Filed 7/30/14 In re N.G. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

In re N.G., a Person Coming Under the                                H040737
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. JD21466)
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,

         Plaintiff and Respondent,

         v.

N.G.,

         Defendant and Appellant.


         The Santa Clara County Department of Family and Children’s Services
(Department) brought dependency proceedings on behalf of N.G. under Welfare and
Institutions Code section 300.1 Her father, whose initials are also N.G., (father) appeals
from the juvenile court’s order terminating his parental rights following a section 366.26
hearing. (See § 395.) He claims that the juvenile court erred in finding that the
beneficial parent-child relationship exception to termination of parental rights did not
apply. Father also asserts that social worker’s failure to facilitate visits between
one-year-old N.G. and him while he was incarcerated in the county jail deprived him of
due process.

1
      All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
       We affirm the juvenile court’s order terminating parental rights.
                                                I
                               Procedural and Factual History
A. Background
       On October 10, 2012, a juvenile dependency petition was filed on behalf of
seven-month-old N.G. under section 300, subdivisions (b) (failure to protect), (c) (serious
emotional damage), and (j) (abuse of sibling). On October 12, 2012, a first amended
dependency petition was filed on N.G.’s behalf under section 300, subdivisions (b)
(failure to protect) and (g) (no provision for support).
       On November 6, 2012, a second amended petition was filed under section 300,
subdivisions (b) (failure to protect) and (g) (no provision for support). It alleged the
following facts. N.G. and an older half-sibling, M.G., (the children) had been taken into
protective custody pursuant to a warrant on October 10, 2012, because they “were at
significant risk of harm in the care of their mother . . . and [N.G.’s] father . . . due to the
parents’ substance abuse, ongoing domestic violence, and criminal history and the
mother’s inability to provide appropriate care.” On multiple occasions, the children were
“exposed to intimate partner violence between the mother and [N.G.’s father] and
[between] the mother and her previous partners . . . .” That violence included “physical
altercations, screaming at each other, and using foul language.” “The children’s ongoing
and repeated exposure to intimate partner violence places them at substantial risk of
serious physical harm and emotional damage in the care of the mother and [N.G.’s
father].” “[T]he mother has a substance abuse problem which negatively impacts her
ability to parent her children. The mother began using methamphetamines approximately
2 ½ years ago, on a daily basis, including while caring for and/or pregnant with the
children. The mother has been unable to secure stable housing and has been unable to
separate herself from her violent relationship with [N.G.’s father] and his extended


                                                2
family. The mother’s untreated substance abuse problem places the children at risk of
harm in her care.” Despite mother’s participation in family reunification services and
family maintenance services in a prior dependency case brought on behalf of M.G.,
“mother continues to expose the children to violence and substance abuse.”
       The second amended petition also alleged the following. Approximately three
months before the petition was filed, “the mother left both of the children in the care of
[N.G.’s father], who has a history of violence and substance abuse, because she was
homeless and had nowhere to go.” Father is residing with N.G.’s paternal grandmother
and paternal aunt, who “have refused to allow the mother into their home to see her
children” and, “[a]s a result, the mother breaks into the home in the middle of the night,
approximately 4 times a week” “to see [N.G.’s father] and her children.” “The mother
and the paternal aunt engage in physical and verbal altercations when the mother shows
up at their residence, and the children are exposed to and aware of this violence.”
       The petition further alleged that father has “a substance abuse problem which
negatively impacts his ability to parent [N.G.]” and father’s “untreated substance abuse
problem places [N.G.] at risk of harm in his care.” It stated that father has a criminal
history and listed multiple convictions, including many drug-related offenses. It alleged
that his “drug-related criminal activity places [N.G.] at risk of harm in his care.”
       On January 25, 2013, the court held a contested jurisdiction and disposition
hearing. The court admitted into evidence the “Jurisdiction/Disposition Report,” dated
November 9, 2012, the “First Addendum Report,” dated November 30, 2012, and the
“Second Addendum Report,” dated December 14, 2012. It found the allegations of the
second amended petition true as alleged.
       The juvenile court ordered N.G. to continue under the Department’s care, custody
and control for out-of-home placement with an extended family member. It ordered
family reunifications services for N.G. and her parents. The services for father included,


