Filed 8/25/26 In re E.M.-H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.M.-H. et al., Persons Coming
Under the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E087843
Plaintiff and Respondent, (Super. Ct. Nos. J298661, J298662)
v. OPINION
D.M.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michelle Lauron,
Judge. Reversed and remanded with directions.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant
and Appellant.
Laura Feingold, County Counsel, and David R. Guardado, Deputy County
Counsel, for Plaintiff and Respondent.
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I.
INTRODUCTION
D.M. (Father) appeals the juvenile court’s order terminating his parental rights to
his minor children, E.M.-H. and E.H., after a contested hearing under Welfare and
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Institutions Code section 366.26. Father contends the juvenile court prejudicially erred
by, among other things, refusing to allow him to testify at the hearing. The San
Bernardino County Children and Family Services (CFS) concedes the error. CFS thus
agrees with Father that the order terminating parental rights should be reversed and the
matter remanded for another contested section 366.26 hearing during which Father may
testify. We agree with the parties and accordingly reverse and remand.
II.
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FACTUAL AND PROCEDURAL BACKGROUND
In November 2023, the juvenile court ordered the children removed from Father’s
care and granted him reunification services. Over the next six months, Father had
consistent supervised visits with the children, which went well. Father also actively
participated in reunification services and made progress in his case plan.
The juvenile court nonetheless terminated reunification services for Father in May
2024 because Father had not made sufficient progress and continued using
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All further statutory references are to the Welfare and Institutions Code.
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We need provide only a brief recitation of the facts and procedural background
to resolve this appeal.
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methamphetamine. The court therefore set the matter for a section 366.26 hearing to
determine a permanent plan for the children. The court also ordered continued
supervised visitation for Father, but reduced it to two hours per week. Father continued
to regularly visit the children in the following months, with no noted concerns.
In early November 2024, Father filed a section 388 petition seeking reunification
services and increased visitation. The court granted the petition, reinstated Father’s
reunification services, and increased his visitation with the children to twice weekly for
two hours, but ordered the visits to remain supervised. }
In May 2025, CFS reported that Father continued to consistently visit the children
and there were no concerns. The children, however, were “distraught” when the visits
ended. Shortly thereafter, the juvenile court ordered that Father be allowed unsupervised
visits with the children.
In August 2025, however, the juvenile court found that Father had not made
substantial progress in his services. The court therefore again terminated his reunification
services and set the matter for a section 366.26 hearing while granting him unsupervised
visits.
In December 2025, CFS reported that Father had consistent unsupervised visits
with the children, but he “typically arrive[d] late” or ended the visits early.
Around the same time, Father filed another section 388 petition seeking custody of
the children or, at a minimum, the opportunity to testify at an evidentiary hearing on the
petition about the quality of his visits with the children. CFS opposed the petition. The
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court set the matter for a hearing on the same day as the contested section 366.26 hearing.
The court’s order setting the hearing indicated that Father would testify at the hearing.
That hearing occurred in February 2026. The court first addressed Father’s section
388 petition. Father, who was present at the hearing, argued (through counsel) that he
should be granted custody. The juvenile court denied the petition, finding that Father was
not “ready to take care of the children at home.”
The court then began the contested section 366.26 hearing. At the outset, Father’s
counsel asked that Father “be able to testify, so the Court can have a much clearer idea of
the relationship between himself and his children.” The court replied that “this is what
today was for . . . . Today was for testimony.”
The court then noted that the parties said earlier in the hearing that they “wanted to
proceed by argument only,” without any witness testimony. But because Father’s counsel
had apparently changed her mind and now wanted Father to testify, the parties and the
juvenile court engaged in a back-and-forth about whether Father should be permitted to
testify.
The juvenile court noted that the contested section 366.26 hearing “is the time for
the testimony.” After some discussion with the court, Father’s counsel stated that Father
was present in the courtroom and that they needed “a few minutes to prep” for his
testimony. The juvenile court replied, “you can do that and go by way of his testimony
today.” The court explained that it would “allow [Father’s counsel] to call the father to
the stand today. We’ll take his testimony today.”
