In re Andrew W. CA2/2

Filed 1/11/23 In re Andrew W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 ANDREW W. et al., B318745
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. DK10292B-C)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ANDREW W.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Susan Ser, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal,
for Defendant and Appellant.
 Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Deputy County
Counsel, for Plaintiff and Respondent.

******

Andrew W. (father) appeals from an order terminating his
parental rights over Andrew (born 2008) and Khailan (born
2009). He contends the order must be reversed because the
beneficial parent-child exception to terminating parental rights
applies.
We affirm the juvenile court’s order.

BACKGROUND
Detention, Welfare and Institutions Code1 section 300
petition, and adjudication
Andrew and Khailan were six and five years old,
respectively, when they and their younger siblings Camiyah and
Kamerhon2 were detained from father and their mother, Candi C.

1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 The juvenile court terminated father’s and mother’s
parental rights as to Camiyah and Kamerhon in 2019. We
affirmed that order in a nonpublished opinion. (In re
Camiyah W. (Jan. 29, 2020, B297759).) During this case, father
and mother had another child, Kayhlin (born 2018), who was
removed from parental custody after the juvenile court sustained
a section 300 petition on her behalf. (See In re Kayhlin W.
(Nov. 4. 2020, B302895) [nonpub. opn.].)

2
(mother)3 in March 2015. Only Andrew and Khailan are subjects
of this appeal.
In June 2016, the juvenile court sustained an amended
petition under section 300, subdivision (b), that the children were
at substantial risk of harm because of the parents’ substance
abuse. Both parents were accorded monitored visits and family
reunification services. The court ordered the parents to
participate in a drug rehabilitation program with random testing,
parenting classes, and individual counseling.
Review period and termination of reunification services
In August 2016, the Department reported that the parents
visited weekly with the children. The parents were attentive
during the visits, and the children appeared to be happy and
comfortable in their parents’ presence.
Following a child and family team meeting in February
2017, the Department reported that the parents had positive
interaction with the children during their monitored visits.
There was conflict, however, between the parents and the
children’s caregiver, who complained they were not adhering to
the visitation schedule and were intimidating her. The
Department initiated action to have the children replaced with a
different caregiver.
By September 2017, neither parent had complied with their
case plans. Khailan and Andrew were exhibiting behavioral
problems that worsened after visits with their parents. Khailan’s
behavior at school was so extreme that he was placed on home
study. The school principal reported that father and mother were

3 Mother is not a party to this appeal.

3
seen loitering near the school campus and asked the Department
to seek a restraining order to keep the parents away from the
children’s school. The juvenile court terminated reunification
services on September 25, 2017, and set a section 366.26 hearing.
Section 366.26 proceedings
In January 2018, the Department reported that the parents
visited regularly with the children and brought food for the
children to eat. The children appeared happy to see the parents,
and father played football with Andrew and Khailan. The
parents had trouble controlling the children’s behavior at times,
but most of the visits were appropriate. Both parents visited
consistently with the children through August 2018. They were
affectionate and appropriate but failed to progress to
unmonitored visitation because of noncompliance with court
orders.
In May 2018, the Department reported that Andrew and
Khailan’s caregiver was willing to become the children’s legal
guardian but was not interested in adoption. Andrew had
initially exhibited behavioral issues when first placed with the
current caregiver, but his behavior had since improved. Khailan
was still on home study because of behavioral issues at school.
The Department recommended continuing the section 366.26
hearing for 120 days for additional time to find an adoptive home
for Andrew and Khailan.
Andrew and Khailan were placed with a new caregiver,
Ms. N., in July or August 2018.
Section 388 petition and reinstatement of reunification
services
Father filed a section 388 petition to have his reunification
services reinstated. In March 2019, the juvenile court granted

4
the petition and accorded father an additional six months of
reunification services. From March through May of 2019, both
parents continued to visit consistently with the children.
Andrew and Khailan remained placed with Ms. N. The
children referred to Ms. N. as “mom” and appeared to be loving
and comfortable with her. Andrew reported that he enjoyed
living with Ms. N. and wanted to continue to do so. Khailan
similarly reported that he enjoyed living with Ms. N. and felt safe
and loved in her home. Both children consistently stated that
they love being with Ms. N. but that they love their parents also.
Andrew and Khailan said they wanted final decisions to be made
regarding their placement and permanency.
Ms. N. said she wanted to adopt Andrew and Khailan. She
expressed her commitment to maintaining the children’s
relationship with their siblings and said she would continue to
facilitate sibling visits after the adoption is finalized.
Second termination of reunification services
Father’s reunification services were again terminated on
February 6, 2020. His visits remained monitored, and the
juvenile court set a section 366.26 hearing.
Section 366.26 proceedings
The children’s court appointed special advocate submitted a
report in February 2021 informing the juvenile court that Ms. N.
had purchased a home in Lancaster and that she and the
children would be moving there in the spring. Andrew and
Khailan were looking forward to the move, as each would have
his own room. Both children reported that they enjoy living with
Ms. N. and feel loved, secure, and well cared for. The children
said they loved their parents, but if reunifying with them was not
possible, they wanted to remain with Ms. N. The special

