In re Z.E. CA2/2

Filed 8/20/21 In re Z.E. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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This opinion has not been certified for publication or ordered published for purposes of rule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 TWO

In re Z.E., a Person Coming B309527
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
17CCJP02569A)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

R.E.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Jean M. Nelson, 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, Aileen Wong, Senior Deputy County
Counsel for Plaintiff and Respondent.

This juvenile dependency case is before us for a second
time. In an earlier appeal, we affirmed the juvenile court’s orders
adjudging then four-year-old Z.E. (daughter) a dependent of the
court and removing her from the custody of R.E. (father). We
concluded sufficient evidence supported the court’s finding that
father sexually abused daughter (Welf. & Inst. Code,1 § 300,
subd. (d)). Daughter’s mother H.L. (mother) was deceased. (In re
Z.E. (Sept. 27, 2019, B292757) [nonpub. opn.].)
This latest appeal stems from the juvenile court’s
termination of father’s parental rights over now seven-year-old
daughter. Father does not challenge the sufficiency of the
evidence underlying the court’s finding that daughter was
adoptable or that the parental-benefit exception was inapplicable.
Instead, father argues the court erred in concluding the parental-
benefit exception did not apply without holding a contested
hearing at which daughter would testify. We affirm.
BACKGROUND
1. Events Leading To Earlier Appeal
Daughter was born in April 2014. Approximately 1:00 a.m.
on December 14, 2017, mother died after she jumped, fell, or was
pushed from the top of a six-story parking garage. Father and

1 Statutoryreferences are to the Welfare and Institutions
Code unless otherwise indicated.

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daughter were present at the time. Father was arrested on
suspicion of murder. By the time of the jurisdiction/disposition
hearing, father was no longer in custody, but he remained a
person of interest in mother’s death.
In August 2018, the juvenile court sustained four counts of
an amended dependency petition filed by the Los Angeles County
Department of Children and Family Services (Department).
Those counts alleged father had engaged in domestic violence
with mother and former wives (§ 300, subd. (b)(2)); father
suffered from bipolar disorder and anxiety, which he had failed to
address adequately (§ 300, subd. (b)); father had emotionally
abused daughter (§ 300, subd. (c)); and father had sexually
abused daughter (§ 300, subd. (d)). The court declared daughter,
then four-years-old, a dependent of the court.
Following adjudication, daughter, who had been detained
from father since the filing of the amended petition, remained
placed with Maria, one of father’s former wives, and her husband.
Two of daughter’s half siblings also resided with them. Father’s
reunification plan required him to participate in counseling
sessions to address grief, appropriate child discipline, domestic
violence, appropriate boundaries with children, sex
abuse/inappropriate sex behavior and conduct with children.
Father was also ordered to undergo a psychiatric evaluation. He
was granted monitored visitation.
The court also confirmed an earlier order limiting father’s
rights to make educational and developmental service decisions
for daughter based upon his refusal to allow her to benefit from
those services and to the provide necessary information for her
daycare enrollment. (§ 361, subd. (a).) Those rights were
transferred to Maria and her husband.

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2. Earlier Appeal
In an unpublished opinion, we held substantial evidence
supported the finding of father’s sexual abuse of daughter under
section 300, subdivision (d). (In re Z.E., supra, B292757.) That
evidence included: “Daughter’s therapist reported daughter’s
conduct and statements were not typical for a child her age.
According to both the therapist and Maria, daughter exhibited
over-sexualized behaviors. For example, daughter asked whether
Maria’s husband kissed Maria on her ‘pec pec’ or vagina,
indicated ‘daddy’ said those types of things, spoke of father
kissing her on her butt, drew a picture of father’s penis, played
with an imaginary friend who did not like it when her imaginary
father kissed her butt and vagina, drew pictures of people and
said, ‘This is kissing vagina.’ Daughter also expressed distress at
answering questions about father and revealed she did not want
father to know she was happy in Maria’s home because he would
get mad. Additionally, as daughter spent more time in Maria’s
care, she and her imaginary friend no longer told sexualized
stories. Daughter and her imaginary friend were both happy
living with Maria and her family and attending school. In
addition to daughter’s statements and actions, the juvenile court
mentioned maternal grandmother’s statement that father rubbed
daughter from vagina to buttock as well as father’s old
handwritten journal containing pedophiliac ideations. In light of
this record, we conclude substantial evidence supports the
juvenile court’s exercise of dependency jurisdiction under
subdivision (d).” (In re Z.E., supra, B292757.)
3. Reunification Progress
The dependency proceedings in this case lasted over three
years due in part to unexpected pandemic delays. The juvenile