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Not long after this, however, the juvenile court changed course. CFS objected to
Father testifying, claiming that Father’s counsel represented on the day before and the
morning of the hearing that she wanted to proceed “by short cause argument, meaning
there would be no testimony by anyone.” In CFS’s view, Father’s counsel apparently
changed her mind after the court denied the section 388 petition.
The juvenile court explained that it was “under the impression” that “everybody”
agreed the hearing would be “by argument” only. The court thus asked Father’s counsel
why she had changed her mind from about an hour prior and now wanted Father to
testify. Counsel responded that it was due to “confidentiality issues” with Father that she
could not discuss.
The juvenile court then explained that it appeared Father’s counsel initially made a
“calculated decision” to proceed without Father’s testimony. The court reiterated that it
did not know what could have changed Father’s counsel’s “strategic decision” other than
she “saw that it was not going [her] way” when the court denied the section 388 petition.
Because “the parties decided to go forward with this case by argument” at the outset of
the hearing, the court directed Father’s counsel to proceed “by argument” only. Father
therefore did not testify at the contested section 366.26 hearing.
After hearing only argument from counsel, the juvenile court terminated Father’s
parental rights to the children and freed them for adoption. In doing so, the court found
that the beneficial parental relationship exception did not apply (§ 366.26, subd.
(c)(1)(B)(i)). The court reasoned that, although Father satisfied the first prong of the
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exception (regular visitation and contact with the children), he did not satisfy the third
prong (terminating parental rights would be detrimental to the children). Father timely
appealed.
III.
DISCUSSION
Father contends, CFS concedes, and we agree that the juvenile court erred by
refusing to let him testify at the contested section 366.26 hearing. We further agree with
the parties that the appropriate remedy is to reverse the order terminating parental rights
and remand for a further contested section 366.26 hearing where Father may testify. This
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moots Father’s two remaining claims of error.
At a section 366.26 hearing, “if the court finds by clear and convincing evidence
that a minor is likely to be adopted, the court must terminate parental rights and order the
minor placed for adoption ‘unless the court finds a compelling reason for determining
that termination would be detrimental’ due to one of the statutorily enumerated
exceptions to adoption.” (In re Daisy D. (2006) 144 Cal.App.4th 287, 291.) Under the
beneficial parental relationship exception, the parent bears the burden of proving three
elements by a preponderance of the evidence: “(1) regular visitation and contact, and (2)
a relationship, the continuation of which would benefit the child such that (3) the
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Father argues the juvenile court also erred by (1) denying his request for a
continuance of the section 366.26 so that he could obtain a forthcoming bonding study
and (2) finding that the beneficial parental exception did not apply. Father may revisit
these issues on remand.
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termination of parental rights would be detrimental to the child.” (In re Caden C. (2021)
11 Cal.5th 614, 631, 636.)
A parent has a right to due process at a contested section 366.26 hearing, which
includes a “meaningful opportunity to be heard, present evidence, and confront
witnesses.” (In re Grace P. (2017) 8 Cal.App.5th 605, 612 (Grace P.).) The right to
present evidence, however, “‘is limited to relevant evidence of significant probative value
to the issue before the court.’” (In re A.G. (2020) 58 Cal.App.5th 973, 999.)
We agree with CFS that Grace P. is instructive here, though not entirely on point.
There, the father sought a contested section 366.26 hearing to show that the beneficial
parental relationship exception applied. (Grace P., supra, 8 Cal.App.5th at p. 610.) As
an offer of proof, the father offered his testimony as to the positive nature of his visits
with his children, how well he parented them, and how they thought of him as their
father. (Ibid.) He also offered the testimony of the oldest child (the only one old enough
to testify), who would testify that she enjoyed visits with her father, wanted them to
continue, and would be sad if they ended. (Ibid.) The juvenile court found the father’s
offer of proof was insufficient and denied him a contested section 366.26 hearing, and
terminated his parental rights based on the social services agency’s evidence. (Grace P.,
supra, at p. 610.)
