In re Jessica G. CA2/1

Filed 6/27/13 In re Jessica G. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE

In re JESSICA G., a Person Coming Under B245354
the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK75206)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,

v.

CESAR G. et al.,
Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County.
Albert Garcia, Referee. Affirmed.
Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant, Cesar G.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and
Appellant, Jennifer R.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

_______________________________
 In this dependency case (Welf. & Inst. Code, § 300 et seq.),1 Cesar G. (Father) and
Jennifer R. (Mother) appeal from a section 366.26 order, terminating parental rights and
identifying adoption as the appropriate permanent plan for their daughter, Jessica G, who
was almost nine years old at the time of that hearing. Father and Mother argue the
juvenile court erred in finding the parent-child relationship exception to termination of
parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not apply to the relationship between
Father and Jessica. We affirm.
BACKGROUND
This is the third time this matter has been before us. In November 2010, Jessica
appealed from a section 366.26 order, identifying legal guardianship as the appropriate
permanent plan for her. In that appeal, her counsel argued the juvenile court erred in
finding the parent-child relationship exception to termination of parental rights applied to
the relationship between Father and her, and the juvenile court should have terminated
parental rights and identified adoption as the appropriate permanent plan. As discussed
in more detail below, we affirmed the order identifying legal guardianship as the
appropriate permanent plan for Jessica. (In re Jessica G. (Nov. 17, 2011, B228731)
[nonpub. opn.].)
In May 2012, Father filed a writ petition, challenging the order setting a section
366.26 permanency planning hearing. He argued the juvenile court erred in setting the
section 366.26 hearing without a prima facie showing of changed circumstances. As
discussed in more detail below, we denied the petition. (Cesar G. v. Superior Court (July
31, 2012, B241254) [nonpub. opn.].)
In this background section of our opinion, we quote background facts from our
two prior opinions, as indicated below.

1 Further statutory references are to the Welfare and Institutions Code.

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 Statement of Facts in Case No. B228731 (In re Jessica G., supra, B228731,
pp. 2-11.)
“Prior to the commencement of these dependency proceedings, Father and . . .
Mother . . . shared custody of Jessica on an informal basis. In or about July 2008, when
Jessica was four years old, Mother took Jessica to Father’s home and did not return for
her. In or about September 2008, Mother’s sister, Erica K., picked up Jessica from the
home of Father’s parents while Father was working out of town. Erica K. stated that she
would care for Jessica. Thereafter, Father did not provide for Jessica. He saw her one
time, on October 7, 2008, when Erica K. brought her to his mother’s home for a visit.
“In October 2008, Erica K. contacted the Los Angeles County Department of
Children and Family Services (DCFS) and informed a social worker that she planned to
seek legal guardianship of Jessica. Erica K. reported that Mother was using drugs,
including methamphetamine, and had a mental illness. She stated that Father wanted
‘“nothing to do with”’ Jessica.
“On October 30, 2008, Erica K. informed the social worker that Mother planned to
take Jessica back. The social worker advised Erica K. to bring Jessica to the DCFS
office. Erica K. agreed to do that. DCFS detained Jessica that day and placed her in
foster care.
“On November 2, 2008, the social worker contacted Father and informed him that
‘Jessica was placed in protective custody due to general neglect and caretaker absence by
both parents.’ Father stated that he would appear at the detention hearing. In the
detention report, DCFS noted that Father ‘appears concerned for his child.’
“On November 4, 2008, DCFS filed a petition under section 300, alleging
Mother’s substance abuse and mental and emotional problems, and Mother’s and Father’s
failure to provide for Jessica. The petition also alleged: ‘The child Jessica G[.] has been
diagnosed with developmental delays, mental retardation and speech/language
impairment. The child’s mother . . . and father . . . are unable to provide the child with
appropriate parental care and supervision due to the child’s medical problems. The
parents have failed to follow through with the child’s scheduled medical appointments.

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Such inability on the part of the child’s parents endangers the child’s physical and
emotional health and safety and places the child at risk of physical harm, damage and
danger.’
“Father appeared at the November 4, 2008 detention hearing. His counsel
informed the juvenile court that he would submit on detention. Father requested that
DCFS investigate whether Jessica could be placed with his mother (Jessica’s paternal
grandmother). Father was living in his mother’s five-bedroom home at the time.
Father’s counsel told the court that Father ‘ha[d] been quite forthcoming’ in informing
counsel that he had a ‘three-year-old conviction for domestic violence with [M]other’ and
an October arrest for possession of marijuana. Father represented that he had completed
48 out of 52 domestic violence classes. The juvenile court suggested that Father move
out of his mother’s home and Father agreed to do so. Father’s counsel informed the court
that Father had been unaware that he could get ‘assistance’ in caring for Jessica’s special
needs. Now that Father was aware that assistance was available, his ‘preference’ was
‘that his daughter reside with him.’ Jessica’s counsel argued that Jessica had thrived in
Erica K’s care and requested that DCFS ‘continue to . . . work with [Erica K.] on getting
waivers for her criminal conviction’ so that Jessica could be placed with her.
“The juvenile court ordered Jessica to remain suitably placed in foster care. The
court also ordered DCFS to complete a pre-release investigation report regarding
placement with Father’s mother. The court granted reunification services and monitored
visitation for Father. The court ordered Father to appear at the January 8, 2009
jurisdiction hearing.
“In a pre-release investigation report, prepared on or about November 6, 2008,
DCFS identified several ‘safety concerns’ at the paternal grandmother’s home, including
broken windows and metal debris in the yard. The grandmother informed the social
worker that she would make repairs as soon as she could, and that she ‘would like to
remain as a possible relative to care for [Jessica].’ DCFS reported that the social worker
could not discuss the matter with Father. He had moved out of his mother’s home and
the paternal grandmother stated that she did not have contact information for him.