                                              3
but were not limited to, submitting to random testing at least once a week, obtaining a
substance abuse assessment and complying with the drug treatment programs
recommended by the assessment, and completing a substance abuse parenting class, a
12-step or approved substance abuse self-help program, and a 52-week batterers’
intervention program. The court also ordered supervised visitation at least once a week
for each parent. It gave the social worker discretion to select the location and the
supervisor of the visits.
       The Interim Review Report, dated March 22, 2013, reported that father had been
“visiting on a consistent basis, except for one occasion when he arrived late and the visit
was cancelled.” The social worker found that father’s interactions with N.G. to be
appropriate during an observed visit on March 7, 2013. Father thought he should not
have to complete a 52-week batterers’ intervention program because he did not have an
issue with domestic violence. He had not yet obtained a substance abuse assessment or
begun substance abuse testing.
       The “Status Review Report,” dated July 26, 2013, for the six-month review
hearing recommended that the court terminate the family reunification services. Father
had made no effort to drug test. He had attended a drug intervention group most recently
on March 6, 2013, but he had not provided any documentation of his continued
attendance since that date. The report indicated that, although father had been given the
contact information, father had not obtained a substance abuse assessment. Father had
not engaged in the majority of his case plan services. As to supervised visitation between
father and N.G., the Department’s case aide told the social worker that there had been no
concerns during visits. Father had missed a visit on May 13, 2013, but he had not called
to cancel.
       An addendum report, dated September 20, 2013, reiterated the Department’s
recommendation that the court terminate family reunification services. Since July 26,


                                             4
2013, father had drug tested on only one date, July 30, 2013. Father had returned to a
men’s drug intervention group as of July 10, 2013, but the social worker had not received
documentation that father had continued participating in the group after that date. It was
noted that “father, for the most part, plays with and engages his daughter during visits.”
       On September 20, 2013, the court held a trial management conference.
       In an addendum report, dated October 11, 2013, the Department made the same
recommendation regarding termination of family reunification services. Father had “not
called in to test or tested at all since the date of the last Court hearing” on September 20,
2013. Father had stopped attending the men’s drug intervention group. Father had
missed two supervised visits with his daughter, N.G., because of his criminal court case.
Father had been convicted of three misdemeanors: (1) violation of Vehicle Code
section 14601.1, subdivision (a) (driving with a suspended license); (2) violation of Penal
Code section 148, subdivision (a)(1) (resisting or obstructing a peace officer);
(3) violation of Vehicle Code section 2800.2, subdivision (a) (driving in willful or
wanton disregard of safety while fleeing a peace officer). He had been sentenced to serve
180 days in county jail.
       On October 11, 2013, after the contested six-month review hearing, the juvenile
court terminated family reunification services. It ordered a selection and implementation
hearing pursuant to section 366.26 hearing. The court ordered supervised visitation to
continue at least once a week for mother and for father. It again conferred discretion
upon the social worker to select the location and supervisor of the visits.
       On February 14, 2014, the juvenile court held a contested section 366.26 hearing.
B. Contested Section 366.26 Hearing
       The juvenile court reviewed and admitted into evidence the section 366.26 report,
dated January 17, 2014.




                                              5
       In the report, social worker Tania Carbajal recommended that the court terminate
parental rights and select a permanent plan of adoption for N.G., who was almost two
years old, and M.G. Following his recent release from custody, father had begun visiting
N.G. again. The prospective adoptive parent had indicated her willingness “to supervise
visits for the parents in the future” provided the parents “had made some efforts regarding
substance abuse treatment.” Carbajal stated in the report that it “appears that the mother
and the fathers continue to struggle with the issues that have brought this family to the
Court’s attention.”
       Carbajal, who was recognized as an expert in permanency planning for dependent
children by the court, testified at the hearing. She had reviewed the visitation service
logs. During father’s visits with N.G., father and N.G. were affectionate with each other.
N.G. “chatter[ed]” and had conversations with father. N.G. normally ran up to father
when she saw him. She sometimes called father “daddy” when she saw him. N.G. had
not appeared hesitant around father and she played with him. Father had gotten down on
the floor to play with her. N.G. had sought out father’s attention during visits and
brought toys to him for their play. Some of their play was educational. Father had
changed her diapers.
       Carbajal testified that, for the most part, father had regularly visited with N.G.
Although father had no visits with N.G. while he was in custody, he requested visitation
when he was released in January 2014 and visits recommenced. Father had failed to
show up for approximately four visits without calling to reschedule, including a visit
scheduled for January 31, 2014.
       In Carbajal’s opinion, father had appropriately interacted with N.G. during visits.
Father testified that he wanted to keep seeing N.G.




