Filed 6/14/22 In re A.G. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

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

Under Juvenile Court Law.

_______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

I.G.,

Defendant and Appellant.

 B315684

 (Los Angeles County Super.

Ct. No. 19CCJP02605D-E)

APPEAL from orders of the Superior Court of Los Angeles 

County, Daniel Zeke Zeidler, Judge. Affirmed.

Jesse McGowan, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant County Counsel, and Tracey F. Dodds, Principal 

Deputy County Counsel, for Plaintiff and Respondent.

________________________
2

INTRODUCTION

Father appeals from an order under Welfare and 

Institutions Code section 366.26 terminating his parental rights 

to his son and daughter.

1 Father contends the juvenile court 

erred when it used the clear and convincing standard of proof in 

rejecting the parent-child beneficial relationship exception. We 

conclude the error was harmless: even if the trial court had 

employed the correct preponderance of the evidence standard, the 

court necessarily would have found father failed to demonstrate 

that terminating the parental relationship would be detrimental 

to the children.

FACTUAL AND PROCEDURAL BACKGROUND

1. Dependency History

The parents have two children together: daughter born in 

2013, and son born in 2014. In 2015, the juvenile court took

dependency jurisdiction over the children, finding that mother 

left them with maternal grandmother without making an 

appropriate plan for their ongoing care, mother’s unmedicated 

bipolar disorder endangered the children, and father failed to 

protect the children from mother’s known mental health and 

emotional problems. During the pendency of the case, father 

failed to complete court-ordered programs. In December 2015, 

the juvenile court terminated jurisdiction and awarded primary 

physical custody of the children to mother.

2

1 All further undesignated statutory references are to the 

Welfare and Institutions Code.

2 At the time, mother and father were separated.
3

By 2018, mother was living with her new boyfriend in a car 

and using drugs. Meanwhile, the children were splitting time 

between maternal grandmother’s home and paternal 

grandparents’ home, where father lived.

In 2019, mother gave birth to M.C. (mother’s boyfriend is

M.C.’s father). In June 2019, due to mother’s ongoing drug use 

and the fact that the children were in her custody, the juvenile 

court asserted dependency jurisdiction over all three children.

With respect to son and daughter, the juvenile court terminated 

jurisdiction with a custody order granting father sole legal and 

physical custody. M.C.’s dependency case continued.3

2. The Children Allege Sexual and Physical Abuse in 

Father’s Home

Beginning in the summer of 2019, the children lived (at 

least part of the week) in paternal grandparents’ home with 

paternal grandparents, father, and a paternal uncle. In October 

2019, then-six-year-old daughter disclosed to maternal 

grandmother, police, and the Department of Children and Family 

Services (DCFS) that paternal uncle had sexually abused her in 

the home of paternal grandparents. Daughter reported that 

paternal uncle touched her vagina several times, had sex in front 

of her, showed her pornography, and threatened to slap her if she 

reported the abuse. Son, who was five years old at the time, 

reported the uncle touched his penis, and hit him in the stomach 

and penis. Son stated he watched the uncle have sex with his 

3 The dependency case involving M.C., Los Angeles County 

Superior Court case No. 19CC02605C, is not the subject of the 

present appeal.
4

girlfriend. Evidence was that the abuse occurred when father 

was at work and paternal grandmother was away.

4

Daughter reported that she had told father of the sexual 

abuse but father did nothing to address it. Father told DCFS 

that the children were lying and being coached by maternal 

grandmother. During this period, father had an outstanding 

warrant based on an arrest for being drunk in public. Father 

tested positive for marijuana, then stopped drug testing.

In late October 2019, DCFS detained the children from 

father, and filed a dependency petition alleging that the 

children’s paternal uncle physically and sexually abused both 

children and that father failed to protect them from the uncle. 

DCFS also alleged mother had a history of substance abuse and 

mental health problems.5 DCFS placed the children with 

maternal grandmother.

3. Jurisdiction and Disposition 

At the January 6, 2020 combined jurisdiction and 

disposition hearing, the parents pled no contest to an amended

petition. In accepting the plea, the juvenile court found father 

knew or reasonably should have known about the abuse 

perpetrated by paternal uncle. 

The juvenile court removed the children from parental 

custody, and ordered reunification services for both parents. 

Father was required to participate in individual counseling and 

submit to six consecutive drug tests. If he tested positive or 

4 The record does not state paternal grandfather’s 

whereabouts when the abuse occurred.

5 The children’s younger half-sibling, M.C., was not named in 

this petition because he was already a dependent child.
5

missed a test, he would be required to complete a drug treatment 

program. 