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 “On November 7, 2008, the juvenile court ruled that DCFS had discretion to place
Jessica with the paternal grandmother once her home was approved. The court also
ordered the social worker ‘to seek a criminal waiver’ allowing Jessica to be placed with
the maternal aunt, Erica K.
“On January 6, 2009, DCFS filed a first amended petition against Mother, Father
and the father of Mother’s infant son. In addition to the allegations about Father set forth
above, DCFS also alleged: [‘]The child, Jessica G[.]’s parents . . . have engaged in
numerous violent altercations in which the father choked and punched the mother causing
the mother to sustain bleeding lacerations. Such violent altercations on the part of the
child’s parents endangers the child’s physical and emotional health and safety and places
the child at risk of physical and emotional harm, damage and danger.’
“In the jurisdiction/disposition report, prepared on or about January 5, 2009,
DCFS reported that the social worker had been unable to contact Father. The paternal
grandmother declined to provide contact information for Father, but stated that she would
tell Father to contact the social worker at the telephone number provided. DCFS also
reported that the paternal grandmother had had a visit with Jessica, but Father had not
contacted the foster mother to arrange visitation.
“DCFS listed the following reasons why it could not return Jessica to the care of
Father: ‘The father has failed to make himself available to the Department and has not
shown any effort at addressing the issues that brought the family to the attention of the
Department. The father made an inappropriate plan for the care of the child by allowing
her to reside with the maternal aunt, [Erica K.]. The father stated that he knew that the
maternal aunt had a substance abuse history yet allowed the child, who suffers from
multiple developmental delays, to be cared by her [sic]. Further, it is unknown if the
father has a substance abuse problem as he has failed to make himself available to the
Department for a complete assessment, however, his criminal history shows at least one
drug related arrest which raises concern that the father may also have substance abuse
issues that must be addressed before the child can be safely returned to his care.’

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 “Father appeared for the hearing on January 8, 2009, but was excused by his
counsel before the hearing commenced. The juvenile court set the matter for mediation.
According to Father’s counsel, Father fixed the broken windows at the paternal
grandmother’s home. The court ordered DCFS to reevaluate the home for possible
placement of Jessica.
“On February 5, 2009, Father appeared for mediation and stated that he would
‘agree to a case plan following adjudication of the petition that includes suitable
placement for Jessica.’ The mediation agreement provided that DCFS would ‘continue to
assess Jessica’s paternal grandmother’s home for placement.’
“In an interim review report, prepared on or about February 2, 2009, DCFS
reported that Father still had not contacted DCFS. Erica K. told the social worker that
she believed Father was still living with the paternal grandmother and that Father had
‘never provided for the child, paid child support, or cared for the child physically.’
"On March 4, 2009, the juvenile court adjudicated the first amended petition.
Father was not present at the hearing, but he was represented by counsel. The court
dismissed the allegations against Father regarding his failure to provide for Jessica. The
court sustained the allegation about Father’s ‘violent altercations’ with Mother, as quoted
above. The court also sustained the following allegation, as amended: ‘The child,
Jessica G[.] has been diagnosed with developmental delays, mental retardation and
speech/language impairment. The child’s mother . . . and father . . . have a limited ability
to deal with the child’s special needs. Such inability on the part of the child’s parents
endangers the child’s physical and emotional health and safety and places the child . . . at
risk of physical harm, damage and danger.’
“The juvenile court entered a disposition case plan requiring Father to attend
domestic violence counseling, parent education and individual counseling to address
family dysfunction and case issues. The court ordered monitored visitation for Father.
“Father appeared for a review hearing on April 8, 2009, and submitted on an order
limiting his right to make educational decisions for Jessica. DCFS continued to work
with the maternal aunt, Erica K., regarding potential placement of Jessica.

