Filed 3/9/22 In re A.S. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re A.S., a Person Coming 

Under the Juvenile Court Law.

 B311634

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

H.W.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. DK22883A)

APPEAL from orders of the Superior Court of Los Angeles 

County. Martha A. Matthews, Judge. Affirmed.

Janelle B. Price, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant County Counsel, and Jessica S. Mitchell, Principal 

Deputy County Counsel, for Plaintiff and Respondent.

* * * * * *
2

H.W. (father) appeals from the denial of his Welfare and 

Institutions Code section 3881 petition, filed on the eve of the 

permanency planning hearing, and from the termination of his 

parental rights. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A.S. came to the attention of the Los Angeles County 

Department of Children and Family Services (Department) in 

May 2017 when she was less than a week old. The Department 

filed a petition against A.S.’s mother and her male companion, 

who was deemed the alleged father, pursuant to section 300, 

subdivisions (a), (b) and (j) based on allegations of domestic 

violence and substance abuse. During the Department’s 

investigation, it was determined mother and alleged father had 

violent altercations and mother regularly used 

methamphetamines during her pregnancy. (Mother and alleged 

father are not parties to this appeal.) 

A.S. was placed in the care of foster parents, Mr. and 

Mrs. G. 

Father contacted the Department and reported he believed 

he was A.S.’s biological father. In July 2017, DNA testing 

requested by father established his paternity. Father agreed to a 

home assessment by the Department and to attend a parenting 

class. A month later, the court sustained the petition as to 

mother and alleged father, denied reunification services to both of 

them, found father to be the presumed father and placed A.S. in 

his home with family maintenance services. 

1 All further undesignated section references are to the 

Welfare and Institutions Code, unless otherwise noted. 
3

Shortly thereafter, father obtained permission to take A.S. 

on a two-week vacation to visit family in South Carolina. The 

agreed-upon return date was September 10, 2017. Father did not 

return as agreed. Once the Department was able to reach father 

by telephone, he explained that a hurricane was causing 

problems with his ability to travel home by bus. A Department 

social worker flew to South Carolina to meet with father and see 

how A.S. was doing. The social worker provided father with 

supplies, including diapers and formula. A.S. appeared to be fine

and bonding with father. Father said he would likely return to 

California after his birthday in early October. 

By November 2017, father still had not returned to 

California with A.S. and it was increasingly difficult to reach him 

by phone or e-mail. The social worker returned to South 

Carolina, met with father and found A.S. to have a cold. She 

advised father A.S. needed to see a doctor for her cold and her 

six-month immunizations. Father again said he planned to 

return to California soon, but he failed to do so.

On November 14, 2017, the Department filed the first of 

four petitions stating allegations against father. The petition,

filed pursuant to section 342, alleged father had failed to enroll in 

or complete a parenting class, failed to keep in contact with the 

Department and failed to return A.S. to California. The court 

issued a protective custody warrant for A.S. With the assistance 

of local law enforcement in South Carolina, the Department 

regained custody of A.S. without incident and the protective 

custody warrant was recalled. 

A.S. was returned to the foster home of Mr. and Mrs. G, 

who reported being “grateful” the child could be returned to their 
4

care and that they remained willing to facilitate visitation with 

father and eventual reunification.

The contested adjudication hearing was continued to March 

2018. Father contacted the Department in late February and 

reported he was back in California but was now homeless. The 

Department was unsure whether father had in fact returned to 

California. The Department advised the court father was not 

responding to its efforts to keep in contact and schedule visitation

with A.S. 

In March 2018, the court, in father’s absence, sustained the 

section 342 petition, ordered reunification services for father and 

monitored visitation with A.S. 

According to a September 2018 status report, A.S. was 

doing well in the home of Mr. and Mrs. G, who were “lovingly” 

attentive to her needs. A.S. also appeared happy in the company 

of her foster siblings. During this time, Dr. Lyn Laboriel 

diagnosed A.S. with partial fetal alcohol syndrome (FAS), 

microcephaly and some developmental delays. Dr. Laboriel told 

the social worker that A.S. would need lifelong care and needed

to be placed with “somebody who can understand her slow pace, 

provide structure, consistency and a stable home environment.” 

Dr. Laboriel said the foster parents were doing “extremely well” 

in that capacity. Mr. and Mrs. G remained committed to 

providing A.S. the care she needed. 