5
advocate recommended that Ms. N. be considered the children’s
prospective adoptive parent.
In February 2021, the Department reported that an
adoptive home study for Ms. N. was pending and requested a
120-day continuance to allow the home study to be completed.
The Department reported in June 2021 that father’s last
visit with the children had been in November or December 2020.
Ms. N. reported that Andrew and Khailan were both on
basketball teams, and they attended the games together as a
family. She said she spent as much time with the children as she
could. The family went out to dinner together, played games, and
watched movies together.
Ms. N. was building a three-bedroom, two-bath home that
would be ready in May 2021. She and the children currently
lived in her parents’ home. Ms. N. reported that Andrew and
Khailan were very close to her parents and to her older sister.
Ms. N.’s extended family members viewed Andrew and Khailan
as part of the family.
In August 2021, the Department reported that Andrew and
Khailan were both doing well in school. They participated in
extracurricular activities such as basketball and played in
tournaments throughout the county. Both children said they
enjoyed living with Ms. N. and felt safe and loved in her home.
They referred to Ms. N. as “mom” and said they wanted to be
adopted and to continue living with her. Andrew and Khailan
both said they loved their parents, but they also wanted
permanency and were waiting for the adoption process to be
completed.

6
Section 366.26 hearing
Father was present at the section 366.26 hearing held on
October 8, 2021 but did not testify. The children’s counsel told
the juvenile court that she had spoken with Andrew and Khailan
prior to the hearing. Both children stated that they love their
parents but they are comfortable with Ms. N. and do not want to
be removed from her care. Andrew and Khailan both understood
that Ms. N. wanted a closed adoption. They did not want
anything to derail their placement with her. The children’s
counsel joined with the Department’s request to terminate
parental rights.
Father’s counsel objected to the termination of parental
rights. He said that father spoke to Andrew and Khailan weekly
via FaceTime and shared a relationship with them. Counsel
pointed out that because the children’s caregiver wanted a closed
adoption, terminating parental rights would preclude Andrew
and Khailan from seeing or speaking to father until they were 18
years old.
After hearing argument from counsel, the juvenile court
admitted into evidence documents submitted by the Department
and took judicial notice of the electronic case file. The court then
made the following findings:
“Regarding the parental bond exception, the
parents must show by preponderance of the evidence
that the parental relationship would benefit the
child. It has to be a significant benefit. The parents
need to show a parental role towards the child, more
than just an emotional bond. I know the parents love
the child—the children, and the children love the
parents. That’s evident. But, it has to be more than

7
 just that emotional bond, and also that terminating
parental rights would be detrimental to the children.
“The children have been with the current
placement since 2019, and as [childrens’ counsel]
indicated, they are doing well and wish to remain in
their care.”
The juvenile court found that any benefit to the children
from maintaining the relationship with their parents was
outweighed by the physical and emotional benefit they would
have through adoption. The court found by clear and convincing
evidence that the children were adoptable and that no exception
to terminating parental rights applied. The juvenile court
terminated parental rights and ordered the children freed for
adoption.
This appeal followed.

DISCUSSION
I. Applicable law and standard of review
Once a juvenile court has terminated reunification services
and determined that a child is adoptable, the court is required to
terminate parental rights unless it finds an applicable exception.
(§ 366.26, subd. (c)(1).) The exception at issue here, sometimes
referred to as the beneficial parent-child exception, applies when
“[t]he court finds a compelling reason for determining that
termination would be detrimental to the child,” because “[t]he
parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the
relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
The parent bears the burden of proving that the exception
applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) To

8
do so, the parent must prove three statutory elements: “(1)
regular visitation and contact, (2) a relationship, the continuation
of which would benefit the child such that (3) the termination of
parental rights would be detrimental to the child.” (In re
Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)
For the first element, visitation, the question is simply
whether the parent visited consistently, as permitted by court
orders. The focus is not on punishing or rewarding parents for
their behavior in visiting or maintaining contact but on the best
interests of the child. (Caden C., supra, 11 Cal.5th at p. 632.)
As to the second element, whether the child would benefit
from continuing the relationship, “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.” (Caden C., supra, 11
Cal.5th at p. 636.) The parent must also show that “the
relationship promotes the well-being of the child to such a degree
as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents.” (In re Autumn H.
(1994) 27 Cal.App.4th 567, 575.) Relevant factors in assessing
the parent-child relationship include “[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.” (Id. at p. 576.) For the
third element, whether termination would be detrimental to the
child, the court must determine “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.” (Caden C., supra, at p. 633.)