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 “In an interim review report, prepared on or about July 9, 2009, DCFS reported
that the foster home where Jessica had lived for nine months was being assessed as a
possible ‘adoptive home.’ A couple of weeks later, DCFS reported that five-and-a-half-
year-old Jessica was ‘saying more single words than she did prior to detainment,’ and had
‘gone to the bathroom on the toilet one time however remain[ed] in diapers.’
“In a status review report, prepared on or about August 25, 2009, DCFS reported
that Father had not contacted the social worker ‘since this case initially opened with
DCFS.’ Accordingly, DCFS provided no assessment of Father’s compliance with the
case plan. DCFS recommended that Father’s reunification services be terminated. DCFS
also reported that Jessica was having weekly monitored visits with the paternal
grandmother.
“Father appeared at a September 28, 2009 status review hearing. Father’s counsel
informed the juvenile court that Father ‘has visited with the child.’ The court declined to
terminate Father’s reunification services, finding ‘Father’s compliance [with the case
plan] has been partial -- been minimal, but he is visiting.’
“In a status review report, prepared on or about March 10, 2010, DCFS reported
that Jessica was placed in the home of a new ‘prospective adoptive parent’ on January 22,
2010. DCFS explained: ‘The family was close to the previous foster mother . . . and they
were also Jessica’s respite caretakers. Jessica is very familiar with her current caretakers
and appears to be adjusting well in the new home. Jessica has been enjoying living with
her four foster sisters and appears to be [quite] comfortable in the home. Jessica calls the
foster mother “mommy.” At Jessica’s visit in February, Jessica was very excited to show
[the social worker] her new bedroom.’
“DCFS also reported on Father’s visitation with Jessica. He and the foster mother
agreed that he would have monitored visits on Saturdays. The foster mother informed the
social worker that Father had been ‘consistent in visiting Jessica [between October and
December 2009] and they had good visits.’ At the end of December, Father stopped
visiting. DCFS learned that Father was arrested on December 23, 2009 for an
unidentified reason. Prior to that date, he had not enrolled in classes or counseling.

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 “Father appeared at a status review hearing on March 29, 2010. His counsel
informed the juvenile court that he had been recently released from custody. The court
ordered DCFS to set up a visitation schedule for Father. The court set the matter for a
contest regarding termination of Father’s reunification services, and ordered DCFS to
assess relatives, including the paternal grandmother, for potential placement of Jessica.
“In late April 2010, DCFS reported that it still did not have contact information for
Father. The paternal grandmother told the social worker that Father had moved in with
his girlfriend, but she did not have contact information for him. The foster mother
reported that Father contacted Jessica once in March, but did not provide a telephone
number where he could be reached.
“Father appeared at the contested review hearing on May 4, 2010. His counsel
informed the juvenile court that he had participated in a domestic violence program and
intended to participate in parenting classes and counseling. The juvenile court terminated
his reunification services and ordered DCFS to set up a visitation schedule for him and
his relatives.
“On or about August 27, 2010, DCFS prepared a report for the section 366.26
hearing. DCFS recommended that the juvenile court terminate Father’s parental rights
and select adoption as the appropriate permanent plan for Jessica. The foster mother still
expressed interest in adopting her. DCFS reported visits with Jessica by the paternal
grandparents, but did not report any visits by Father. In July 2010, Father informed the
social worker that he was temporarily living at his mother’s home.
“After the section 366.26 hearing was continued, DCFS prepared another report
on or about October 19, 2010. DCFS informed the juvenile court that Father had
‘maintained accessional [sic] contact with caregiver and Jessica.’ The foster mother
arranged for Father and the paternal grandparents to have visits with Jessica on Sundays.
DCFS reported that Father had visits with Jessica on July 18, August 29 and
September 12, 2010, and spoke with her on the phone on July 15, September 6 and
September 11, 2010. The foster mother stated that ‘the visits went well and Jessica
enjoy[ed] seeing her family.’ The paternal grandfather told the social worker that,

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although he did not have contact information for Father, the social worker could mail
letters to Father at the paternal grandmother’s home and the letters would be delivered to
Father. The paternal grandparents did not live together.
“On October 26, 2010, the social worker met with the paternal grandmother ‘and
completed a walk through’ of the paternal grandmother’s home. The social worker
recommended minor corrections to the home and referred the matter for a kinship home
assessment.
“The juvenile court conducted the section 366.26 hearing on October 28, 2010.
The parties stipulated that if the paternal grandmother were called to testify she would
state: (1) that she had completed a foster and kinship care training program at a
community college; (2) that she was willing to care for Jessica; (3) that she felt she was
capable of taking care of Jessica’s needs; (4) that she was willing to adopt Jessica; and
(5) that she was ‘willing to do whatever the court ask[ed] to have Jessica G[.] in her
care.’
“Father testified at the hearing. He stated that he and his family members would
travel about 63 miles on Sundays to visit Jessica at her foster home. He would set out for
his Sunday visits at about 10:00 or 11:00 a.m. He would spend the day with Jessica, and
leave for home at about 5:00 or 6:00 p.m. The visits took place at Jessica’s foster home
and at a park and restaurant near the foster home. Father’s parents attended these visits,
and occasionally one of his brothers made the trip with them.
“Father also had the opportunity to visit with Jessica closer to his own home.
When Jessica’s foster mother was visiting the mall near Father’s home, she would call
Father and allow him to visit Jessica at the mall.
“Father tried to have telephone contact with Jessica at least once a week. He was
mindful of her schedule and her early bedtime at her foster home. When he worked late,
he was unable to speak with Jessica on the phone.
“Father characterized his relationship with Jessica as ‘different’ from the
relationship she had with anyone else. He described Jessica as ‘a child trapped in a box,
that – her brain doesn’t connect with her mouth that well.’ He explained that he had