The Department also learned that despite father’s earlier 

claims, he did not return to California until April 2018. Father’s 

return home was delayed in part because he was arrested for an 

altercation with his brother that resulted in him serving time in 

jail. However, since his return, father was staying in contact 

with the Department. Because of father’s absence from A.S.’s life 
5

for about six months, father’s visits with A.S. were difficult. A.S.

was having trouble bonding with father and usually cried in his 

presence and resisted being held by him. 

Several months later, the Department reported father was 

attending a class for parents with children suffering from FAS 

and was attempting to understand A.S.’s diagnosis and resulting 

special needs. Father called A.S. his “angel.” He had obtained 

housing (a studio apartment) and was acquiring the necessary 

items to make the home a safe environment for A.S. Father was 

still attempting to form a bond with A.S. during monitored visits. 

The bonding process was complicated by the fact father often 

missed or canceled visits. The approved monitor for the visits 

reported A.S. often reacted negatively when she saw father. In 

contrast, the social worker reported that A.S. remained strongly 

bonded to her foster parents and siblings.

At the review hearing in January 2019, the court ordered 

six more months of services for father and continued monitored 

visitation with A.S. but granted discretion to the Department to 

liberalize father’s visits to unmonitored. 

In April 2019, just before the 18–month review hearing, the

Department filed its second petition against father pursuant to 

section 342 based on a domestic violence incident between father 

and his female companion, L.P. L.P. filed a domestic violence 

complaint with the police, stating she and father had argued and 

that father later had pushed his way into her apartment, pushed 

her down on the bed, forcibly kept her there for about 30 minutes

and threatened to kill both her and himself. During the

Department’s investigation of the circumstances, L.P. changed

her story, claiming it was just a misunderstanding, and the 

problems she was having were not with father but with a former 
6

boyfriend. The Department’s investigation also revealed prior 

incidents of domestic violence with A.S.’s mother and another 

former girlfriend. 

In August 2019, the Department reported it was unable to 

locate father’s girlfriend to be available for the adjudication 

hearing on the domestic violence allegations. The Department 

therefore withdrew the petition and asked the court to proceed 

with a contested review hearing on the original petition. 

The Department reported that due to continued 

“inconsistencies” with father’s visitation, A.S. still had not formed 

a strong, close bond with father. Father had “some periods of 

regular visitation” but was otherwise inconsistent and unreliable. 

The Department also expressed its concern that father continued 

to minimize A.S.’s emotional and developmental needs and had 

failed to demonstrate an ability to provide her with the support 

and guidance she needed. Mr. and Mrs. G reported that after 

visits with father, A.S. was “very clingy” and her sleep patterns 

were disrupted, but she usually returned to her normal behaviors

within one to two days.

Dr. Laboriel, A.S.’s doctor, continued to express concern 

over father’s unwillingness to accept A.S.’s diagnosis. Father 

regularly said A.S. was “ ‘fine’ ” and did not have special needs. 

The doctor cautioned that if father reunified with A.S. and did 

not follow through with her services and therapy, she could 

experience developmental declines very quickly. 

The social worker described father as showing genuine love 

and affection for A.S. but often having difficulty in guiding her 

behaviors and being a consistent, reliable adult in her life. The 

Department acknowledged father had nonetheless made 

progress, had followed through with taking the parenting class
7

and had maintained stable housing and a job. The Department 

remained “apprehensive” about returning A.S. to father’s care 

because of his unreliability, his tendency to be “easily agitated” 

and resolve problems with aggression, and his inability to accept 

responsibility for his own actions. The Department 

recommended termination of father’s reunification services. 

The court continued the contested review hearing on the 

original petition to September 2019 and then again to November 

2019. At both hearings, the court granted father extended 

visitation with A.S., including overnights, weekends and then a 

50/50 split with the foster parents in an effort to facilitate 

father’s bonding with the child. 

On November 4, 2019, the court found that father’s 

progress had been substantial and released A.S. to father with 

family maintenance services. 

On April 28, 2020, the Department filed a third petition 

pursuant to section 342 against father arising from allegations of 

a new incident of domestic violence by father with another female 

companion, M.M. The Department also filed a supplemental 

petition pursuant to section 387 alleging father had repeatedly 

failed to comply with the court’s order to complete drug and 

alcohol testing.