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court held an extended six-month review hearing and a 12-month
hearing to monitor the reunification process. Both hearings were
contested. In the meantime, daughter remained placed with
Maria and her husband, where she was comfortable and
adjusting well. The couple wanted to adopt daughter should
father’s reunification efforts prove unsuccessful.
During the reunification process, father remained steadfast
in his desire to regain custody of daughter. Although his request
for unmonitored visitation was denied, father consistently
engaged in twice-weekly monitored visitation at a park without
incident. The two of them made drawings, read books, and
played on the swing set together. Daughter enjoyed her visits
with father, whom she called exclusively by his full name.
However, she repeatedly expressed her desire to live with Maria
and Maria’s husband and still visit father. Daughter stated she
did not want to live with father. At school, daughter gained more
self-confidence “both academically and socially.” She always
looked forward to attending school.
By the extended six-month review hearing on April 30,
2019, father had completed 20 parent education group counseling
sessions and 15 sessions of individual therapy. At the conclusion
of the hearing, the juvenile court found father had partially
complied with the reunification plan and ordered additional
individual therapy sessions.2
In June 2019, daughter, now five years old, appeared
uncomfortable talking about father. During this time, she
reverted to displaying over-sexualized behavior, including

2 There is no reporter’s transcript of these proceedings in
the record on appeal.

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touching the clothed breasts of her therapist and her half sister’s
friends. In August 2019, daughter told a Department social
worker that she wanted to live with Maria “forever,” but that
father, whom she still called by his full name, said, “No,” and was
“angry.”
That same month, the Department asked father about his
plans for daughter’s continued schooling and therapy if he were
to regain custody. Father stated school was not compulsory for
children before the age of seven years and he planned to home
school daughter. Father also intended to wait until daughter had
“decompressed” prior to enrolling her in school or continuing her
therapy.
The contested 12-month review hearing occurred on
October 16, 2019. Two witnesses, a Department social worker
and father’s therapist, testified on behalf of father. No witnesses
were called by the Department.
At the conclusion of the hearing, the juvenile court
terminated father’s family reunification services, finding father
was not in substantial compliance with his reunification plan
because he continued to deny having sexually abused daughter.
The court observed that father’s interactions with the
Department and his therapist consistently demonstrated father’s
feeling that “he is the victim here.” The court added that in
refusing to acknowledge his misconduct, father “simply believes
he does not need to change anything about him or how he raises
his child.” The court ordered a permanent plan of adoption for
daughter.
4. Post-reunification Period
From January through October 2020, daughter made clear
her waning interest in having contact with father. In January

6
2020, daughter told Maria she did not want to live with father
and had nightmares about going back to him. Daughter told a
social worker she would have no friends and no school if she went
to live with father. All she would do is play with him. Daughter
said she enjoyed father’s visits, but she did not want to live with
him.
In-person monitored visits changed to “Zoom” visits in July
2020 and decreased in regularity. On August 14, 2020, daughter
said she disliked Zoom visits with father because they were
“boring.” Daughter preferred the park visits, but she wanted to
go there with Maria and not see father anymore. Twelve days
later, daughter again stated she wanted to go to the park with
Maria (“mom”) and Maria’s husband (“dad”) because father
“smelled” and she did not miss him. When told father wanted to
see her and their visits were court ordered, daughter replied,
“well, duh, but I don’t miss him.”
During a monitored visit in September 2020, daughter
displayed a disturbing lack of respect for father and seemed
angry with him. Father appeared tired, increasingly frustrated
with daughter, and disinterested in active play. After the visit,
daughter characterized father as “mean” and said she no longer
wished to see him for that reason.
In early October 2020, daughter began drawing pictures of
mother and asking why she had died. After a monitored visit
with father, daughter stated she believed father “did it” and
“pushed [mother] because he is Evil!” Daughter added that
father probably wanted “to live alone without [mother] and
without me.” Daughter stated if she found out father had pushed
mother, she would “spank his butt for a long time.”