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‘always been able to understand everything she says.’ He believed that when Jessica was
with him she felt ‘like a normal kid’ because she did not need to ‘try[] as hard to
pronounce these words.’ According to Father, Jessica was ‘a little more in tune, a little
more attentive to the situation’ during their visits. Father would bring ‘learning toys and
different books’ to share with her.
“Father believed that Jessica was ‘very attached to [him].’ When they would see
each other, she appeared to feel excited and that she was special. Father explained:
‘[T]hat excitement that she has when she sees me is very -- is very tremendous, to the
point where you can notice that, in that brief moment, she’s particular in that house, not
just another member of where she’s at.’ During visits and phone calls, Jessica would
refer to Father as ‘Papa Alex’ because her foster sisters knew Father as ‘Alex.’ Jessica
would carry pictures of Father in her bag when she went to school.
“Father stated that, before Jessica’s removal, he had been the one who had taken
care of Jessica, changing her diaper, playing with her and taking on most of the parental
responsibilities.
“Although Father appreciated everything the foster mother had done for Jessica,
and believed her to be ‘a really good person,’ Father did not want the foster mother to
adopt Jessica. He wanted the juvenile court to place Jessica in his mother’s home. The
family had spent about $10,000 to remodel the home so that it would be ready for Jessica
to live there.
“During oral argument, DCFS’s and Jessica’s counsel urged the juvenile court to
terminate Father’s parental rights. Both asserted that Father’s visitation had not been as
frequent as he had testified. Jessica’s counsel also argued: ‘[Father] has just recently
entered into her life. And at this point in time, Jessica looks to the current caretaker as
her parent. And she’s there with her every day and looks to her for her everyday needs.
She has been with this caretaker for almost a year now. And she is stable with the current
caretaker, and they do have a bond, parent-child-relationship-type bond. [¶] And Jessica
does have very special needs. The caretaker is taking care of these special needs. And
she has been very willing to allow the father and the paternal relatives to visit. . . .’

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 “The juvenile court concluded that Father satisfied the parent-child exception to
termination of parental rights under section 366.26, subdivision (c)(1)(B). The court
identified legal guardianship as the permanent plan for Jessica. In making its ruling, the
juvenile court stated, in pertinent part:
“‘I was very impressed with father’s testimony. And I will tell you why. It’s very
clear that he has a deep love for his child. And that’s impressive to me because that --
there are a lot of fathers in this system and out of the system who do not step up to the
plate for their child, particularly one who has these special needs.
“‘But what came through to me, in a way that doesn’t come through in the reports,
from father’s testimony is the love his child has for him. And I’ve observed it when they
were here in court.
“‘But his testimony about the time he spends with his daughter, you know, the
efforts that he’s made to preserve this relationship -- and, frankly, I think she looks to him
as being her father. I think that’s pretty clear to me. It’s also clear to me that the -- the
caretaker would want to continue the familial relationship with father and his family.
“‘But here’s my concern is that maybe that will work out, and maybe everything
will be fine. But once I terminate parental rights, those parental rights are terminated,
and you can’t undo that. And you can’t undo that if, for some reason, this person can’t
care for Jessica.
[¶] . . . [¶]
“‘And, usually, when I’m considering all those factors, the child’s need for
stability outweighs the relationship that they have with their parent. But in this case, I
have to say I don’t think that’s -- that’s true. I think this father is very, very important to
Jessica.
[¶] . . . [¶]
“‘I think Jessica does look to that -- the caretaker as being her parent. But I also
think she looks to her father as being her dad. And he’s gone out of -- both the caretaker
and the father have gone to extraordinary circumstances to maintain this relationship.
And it is a relationship that is worth maintaining.