On May 1, 2020, the court removed A.S. from father’s care. 

A.S. was returned to the home of Mr. and Mrs. G. 

According to the Department’s investigation of the latest 

domestic violence allegations, M.M. told police father became 

aggressive during a verbal argument, threw papers at her face,

grabbed her by her shirt collar and pressed his fists into her jaw

and face. She said father had been aggressive with her once

before. She requested an emergency protective order because she 
8

feared father would retaliate against her for reporting him to the 

police. 

M.M. told the social worker that father “constantly” put 

A.S. “in the middle of their arguments” and she did not think that 

was appropriate for the child. She said shortly after father had 

regained custody of A.S., he left her apartment after an 

argument, leaving A.S. with her for over a week without contact. 

M.M. also said that if she told father to leave her apartment

because he was acting volatile, he would tell A.S. something like, 

“she’s kicking us out, treating us like dogs.” A.S. often cried in 

those circumstances. M.M. told father he needed to take a 

domestic violence class and learn to control his anger, and he said 

he would but did not want the Department to know about it. 

M.M.’s children from another relationship also reported to the 

social worker that father argued often with their mother. 

In the jurisdiction and disposition report, the Department 

reported that father’s visitation with A.S. remained “sporadic.” 

Because of the COVID–19 pandemic, the visits were virtual. 

Father said reception was not good in downtown Los Angeles 

which made the virtual visits difficult. Mrs. G reported the 

quality of the visits was “poor” because father failed to engage 

with A.S. Mrs. G said they remained committed to adoption or 

legal guardianship of A.S. if father was unable to reunify. The 

Department recommended that father be allowed continued 

monitored visitation with A.S. but not offered further 

reunification services as he had already exceeded the period 

allowed by statute. (§ 361.5, subd. (a).) 

At the hearing on August 13, 2020, the court amended the 

section 342 petition by interlineation, sustaining the allegations 

of domestic violence at paragraphs (a)(2) and (b)(1)–(3). The 
9

court dismissed without prejudice the section 387 petition. A 

contested disposition hearing was set for September 11, 2020. 

In the period leading up to the disposition hearing, father’s 

visitation continued to be problematic, as he often canceled or cut 

visits short. 

On September 11, 2020, the court terminated reunification 

services for father because he had exceeded the time allowed for 

reunification and set the section 366.26 hearing. Father filed 

notice of intent to challenge the court’s setting of the permanency 

planning hearing but did not follow through with the filing of a 

writ. This court dismissed the writ, deeming it nonoperative 

(case No. B307781). 

In the section 366.26 report, the Department stated father’s 

visitation with A.S. remained sporadic. Father lost his temper 

with the monitor during a virtual visit on November 2, 2020, and 

A.S. told father he was being “scary.” Father appeared to get 

“very upset” and even though A.S. said she wanted to play a 

game with father, he disconnected the call. The social worker 

reported that A.S. was strongly bonded to her foster family. 

According to an addendum report in March 2021, A.S. was 

“thriving and doing well in the home” of the prospective adoptive 

parents. Mrs. G told the social worker she loved A.S. “very much” 

and only wanted the best for her. A home study had been 

approved. It was reported that father had gotten sick with 

COVID-19 and had therefore missed visits. After father reported 

he was better, the Department offered to assist in arranging 

makeup visits but father never followed up. Father sent an email in February 2021, claiming the reason he missed visits was 

because he was not being forwarded the Zoom links. The 
10

Department reported that Mr. G had passed away but that 

Mrs. G remained committed to adoption.

On April 8, 2021, father filed a section 388 petition 

requesting the court modify its order of September 11, 2020, and 

reopen reunification for another six months of services so that he 

could reunify with A.S. Father said he had been making progress 

in anger management and domestic violence classes and wanted 

time to complete those classes. The petition included attached 

letters indicating father had attended five sessions of a domestic 

violence course and three sessions of an anger management 

course and had begun individual mental health therapy once a 

month. 

The next day, the permanency planning hearing was held. 

After entertaining argument, the court denied father’s 

section 388 petition without an evidentiary hearing, reasoning 

father had not shown it was in A.S.’s best interest to reopen the 

reunification period. The court then heard argument on

terminating parental rights. The court found the parentalbenefit exception to adoption did not apply because father had 

not shown the benefits of maintaining his relationship with A.S. 

outweighed the benefits she would obtain from a permanent plan 

of adoption. The court terminated parental rights. 