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 For his part, Father exhibited some unusual behavior
toward daughter during this period. Following a June 19, 2020
monitored visit, daughter asked Maria if mother was at the home
of father (using his full name). Daughter said father had talked
about mother, but she knew mother was dead. Daughter asked
Maria why everyone thought father had killed mother.
During another visit on July 1, 2020, a monitor noticed
father kept talking about needing to “go [to] the bank to transfer
money [to] avoid [a] penalty,” and to expect a “huge surprise” and
“something big” the following week. When she left the visit,
daughter commented that she would soon be seeing father every
day. Daughter told the monitor she did not know what the
surprise was or the reason for it.
At the Department’s behest, on July 17, 2020, the juvenile
court ordered that two monitors be present during father’s
visitation, and that father arrive after daughter and the
monitors, and that he leave before the daughter and the
monitors. Father was also ordered not to discuss with daughter
“the petition allegations,” “mother,” or “returning home to
father.”
5. Exclusion of Daughter’s Testimony and Termination
of Parental Rights
Daughter’s counsel filed a motion to exclude now six-year-
old daughter from testifying at the pending section 366.26
hearing. Counsel argued the issues to be resolved at the hearing
would not be materially affected by daughter’s testimony and the
psychological harm to daughter from testifying would outweigh
any potential benefit. In support of the motion, counsel
submitted a report from daughter’s therapist indicating daughter
suffers from adjustment disorder. The therapist stated daughter

8
“appeared to have increased defiance, difficulties falling asleep,
[and] lack of focus/disruptive behavior since the Covid-19
quarantine and irregular visitation with father.” The therapist
therefore recommended that daughter’s involvement in the court
proceedings be “reconsider[ed] or limit[ed]” to “reduce the risk of
retraumatization.”
In written opposition, father’s counsel argued questioning
of daughter would be limited to her relationship and visitation
with father to establish the parental-benefit exception to the
termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) The
focus would be the reason for daughter’s negative view of father
since July 17, 2020, when father’s visitation was ordered to have
two monitors. Counsel maintained father had a due process right
to such testimony and measures could be taken to ensure
daughter would suffer no psychological harm.
At the November 18, 2020 hearing, the juvenile court heard
and granted the motion of daughter’s counsel after considering an
offer of proof made by father’s counsel. (See Discussion, post.)
Daughter would be excluded from testifying at the permanency
planning hearing.
On December 7, 2020, the juvenile court convened the
permanency planning hearing. No witnesses were called to
testify. The court terminated parental rights, found by clear and
convincing evidence that daughter was adoptable and that there
were no legal impediments to adoption, and found adoption was
in daughter’s best interest. The court found the permanent plan
of adoption was appropriate, ordered adoption as the permanent
plan, and designated Maria and her husband as the prospective
adoptive parents. Father filed a timely notice of appeal.

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 DISCUSSION
Parental rights may be terminated only upon a finding the
child is adoptable and no statutory exception to adoptability
applies. (§ 366.26, subds. (b) & (c)(1).) Father does not attack the
sufficiency of the evidence underlying the juvenile court’s
findings that daughter was adoptable or that the parental-benefit
exception did not apply. Instead, father argues the juvenile court
erred in terminating parental rights without a contested hearing
at which daughter would testify in support of the parental-benefit
exception.
1. Additional Background
Before ruling on the motion of daughter’s counsel to exclude
her testimony, the juvenile court requested an offer of proof from
father’s counsel in support of the application of the parental-
benefit exception. The court asked counsel for “facts” not already
reported from the period before daughter’s view of father turned
negative that would show her relationship with him was more
than “just friendly visits between a parent and child.” Father’s
counsel proffered daughter’s testimony that father helped teach
her to read, draw, and play, and that he brought daughter
snacks, assisted her with “different projects” and “answer[ed her]
questions regarding the world as she has grown.”
In granting the motion to exclude daughter from testifying,
the juvenile court ruled the offer of proof was insufficient. The
court explained much of the proffered testimony would not
significantly change what the Department had reported and was
not probative as “compelling” evidence of the requisite “parental
bond” for the parental benefit to apply. Citing In re Jennifer J.
(1992) 8 Cal.App.4th 1080 (Jennifer J.), the court further found
that forcing daughter to testify would be too traumatizing for her

