Filed 4/25/23 In re M.B. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re M.B., a Person Coming B321516
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 20LJJP00267A
Plaintiff and Respondent,
v.
J.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin K. Kesler, Juvenile Court Referee.
Affirmed.
Jack A. Love, under appointment by the Court of Appeal;
Law Offices of Vincent W. Davis & Associates and Vincent W.
Davis for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
J.G. (father) appeals from an order of the juvenile
dependency court terminating parental rights as to his four-year-
old daughter, M.B. (minor). Father is non-offending, has been
incarcerated for the minor’s entire life, and will not be eligible for
parole until late 2024 at the earliest. Although father maintained
telephone contact with the minor on a somewhat regular basis
during the proceedings below, the minor did not benefit from
those interactions. The minor was placed with relatives who have
committed to adopt her and the dependency court terminated
both parents’ parental rights pursuant to Welfare and
Institutions Code section 366.261 to allow the adoption to
proceed.
Father attacks a variety of the court’s rulings in the
present appeal, most of which are not properly before us because
they were decided well before the permanency planning hearing.
As to the cognizable issues, father fails to cite the appellate
record or provide reasoned legal analysis. He has therefore failed
to establish the existence of reversible error. Accordingly, we
affirm.
1All undesignated statutory references are to the Welfare and
Institutions Code.
2
FACTS AND PROCEDURAL BACKGROUND2
The minor, who is now four years old, first came to the
attention of the Department in April 2020 when her mother
checked into a domestic violence shelter.3 The minor was 18
months old at the time. Mother had not yet introduced solid foods
and the minor was only consuming formula. The minor was small
for her age. Mother exhibited erratic and combative behavior.
Mother neglected the minor and appeared to have significant
mental health issues. Mother reported that she had obtained a
10-year restraining order against the minor’s father, J.G. She did
not disclose any additional information about him, however.
The Department filed a petition under section 300,
subdivision (b), containing two counts. Count b-1 alleged that
mother “demonstrates mental and emotional problems, including
Anxiety and erratic and paranoid behaviors, which render the
mother incapable of providing regular care and supervision of the
child. Such mental and emotional problems on the part of the
mother endanger the child’s physical health and safety and place
the child at risk of serious physical harm, damage and danger.”
Count b-2 alleged that mother “placed the child in a detrimental
and endangering situation by leaving the one year old child alone
without adequate adult supervision. The child is of such a young
age as to require constant care and supervision. Such a
detrimental and endangering situation established for the child
2 The Department’s unopposed request for judicial notice of our opinion
in father’s prior appeal and our docket in father’s aborted writ
proceeding, filed on January 19, 2023, is granted. (Evid. Code, §§ 452,
subd. (d), 459.)
3 Mother is no longer a party to this appeal.
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on the part of the mother endangers the child’s physical health
and safety and places the child at risk of serious physical harm,
damage and danger.” In May 2020, the court detained the minor
from the parents and ordered her placed in foster care with
monitored visitation for mother.
In June 2020, the court ordered the department to conduct
a due diligence search to locate father. The court also ordered the
Department to evaluate the maternal aunt for possible
placement. The Department later determined that father was
incarcerated. The court subsequently found that he was the
minor’s biological father, found him to be non-offending, and
ordered him to receive any available services.
In August 2020, the Department filed an amended petition,
adding to count b-1 an allegation that father failed to protect the
minor. Two new allegations were also added. Count b-3 alleged
that both parents “have a history of domestic violence.
Additionally, both mother and father have a history of
[assaultive] behaviors. Regarding the mother, she has criminal
history that includes arrests and conviction of Domestic Violence,
Assault, and Battery. Regarding the father, he has criminal
history that includes arrests and conviction of Domestic Violence,
Assault, Battery, and [Kidnapping.] Furthermore, the father is
currently incarcerated for a violent crime. Such violent action on
the part of the mother and the father endangers the child’s
physical health and safety and places the child at risk of serious
physical harm, damage and danger.” Count b-4 alleged a history
of substance abuse by mother.
In September 2020, the court conducted the adjudication
hearing and found true the allegations in counts b-1 and b-4 of
the amended petition, as modified by interlineation. As to count
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b-1, the only sustained allegation relating to father, the court
deleted the allegation that father failed to protect the minor from
mother’s inability to provide regular care due to mental illness.
In October 2020, the Department placed the minor with the
maternal aunt, who expressed the desire to adopt the minor.
Father generally visited with the minor by telephone for 10
minutes three times a week. He often exhibited a “demanding,
aggressive and unpleasant demeanor during the telephone calls
[which] created an unpleasant environment for the child.”
