pp. 637, fn. 6, 638, fn. 7.) Indeed, “a parent must 

prove all three components of the beneficial relationship 

exception,” and a “failure of proof on any one of them is fatal.” 

(In re Katherine J. (2022) 75 Cal.App.5th 303, 322, fn. 10; see 

In re Eli B., supra, 73 Cal.App.5th at p. 1068 [where the parent

did not meet his or her burden to prove regular visitation, the 

reviewing court need not consider the other elements of the 

parental-benefit exception].)

We review the juvenile court’s ruling on the first element of 

the parental-benefit exception for substantial evidence. 
10

(Caden C., supra, 11 Cal.5th at p. 640; In re Eli B., supra,

73 Cal.App.5th at p. 1068.) In reviewing factual determinations 

for substantial evidence, we do not “‘reweigh the evidence, 

evaluate the credibility of witnesses, or resolve evidentiary 

conflicts.’” (Caden C., at p. 640.) 

2. Substantial Evidence Supported the Juvenile 

Court’s Finding David Failed To Regularly

Visit His Children

David does not contest the facts underlying the juvenile 

court’s determination he visited D.V. and Aiden sporadically. 

Indeed, he concedes that his visitation was not “perfect for a time 

due to the distance” from Desert Hot Springs, but he contends 

that, “viewing the life of the case, [he] maintained regular 

visitation and contact with the children.” 

The record does suggest David made efforts to visit his 

children and, when he could not see them in person, to maintain 

contact with them by phone and video calls. But David’s 

argument ignores substantial periods of time when he failed to 

visit D.V. and Aiden to the extent permitted by the juvenile court. 

For example, for at least six months (from the end of 2018 to 

early 2019) David visited the children for less than one-third the 

permitted amount. For some part of 2019 David did not visit the 

children at all, and he only began visiting them again after the 

juvenile court terminated reunification services. Despite the 

juvenile court reducing the number of weekly visits to one, the 

record indicates only a few periods of time when David visited the 

children as often as allowed (and David did not submit any 

evidence to the contrary or testify at the section 366.26 hearing). 

Even after David told the Department he had a car and would 
11

begin visiting D.V. and Aiden more often, it appears he did not. 

Substantial evidence supported the juvenile court’s finding David 

failed to maintain regular visitation. (See In re Eli B., supra,

73 Cal.App.5th at pp. 1070-1071 [father failed to show regular 

visitation where his visitation “throughout the years-long 

dependency proceeding was sporadic and also entailed significant 

gaps”]; In re Breanna S., supra, 8 Cal.App.5th at p. 647 [evidence 

of sporadic visits in the first 18 months of the dependency 

proceedings, coupled with more regular visits during the final 

six months before the section 366.26 hearing, was not regular 

visitation]; In re I.R., supra, 226 Cal.App.4th at p. 212 [parent 

failed to maintain regular visitation where there were 

“significant lapses in visits”].) 

Citing In re D.M., supra, 71 Cal.App.5th at page 270, David 

argues his visits over the course of the years-long dependency 

proceeding were sufficiently regular. In In re D.M., however, the 

juvenile court found the parent’s “‘fairly consistent’” visitation 

met the first element of the parental-benefit exception, and the 

Court of Appeal held substantial evidence supported that finding. 

(Ibid.) That’s not what happened here: The juvenile court here 

found David’s visitation was not regular, and substantial 

evidence supported that finding. (See In re M.R. (2017) 

8 Cal.App.5th 101, 108 [“we do not consider whether there is 

evidence from which the juvenile court could have drawn a 

different conclusion but whether there is substantial evidence to 

support the conclusion that the court did draw”]; see also In re 

I.J. (2013) 56 Cal.4th 766, 773 [“‘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.’”].)
12

Because David has not shown the juvenile court erred in 

finding he failed to meet the first element of the parental-benefit 

exception, we need not address his arguments regarding the 

second and third elements. (In re Eli B., supra, 73 Cal.App.5th at 

p. 1068; see In re Katherine J., supra, 75 Cal.App.5th at p. 322, 

fn. 10.) The juvenile court did not err in terminating David’s 

parental rights.

B. David Is Entitled to the Same Relief Under ICWA and 

Related California Law That Kristian Obtained in 

Her Appeal

David also challenges the juvenile court’s finding ICWA 

does not apply. He argues the Department failed to comply with 

its obligations under ICWA and related California law to ask 

known relatives, including a maternal aunt, a maternal cousin, 

and the children’s paternal grandmother, about D.V. and Aiden’s 

possible Indian ancestry. 

In her appeal from the juvenile court’s order terminating 

her parental rights, Kristian similarly challenged the court’s 

findings under ICWA and related California law. In that appeal 

we ordered the Department to interview known and available 

maternal and paternal relatives and extended family members, 

including those David identified in his brief on appeal. (In re 

David V., supra, B327092.) We ordered: (1) The Department is 

to “make reasonable efforts to attempt to identify and thereafter 

to interview all maternal and paternal relative extended family 

members, not just those who previously have been identified, as 

well as others who have an interest in the children, regarding the 

children’s possible Indian ancestry. [The Department] is to 

submit a report of its interviews or efforts to conduct the 
13

interviews to the juvenile court.”; (2) “If, based on the initial 

inquiry, there is reason to believe an Indian child may be 

involved but not yet sufficient information to determine if notice 

must be provided to a tribe or tribes, [the Department] is to 

conduct further inquiry pursuant to [section] 224.2, 

subdivision (e).”; (3) “At a noticed hearing, with counsel for the 

parents reappointed, the juvenile court is to ensure adequate 

inquiry and any necessary notice has been made and make ICWA 

findings as to the children. If the juvenile court finds . . . ICWA 

is not applicable, the order terminating parental rights shall 

remain the order of the court. If notice is required pursuant to 

. . . ICWA and a tribe determines [D.V.] or Aiden V. is an Indian 

child, the court shall proceed in compliance with . . . ICWA.”; and 

(4) “At the conclusion of the proceedings addressing compliance 

with federal and state law related to . . . ICWA, and upon the 

juvenile court’s findings and orders, the parties have the right to 

appeal from the renewed ICWA findings.” (David V., B327092.) 

We make the same order here: We direct the juvenile court to 

ensure the Department complies with ICWA and related 

California law as ordered in In re David V., supra, B327092.
14

DISPOSITION

The order terminating David’s parental rights is 

conditionally affirmed. The juvenile court is directed to ensure 

the Department complies fully with ICWA and related California 

law.

SEGAL, Acting P. J.

We concur: 

FEUER, J.

MARTINEZ, J.