Filed 2/10/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION THREE

In re GRACE P. et al., Persons          B275689
Coming Under the Juvenile Court
Law.                                    (Los Angeles County
______________________________          Super. Ct. No. DK00969)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

       Plaintiff and Respondent,

       v.

M.P. et al.,

       Defendants and Appellants.


      APPEAL from an order of the Superior Court of Los
Angeles County, Robert Draper, Judge. Reversed and remanded
with directions.
      Jack A. Love, under appointment by the Court of Appeal,
for Defendant and Appellant Father M.P.
      Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant Mother L.R.
      Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent.
                  __________________________
                          INTRODUCTION
       Father and Mother appeal from the juvenile court’s order
terminating parental rights to six-year-old daughter, Grace, five-
year-old son, Marco, and three-year-old son, Michael, pursuant to
Welfare and Institutions Code1 section 366.26. Father argues
that the court erred in finding the beneficial parent-child
relationship exception to termination did not apply and in
denying him a contested hearing on that issue. Mother did not
request a hearing to assess her relationship with the children
and does not have an independent basis for preventing
termination of her parental rights. Mother adopts Father’s
arguments on appeal, asserting that the court erred in denying
Father a contested hearing.
       In a matter of first impression, we reverse because the
juvenile court abused its discretion in denying Father a contested
selection and implementation hearing under section 366.26.
When, as here, a parent has consistently and regularly visited his
or her children and at the selection and implementation hearing,
offers testimony regarding the quality of their parent-child
relationship and possible resulting detriment that would be
caused by its termination, a juvenile court abuses its discretion if
it denies a contested hearing on the beneficial parent-child
relationship exception. We reverse and remand for the juvenile
court to conduct the contested hearing and determine, in the
context of all of the evidence before it, whether a beneficial
parent-child relationship exists and prevents the termination of
parental rights pursuant to section 366.26(c)(1)(B)(i).




1     All subsequent statutory references are to the Welfare and
Institutions Code.


                                 2
          FACTS AND PROCEDURAL BACKGROUND
       In September 2013, the court granted the Department of
Children and Family Services’s (DCFS) request to detain Grace
and Marco after concluding they were at high risk of abuse due to
the parents’ ongoing domestic violence, Father’s abuse of
marijuana, their exposure to Father’s drugs, and Father’s gang-
related activities (Father is a member of the Mara Salvatrucha
gang). Because Mother continued to associate with Father, the
court detained Michael in February 2014, shortly after his birth.
In April 2014, the children in this case were adjudged dependents
of the juvenile court as a result of Father and Mother’s domestic
violence and Father’s abuse of marijuana.
       Upon detention, DCFS assessed that the two older children
had serious mental health, emotional, and developmental issues.
The eldest, Grace, was with her parents for the first two years
and 11 months of her life. All three children were placed in the
same foster home and were enrolled in therapy and services to
address their mental health, behavioral, and developmental
needs. Over the course of this nearly three-year long dependency
case, the children’s issues were largely corrected via participation
in services and the nurturing environment created by the foster
family. Unfortunately, the children never reunited with their
parents.
       Throughout the dependency case, Father was in and out of
jail as a result of his gang activities. Although he completed a
substance abuse program, he did not complete the court-ordered
domestic violence counseling or drug testing. His weekly
visitation with all three children remained monitored throughout
the case, but was consistent. Early on, the visits were three
hours per week. The foster parent, who monitored the visits,
repeatedly reported that Father was always on time, interacted
well with the three children and that he was attuned to their



                                 3
needs. The foster parent reported to DCFS that Father dedicated
himself to all three children during the visits and the children
were bonded with him. During visitation, he played with them,
fed them, and changed Michael’s diapers. Father also
maintained daily and, then later, weekly phone contact with the
children and the children stated that they missed their parents.
      At the section 366.26 hearing, Father’s counsel requested a
contested section 366.26 hearing to determine the applicability of
the beneficial parent-child relationship exception to termination
of parental rights.2 Counsel asserted that Father has consistently
and regularly visited all three children, those visits were positive,
he actively engaged each child during visits, and he has been
attuned to their individual needs. Counsel stated that Father
      “would testify that during his regular visits with the
      kids, he talks to them about school. He has on
      occasion redirected them with regards to behavioral
      issues. He brings food for the children. He also does
      play with them. He tells them he loves them and
      they do articulate that they love him as well and that
      the children call him papa and that they do not call
      anyone else papa, so he does believe that the parent-
      child exception applies. The children do perceive him
      in a parental role, and he has demonstrated parental
      capacity during these visits. He also believes that
      Grace would testify that she enjoys the visits, that
      she would like them to continue, and that she does
      see him as a father figure and would be sad if he were
      not her father.”