The court held the dispositional hearing in December 2020,
ordered the minor removed from mother, and approved visitation
for both parents.4 Although father regularly called the minor,
father repeatedly harassed the maternal aunt during the calls.
Father was not in compliance with his case plan at any point and
his reunification services were terminated in August 2021 due to
the length of his incarceration and inability to timely reunify.
In November 2021, the Department recommended
terminating father’s visitation with the minor “given the child’s
negative exposure and her current reactive and aggressive
behaviors at school” and set the matter for hearing under
section 366.26. In December 2021, the court followed the
Department’s recommendation and set a permanency planning
review hearing in June 2022.5
4 Father appealed concerning the court’s parentage finding and
disposition. We rejected his arguments in an unpublished decision.
(In re M.B. (Sept. 15, 2021, B309384) [nonpub. opn.].)
5Father filed a notice of intent to file a writ petition challenging the
order. No petition was ever filed, however.
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In the Department’s final report in April 2022, the
Department reported that the minor remained in the home of the
maternal aunt. Although father’s telephonic visitation had
continued, the minor did not generally participate in the
conversations and was very quiet. The Department recommended
that the court terminate mother’s and father’s parental rights to
allow the minor to be adopted.
A contested hearing under section 366.26, at which father
testified, was held on June 22, 2022. The court terminated both
parents’ parental rights and found by clear and convincing
evidence that the minor was adoptable.
Father timely appeals.
DISCUSSION
Father purports to challenge numerous rulings by the court
in the present appeal. Several of those rulings were made some
time ago and are not properly before us. As to the arguments that
are cognizable at this stage, father fails to carry his burden, as
the appellant, to establish prejudicial error.
1. Appellant’s Burden on Appeal
“The juvenile court’s judgment is presumed to be correct,
and it is appellant’s burden to affirmatively show error.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To
demonstrate error, appellant must present meaningful legal
analysis supported by citations to authority and citations to facts
in the record that support the claim of error. [Citations.] When a
point is asserted without argument and authority for the
proposition, ‘it is deemed to be without foundation and requires
no discussion by the reviewing court.’ [Citations.] Hence,
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conclusory claims of error will fail.” (In re S.C. (2006) 138
Cal.App.4th 396, 408.)
“An appellant must fairly set forth all the significant facts,
not just those beneficial to the appellant. (Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)” (In re S.C., supra, 138
Cal.App.4th at p. 402.) Further, “[w]hen an appellant’s brief
makes no reference to the pages of the record where a point can
be found, an appellate court need not search through the record
in an effort to discover the point purportedly made. [Citations.]
We can simply deem the contention to lack foundation and, thus,
to be forfeited. [Citations.]” (Id. at pp. 406–407.)
2. Father fails to establish error by the juvenile court.
Father’s brief largely fails to adhere to the rules of
appellate practice just summarized. We address each of his
contentions in turn.
2.1. Placement with Paternal Grandmother
Father’s first argument heading states, “Appellant was the
non-offending parent, and the minor should have been placed
with the paternal grandmother.” The section that follows,
however, cites to statutory and legal authority that relates to a
child’s placement with a previously noncustodial parent, not a
family member. (See, e.g., § 361.2, subd. (a) [statutory preference
for placement with previously noncustodial parent upon a child’s
removal from custodial parent].) It is undisputed, however, that
the minor could not be placed with father because he was
incarcerated and will not be eligible for parole until late 2024 at
the earliest.
Moreover, and in any event, the Department evaluated the
paternal grandmother for possible placement and advised the
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court that she could not be approved for placement due to her
criminal history, which included a conviction for child abuse
under Penal Code section 273a.
2.2. Reunification Services
Father also claims the Department failed to provide
reasonable reunification services to him and that, as a result, the
court erred in setting the matter for a hearing under
section 366.26. This challenge is not properly before us. The
court’s order setting the hearing under section 366.26 is not
appealable and must be challenged, if at all, in a petition for
extraordinary writ. (§ 366.26, subd. (l)(1)(a).) Although father
previously filed a notice of intent to file a writ petition, he never
did so and his opportunity to challenge the court’s ruling has
therefore ended.
2.3. Visitation
Father asserts that the Department “failed to comply with
the court’s minimum visitation order.” We disagree. The
appellate record indicates that the minor was regularly made
available for telephonic visitation with father three days a week
on a schedule negotiated with father. Although father urges that
“the record showed [he] was denied visitation, against court order
and case law,” he provides no citations to the record to support
his claims. For example, father contends “[i]t is likely the
visitations were denied, canceled, or made nearly impossible
because of the caregiver’s goal of impeding family reunification
and the parent’s progress, which was a documented concern of
[the Department,] so that she could adopt the child.” He also
claims that “[the Department,] the caregivers, and the preschool
deliberately interfered with [father’s] visits because they
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terminated and canceled visits without his consent … purposely
distracted the child by giving her crayons and toys to play with
during the visits … [and] failed to encourage the child to engage
in the visits.” As father provides no record citations to support
these assertions, we pass them without further discussion. (See
In re S.C., supra, 138 Cal.App.4th at pp. 406–407 [noting absence
of record citation to support argument resulted in forfeiture on
appeal].)
