In re A.G. CA2/5

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 B315684
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 19CCJP02605D-E)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

I.G.,

Defendant and Appellant.

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.

________________________
 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.

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 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.

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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.

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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.

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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.”

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 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.

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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

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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

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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

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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 parent-
child 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).

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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

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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

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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.

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