4. Failed Reunification Efforts 

Father made modest progress in individual counseling.6 In 

November 2020, father’s therapist reported that father appeared 

immature and sheltered by his parents, and that he did not 

appreciate the seriousness of the dependency case. In April 2021, 

the therapist reported that, although father showed more 

maturity, father (then 28 years old) was “still like a teenager 

himself” and needed to learn “how to regulate his emotions” and 

take responsibility for the children.

On multiple occasions beginning in January 2020, father 

tested positive for illicit substances. Father failed to enroll in the 

required drug treatment program. 

With the exception of a three-month period beginning in 

March 2020 (at the start of the pandemic), father consistently 

participated in weekly, two-hour supervised visitation with the 

children, typically at a park. During visits, father often was

“attentive and appropriately interactive with the children, 

inclusive of giving encouragement, praise and redirection as 

necessary.” In July 2020, DCFS reported the children enjoyed 

visitation.

In a December 2020 report, DCFS described father’s visits 

as mostly positive: “Father has always provided food for the 

visits but relied heavily on cell phone video games to appease the 

children, especially [son] who loves playing video games. With 

the monitors’ guidance, father has learned to talk with the 

children about their likes and provide activities which he and the 

6 As father is the only appellant and his relationship with 

the children is at issue, we focus our discussion on him.
6

children can enjoy together.” Although father was initially 

resistant to monitoring, he later embraced the monitor’s 

assistance “once he was able to see that his visitation had become 

more enjoyable.” DCFS noted “that when paternal grandparents 

are at the visit, father has a tendency to regress in taking charge 

and submits to paternal grandmother’s directives.”

In May 2021, DCFS explained that although father was 

attentive and interactive with the children, he did not actively 

engage with them by “inquiring and planning visitation 

activities.” The visits revolved around a snack or meal with the 

children, and father was “irritated when the children do not want 

to eat the food he provides or do not want to interact with him, 

other than playing at the playground or using his cell phone.” 

Father also consistently failed to follow visitation and social 

distancing rules, and became defensive when he was reminded of 

those rules.

Father frequently spoke negatively to the children about 

their maternal relatives. On one occasion when the monitor 

asked him to refrain from doing so, father became loud and 

argumentative, telling the monitor: “ ‘I don’t give a fuck, those 

are my kids and I can tell them whatever I want. You are calling 

me a liar in front of my kids and you are not shit.’ ” Paternal 

grandfather asked father to calm down several times but he 

continued to threaten the monitor. The children appeared 

worried and stared at the ground. The monitor ended the visit, 

and the children gathered their things without looking at father. 

Neither child wanted to say goodbye to father or paternal 

grandparents. Daughter told the monitor “This was not a good 

visit, I want to go with my aunt.” Son stated, “My dad was 

saying bad words, that’s not good.”
7

During a March 2021 visit, father and paternal 

grandmother argued and daughter asked to end the visit early. 

The following week, daughter refused to attend the visit 

out of fear that the uncle who abused her would show up.7 

Father did not credit daughter’s fears and instead blamed 

maternal grandmother for daughter’s statement. According to 

the investigating social worker, father in fact never believed the 

children’s allegations of abuse. 

The next visit went well and father told daughter he had

missed her. During a visit in April 2021, daughter repeatedly 

asked to leave the visit to go home. During another visit in April 

2021, both children were reluctant to engage with father and 

paternal grandmother. Both wanted to leave early, which they 

did. 

At the 18-month review hearing held on April 29, 2021, the 

juvenile court terminated father’s reunification services due to 

noncompliance, and scheduled a hearing to consider termination 

of parental rights under section 366.26.8 Both children remained

with maternal grandmother, who was approved to adopt them.

Father continued to visit the children. In September 2021, 

the social worker reported that father was “attentive, 

appropriately interactive with the children and plans for his 

visits.”

7 Daughter suffered from extreme anxiety and weekly 

nightmares related to the sexual abuse. 

8 At the 12-month review hearing held December 17, 2020, 

the juvenile court had terminated mother’s reunification services, 

but extended reunification for father.
8

5. Termination of Parental Rights

At the September 2, 2021 section 366.26 hearing, neither 

parent appeared. Counsel for both parents and the children were 

present. The juvenile court stated it was considering the entire 

contents of the court file, specifically referencing the section 

366.26 and last minute information reports.