The Court of Appeal reversed. (Grace P., supra, 58 Cal.App.5th at p. 609.) The
court noted that there was no dispute that the father satisfied the first prong of the
beneficial parental relationship exception since he consistently visited the children every
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week. (Id. at p. 613.) And because he satisfied the first prong, “his proffered evidence
was consequential to and probative of the issue of his relationship with the children and
the detriment they would suffer by its severance” (i.e., the second and third prongs of the
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exception). (Id. at p. 614.) The court thus held he had a right to a contested hearing,
where he would have “the opportunity to make his . . . best case” that the exception
applied. (Id. at p. 615.) The court therefore reversed and remanded for the juvenile court
to hold a contested section 366.26 hearing “and determine, in the context of all of the
evidence before it,” whether the father established the beneficial parental relationship
exception applied. (Grace P., supra, at p. 609.)
Grace P. thus shows that when, as here, a parent satisfies the first prong of the
beneficial parental relationship exception, the parent’s “testimony regarding the quality of
their parent-child relationship and possible resulting detriment that would be caused by
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its termination” should be considered, subject to the usual rules of evidence. (Grace P.,
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The Grace P. court used a two-prong test that asks (1) “whether there has been
regular visitation and contact between the parent and child” and (2) “whether there is a
sufficiently strong bond between the parent and child that the child would suffer
detriment from its termination.” (Grace P., supra, 8 Cal.App.5th at p. 612.) Our
Supreme Court later clarified that the right test is three-pronged, but the distinction does
not matter here. (In re Caden C., supra, 11 Cal.5th at p. 631.)
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We note that, although parents have a due process right to introduce evidence at
a contested section 366.26 hearing, “[d]ue process is ‘a flexible concept dependent on the
circumstances,’” the rules of evidence apply at the hearing, and the juvenile court retains
discretion to limit the introduction of evidence at the hearing. (Grace P., supra, 8
Cal.App.5th at pp. 612, 615.) Here, however, CFS does not suggest that the juvenile
court properly exercised its evidentiary discretion in excluding Father’s testimony.
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supra, 8 Cal.App.5th at p. 609.) Here, however, the juvenile court refused to consider
that kind of testimony from Father (after initially allowing it) because the parties agreed
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before the contested section 366.26 hearing that they would present argument only. CFS
concedes, and we agree, that the juvenile court erred in doing so, because Father’s offered
testimony had significant probative value as to the second and third prongs of the
beneficial parental relationship exception.
CFS likewise concedes the error was prejudicial and that a remand is warranted to
afford Father an opportunity to testify at a further contested section 366.26 hearing. We
agree. (See In re A.G., supra, 58 Cal.App.5th at p. 1016 [appellate court could not find
error in denying contested hearing was harmless in part because it was indeterminable
from the record what impact the parent’s testimony would have had on juvenile court’s
analysis of beneficial parental relationship exception factors]; see also Grace P., supra, 8
Cal.App.5th at p. 615 [same].) We therefore reverse and remand.
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Father contends that this agreement to proceed with argument is “nowhere in the
record” and “simply did not happen, at least not in any on-the-record capacity.” But the
juvenile court asked the parties if the court correctly understood the parties’
“representation [at the beginning of the hearing] was that we were going by argument
only,” and Father’s counsel replied, “Yes.” CFS agreed as well, and thus objected to
allowing Father’s testimony given the parties’ agreement.
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IV.
DISPOSITION
The juvenile court’s order terminating Father’s parental rights to the children is
reversed. The matter is remanded to the juvenile court with directions to hold a further
contested section 366.26 hearing during which Father is allowed to testify.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
FIELDS
J.
MENETREZ
J.
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