                                              6
       Father had not, however, progressed beyond supervised visits with N.G. because
he made insufficient efforts to address the issues that brought the case to the court’s
attention. When father visits with N.G., a case aide and visitation monitor is in the room.
       Carbajal acknowledged that N.G. was a playful child. If she was with someone
she knew and there were toys, N.G. played and chatted with the person and played with
the toys. She was affectionate with her brother and extended family. N.G.’s relationship
with father was playful. The degree of playfulness between N.G. and father was about
the same as between N.G. and her cousins or her brother.
       Carbajal testified that N.G. does not really have a parent-child relationship with
father. She knows him, refers to him as “daddy” when she sees him, and appears to enjoy
his visits but father had not provided for her care since she was removed from parental
custody and N.G. looks to her current caregiver to meet all her daily wants and needs. In
her opinion, based on N.G.’s age and the length of time out of her father’s care, it was
more important for N.G. to have a permanent home than to have an ongoing relationship
with father. In addition, the benefits of a permanent, stable home outweighed the benefits
of N.G.’s relationship with father.
       It was Carbajal’s assessment that N.G. would not suffer detriment or serious harm
to her emotional wellbeing if father’s parental rights were terminated. N.G. was very
bonded to her current caregiver. Given her age and her bond to the caregiver, N.G.
would be able to overcome any loss resulting from termination of contact with father.
       Father testified he saw N.G. every week. N.G. called him “pa” or “daddy.” He
believed that his daughter benefitted from seeing him and, on visitation days, she was at
the door waiting for him. They talked during visits. But he had not been allowed to go to
her doctor’s appointments and he had not been invited to participate in her education. He
loved N.G. very much. He wanted to continue seeing her.




                                              7
       Father acknowledged that he had gone into custody on November 20, 2013 and he
restarted visits around the first week of January 2014. He had not seen N.G. for a period
of about six weeks.
       At the end of the section 366.26 hearing, the juvenile court found by clear and
convincing evidence that it was likely N.G. would be adopted. The court determined that
the beneficial parent-child relationship exception to termination of parental rights was not
established. The court terminated parental rights and selected a permanent plan of
adoption for N.G. It referred her to the county adoption agency for adoptive placement.
                                               II
                                          Discussion
A. Termination of Parental Rights
       “Under section 366.26, the statutory preference is to terminate parental rights and
order the child placed for adoption. (§ 366.26, subd. (b)(1).)” (In re C.B. (2010) 190
Cal.App.4th 102, 121.) As a general rule, a juvenile court must terminate parental rights
and order the child placed for adoption if it determines “by a clear and convincing
standard, that it is likely the child will be adopted . . .” after a section 366.26 hearing.
(§ 366.26, subd. (c)(1).)
       “A few statutory exceptions to this rule permit the juvenile court not to terminate
parental rights when compelling reasons show termination would be detrimental to the
child. ([§ 366.26], subd. (c)(1)(B)(i)-(vi).)” (In re K.C. (2011) 52 Cal.4th 231, 237, 255.)
“Once the court determines the child is likely to be adopted, the burden shifts to the
parent to show that termination of parental rights would be detrimental to the child under
one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Zachary G.
(1999) 77 Cal.App.4th 799, 809 [92 Cal.Rptr.2d 20].)” (In re C.F. (2011) 193
Cal.App.4th 549, 553.) “[I]t is the parent’s burden to show exceptional circumstances
exist. [Citation.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 574 (Autum H.).)