Father’s counsel asked the juvenile court to apply the 

beneficial relationship exception based on DCFS’s reports 

describing father’s contact with the children. Father’s counsel 

argued: “He’s provided food for the children during his visits. He 

talks with the children about their likes and dislikes. And he 

provided activities at the visits that he and the children can enjoy 

together. [¶] Father also planned for his visits. He was 

attentive, and he appropriately interacted with the children. And 

even in light of the challenges brought by the pandemic, this 

father still did maintain consistent visitation with the children. 

[¶] So father would believe that these visits have conferred a 

parental role, and that the benefits of this relationship do 

outweigh the benefits of permanence.”

Children’s counsel and DCFS both asked the juvenile court 

to terminate parental rights. Children’s counsel argued that 

“while the father has maintained regular and consistent 

visitation, this has not conferred a fully parental role as to the 

father, as the visits have never gone beyond monitored. They 

occur but once a week. [¶] And quite frankly, the father has 

continued to not recognize the children’s needs for security by 

remaining in the same home where the abuse that led the 

original allegations arise took place.”

The juvenile court rejected the beneficial relationship 

exception and terminated parental rights. The juvenile court 
9

explained: “Father has maintained regular and consistent 

visitation and contact. He visits on Sundays for two hours 

monitored. [¶] For the reasons stated by [children’s counsel], the 

court cannot find by clear and convincing evidence that it would 

be detrimental to sever the parent/child relationship. [¶] 

Although the visits and contact have conferred a parental role 

and/or relationship, it has not been shown to outweigh the 

benefits of permanence in adoption.”

Father timely appealed.

DISCUSSION

Father argues the court erred when it found there was no 

parent-child beneficial relationship exception to adoption because 

it applied the heightened clear and convincing evidence standard

of proof. We agree the application of that standard was error. 

However, we conclude the error was harmless. 

1. The Parent-child Beneficial Relationship Exception

When the juvenile court finds that a dependent child is 

likely to be adopted, it must terminate parental rights and select 

adoption as the permanent plan unless it finds that termination 

would be detrimental to the child under one of several exceptions. 

(In re Caden C. (2021) 11 Cal.5th 614, 629, 631 (Caden C.) If the 

child is likely to be adopted, “adoption is the norm.” (In re Celine 

R. (2003) 31 Cal.4th 45, 53 (Celine R.).) “[I]t 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, disapproved 

of on another ground by Caden C., at p. 636, fn. 5.)

Under the parent-child beneficial relationship exception to

adoption, the parent must “establish, by a preponderance of the 

evidence,” “(1) regular visitation and contact, and (2) a 
10

relationship, the continuation of which would benefit the child 

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

detrimental to the child.” (Caden C., supra, 11 Cal.5th at pp. 

629, 631 [“What it requires a parent to establish, by a

preponderance of the evidence, is that the parent has regularly 

visited with the child, that the child would benefit from 

continuing the relationship, and that terminating the 

relationship would be detrimental to the child.”].) The first 

element is straightforward. For the second element, “the focus is 

the child. And the relationship may be shaped by a slew of 

factors, such as ‘[t]he 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.’ . . . [C]ourts often consider how children feel 

about, interact with, look to, or talk about their parents.” (Id. at 

p. 632.) As to the last element, “[w]hat courts need to determine, 

therefore, is how the child would be affected by losing the 

parental relationship — in effect, what life would be like for the 

child in an adoptive home without the parent in the child’s life.” 

(Id. at p. 633.) 

When assessing whether the parental-benefit exception 

applies, “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.) 

Essentially, “the exception applies in situations where a child 
11

cannot be in a parent’s custody but where severing the child’s 

relationship with the parent, even when balanced against the 

benefits of a new adoptive home, would be harmful for the child.”

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

We review the juvenile court’s findings on the first two 

elements – visitation and the existence of a beneficial parentchild relationship – for substantial evidence. (Caden C., supra,

11 Cal.5th at p. 639.) We review for abuse of discretion the 

court’s assessment whether termination of parental rights would 

be detrimental to the child. (Id. at p. 640.) We review de novo 

father’s claim that the juvenile court applied the incorrect 

standard of proof, as it presents a question of law. (See In re 

Quentin H. (2014) 230 Cal.App.4th 608, 613–614.)

2. Harmless Error

Father’s sole claim of error is that the juvenile court used 

the incorrect burden of proof in deciding the third element. The 

court essentially found that the first two elements were met. 

Father, for good reason, does not address the court’s findings on 

those elements, nor does respondent seriously quarrel with those 

findings. Respondent does not expressly concede the trial court

erred in applying a clear and convincing standard to the third 

element, but, instead, argues that any error was harmless. 

