Filed 6/30/26 In re A.E. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re A.E. et al., Persons Coming
Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G066427
Plaintiff and Respondent,
(Super. Ct. Nos. 22DP0785A,
v. 22DP0786A)
S.E., OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Adrianne E. Marshack, Judge. Affirmed.
Cynthia L. Loo, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, Debbie Torrez and Deborah B.
Morse, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
* * *
S.E. (the mother) appeals from an order terminating parental
rights over her two daughters1 following a hearing pursuant to Welfare and
Institutions Code section 366.262 (the permanency planning hearing). The
mother’s sole argument on appeal is that the juvenile court erred by declining
to apply the parental benefit exception. (§ 366.26, subd. (c)(1)(B)(i).) The
mother contends she demonstrated a positive and substantial emotional
attachment between her and the children and the parental benefit exception
should have been applied. We find no error and affirm the order.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
While we have reviewed the entire record, we omit facts not
necessary to decide the limited issue in this appeal in the interests of brevity.
The older daughter was born prematurely in 2020 with numerous
serious medical and developmental conditions. She was seen by various
medical specialists. She also participated in physical, occupational, and
feeding therapy.
In 2022, the children were detained from both parents after the
younger daughter, age 10 months at the time, ingested the father’s fentanyl.
The court found it had jurisdiction under section 300. The mother was
reunited with the children with family maintenance services and dependency
was terminated in 2023.
1 Due to the difficulty of abbreviating the names of the children in this
particular case in a manner consistent with protective nondisclosure, we refer
to the children individually as the older daughter or child and the younger
daughter or child.
2 Subsequent statutory references are to the Welfare and Institutions
Code.
2
As to the instant case, a welfare check was completed at the
mother’s home in June 2024. The residence was dirty and lacked sufficient
food. The mother was unemployed and receiving CalFresh benefits. During
the welfare check, the mother appeared to be under the influence. She
initially stated she used methamphetamine the day prior, and later claimed
she took a bar of Xanax the previous day. The children were detained.
As of the time of detention, the older daughter had diagnoses of
cerebral palsy, hydrocephaly and brain bleeds. She was fed through a G-tube
and used a wheelchair. She had braces for her legs and a shunt. She was
nonverbal and communicated by making sounds and using gestures. She
could not sit or stand on her own. She required full assistance to complete
daily living activities.
The Orange County Social Services Agency (SSA) filed a
dependency petition alleging the children came within section 300,
subdivisions (b)(1) (failure to protect) and (g) (no provision for support). The
children were detained at the detention hearing. The older daughter was
initially hospitalized and then placed with a medical placement caregiver,
Denise B. The younger daughter was placed with the paternal grandmother.
The mother was given a minimum of eight hours of monitored visitation.
Following the June detention hearing, with respect to the
younger daughter, the paternal grandmother reported the mother visited the
child, during which the mother actively engaged with her.
As to the older daughter, Denise B., the caregiver, reported the
mother would change the child’s diaper, exercise with her, and conduct
related therapies. The mother missed several visits in early August,
reporting that she had been hospitalized, but she did not respond to the social
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worker’s efforts to contact her and determine the reason for her
hospitalization.
The paternal grandmother began training as a medical caregiver
so the two children could be placed together. The older daughter’s medical
regimen included 17 doses of medication daily. A medical caregiver required
training on “operating a G-tube pump, nebulizer, CPAP, suction machine,
and handling seizure emergencies.”
Denise B. reported the mother was actively involved in the older
child’s medical care, attending appointments and engaging in activities. The
caregiver sought the mother’s participation in a sleep study for the older
child, but the mother could not be reached.
The mother’s progress on reunification services was spotty. She
missed all her drug tests and did not enroll in any services except psychiatric
care, where she received medication.
At the jurisdiction/disposition hearing in September, the court
found the allegations in the petition true. Services were ordered for the
mother.
In November, the older child was moved from the medical
caregiver’s care to the home of the paternal grandmother.
During this period, the mother’s compliance with her case plan
was minimal. She had not completed any elements of her case plan and had
not started numerous services, including drug testing, prior to January 2025.
As to visits, the mother had “been inconsistently visiting with the
children and failing to show up to visits after confirming her attendance.”
The paternal grandmother described the mother’s visits as sporadic. The
mother had failed to visit consistently for as long as three weeks at a time.
The mother’s visits became more consistent starting in January 2025.
4
Additionally, the mother attended the children’s medical visits
inconsistently. She had also failed to make herself available to participate in
the older child’s Individualized Education Program process, and that process
was halted in December.