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 “‘And I can’t take the chance that something is going to happen to that
relationship. We can always reconsider adoption at a later point. We can never
reconsider termination of parental rights.
“‘So I just think, in this particular case -- and this is not something I very often
find -- but I think this relationship is too important to Jessica to risk it being terminated.
And I think she benefits from having father in her life.’
“Jessica’s counsel appealed. DCFS has not submitted a brief on appeal.” (In re
Jessica G., supra, B228731, pp. 2-11.)
We affirmed the order, stating in pertinent part: “We are mindful of the legislative
preference for adoption but, on this record, we will not disturb the juvenile court decision
declining to terminate parental rights. Substantial evidence demonstrates that Father
occupied a parental role in Jessica’s life and that ‘“severing the natural parent/child
relationship would deprive the child of a substantial, positive emotional attachment such
that the child would be greatly harmed.”’ [Citation.] The evidence shows that, with
Father, Jessica seemed to feel confident and understood despite her developmental
delays. He provided a place in the world where she felt special and ‘complete.’ The
juvenile court did not err in preserving this relationship.” (In re Jessica G., supra,
B228731, p. 15.)
Additional Facts in Case No. 241254 (Cesar G. v. Superior Court, supra, B241254,
pp. 5-7.)
“We issued the opinion [in Case No. B228731] on November 17, 2011, and, two
days later, on November 19, 2010, Letters of Guardianship issued to prospective adoptive
parent Aida R.
“In his November 2, 2011 Status Review Report, CSW [Children’s Social
Worker] Jorge Gomez states that Jessica meets special education criteria for Mental
Retardation and is in special education classes. She is a client of the Regional Center,
which funds an in-home behavioral program for Jessica through Counseling Solutions for
Families and Children. That program addresses the following behavioral concerns:
Jessica engages in disruptive social behaviors ‘which can occur almost daily in all

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settings’; she has ‘[p]roblems with boundary and personal space of others’; she displays
hyperactivity and ‘resistance on a daily basis in all settings when she is not able to get her
way’; at times, Jessica ‘displays aggressive social behaviors in terms of physically hitting
and biting others.’
“Jessica had a two-week visit with Father and paternal grandmother Graciela G. at
their home in mid-July 2011. The visit ended two days early, ‘because paternal
grandmother said she was very tired and had other personal activities to attend to.’
“On July 26, 2011, Father and paternal grandmother Graciela G. requested that
Jessica be returned to Father’s care. Their plan was that paternal grandmother Graciela
G., who is not employed, would watch Jessica in the mornings, while Father, who has a
part-time job, would watch Jessica in the afternoons. CSW Gomez states that he ‘knows
that father cannot drive due to suffering from epilepsy attacks which are unpredictable.
Mrs. G[., paternal grandmother,] expressed that she also has some other personal things
to attend to, and that care of the child demands too much time from every[]one in the
house. CSW stated that they can let him know what the plans are for the care of Jessica
and then it will be considered. [¶] It was the perception of CSW that Mrs. G[., paternal
grandmother,] gets too stressed taking care of Jessica and that this placement might not
last long or be in the best interest of child Jessica as permanent placement.’
“Father did not attend the April 20, 2012 Individualized Education Program (IEP)
meeting, which is conducted on a yearly basis to review Jessica’s educational needs and
to set goals for Jessica and guidance for her educators.
“In the May 2, 2012 Status Review Report, CSW Alejandro Carrillo states that
Jessica had overnight weekend visits with Father at his home every other week. She
returned to the home of Aida R. ‘in good spirits and has no behavioral problems after the
visits.’
“CSW Carrillo further reports that Jessica had eye-muscle surgery[2] at Loma
Linda Hospital on January 11, 2012. When CSW Carrillo asked Father why he did not

2 The surgery was most likely to correct Jessica’s strabismus.

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attend the surgery, Father answered ‘that he could not remember but maybe it was
because he had had a[n epileptic] seizure.’ CSW Carrillo adds: ‘Although Father has
continued to have consistent contact with Jessica and states that he would like for Jessica
to live with him and his family[,] Father has made no effort in being involved in any of
Jessica’s appointments for her medical or educational needs. On 1/11/12 Jessica had an
eye surgery, that although was not life threatening, she was still placed under general
anesthesia. Legal guardian [Aida R.] informed him nearly a month prior to the surgery
and father still failed to show up to the hospital for the surgery. Legal guardian [Aida R.]
stated that she called father and paternal grandmother the morning of the surgery to
inform them that Jessica was at the hospital and legal guardian was told by paternal
grandmother that she would not be able to make it because she had other personal errands
to complete and that she did not know where father was. Legal guardian [Aida R.] stated
that father did not see Jessica until about 3 weeks after the surgery.
“‘Jessica appears to be well adjusted to the home. She walks around the house and
interacts with the other minors in the home appropriately. She refers to legal guardian
[Aida R.] a[s] mommy. Jessica has shown CSW her room and other rooms. She knows
who sleeps in the rooms. Legal guardian [Aida R.] has continued to meet all of Jessica’s
needs, which include her medical, emotional, educational and physical needs.’
“Aida R. told CSW Carrillo that she wants to adopt Jessica and that she would
continue to allow Father to have contact with Jessica.
“At the May 2, 2012 hearing, the juvenile court set a permanency planning hearing
pursuant to section 366.3.” (Cesar G. v. Superior Court, supra, B241254, pp. 5-7.)
Father filed a writ petition, challenging the order setting the permanency planning
hearing. We denied the petition, finding the record provided prima facie evidence that
circumstances changed subsequent to the juvenile court’s October 28, 2010 order
identifying legal guardianship as the permanent plan. We cited Aida R.’s willingness to
allow Father to maintain regular visitation with Jessica, the narrowing of the possibility
that Jessica could be returned to Father’s care on a permanent basis, Father’s failure to
help prepare Jessica for her eye surgery or to visit her in the hospital after the surgery,