                                               8
       Section 366.26 provides an exception to the statutory preference for termination of
parental rights and adoption where the juvenile court “finds a compelling reason for
determining that termination would be detrimental to the child” because “[t]he parents
have maintained regular visitation and contact with the child and the child would benefit
from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The phrase “benefit
from continuing the [parent-child] relationship” means “the relationship promotes the
well-being of the child to such a degree as to outweigh the well-being the child would
gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27
Cal.App.4th at p. 575.)
       “In other words, the 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.” (Ibid.)
       On appeal, father is not challenging the juvenile court’s finding that it is likely
N.G. will be adopted. Rather, he contends he and minor had “a parent-child bond” and
they had “an emotionally significant relationship.” He asserts that “[t]he evidence was
insufficient to support the juvenile court’s determination the beneficial relationship
exception did not apply . . . .”
       This court has concluded that both the substantial evidence and the abuse of
discretion standards apply to a review of a juvenile court’s determination whether a
statutory exception to termination of parental rights applies.2 (See In re C.B. (2010) 190

2
        There is a split of opinion as to the proper standard for reviewing a juvenile
court’s determination whether an exception to termination of parental rights applies. (See
e.g., In re J.C. (2014) 226 Cal.App.4th 503, 530-531 [Fourth Dist., Div. 3, follows Sixth
Dist.]; In re K.P. (2012) 203 Cal.App.4th 614, 621-622 [Second Dist., Div. 7, follows
(continued)
                                               9
Cal.App.4th 102, 123 (C.B.); In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey
J.).) “[T]he substantial evidence test applies to pure findings of fact. [Citations.]” (C.B.,
supra, at p. 123.) “Since the proponent of the exception bears the burden of producing
evidence of the existence of a beneficial parental . . . relationship, which is a factual
issue, the substantial evidence standard of review is the appropriate one to apply to this
component of the juvenile court’s determination.” (Bailey J., supra, at p. 1314.)
          In contrast, a “juvenile court finding that the relationship is a ‘compelling reason’
for finding detriment to the child is based on the facts but is not primarily a factual
issue.” (Bailey J., supra, 189 Cal.App.4th at p. 1315.) “It is, instead, a ‘quintessentially’
discretionary decision, which calls for the juvenile court to determine the importance of
the relationship in terms of the detrimental impact that its severance can be expected to
have on the child and to weigh that against the benefit to the child of adoption. (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 951 . . . .) Because this component of the juvenile
court’s decision is discretionary, the abuse of discretion standard of review applies.”
(Ibid.)
          “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court.’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
          Father repeatedly cites In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). In that
case, S.B.’s father had been her “primary caregiver for three years.” (Id. at p. 298.)
“When S.B. was removed from his care, [the father] immediately recognized that his drug


Sixth Dist.]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [First Dist., Div. 3,
adopted abuse of discretion standard of review]; Autumn H., supra, 27 Cal.App.4th at
pp. 576-577 [Fourth Dist., Div. 1, applied substantial evidence test].) As a general rule,
in this context, “[t]he practical differences between the two standards of review are not
significant.” (In re Jasmine D., supra, at p. 1351.)

                                                10
use was untenable, started services, maintained his sobriety, sought medical and
psychological services, and maintained consistent and regular visitation with S.B. He
complied with ‘every aspect’ of his case plan.” (Ibid.) A social worker noted that “ ‘[the
father] consistently puts his daughter[’]s needs and safety before his own.’ ” (Ibid.) “For
the first year after she was removed from parental custody, S.B. continued to display a
strong attachment to [her father]. She was unhappy when visits ended and tried to leave
with [her father] when the visits were over.” (Id. at p. 298.) There had been a bonding
study of the father and S.B., which “concluded that, because the bond between [the
father] and S.B. was fairly strong, there was a potential for harm to S.B. were she to lose
the parent-child relationship.” (Id. at pp. 295-296.)
          The Court of Appeal deciding S.B. (Fourth District, Division 1) concluded that the
father “had a continuing beneficial relationship with his daughter within the meaning of
the statutory exception to termination of parental rights” and reversed the juvenile court’s
order terminating parental rights. (S.B., supra, 164 Cal.App.4th at pp. 293, 303.) The
same appellate court subsequently stated in a different case: “The S.B. opinion must be
viewed in light of its particular facts. It does not, of course, stand for the proposition that
a termination order is subject to reversal whenever there is ‘some measure of benefit’ in
continued contact between parent and child.” (In re Jason J. (2009) 175 Cal.App.4th
922, 937.)
          In this case, unlike S.B., there was no bonding study and no expert testifying that
there was a potential for detriment to N.G. from the loss of her relationship with father.
To the contrary, the social worker, testifying as an expert, indicated that N.G. would not
suffer detriment or serious emotional harm from the termination of father’s parental
rights.
          “The [beneficial parent-child relationship] exception must be examined on a
case-by-case basis, taking into account the many variables which affect a parent/child