9
 We review the juvenile court’s findings concerning
visitation and whether the child would benefit from continuing
the relationship with the parent for substantial evidence.
(Caden C., supra, 11 Cal.5th at pp. 639-640.) Whether
termination of parental rights would be detrimental to a child
because of the child’s relationship with the parent is a question
we review for abuse of discretion. (Ibid.)
II. No abuse of discretion
Father did not sustain his burden of proving that his
relationship with Andrew and Khailan promoted the children’s
well-being to such a degree as to outweigh the benefits they
would gain in a permanent adoptive home with Ms. N.4
At the time of the section 366.26 hearing, Andrew and
Khailan had been removed from father’s care for approximately
six and a half years—more than half of their lives. Father had
never progressed beyond monitored visitation and had no in
person visits with the children for almost a year before the
section 366.26 hearing. Both children were closely bonded with
their prospective adoptive mother, Ms. N., and wished to remain
in her care. Although the children said they loved their parents,
they also said they wanted finality in their placement and wished

4 The parties dispute whether father met his burden of
showing consistent visitation. Father must establish all three
elements of the beneficial parent-child exception. (Caden C.,
supra, 11 Cal.5th at p. 631.) He did not sustain his burden of
proving that he and the children shared a substantial positive
attachment that outweighed the benefits of a permanent adoptive
home. We therefore need not address the juvenile court’s finding,
or absence thereof, with respect to the first element—whether
father maintained consistent visitation throughout the case.

10
to be adopted by Ms. N. The children’s counsel informed the
juvenile court that Andrew and Khailan understood that Ms. N.
wanted a closed adoption, and both children wished to remain
with Ms. N.
There is substantial evidence in the record that the
children’s interests would be best served by the stability of
adoption with their current caregiver, who met the children’s
daily physical and emotional needs. Ms. N. provided the children
with a permanent and stable home; accompanied them to their
extracurricular activities, therapy sessions, and medical
appointments; and shared their daily experiences. The children
were loving and comfortable with Ms. N. and said they wanted to
be adopted and to live with her.
Father’s claim that the juvenile court erroneously based its
decision on the fact that he did not occupy a “parental” role in the
children’s lives is unavailing. Some appellate courts have
expressed concern that a juvenile court’s use of that term or
similar terms such as “parental relationship” in the context of the
beneficial parent-child exception suggest that an improper legal
standard was applied. (See In re J.D. (2021) 70 Cal.App.5th 833,
864 [juvenile court’s conclusory determination that mother’s
relationship with child did not “‘amount to a parental bond’” did
not address whether child had a substantial, positive emotional
attachment to parent]; In re B.D. (2021) 66 Cal.App.5th 1218,
1229-1230 [questioning whether juvenile court improperly
“equated a parental role, as it related to application of the parent-
child relationship exception, with the ability to parent ‘on a
fulltime basis’”].) That concern is not present here.
The juvenile court here stated on the record the court’s
findings regarding father’s relationship with the children, and

11
the benefits of continuing that relationship did not outweigh the
benefits the children would have from adoption. The juvenile
court’s observation that the parents needed to show a “parental
role” does not persuade us that the court applied an incorrect
legal standard in this case. The juvenile court did not abuse its
discretion in finding that the beneficial parent-child exception to
terminating parental rights did not apply.
Any error in the juvenile court’s reasoning or basis for its
decision was harmless in any event. Father was given a full and
fair opportunity to present evidence on a contested issue. He
presented no evidence at the section 366.26 hearing that the
children had a “‘substantial, positive emotional attachment’” to
him that would outweigh the benefits of adoption. (In re J.R.
(2022) 82 Cal.App.5th 526, 533.)
We reject father’s contention that the juvenile court erred
by not considering legal guardianship as the children’s
permanent plan. Adoption is the preferred permanent plan once
a finding of adoptability has been made. (§ 366.26, subd. (c)(1);
In re S.B. (2009) 46 Cal.4th 529, 532.) Legal guardianship is an
alternative to adoption when a “child is living with a relative who
is unable or unwilling to adopt the child because of circumstances
that do not include an unwillingness to accept legal or financial
responsibility for the child, but who is willing and capable of
providing the child with a stable and permanent environment
through legal guardianship.” (§ 366.26, subd. (c)(1)(A).) Those
circumstances do not exist here. The children’s caregiver here,
Ms. N., was strongly committed to adopting the children.

12
 DISPOSITION
The order terminating parental rights is affirmed.

___________________________
CHAVEZ, Acting P. J.

We concur:

_______________________________
HOFFSTADT, J.

_______________________________
BENKE, J.*

* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

13