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and Father’s failure to attend Jessica’s IEP meeting. (Cesar G. v. Superior Court, supra,
B241254, pp. 8-10.)
Additional Facts in Current Appeal
DCFS prepared a report for the August 29, 2012 section 366.26 hearing. DCFS
stated paternal grandmother Graciela G. would pick up Jessica for overnight visits with
Father every two to three weeks. Prospective adoptive parent Aida R. told DCFS
Graciela G. “is the one who is responsible for Jessica’s care” during these visits. DCFS
reported Aida R. “is willing to have an open adoption,” but she “she does not want to be
bound [by] any legal document” regarding Father’s visitation.” Aida R. told DCFS “she
has kept the visits between the father and the child since 2010 and she is committed to
keep the same agreement.” At the time DCFS prepared this report, Mother was
incarcerated and had not had a visit with Jessica in about a year.
In the section 366.26 report, DCFS provided the following information about
eight-year-old Jessica’s medical conditions: “She suffered of [sic] convulsions until two
years ago. The child has been diagnosed with autism and behavior disorder. She is in
special education and receives speech, physical and occupational therapy. Regional
Center was providing therapy to deal with the behavior disorder. Therapy was
discontinued due to the curtailment of benefits from Regional Center. The child had a
previous surgery to correct part of the intestine. On 1/11/2012, she had surgery to correct
the crossed eyes. The legal guardian stated that perhaps the child will need another eye
surgery. Meanwhile, she needs to keep a patch on one of the eyes daily for 4 hours.”
DCFS also stated in the report that Jessica’s social worker believed adoption was
the appropriate permanent plan for Jessica because Father “is unable to care for the child.
He needs assistance with Jessica’s care due to his health condition. The paternal
grandmother is unable to commit herself to the care of Jessica and her son (the father) on
a regular basis because she has to meet her own needs.”
The continued section 366.26 hearing was scheduled for November 1, 2012. That
day, DCFS informed the juvenile court Aida R.’s home study was completed and

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approved. Aida R. lived in a five-bedroom home with her husband, three adopted
children (ages 18, 13 and 11), and an 11-month-old foster child.
In an addendum report prepared for the November 1, 2012 hearing, DCFS stated:
“Although the father continues visiting twice a month there is concern that the father
would be unable to take care of Jessica. It has been reported that the child’s father suffers
of [sic] Epilepsy. He depends on others to meet his own needs. He resides with friends
where space is limited and he works odd jobs to support himself. It has also been
reported that he is unable to drive due to seizures.”
DCFS also stated: “On 01/22/2010, Jessica was placed in the home of the
potential adoptive parents. Since the child’s placement, the bonding between the child
and the potential adoptive parents appear[s] to get stronger with time. Jessica appeared
very comfortable from the very beginning. The child is affectionate towards them and
she appears to have reached such a level of comfort in the home that she seems that she
has been in the home forever. The child regards the potential adoptive parents as her own
caregivers.” DCFS reported Mr. and Mrs. R. had been “so diligent” in meeting Jessica’s
special needs and in “providing Jessica with a safe and nurturing home where she appears
to feel safe and secure.” DCFS recommended the juvenile court terminate parental rights
and identify adoption as Jessica’s permanent plan.
At the November 1, 2012 section 366.26 hearing, the juvenile court received in
evidence DCFS’s August 29 and November 1, 2012 reports described above. DCFS did
not present any additional evidence.
Father testified on his own behalf and stated he wanted custody of Jessica. He
tried to visit her every other weekend at Graciela G.’s home, and he was consistent with
that schedule about 85 percent of the time. During these visits, Father and Graciela
usually would pick up Jessica on Friday and return her to Aida R. on Sunday. Sometimes
the visits were limited to a Saturday. Father stated he was able to visit with Jessica on
these occasions without any supervision. During winter, spring and summer vacations,
Father sometimes visited with Jessica for “maybe a week or something.”