                                               11
bond. The age of the child, the portion of the child’s life spent in the parent’s custody,
the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s
particular needs are some of the variables which logically affect a parent/child bond.”
(Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
          The record does not reflect that the court found father had not maintained regular
visitation and contact with N.G. or they did not have a positive, beneficial relationship to
some degree. Rather, it appears that the court impliedly found that father’s relationship
with N.G. did not constitute “a compelling reason for determining that termination would
be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) We discern no abuse of
discretion.
          N.G. had been out of father’s care for most of her life. She was almost two years
old at the time of section 366.26 hearing. Father behaved appropriately during visitation
but he had never progressed beyond supervised visitation and, unlike the father in S.B., he
had not complied with his case plan. He and N.G. had an affectionate, playful
relationship. While their interactions were pleasant, there was no evidence that N.G. had
any special needs that could be met by only father. There was no evidence that N.G. was
upset when the visits ended. As indicated, it was the opinion of the social worker, who
testified as an expert, that the benefits of a permanent, stable home that would be
afforded N.G. through adoption outweighed the benefits of an ongoing relationship with
father.
          The juvenile court could reasonably conclude that the benefits of adoption with
respect to N.G.’s wellbeing significantly outweighed the benefit of a father-daughter
relationship and termination of that parental relationship would not result in any
significant harm to N.G. (See Autumn H., supra, 27 Cal.App.4th at p. 575.) The court
did not abuse its discretion in finding the beneficial parent-child relationship exception
inapplicable and terminating father’s parental rights.


                                               12
B. Visitation
       Father asserts that “denial of visitation” while he was in jail for approximately six
weeks “violated [his] due process right.” He claims that “the unsanctioned denial of
visitation” by social worker Carbajal while he was in custody “fatally impaired [his]
ability to maintain his ongoing bond with his daughter and therefore establish the
applicability of the parent-child relationship exception to adoption.” He argues that
“Carbajal usurped the role of the juvenile court thereby depriving [him] of his right to
visit his child with the consequence that, in the eyes of the court, he could not show a
bond with his child.”
       Father points to social worker Carbajal’s testimony at the section 366.26 hearing.
She testified that, before father went into custody, Carbajal asked him to let her know
whether he was able to participate in the PACT program, which impliedly would have
facilitated visitation. It had been expected that father would be in custody for three
months but he was released much sooner. Carbajal explained that she “did not make
arrangements to transport the child N.G. for a window visit, because [she] thought it
would be very difficult for a child so young to have a window visit.” She stated that
father was “provided a visit almost immediately upon contacting [her] office after his
release.”
       Father also refers us to the court’s comments concerning the gap in his visitation
while he was in custody: “The 6-week gap in visits . . . while you were incarcerated is an
interesting fact to the court. Your attorney says, . . . you didn’t get window visits and that
wasn’t really your fault, but the court fails to see how you could have stood in a parental
role with a window visit, so I don’t see that as a significant issue here. What I see is that
you absented yourself for 6 weeks in a very important time when your counsel wanted to
make an argument about how significant your attachment is to your child. 6 weeks in the
life of a 2-year-old is a long time.”