This appeal followed. 

DISCUSSION

1. Father’s Section 388 Motion 

Father’s section 388 petition was filed on the eve of the 

section 366.26 hearing and some six months after reunification 

services had been terminated. Father requested six more months 

of reunification services so he could complete anger management 

and domestic violence programs he had recently started in order 
11

to regain custody of A.S. Father contends the court abused its 

discretion in denying his petition without a hearing and holding 

him to a higher standard than is required by a prima facie 

showing of changed circumstances. 

“We review the juvenile court’s summary denial of a section 

388 petition for abuse of discretion.” (In re Anthony W. (2001) 

87 Cal.App.4th 246, 250.) We find no abuse. 

The allegations of a section 388 petition are to be liberally 

construed, but a parent filing such a petition must nevertheless 

establish, by a preponderance of the evidence, both changed 

circumstances and that the requested change would promote the 

best interests of the child. (In re Zachary G. (1999) 

77 Cal.App.4th 799, 806.) If the parent fails to show these 

two elements, the court need not conduct a hearing on the 

petition. (Ibid. [“prima facie requirement is not met unless the 

facts alleged, if supported by evidence given credit at the hearing, 

would sustain a favorable decision on the petition”].) 

Because of the late stage of the proceedings, father’s prima 

facie burden was necessarily difficult. Where, as here, 

reunification services have been terminated, “a parent’s interest 

in the care, custody and companionship of the child is no longer 

paramount. [Citation.] Rather, at this point, the focus shifts to 

the needs of the child for permanency and stability. [Citation.] 

In fact, there is a rebuttable presumption that continued foster 

care is in the best interest of the child [citation]; such 

presumption obviously applies with even greater strength when 

the permanent plan is adoption rather than foster care. A court 

hearing a motion for change of placement at this stage of the 

proceedings must recognize this shift of focus in determining the 

ultimate question before it, that is, what is in the best interest of 
12

the child.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464; accord, 

In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

We are not persuaded the court held father to an improper 

higher standard. The court properly viewed the circumstances 

from the perspective of the late stage of the proceedings. 

Moreover, the comments by the court in denying father’s petition 

do not show it applied the wrong standards. The court said, “I do 

understand that a prim[a] facie showing is a low bar. The thing 

is that it’s not zero. There just—under the facts of this case, 

there is just no conceivable way that father could show that given 

all of the things that have happened in the past that it would be 

in this child’s best interest to reopen reunification again.” 

The record supports the juvenile court’s exercise of 

discretion in denying the petition. Father says there was 

evidence of an “enduring” bond between him and A.S. and a 

potential for reunification. It is true that in the summer of 2017, 

while father was nonoffending and A.S. was an infant, the social 

worker reported that father acted lovingly toward A.S. and they 

appeared bonded. A.S. was then placed in father’s custody. But, 

after father failed to timely return home with A.S. from South 

Carolina, he had difficulties making A.S. his priority and 

maintaining regular visitation. He went over six months without 

visiting A.S., and his efforts to rebuild their initial bond were 

fraught. The Department and the court acknowledged father’s 

love for A.S. appeared to be genuine but that he nevertheless had

difficulty making her a priority which impacted the nature of 

their relationship as she continued to mature into a toddler. 

Father had occasional periods of regular visitation but overall

was inconsistent, canceling visits, and showing up late. The 
13

foster mother reported A.S. experienced difficulties, including 

increased tantrums, related to father’s visitation. 

The record does not support father’s assertion he was the 

most significant parental figure in A.S.’s life and therefore it was 

in her best interest to reunify with him. The record establishes 

that Mr. and Mrs. G had been the most significant parental 

figures. With the exception of a few months, A.S. had been in 

their care for most of her life and she was strongly bonded to 

them and their other children. 

As father acknowledges, “[i]n determining whether the 

petition makes the necessary showing, the court may consider the 

entire factual and procedural history of the case.” (In re 

Justice P. (2004) 123 Cal.App.4th 181, 189.) The juvenile court

here had been involved with the case since its inception in May 

2017, when A.S. was just a few days old. The court was fully 

aware of father’s efforts over an extended period to reunify with 

his daughter and his failure to do so. The court acted well within 

its discretion in concluding father had not shown his requested 

modification on the eve of the permanency planning hearing was 

in A.S.’s best interest. 

