1 

Filed 7/29/14 In re J.W. CA1/5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION FIVE 

In re J.W., a Person Coming Under the 

Juvenile Court Law. 

CONTRA COSTA COUNTY CHILDREN 

AND FAMILY SERVICES, A140783 

 Plaintiff and Respondent, (Contra Costa County 

 Super. Ct. No. J1200776) 

 v. 

T.M. et al., 

 Defendants and Appellants. 

_______________________________________/ 

T.M. (mother) and Joseph W. (father) appeal from the juvenile court’s termination 

of their parental rights as to J.W. (daughter) following a Welfare and Institutions Code 

section 366.261

 hearing (.26 hearing). Mother contends her “visitation was unfairly 

ma[int]ained at a minimal level.” Father claims the court erred by failing to apply the 

beneficial parent-child relationship exception to termination of parental rights (§ 366.26, 

subd. (c)(1)(B)(i))) and there was insufficient evidence daughter was adoptable. Mother 

and father join each other’s briefs. 

We affirm. 

 

1

 Unless noted, all further statutory references are to the Welfare and Institutions 

Code. 
2 

FACTUAL AND PROCEDURAL BACKGROUND 

 We provide a brief procedural history and recite only those facts relevant to the 

issues raised on appeal. 

Detention, Jurisdiction, and Disposition 

 Shortly after daughter was born in 2012, the Contra Costa County Children and 

Family Services Bureau (Bureau) filed, and later amended, a petition alleging daughter 

came within section 300, subdivision (b) because: (1) mother and father “suffer[ed] from 

chronic mental health issues” limiting their ability to parent daughter safely; (2) mother 

and father “engaged in ongoing domestic violence” placing daughter at risk of harm; and 

(3) mother had “a chronic substance abuse problem” interfering with her ability to parent 

daughter safely.2

 The court detained daughter, adjudged her a dependent of the court (§ 

300, subd. (b)), and determined by clear and convincing evidence returning her to 

parental care would cause substantial danger to her physical health. The court 

determined father was a presumed father. The court ordered reunification services for 

mother and father and monitored visitation twice a month. Neither parent objected to the 

visitation order. Daughter was placed with paternal relatives. 

Status Review and Section 388 Hearings 

At the conclusion of the six-month review hearing, the court provided additional 

reunification services for mother and father. The court declined mother’s requests for 

“more visits” and for unsupervised visits, as well as mother and father’s request for “a 

little bit of leeway rather than just two visits for one hour a month.” At the conclusion of 

the 12-month review hearing, the court terminated father’s reunification services and, at 

mother’s request, authorized the Bureau to offer mother unsupervised visitation. Shortly 

thereafter, the Bureau moved, pursuant to section 388, to terminate reunification services 

for mother and set a .26 hearing because mother failed “to produce a clean [drug] test” in 

violation of a court order. Following a hearing, the court granted the motion, terminated 

mother’s reunification services, set a .26 hearing, and reduced mother’s supervised 

 

2

 Mother had nine other children, none of whom were in her care, and 14 

substantiated child welfare referrals for these children. 
3 

visitation to one hour per month. Neither mother nor father petitioned for writ review of 

the order reducing mother’s visitation and setting the .26 hearing. 

The .26 hearing 

In its .26 hearing report, the Bureau recommended terminating parental rights and 

finding “adoption to be the appropriate permanent plan for [daughter].” The Bureau 

described daughter as an adorable, happy, and adoptable child “placed with relatives who 

are committed to adopting her.” According to the Bureau, daughter had “formed a strong 

attachment to her prospective adoptive family . . . [She] looks to her prospective adoptive 

parents for emotional support, nurturing, and love. . . . [¶] [Daughter] and her birth 

parents have not established a connected relationship that would outweigh the benefit of 

legal permanence. Severing parental rights in order for [daughter] to be adopted will not 

interfere in an existing parent/child relationship.” The Bureau also reported daughter’s 

paternal relatives wished to adopt daughter and were not interested in guardianship. 

 The Bureau noted mother “interact[ed] appropriately” during some visits with 

daughter but her “mental instability” was apparent and she exhibited “concerning” and 

“erratic” behavior” during other visits. During one visit, mother accused the “social 

worker of being the devil and wanting to kill [daughter].” Mother also “accused other 

staff members of wanting to kill her. [Mother] began convulsing and fell to the floor. 

She was subsequently placed on section 5150 hold.” The Bureau reported father had 

consistently visited daughter and had “interacted appropriately with [her] and 

demonstrated love and concern for her.” Father, however “ha[d] acknowledged on more 

than one occasion that it [was] in [daughter]’s best interest to remain with the paternal 

relatives.” 

 Mother and father testified at the .26 hearing. They opposed termination of 

parental rights and urged the court to order a permanent plan of legal guardianship with 

daughter’s caretakers. At the conclusion of the .26 hearing, the court terminated parental 

rights and ordered adoption as daughter’s permanent plan. The court determined 

daughter was adoptable and none of the statutory exceptions to adoption applied. 
4 

DISCUSSION 

I. 

Mother’s Visitation Claim Fails 

 Mother contends the order terminating her parental rights must be reversed 

because the court “failed to ensure the opportunity for frequent visitation,” which she 

claims precluded her from developing “a significant parent-child relationship[.]” 