                                             13
       In our view, father has forfeited his due process contention by not raising it below.
“Dependency matters are not exempt from [the forfeiture] rule. (See, e.g., In re Dakota
S. (2000) 85 Cal.App.4th 494, 502 [102 Cal.Rptr.2d 196] [failure to obtain supervising
agency’s assessment of prospective guardian under § 366.22, subd. (b)]; In re Lorenzo C.
(1997) 54 Cal.App.4th 1330, 1338-1339 [63 Cal.Rptr.2d 562] [failure to request court to
order bonding study]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [48 Cal.Rptr.2d
763] [failure to challenge setting of § 366.26 permanency planning hearing when court
determined that no reasonable reunification efforts were made].)” (In re S.B. (2004) 32
Cal.4th 1287, 1293.) “[A] reviewing court ordinarily will not consider a challenge to a
ruling if an objection could have been but was not made in the trial court. (People v.
Saunders (1993) 5 Cal.4th 580, 589-590 [20 Cal.Rptr.2d 638, 853 P.2d 1093].) The
purpose of this rule is to encourage parties to bring errors to the attention of the trial
court, so that they may be corrected. (Saunders, at p. 590.)” (Ibid., fn. omitted.)
       In any case, the claim must be rejected on its merits. The Fourteenth Amendment
to the United States Constitution provides that no state shall “deprive any person of life,
liberty, or property, without due process of law.” “The touchstone of due process is
protection of the individual against arbitrary action of government . . . [citation].” (Wolff
v. McDonnell (1974) 418 U.S. 539, 558 [94 S.Ct. 2963].) “[T]he Due Process Clause
was intended to prevent government officials ‘ “ ‘from abusing [their] power, or
employing it as an instrument of oppression.’ ” ’ [Citation.]” (County of Sacramento v.
Lewis (1998) 523 U.S. 833, 846 [118 S.Ct. 1708].)
       “[The United States Supreme Court has] long recognized that the Amendment’s
Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair
process.’ Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258 (1997). The
Clause also includes a substantive component that ‘provides heightened protection
against government interference with certain fundamental rights and liberty interests.’


                                              14
Id., at 720, 117 S.Ct. 2258; see also Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct.
1439, 123 L.Ed.2d 1 (1993).” (Troxel v. Granville (2000) 530 U.S. 57, 65 [120 S.Ct.
2054].) The substantive component “bars certain arbitrary, wrongful government actions
‘regardless of the fairness of the procedures used to implement them.’ Daniels v.
Williams, 474 U.S., at 331, 106 S.Ct., at 664.” (Zinermon v. Burch (1990) 494 U.S. 113,
125 [110 S.Ct. 975].)
        “[T]he interest of parents in the care, custody, and control of their children . . . is
perhaps the oldest of the fundamental liberty interests recognized by [the Supreme]
Court.” (Troxel v. Granville, supra, 530 U.S. at p. 65.) “Although a parent’s interest in
the care, custody and companionship of a child is a liberty interest that may not be
interfered with in the absence of a compelling state interest, the welfare of a child is a
compelling state interest that a state has not only a right, but a duty, to protect.
[Citations.] The Legislature has declared that California has an interest in providing
stable, permanent homes for children who have been removed from parental custody and
for whom reunification efforts with their parents have been unsuccessful. [Citations.]
This interest is a compelling one. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295,
307.)
        Father is essentially claiming that social worker Carbajal deprived him of due
process by failing to facilitate visits with N.G. at the window while he was in jail. We
are not persuaded.
        The record does not show that the social worker acted unreasonably in
determining that, given N.G.’s very young age, it would be “very difficult” for N.G. to
have a window visit with father and visitation impliedly should not take place there.3



3
       Parental visitation must be consistent with the well-being of the dependent child.
(See § 362.1, subd. (a)(1)(A).)