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 Father testified Jessica called him “‘Dad.’” When others were speaking to Jessica,
they referred to Father as “‘Pappi Alex.’”
In his testimony, Father characterized Jessica’s special needs as “a light autism
and a speech impediment and some behavioral issues, which have calmed down in the
last year or two.” Father stated he took classes at “Rio Hondo” to learn how to deal with
Jessica’s special needs. Father testified those classes “tell me how to pertain with all
these problems that she has and how to deal with certain situations that might come up
with her. And they show me how to be patient and analyze the child and try to
understand what the child’s needs are, a response to their necessities at the time.” Father
stated he and Jessica have “a really good relationship so the training -- it just opens my
eyes a little bit more to certain problems she might have throughout the day, which are
just easier to fix by having that type of training.”
On cross-examination, Father testified he was Jessica’s primary caretaker during
visits, but Graciela would take care of Jessica when Father had “to go run an errand or
something like that.” Father stated Jessica “likes hanging around with” him. He
described his weekend activities with Jessica as follows: “[I]n the morning we try to
have breakfast together and then we’ll plan a day either at the park or we’ll go watch a
movie, depending on what time the movies are playing. She has a lot of educational
games as well as educational video games that we just play all day. It’s pretty much an
all-day thing.” Father cooked for Jessica. He did not help her with her schoolwork, but
there was a desk and a chalkboard in her room at Graciela’s home where Jessica drew
and did math problems. Father did not know the names of any of Jessica’s doctors, but
he believed DCFS had provided him with that information and he would have it if Jessica
needed medical assistance.
DCFS and Jessica’s counsel argued Father did not establish the parent-child
relationship exception to termination of parent rights under section 366.26, subdivision
(c)(1)(B)(i), applied, and the juvenile court should terminate parental rights. Father and
Mother argued the exception applied to the relationship between Father and Jessica.

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 The juvenile court terminated Father’s and Mother’s parental rights, finding the
exception did not apply. The court identified adoption as the appropriate permanent plan
for Jessica. Father and Mother appealed.
DISCUSSION
Father and Mother contend the juvenile court erred in terminating their parental
rights because Father established the parent-child relationship exception applied to his
relationship with Jessica. Mother does not argue the exception applies to her relationship
with Jessica. Father also argues, and Mother joins his argument, that our decision in the
first appeal (Case No. B228731), affirming the juvenile court’s order identifying legal
guardianship as Jessica’s permanent plan and preserving Father’s parental rights, is law
of the case. For the reasons discussed below, we reject Father and Mother’s arguments.
In the prior writ proceeding in this matter (Case No. 241254), we explained the
juvenile court did not abuse its discretion in setting a new section 366.26 hearing
pursuant to section 366.3 because prima facie evidence demonstrated changed
circumstances indicated adoption was the appropriate permanent plan for Jessica.
(§ 366.3, subd. (c); Cesar G. v. Superior Court, supra, B241254, pp. 7-10.)
“At a hearing under section 366.26, the court is required to select and implement a
permanent plan for a dependent child. Where there is no probability of reunification with
a parent, adoption is the preferred permanent plan.” (In re Tabatha G. (1996) 45
Cal.App.4th 1159, 1164.) When the juvenile court finds by clear and convincing
evidence that a child is likely to be adopted, the court must terminate parental rights
unless the parent opposing termination can show that one of the exceptions set forth in
section 366.26, subdivision (c)(1) applies. (Ibid.) “Because a parent’s claim to such an
exception is evaluated in light of the Legislature’s preference for adoption, it is only in
exceptional circumstances that a court will choose a permanent plan other than adoption.”
(In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
“‘The burden falls to the parent to show that the termination of parental rights
would be detrimental to the child under one of the exceptions.’” (In re C.B. (2010) 190
Cal.App.4th 102, 122.) To satisfy the burden of proving the parent-child relationship

18
exception to termination of parental rights under section 366.26, subdivision (c)(1)(B), a
parent must demonstrate that he or she has “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 second prong of this exception requires the parent to demonstrate
that his or her relationship with the child “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.)
Even frequent and loving contact between a child and a parent is not sufficient, by
itself, to establish the significant parent-child relationship required under subdivision
(c)(1)(B). (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) A “parental
relationship is necessary for the exception to apply, not merely a friendly or familiar one”
because “[i]t would make no sense to forgo adoption in order to preserve parental rights
in the absence of a real parental relationship.” (In re Jasmine D. (2000) 78 Cal.App.4th
1339, 1350.)
The juvenile “‘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.’ [Citation.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) “The factors
to be considered include: ‘(1) the age of the child, (2) the portion of the child’s life spent
in the parent’s custody, (3) the positive or negative effect of interaction between the
parent and the child, and (4) the child’s particular needs.’ [Citation.]” (In re Helen W.
(2007) 150 Cal.App.4th 71, 81.)
“Reviewing courts have applied various standards of review when considering
trial court determinations of the applicability of these statutory exceptions to termination
of parental rights. In In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, the court
observed that both the substantial evidence test and the abuse of discretion test have been
applied, and the court stated that ‘[t]he practical differences between the two standards of