2.4. Placement with Paternal Relatives
As father notes, after a child is removed from parental
custody, “preferential consideration shall be given to a request by
a relative of the child for placement of the child with the
relative.” (§ 361.3, subd. (a).) Father asserts that “[the
Department] and the Court failed to place the minor with
paternal relatives, for no reason other than the social worker
choosing not to.”
First, the Department adhered to section 361.3 by placing
the minor with maternal relatives. Second, the Department’s
placement decision was made two and a half years ago, in
October 2020. The appropriate time to challenge that placement
was in response to the court’s dispositional order, not in response
to an order terminating father’s parental rights. Third, and in
any event, father fails to support his argument with even a single
citation to the record. In particular, father fails to identify any
paternal relative who requested custody of the minor. Without
that basic information, we are unable to evaluate his contention
that the Department refused to consider possible placement with
his relatives—with the notable exception of the paternal
grandmother who, as we have already explained, was ineligible
for placement due to her criminal history.
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2.5. Beneficial Parent-Child Relationship
Finally, father asserts that the court erred in terminating
his parental rights because the beneficial parent-child
relationship exception to adoption applies.
After a juvenile court terminates a parent’s reunification
services, “ ‘the focus [of the proceedings] shifts to the needs of the
child for permanency and stability.’ ” (In re Celine R. (2003) 31
Cal.4th 45, 52.) At that point, adoption becomes the preferred
permanent plan for the child, and the court should order it
“unless exceptional circumstances exist.” (In re Casey D. (1999)
70 Cal.App.4th 38, 51, disapproved on an unrelated point by In re
Caden C. (2021) 11 Cal.5th 614, 636, fn. 5 (Caden C.).) Indeed,
section 366.26 requires the juvenile court to terminate parental
rights if it finds by clear and convincing evidence that the child is
likely to be adopted. (§ 366.26, subd. (c)(1).)
A parent may avoid termination of parental rights,
however, by establishing that a statutory exception exists.
(Caden C., supra, 11 Cal.5th at p. 617.) One exception exists
where there is a beneficial relationship between the parent and
the child. (Ibid.) To establish the beneficial parent-child
relationship exception, the parent must show, by a
preponderance of the evidence: (1) regular visitation and contact
with the child, taking into account the extent of visitation
permitted; (2) the existence of a substantial, positive, emotional
attachment between the child and the parent—the kind of
attachment implying that the child would benefit from continuing
the relationship; and (3) that terminating the parent-child
relationship would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive
home. (Id., at p. 636; § 366.26, subd. (c)(1)(B)(i).) To evaluate
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whether the exception applies, courts should look to several
factors, including the age of the child, the amount of time the
child spent in the parent’s custody, the quality of interaction
between parent and child, and the child’s particular needs. (In re
Autumn H. (1994) 27 Cal.App.4th 567, 576.) If the parent
establishes all three elements, the exception applies, and the
court should select a permanent plan other than adoption.
(Caden C., at pp. 636–637.)
The totality of father’s argument is this: “In the present
case, Appellant maintained regular, meaningful visitation with
his child, despite, [the Department], the caregivers, and the
preschool deliberately interfer[ing] with [his] visits because they
terminated and canceled visits without his consent. In addition,
they purposely distracted the child by giving her crayons and toys
to play with during the visits. Further, they failed to encourage
the child to engage in the visits. Thus, [father] has satisfied the
first prong. [¶] The second prong is easily satisfied because
[father] has a strong bond with his child and [the Department]
found that placement with the child was not in the child’s best
interest and the caregiver would impede reunification. Thus, as
discussed above, the child should have been placed with the non-
offending parent’s (J.G.) relatives.”
Again, father has not cited any portion of the record
supporting these contentions and even if they are true, given
their cursory nature they are inadequate to establish the
existence of a parent-child bond so important to the minor that
her adoption would be more harmful than beneficial. In any case,
our review of the record indicates that father’s extremely limited
contact with the minor did little to form a bond between them.
Indeed, the record indicates that the phone calls between father
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and the minor caused her significant distress both during and
after the calls.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
NGUYEN, (KIM) J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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