Putting aside the possibility that the experienced dependency 

judge may have just misspoke,9 we agree with father that in 

articulating its ruling, the trial court appears to have put the 

9 Section 366.26 does use the “clear and convincing” standard 

in terms of whether the child is or is not likely to be adopted. 

(See Welf. & Inst. Code, § 366.26, subd. (c)(1), (i)(3).) No such 

standard appears in the parental-benefit exception under section 

366.26(c)(1)(B)(i).
12

burden on father to prove by clear and convincing evidence that 

severing parental rights would be detrimental. We also agree 

that the clear and convincing standard is not the correct one, for 

our Supreme Court has held that a parent must prove detriment 

to a minor on termination of parental rights only by a 

preponderance of the evidence. (Caden C., supra, 11 Cal.5th at 

p. 629.)

Respondent’s argument on appeal is succinctly stated: any 

error by the juvenile court in applying the clear and convincing 

burden of proof was harmless.

“The California Constitution prohibits a court from setting 

aside a judgment unless the error has resulted in a ‘miscarriage 

of justice.’ (Cal. Const., art. VI, § 13.)” (Celine R. (2003) 

31 Cal.4th at pp. 59–60.) Both parties agree that that the test of 

harmless error in this setting is governed by People v. Watson 

(1956) 46 Cal.2d 818, 836 (Watson). Applying the Watson

standard to dependency cases, our Supreme Court has held that

reversal in dependency cases is permitted only where “the 

reviewing court finds it reasonably probable the result would 

have been more favorable to the appealing party but for the 

error.” (Celine R., at pp. 59–60, citing Watson.) “A ‘ “probability”

in this context does not mean more likely than not, but merely a

reasonable chance, more than an abstract possibility.’ ” (In re 

D.P. (2020) 44 Cal.App.5th 1058, 1068. See Cassim v. Allstate 

Ins. Co. (2004) 33 Cal.4th 780, 800.)

Here, there was no “reasonable chance” that the result 

would have been different if the dependency court had applied 

the preponderance of evidence burden of proof. At the section 

366.26 hearing, aside from not showing up, father through 

counsel produced no evidence that showed how the children 
13

would be negatively affected by termination of parental rights. 

Father relied entirely on DCFS’s reports of father’s visitation 

with the children. These reports included forced interactions and 

instances where the children wanted to return to their caregiver

early. Recurrent themes throughout the reporting included 

father’s lack of maturity, inability to plan activities for the 

children beyond eating and video games, and deficient parenting. 

At one particularly memorable visit, father spoke negatively of 

the maternal family and then berated the monitor with expletives

in front of son and daughter. The children were visibly upset by 

father’s behavior. 

Although father showed consistent visitation and some 

enjoyable visits with the children, father was required to do more 

than show “frequent and loving contact.” (In re Beatrice M.

(1994) 29 Cal.App.4th 1411, 1418.) “Interaction between [a] 

natural parent and child will always confer some incidental 

benefit to the child. . . . The exception applies only where the 

court finds regular visits and contact have continued or developed 

a significant, positive, emotional attachment from child to 

parent.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) 

Although not expressed in the dependency court ruling, 

father refused to believe the children’s allegations of sexual abuse 

despite outward manifestations of their trauma, and at times 

appeared to show great insensitivity on the subject. Over a year 

after the molestation, daughter “was diagnosed with extreme 

anxiety with weekly nightmares related to the sexual abuse by 

the paternal uncle.” In March 2021, shortly after the 18-month 

hearing, daughter refused to visit with father due to this fear. In 

response to daughter’s concerns, father “did not speak with 

[daughter]”; instead, he told DCFS “he feels that this is all the 
14

maternal grandmother’s doing and she is putting this thought on 

the children.” DCFS reported: “Throughout the history of this 

case, it has been documented that the father fails to accept the 

children’s disclosure of the sexual abuse they endured in the 

hands of the paternal uncle, . . . while in the care of the father. 

Thereby, the father’s insight of sexual abuse and its effects on the 

children and the family dynamic remains limited.”

If the dependency court had applied the preponderance 

burden of proof, we are confident that the court’s orders would 

have been the same. Father’s attitude toward the children’s 

sexual abuse, his negativity toward the children’s caregivers, and 

the absence of a close relationship between children and their 

father demonstrated that severing the parent-child relationship 

would not be detrimental to the children. Accordingly, we 

conclude the juvenile court’s evidentiary standard error was 

harmless. 

DISPOSITION

The order is affirmed.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.