19
review are not significant. “[E]valuating the factual basis for an exercise of discretion is
similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference
must be shown to the trial judge. The reviewing court should interfere only ‘“if [it]
find[s] that under all the evidence, viewed most favorably in support of the trial court’s
action, no judge could reasonably have made the order that he [or she] did.” . . .’”
[Citations.] However, the abuse of discretion standard is not only traditional for custody
determinations, but it also seems a better fit in cases like this one, especially since the
statute now requires the juvenile court to find a “compelling reason for determining that
termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)[ (B) ].) That is a
quintessentially discretionary determination. The juvenile court’s opportunity to observe
the witnesses and generally get “the feel of the case” warrants a high degree of appellate
court deference. [Citation.]’ [Citation.]” (In re Scott B., supra, 188 Cal.App.4th at
p. 469.)
As DCFS points out, in In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528, the
Court of Appeal articulated a standard of review applicable in cases in which a parent
fails to meet his or her burden of proof on the parent-child relationship exception to
termination of parental rights. There, the appellate court explained: “In the case where
the trier of fact has expressly or implicitly concluded that the party with the burden of
proof did not carry the burden and that party appeals, it is misleading to characterize the
failure-of-proof issue as whether substantial evidence supports the judgment. This
follows because such a characterization is conceptually one that allows an attack on
(1) the evidence supporting the party who had no burden of proof, and (2) the trier of
fact’s unassailable conclusion that the party with the burden did not prove one or more
elements of the case [citations]. [¶] Thus, where the issue on appeal turns on a failure of
proof at trial, the question for a reviewing court becomes whether the evidence compels a
finding in favor of the appellant as a matter of law. [Citations.]” (Id. at p. 1528.)
Under any standard of review, we will not disturb the juvenile court’s decision to
terminate parental rights because Father did not establish the parent-child relationship
exception applied to his relationship with Jessica. Father satisfied the first prong of the

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exception by showing that he had maintained regular visitation and contact with Jessica.
But he did not satisfy the second prong of the exception because he did not demonstrate
the requisite benefit to Jessica from preserving his parental rights.
At the November 1, 2012 section 366.26 hearing, Father presented evidence that
he had consistent overnight visits with Jessica. But he did not present evidence
demonstrating those visits promoted Jessica’s well-being in a manner that outweighed
the well-being she would gain through the permanence of adoption. (In re Autumn H.,
supra, 27 Cal.App.4th at p. 575.) Nor did he present evidence demonstrating Jessica
would be “‘greatly harmed’” if his parental rights were terminated. (In re Derek W.,
supra, 73 Cal.App.4th at p. 827.)3
In contrast, at the prior section 366.26 hearing on October 28, 2010, when the
juvenile court declined to terminate his parental rights, Father presented evidence of very
different circumstances. He demonstrated his interactions with Jessica at that time
caused her to relax and to feel more confident because he understood what she was
saying despite her severe speech delays. As we stated in our opinion in the prior appeal,
“He provided a place in the world where she felt special and ‘complete.’” (In re Jessica
G., supra, B228731, p. 15.) There was no evidence at the November 1, 2012 section
366.26 hearing showing that Father still occupied that role in Jessica’s life.
The evidence demonstrated Jessica felt comfortable, safe and secure in Aida R.’s
home, where she had been living for more than two and a half years. As DCFS stated in
a report for the November 1, 2012 hearing, Jessica “appears to have reached such a level
of comfort in [Aida R.’s] home that she seems that she has been in the home forever.”
There was no evidence indicating Jessica’s relationship with Father was particularly
important for her well-being.

3 We have no reason to believe Aida R. will discontinue Father’s visits if and when she
adopts Jessica, but we do not rely on that factor in affirming the termination of parental
rights because Aida has expressed her unwillingness to enter into a contract regarding
Father’s visitation.

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 Father presented evidence demonstrating he took care of Jessica’s basic needs
during visits. But he did not get involved with her medical or educational needs. He
demonstrated he provided frequent and loving contact, but that is not enough to preserve
parental rights. (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) He did not
show he occupied a parental role in Jessica’s life or still promoted her well-being in some
substantial way (as he was shown to have done at the time of the October 28, 2010
hearing).
We reject Father’s argument the doctrine of law of the case prevented termination
of parental rights. This position does not allow for the fluid nature of these situations. In
the prior appeal in this matter (Case No. B228731), we did not state any rule of law
which would prevent termination of parental rights. “The law of the case doctrine states
that when, in deciding an appeal, an appellate court ‘states in its opinion a principle or
rule of law necessary to the decision, that principle or rule becomes the law of the case
and must be adhered to throughout its subsequent progress, both in the lower court and
upon subsequent appeal . . . , and this although in its subsequent consideration this court
may be clearly of the opinion that the former decision is erroneous in that particular.’
[Citations.]” (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.) In the prior appeal, we
affirmed the juvenile court’s preservation of parental rights based on substantial evidence
in the record. Now, we affirm the juvenile court’s termination of parental rights based on
substantial evidence of different circumstances.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.

CHANEY, J.
We concur:

MALLANO, P. J. JOHNSON, J.

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