According to mother, “[m]ore visits would have presented an opportunity” for her to 

“establish a bond prior to termination of parental rights.” Mother forfeited this claim. 

She did not object to the visitation order at the dispositional hearing; she did not seek 

modification of any of the visitation orders by filing a section 388 petition; and she did 

not petition for writ review of the order reducing her visitation and setting a .26 hearing. 

(In re Valerie A. (2007) 152 Cal.App.4th 987, 1001; In re Kevin S. (1996) 41 Cal.App.4th 

882, 885-887.) 

 Even if mother had preserved her argument regarding visitation, we would reject it 

on the merits. “[D]ependency law affords the juvenile court great discretion in deciding 

issues relating to parent-child visitation, which discretion we will not disturb on appeal 

unless the juvenile court has exceeded the bounds of reason.” (In re S.H. (2011) 197 

Cal.App.4th 1542, 1557-1558.) Here, the court acted well within its discretion by 

ordering two supervised visits with daughter per month, and then by reducing visitation 

to once a month. Mother had several “dirty” drug tests throughout the dependency. She 

was unable to collaborate with daughter’s caregivers, unable to control her anger, and 

refused to take medication prescribed for her mental health issues. Her behavior during 

visits was inappropriate, erratic, and dangerous. The court’s visitation orders “properly 

balanced” mother’s rights “with the best interests of the child” and were not an abuse of 

discretion. (In re R.R. (2010) 187 Cal.App.4th 1264, 1284.) Additionally, we conclude 

mother has not established the court impermissibly delegated judicial authority to the 

Bureau to determine whether visitation should occur, particularly in light of her 

admission that the “court may not have impermissibly delegated . . . authority to [the 

Bureau] to control visitation.” 
5 

II. 

The Beneficial Parent-Child Relationship Exception Does Not Apply 

 Father contends the court erred by declining to apply the beneficial parent-child 

relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). To 

establish the applicability of the beneficial relationship exception, father must 

demonstrate he “maintained regular visitation and contact” with daughter and daughter 

“would benefit from continuing the relationship” with him. (§ 366.26, subd. 

(c)(1)(B)(i).) 

The beneficial relationship exception “is entirely inapplicable under the facts of 

this case” because father cannot establish daughter would benefit from continuing the 

parental relationship. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; see also In re G.B.

(July 9, 2014, A140107, A140624) ___ Cal.Rptr.3d ___ [2014 WL 3350689].) Father 

admits his argument is “problematic.”3

 He is correct. The beneficial relationship 

exception is “difficult to make in the situation, such as the one here, where” father has not 

“advanced beyond supervised visitation.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51 

(Casey D.).) Here, substantial evidence demonstrated mother and father had not 

established a connected relationship with daughter that would outweigh the benefit of 

legal permanence. 

Father’s claim that he had a “developing” relationship with daughter does not alter 

our conclusion. To establish the applicability of the beneficial relationship exception, 

father was required to show more than an emerging relationship with daughter. (See 

Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) He needed to demonstrate his 

relationship with daughter promoted her well-being “‘to such a degree that it outweighs 

the well-being [she] would gain in a permanent home with new, adoptive parents.’ 

[Citation.]” (Ibid., quoting In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) Father 

failed to do so. The beneficial relationship exception does not apply here. (In re C.F.

(2011) 193 Cal.App.4th 549, 555-556; In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) 

 

3

 Father concedes he “is not in a position to care for [ ] daughter full time” and that 

daughter has been in the care of others since birth. 
6 

III. 

Substantial Evidence Supports the Adoptability Finding 

 Father challenges the court’s finding that daughter was likely to be adopted. “A 

finding of adoptability requires ‘clear and convincing evidence of the likelihood that 

adoption will be realized within a reasonable time.’ [Citation.] The question of 

adoptability usually focuses on whether the child’s age, physical condition and emotional 

health make it difficult to find a person willing to adopt that child. [Citation.]” (In re 

B.D. (2008) 159 Cal.App.4th 1218, 1231.) “On review, we determine whether the record 

contains substantial evidence from which the juvenile court could find clear and 

convincing evidence the child was likely to be adopted within a reasonable time. 

[Citations.]” (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) “The substantial 

evidence standard of review is generally considered the most difficult standard of review 

to meet, as it should be, because it is not the function of the reviewing court to determine 

the facts. [Citation.]” (Id. at p. 589.) 

 Here, substantial evidence supports the court’s adoptability finding. (In re Lukas 

B. (2000) 79 Cal.App.4th 1145, 1153.) The undisputed evidence established daughter 

was “an adoptable child . . . placed with relatives who [were] committed to adopting her.” 

The evidence also demonstrated daughter had “formed a strong attachment to her 

prospective adoptive family” and looked “to her prospective adoptive parents for 

emotional support, nurturing, and love.” We are not persuaded by father’s claim that the 

court should have selected guardianship instead of adoption. Contrary to father’s 

argument — and in complete contrast to the cases upon which father relies — the 

undisputed evidence demonstrated daughter’s caregivers wanted to adopt her and were 

not interested in guardianship. 
7 

DISPOSITION 

 The judgment is affirmed. 

 _________________________ 

 Jones, P.J. 

We concur: 

_________________________ 

Needham, J. 

_________________________ 

Bruiniers, J.