                                               15
She apparently believed that visitation might be facilitated through the PACT program
while father was in jail. Visitation resumed soon after father’s release from jail.
       The United States Supreme Court has “emphasized time and again that ‘[t]he
touchstone of due process is protection of the individual against arbitrary action of
government,’ [citation], whether the fault lies in a denial of fundamental procedural
fairness, [citation], or in the exercise of power without any reasonable justification in the
service of a legitimate governmental objective, [citation].” (County of Sacramento v.
Lewis, supra, 523 U.S. at pp. 845-846.) “[The court’s] cases dealing with abusive
executive action have repeatedly emphasized that only the most egregious official
conduct can be said to be ‘arbitrary in the constitutional sense,’ [citation] . . . .” (Id. at
p. 846.) “[T]he substantive component of the Due Process Clause is violated by
executive action only when it ‘can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.’ ” (Id. at p. 847.) Father has not made any such
showing here.
       In re David D. (1994) 28 Cal.App.4th 941 (David D.), which father cites, is both
factually and legally distinguishable. The principle issue in that case was whether
adequate family reunification services, particularly visitation, had been provided. (Id. at
p. 943.) During the reunification period, a referee had suspended mother’s visitation until
she provided medical and psychiatric records. (Id. at p. 945.) The referee had also
suspended telephone contact between the mother and her children. (Ibid.) The referee
terminated family reunification services, set the section 366.26 hearing “nearly four
months” later, and allowed mother only a single visit during that period. (David D.,
supra, at pp. 949, 955, fn. 10.) Even with the gaps in visitation, there was
“overwhelming evidence of the minors’ bond with their mother.” (Id. at p. 955.)
       The appellate court in David D. determined that “inadequate reunification services
were provided to this family, and also conclude[d] the juvenile court erroneously denied


                                               16
regular visitation between this mother and her children after terminating reunification
services, thus both violating the statutory directive and depriving the mother of the
opportunity to come within the exception to adoptive placement expressly permitted
when a parent has maintained a regular visitation schedule.” (David D., supra, 28
Cal.App.4th at p. 943.) It concluded that, “[u]nder the circumstances of this case, an
additional six months of reunification services are warranted, during which [mother] must
be provided an opportunity to reestablish regular visitation with the minors. [Citation.]”
(Id. at p. 956.)
       In this case, in contrast, the juvenile court consistently mandated a minimum
number of visits.4 Father’s reliance upon David D. is misplaced because father is not
claiming that reasonable family reunification services were not offered or provided to
him. (See § 366.26, subd. (c)(2)(A) [“The court shall not terminate parental rights if . . .
[a]t each hearing at which the court was required to consider reasonable efforts or
services, the court has found that reasonable efforts were not made or that reasonable
services were not offered or provided.”].) David D. was not a due process case.
       In this case, unlike David D., the court’s visitation orders prior to the
section 366.26 hearing did not prevent father from bringing himself within the beneficial
parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)). Father did not timely

4
         To the extent father implies that any juvenile court order regarding visitation was
improper, we reject the contention. The court did not improperly delegate the authority
to decide whether to grant visitation to the Department. (See In re Christopher H. (1996)
50 Cal.App.4th 1001, 1008-1009.) It properly authorized the social worker to determine
the location of father’s visits. (See In re S.H. (2003) 111 Cal.App.4th 310, 317 [“the
child’s social worker may be given responsibility to manage the actual details of the
visits, including the power to determine the time, place and manner in which visits should
occur. [Citation.]”].) The juvenile court was not required to make findings of detriment
since it did not discontinue visitation upon terminating family reunification services and
setting the matter for a section 366.26 hearing. (See § 366.21, subd. (h) [“The court shall
continue to permit the parent . . . to visit the child pending the [section 366.26] hearing
unless it finds that visitation would be detrimental to the child”].)

                                             17
challenge the Department’s implementation of the court’s order by seeking modification
of the order on grounds of changed circumstances (see § 388).
       Father asserts that “[i]t was error for the court to sanction the department’s
unauthorized exercise of a judicial function with the resulting negative impact on Father’s
parental rights.” We do not read the court’s remarks as ratifying the social worker’s
determination that the jail’s visitor window was not an appropriate location for visiting
with N.G. Rather, we understand the court’s statements as a rebuke for father’s criminal
conduct that resulted in his incarceration and interfered with meaningful visitation. The
court clearly did not think six weeks of window visits would have made any difference in
this case.
       Father has failed to show that he was denied due process of the law.




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                                    DISPOSITION
     The juvenile court’s order terminating parental rights is affirmed




                                        _________________________________
                                        ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.




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