10
based on her therapist’s report, father’s sexual abuse, and
mother’s death.
At the section 366.26 hearing, father’s counsel asserted the
exclusion of daughter as a witness “materially affected this
hearing” and then argued the parental-benefit exception should
apply. The court disagreed, stating father could not demonstrate
the requisite parent-child bond. The court explained that
daughter never referred to father as “father,” but instead called
Maria’s husband “father.” Additionally, the court found daughter
had developed a “deep and loving” relationship with Maria and
her husband, which had helped her overcome the trauma of her
sexual abuse. The court, accordingly, terminated father’s
parental rights.
2. Offer of Proof and Parental-benefit Exception
(In re Caden C. (2021) 11 Cal.5th 614)
A parent has a due process right to present evidence at a
permanency planning hearing where parental rights are at stake.
The due process right to present evidence is limited to relevant
evidence of significant probative value to the issue before the
court. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) The
juvenile court may require a parent to make an offer of proof as
to what evidence would be adduced at a contested hearing and
why that evidence is “relevant . . . on the issue [the parent] seeks
to contest.” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122;
In re Earl L. (2004) 121 Cal.App.4th 1050,1052–1053; In re Grace
P. (2017) 8 Cal.App.5th 605, 612.) A contested hearing is not
necessary if the proffered evidence will have no effect on that
issue. (In re Grace P., at p. 614.) We review the denial of a
contested hearing for an abuse of discretion. (In re Grace P., at
p. 611.)

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 The issue here was whether the parental-benefit exception
applied to preclude termination of father’s parental rights. The
elements of that exception have recently been clarified by the
California Supreme Court in In re Caden C., supra, 11 Cal.5th
614 (Caden C.), which was issued in the midst of briefing in this
case. Caden C. specifies that under the parental-benefit
exception, a parent “must show, by a preponderance of the
evidence, three things. [First,] [t]he parent must show regular
visitation and contact with the child . . . . [Second,] the parent
must show that the child has a substantial, positive, emotional
attachment to the parent—the kind of attachment implying that
the child would benefit from continuing the relationship. And
[third,] the parent must show that terminating that attachment
would be detrimental to the child even when balanced against the
countervailing benefit of a new, adoptive home. When the parent
has met that burden, the parental-benefit exception applies such
that it would not be in the best interest of the child to terminate
parental rights, and the court should select a permanent plan
other than adoption.” (Caden C., at pp. 636–637.)
Even without the benefit of Caden C., the juvenile court’s
analysis of both the quality of father’s offer of proof for a
contested hearing on the exception and the applicability of the
parental-benefit exception here comport with the newly clarified
elements of the exception as articulated in the recent Supreme
Court opinion. Therefore, remand for the juvenile court to
reconsider its rulings in light of Caden C. is unnecessary.
3. Juvenile Court Did Not Abuse Its Discretion in
Refusing to Conduct a Contested Hearing
In requesting a contested hearing, father’s counsel made an
offer of proof relating to the second element of the parental-

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benefit exception—whether daughter had “a substantial,
positive, emotional attachment to [father]—the kind of
attachment implying that [daughter] would benefit from
continuing the relationship.”3 (Caden C., supra, 11 Cal.5th at
p. 636; see also In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
This element is influenced by numerous factors: “The 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 are some of the variables
which logically affect a parent/child bond.” (In re Autumn H., at
p. 576; accord, Caden C., at p. 632.) Yet, the only factor
suggested by father’s offer of proof was that he and daughter had
some positive interactions consisting of conversations and shared
activities in a series of visits, which the Department had already
reported. This clearly was not significantly probative of the
requisite emotional attachment. To invoke the parental-benefit
exception, a parent must do more than exhibit “frequent and
loving contact” (In re Beatrice M. (1994) 29 Cal.App.4th 1411,
1418) or that the parent and child mutually enjoy their visits (In
re Elizabeth M. (1997) 52 Cal.App.4th 318, 324). “A biological
parent . . . may not derail an adoption merely by showing the
child would derive some benefit from continuing a relationship

3 Itis undisputed that father satisfied the parental-benefit
exception’s first element, “ ‘regular visitation and contact.’ ” The
Department reports documented father’s visitation as consistent,
without significant lapses, and occurred to the extent permitted
by court orders and pandemic conditions. (See In re I.R. (2014)
226 Cal.App.4th 201, 212.)