The mother reported a drug relapse in August 2024 and that she
drank alcohol in October 2024. The paternal grandmother indicated her
willingness to provide permanency to the children through adoption or legal
guardianship if reunification failed.
SSA’s recommendation at the six-month review stage was to
terminate services and schedule a permanency planning hearing. At the April
2025 hearing, the court terminated reunification services and scheduled a
permanency planning hearing, but the court authorized conditional limited
funding for the mother’s services until the hearing.
In May 2025, SSA initially recommended guardianship as the
permanent plan. In July, the agency changed its recommendation to
termination of rights and adoption.
From September through December 2025, the mother was
visiting consistently and appropriately. No problems were raised during
visits, although the caregiver expressed doubts to the social worker that the
mother was “not completely sober” based on social media photographs. The
younger child was “a little sad” at the end of visits. The mother did not attend
doctor’s appointments.
On December 26, 2025, the mother was arrested for second
degree robbery, inflicting injury on an elder adult, and two counts of battery.
While the mother had been participating in services, this came to a halt upon
her arrest. The children, meanwhile, were doing well with the paternal
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grandmother and had a strong bond with her, as well as with a paternal aunt
who resided with the grandmother.
At the continued permanency planning hearing in January 2026,
the mother testified that her visitation was inconsistent after the detention
hearing because the paternal grandmother did not allow it.3 Thereafter, from
September 2024 to June 2025, she “was going through some things,”
including depression, that caused her to miss several weeks of visits. She
testified she visited consistently starting in June 2025. The mother testified
the children were happy to see her and she attended to their needs, including
her older daughter’s special needs. Her younger daughter would sometimes
be sad when the visits were over.
At the conclusion of the hearing, the court found the children
generally and specifically adoptable. With regard to the parental benefit
exception, the court found visitation was sporadic and inconsistent for the
first 14 months of the case, only improving in the last six months.
Accordingly, the court found the mother failed to demonstrate the first
requirement for the parental benefit exception to apply.
Although unnecessary, the court also analyzed the remaining
factors. With respect to a substantial positive emotional attachment, the
court found no evidence was presented—other than the younger daughter
calling the mother “mom”—that the relationship was more than that of a
favored playmate. It did not rise to the level of a substantial bond. The court
also found the lack of the mother’s participation in the children’s medical
appointments, especially the older child, was significant.
3 No other evidence was introduced to support this contention.
6
As to the final prong, detriment to the child, showing that the
child would derive some benefit from continuing the relationship was not
sufficient. The court found no evidence that either child demonstrated
significant distress at the end of visits. While it was possible that if visits
were discontinued, the children would experience some sadness, it was
insufficient to justify withholding the security and stability of an adoptive
home. Accordingly, the court found the parental benefit exception did not
apply and ordered parental rights terminated and the children placed for
adoption.
DISCUSSION
I.
THE PARENTAL BENEFIT EXCEPTION
A. Statutory Framework and Standard of Review
“If the court cannot safely return a dependent child to a parent’s
custody within statutory time limits, the court must set a hearing under
section 366.26.” (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) The
purpose of the section 366.26 hearing is to select a permanent plan for the
child. (Id. at pp. 630–631.) Section 366.26 lists permanent plans in order of
preference, and adoption is the preferred permanent plan. (§ 366.26, subd.
(b)(1); In re Edward R. (1993) 12 Cal.App.4th 116, 121–122.) The court must
first find by clear and convincing evidence that the child is likely to be
adopted. (§ 366.26, subd. (c)(1).) If the court does so, and services have
already been terminated, the court then terminates parental rights to permit
adoption. (Caden C., at pp. 630–631.)
The exception to this rule is if the parent shows that one of
several statutory provisions applies. (§ 366.26, subds. (c)(1)(B)(i)–
(vi),(c)(4)(A).) “[I]f the parent shows that termination would be detrimental to
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the child for at least one specifically enumerated reason, the court should
decline to terminate parental rights and select another permanent plan.”
(Caden C., supra, 11 Cal.5th at pp. 630–631.) The parent bears the burden of
establishing the exception applies. (In re Beatrice M. (1994) 29 Cal.App.4th
1411, 1418–1419 (Beatrice M.).)