To the extent father appears to challenge the court’s orders

issued on September 11, 2020, when the section 366.26 hearing 

was set, those arguments are not cognizable on appeal. (In re 

Anthony B. (1999) 72 Cal.App.4th 1017, 1022–1023.) As father 

concedes, he did not pursue a writ of those rulings as required by 

statute. (§ 366.26, subd. (l).)

2. Termination of Parental Rights 

Father contends the juvenile court abused its discretion in 

concluding the parental-benefit exception to adoption did not 

apply. We disagree. 
14

Where, as here, “a court proceeds to select a permanent 

placement for a child who cannot be returned to a parent’s care, 

the parent may avoid termination of parental rights in certain 

circumstances defined by statute. One of these is the parentalbenefit exception. 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.” (In re Caden C. 

(2021) 11 Cal.5th 614, 629 (Caden C.); see also § 366.26, 

subd. (c)(1)(B).) If the parent demonstrates these three things, 

the parental-benefit exception to adoption applies and the 

juvenile court should not terminate parental rights but “should 

select a permanent plan other than adoption.” (Caden C., at 

pp. 636–637.) 

Father contends the court found he had demonstrated the 

first two elements. While the minute order from the 

section 366.26 hearing states otherwise, the transcript of the 

hearing does reflect the following statement by the court, 

“although the father has maintained regular visitation with the 

child and has established a bond with the child, the court finds 

that the benefit accruing to the child from the relationship with 

her father is outweighed by the physical and emotional benefit 

the child will receive through the permanency and stability of 

adoption.” 

In concluding father had not established the parentalbenefit exception to adoption, the court’s focus was almost 

entirely on the third element of the exception—whether

termination of the parental relationship would be detrimental to 

the child. 
15

In resolving whether the parent has established this third 

element, the court necessarily makes a series of factual 

determinations. (Caden C., supra, 11 Cal.5th at p. 640.) But “the 

court must also engage in a delicate balancing of these 

determinations . . . by weighing the harm of losing the 

relationship against the benefits of placement in a new, adoptive 

home. And so, the ultimate decision—whether termination of 

parental rights would be detrimental to the child due to the 

child’s relationship with his [or her] parent—is discretionary and 

properly reviewed for abuse of discretion.” (Ibid., citation 

omitted.) 

Father contends the court abused its discretion in finding 

the first two elements but in concluding A.S. would not suffer 

detriment from the termination of her relationship with father by 

focusing on improper considerations like father’s past struggles 

and the possibility that father might be able to maintain contact 

with A.S. with a postadoption contract. 

Caden C. made clear that a permanency planning hearing 

“is decidedly not a contest of who would be the better custodial 

caregiver.” (Caden C., supra, 11 Cal.5th at p. 634.) A parent’s 

continued “struggles with the issues that led to the dependency 

are ‘relevant to the application of the [parental-benefit] exception’

because it may be probative of whether interaction between 

parent and child has a negative effect on the child.” (In re D.M.

(2021) 71 Cal.App.5th 261, 270.)

As we already explained above, the juvenile court had 

handled this case for almost four years at the time of the 

permanency planning hearing in April 2021. The court was well 

informed of the issues father had confronted and the impact his 

inability to address those issues had on A.S. The court explained 
16

that, while father had maintained a relationship with A.S. and 

loved her, “the reality [was] that that relationship has been kind 

of on-and-off depending on other things happening in the father’s 

life.” Despite father’s efforts, he was “really unable to maintain 

his focus on the child as his priority” throughout the lengthy 

reunification period. We are not persuaded the court improperly 

used any factor in undertaking the “delicate balancing” Caden C. 

requires. 

Father also suggests the court improperly relied on the 

possibility of a postadoption contract. The record does not 

support the conclusion the court considered this a factor in 

finding the exception to adoption did not apply. It appears plain

the court was simply attempting to offer some words of comfort to 

father who expressed his upset with the court’s decision to 

proceed with adoption. 

DISPOSITION

The April 9, 2021 order of the juvenile court denying 

father’s petition pursuant to Welfare and Institutions Code 

section 388 is affirmed.

The April 9, 2021 order of the juvenile court terminating 

parental rights to the minor A.S. is affirmed. 

 GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J. WILEY, J.