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maintained during periods of visitation with the parent.
[Citation.] A child [, especially a young child,] . . . should not be
deprived of an adoptive parent [where, as here,] the natural
parent has maintained a relationship that may be beneficial to
some degree, but that does not meet the child’s need for a
parent.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Father claims his hands were tied by the juvenile court’s
order prohibiting him from “discussing case issues” with
daughter. According to father, the court thus faulted him
unreasonably for not proffering more “compelling” evidence, and
his only option was to have daughter testify. The order to which
father refers prohibited him from discussing with daughter “the
petition allegations,” “mother,” or “returning home to father”
following his erratic behavior on July 17, 2020. Whether the
parental-benefit exception applies, however, does not hinge on
the parent’s having discussed the section 300 allegations with the
victimized child. Indeed, the test is not what the child says about
the parental abuse or neglect, but whether the child has a strong,
significant, and positive relationship with the parent
notwithstanding the parental abuse or neglect. (See Caden C.,
supra, 11 Cal.5th at p. 633.) Father’s offer of proof was
insufficient to justify a contested hearing on the parental-benefit
exception. The juvenile court’s refusal to conduct one was not an
abuse of discretion.
4. Father Could Not Carry His Burden to Prove the
Parental-benefit Exception Applied
More to the point, father could not establish the second
element of the parental-benefit exception because he could not
show daughter had a substantial, positive, emotional attachment
to him such that she would benefit from continuing their

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relationship. Daughter had become hostile toward father and
anxious about having ongoing contact with him, which
aggravated the symptoms of her adjustment disorder. Apart
from a short period between the first and second detention
hearings, daughter lived with Maria and her husband during the
three-plus years of dependency proceedings, which, at the time,
was more than half daughter’s young life. Throughout these
years, daughter called father only by his full name, while she
began to call Maria “mom” and Maria’s husband “dad.” Daughter
also was adamant that she remain with Maria and her husband
and only visit father, until she ceased wanting to visit him at all.
It is also uncontroverted that daughter’s bond with Maria and
her husband strengthened as daughter’s deep-seated concerns
about continued contact with father grew.
As for the third element, whether “termination would be
‘detrimental to the child due to’ the child’s beneficial
relationship,” the issue is whether it would be harmful to the
child to sever the relationship and choose adoption. (Caden C.,
supra, 11 Cal.5th at pp. 633–634.) We agree with the juvenile
court. Far from suffering a detriment if her relationship with
father were terminated, the record reveals daughter would not
only gain a stable homelife, but she would also continue to make
progress in overcoming the trauma of her sexual assault. (See In
re N.S. (2020) 55 Cal.App.5th 816, 854.)
5. Additional Issues
Father raises two additional issues. He contends the
juvenile court erred in refusing to allow daughter to testify,
contrary to In re Amy M. (1991) 232 Cal.App.3d 849 (Amy M.),
which held the parents’ due process rights were violated when
the juvenile court refused to allow the child to testify despite the

15
parents’ request. (Id. at p. 867.) Amy M. noted that claiming the
child’s presence was “not necessary” was insufficient to meet the
parents’ due process rights; further, there was no adequate
substitute for the child’s testimony such as earlier testimony or
reported statements and no showing was made the child was
unavailable within the meaning of Evidence Code section 240.
(Amy M., at pp. 865–866.) We do not reach the issue of whether
daughter’s testimony was mandated by Amy M. because father
failed to make the threshold showing that he was entitled to a
contested hearing for daughter to testify.
In excluding daughter from testifying, the juvenile court
relied on Jennifer J., supra, 8 Cal.App.4th 1080, which held that
despite the lack of statutory or case law authority, a court has the
power based on the overriding goal of protecting the child to
carefully weigh whether the child’s testimony would materially
affect the issues to be resolved against the possible psychological
harm to the child caused by testifying. (Id. at p. 1089.) Father
argues the court’s reliance on Jennifer J. was misplaced because
it conflicts with controlling California Supreme Court precedent
and Evidence Code section 240. Father forfeited this argument
by failing to assert it in the juvenile court (In re S.B. (2004) 32
Cal.4th 1287, 1293; In re Elijah V. (2005) 127 Cal.App.4th 576,
582). For the same reasons discussed above, we decline to
exercise our discretion to reach the merits of this claim despite
the forfeiture.

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 DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED.

LUI, P.J.
We concur:

CHAVEZ, J.

HOFFSTADT, J.

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