One of these is the parental benefit exception. “From the statute,
we readily discern three elements the parent must prove to establish the
exception: (1) regular visitation and contact, and (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.” (Caden C., supra, 11
Cal.5th at pp. 631–632.) This is a high standard to meet on appeal. The
beneficial relationship exception to the termination of parental rights “may
be the most unsuccessfully litigated issue in the history of law.” (In re Eileen
A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds by
In re Zeth S. (2003) 31 Cal.4th 396, 413–414.)
The first two elements of the court’s analysis are reviewed for
substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639–640.) “[W]e
presume in favor of the order, considering the evidence in the light most
favorable to the prevailing party, giving the prevailing party the benefit of
every reasonable inference and resolving all conflicts in support of the order.”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
“In reviewing factual determinations for substantial evidence, a
reviewing court should ‘not reweigh the evidence, evaluate the credibility of
witnesses, or resolve evidentiary conflicts.’” (Caden C., supra, 11 Cal.5th at p.
640; In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) “The [court’s]
determinations should ‘be upheld if . . . supported by substantial evidence,
even though substantial evidence to the contrary also exists and the trial
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court might have reached a different result had it believed other evidence.’”
(Caden C., at p. 640.)
The final step, determining whether termination of parental
rights would be detrimental to the child, is reviewed for abuse of discretion.
(Caden C., supra, 11 Cal.5th at p. 641.) “Review for abuse of discretion is
subtly different [than substantial evidence review], focused not primarily on
the evidence but the application of a legal standard. A court abuses its
discretion only when ‘“‘the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd
determination.’”’” (Ibid.) “[T]he practical difference between the standards is
not likely to be very pronounced.” (Ibid.) “At its core, the hybrid standard . . .
simply embodies the principle that ‘[t]he statutory scheme does not authorize
a reviewing court to substitute its own judgment as to what is in the child’s
best interests for the trial court’s determination in that regard, reached
pursuant to the statutory scheme’s comprehensive and controlling
provisions.’” (Ibid.)
B. Visitation and Contact
As noted above, the first element of the parental benefit
exception requires regular visitation and contact. (Caden C., supra, 11
Cal.5th at pp. 631–632; Beatrice M., supra, 29 Cal.App.4th at pp. 1418–1419.)
This element “is straightforward. The question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court orders.’”
(Caden C., supra, 11 Cal.5th at p. 632.) While perfection is not required,
“significant lapses in visits” will “fatally undermine any attempt to find the
beneficial parental relationship exception.” (In re I.R. (2014) 226 Cal.App.4th
201, 212.)
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The children were detained in June 2024. In September 2024, the
court ordered eight hours per week of supervised visitation. The mother was
asked if she agreed with the social worker’s report that between September
2024 and January 2025 she was visiting the children sporadically. She asked
for a definition of sporadically, which was given as “not consistently.” The
mother agreed she had not visited consistently. The mother’s visits became
more consistent starting in January 2025. Those visits stopped once the
mother was arrested, as she remained in custody as of January 2026 and the
court continued the permanency planning hearing.
The mother also contends there was not an overall showing of
significant lapses or gaps in visitation, but we disagree. She cites her own
testimony denying that she ever missed visits for more than a month, but
that is not the legal standard. There was substantial evidence, including her
own testimony, that for the first six months of dependency, the mother’s
visits were inconsistent, and mother did not take full advantage of visitation
as permitted by court orders. (In re Eli B. (2022) 73 Cal.App.5th 1061, 1070.)
While the mother contends that SSA did not argue her missed visitation was
grounds for terminating parental rights, she misses the mark. The burden is
on her to establish the elements of the parental benefit exception exist.
(Beatrice M., supra, 29 Cal.App.4th at pp. 1418–1419.) The mother’s citation
to In re D.M. (2021) 71 Cal.App.5th 261, is also inapposite. In that case,
visitation was not an issue as the lower court had determined it was “fairly
consistent.” There was no analysis of this element—the court merely noted
the lower court’s finding was supported by substantial evidence. (Id. at
p. 270.)
Unlike In re D.M., supra, 71 Cal.App.5th 261, the mother’s visits
here were not fairly consistent. Visitation was inconsistent for the first six
10
months of dependency. This long period of inconsistency is a “significant
lapse[]” that is fatal to her claim. (In re I.R., supra, 226 Cal.App.4th at p.
212.)
Because we find the mother has failed to establish there was not
substantial evidence to support the court’s finding as to the first element of
the exception, we need not proceed to the remaining elements. Were we to do
so, however, we would find substantial evidence to support the second
element and no abuse of discretion as to the third element.
DISPOSITION
The juvenile court’s order is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
DELANEY, J.
GOODING, J.
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