2     Mother did not request a hearing on the applicability of
this exception as to her relationship with the children. Mother’s
parental relationship with the children is not at issue in this
appeal. Nonetheless, Father’s ability to successfully assert a
beneficial parental relationship impacts whether Mother’s (as
well as Father’s) parental rights are terminated.


                                  4
Mother’s counsel joined in Father’s request for Father to have a
contested hearing.
      After the court ascertained from counsel that Father visits
the children weekly and that the visits are monitored, the court
indicated that the offer of proof was insufficient. The court
stated,
            “Accepting your offer of proof at full value, I
      would have to find that what father has described is
      a stronger bond and more important bond than they
      have with their caregivers, and I don’t believe based
      on the evidence that you have suggested, I would
      obviously make that finding. I’m specifically
      referring to the statement in M.W.3 that the father
      would need to prove that the child has developed
      such a substantial positive relationship with the
      father that the child would be greatly harmed or
      there would be substantial detriment to the child if
      parental rights were terminated, and that the court
      in M.W. expressly directs the court to consider the
      strength of the relationship with the children in
      determining what would be the most appropriate life
      for the children.
            “So, I believe, that your offer of proof is
      inadequate and I’m denying the request for a
      contest.”
      The court then admitted DCFS’s reports into evidence, and
found by clear and convincing evidence that the children were
adoptable and that there were no impediments to adoption. The
court found that no exception to adoption applied and terminated
the parental rights of Father and Mother to the children.



3     Based on our own research, we believe that M.W. refers to
In re M.W. (2015) 238 Cal.App.4th 1444. This case is inapt as it
addresses jurisdictional findings, not termination proceedings.


                                  5
                            DISCUSSION
      Father appeals the termination of his parental rights
arguing that the court erred in denying him a contested selection
and implementation hearing to present evidence on the
applicability of an exception to termination of parental rights.
Mother also appeals, joining in Father’s arguments but not
asserting any other basis for our review. We review the court’s
denial of a contested hearing for an abuse of discretion. (In re
A.B. (2014) 230 Cal.App.4th 1420, 1434; Ingrid E. v. Superior
Court (1999) 75 Cal.App.4th 751, 759.)
1.    A Parent’s Right to Present Evidence at the Selection
and Implementation Hearing
      “The selection and implementation hearing under section
366.26 takes place after the juvenile court finds that the parents
are unfit and the child cannot be returned to them.” (In re Josue
G. (2003) 106 Cal.App.4th 725, 732.) Section 366.26 governs
termination of parental rights. Subdivision (b) of this section
states: “At the hearing, . . . the court . . . shall review the report
[required by statute], shall indicate that the court has read and
considered it, shall receive other evidence that the parties may
present, and then shall make findings and orders.” (§366.26,
subd. (b), italics added.)
      If the parents have failed to reunify and the court has
found the child likely to be adopted, the burden shifts to the
parent’s to show exceptional circumstances exist such that
termination would be detrimental to the child. (In re Autumn H.
(1994) 27 Cal.App.4th 567, 574 (Autumn H.).) Parents can
request a contested hearing on this issue to present evidence
supporting their claim that an exception to termination of
parental rights exists.




                                  6
       Here, the parents contend that the juvenile court violated
their due process rights when it denied Father’s request for a
contested hearing on the application of the beneficial parent-child
relationship exception to the termination of parental rights under
section 366.26(c)(1)(B)(i). (See § 366.26, subd. (c)(1)(B)(i) [The
juvenile court shall not terminate parental rights where it “finds
a compelling reason for determining that termination would be
detrimental to the child [because] [¶] (i) The parents have
maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.”].)
       A parent has a right to due process at a section 366.26
hearing resulting in the termination of parental rights, which
includes a meaningful opportunity to be heard, present evidence,
and confront witnesses. However, these procedural rights are
subject to evidentiary principles. Due process is “a flexible
concept dependent on the circumstances.” (In re Tamika T.
(2002) 97 Cal.App.4th 1114, 1122.) Since due process does not
authorize a parent “to introduce irrelevant evidence, due process
does not require a court to hold a contested hearing if it is not
convinced the parent will present relevant evidence on the issue
he or she seeks to contest.” (Ibid.) “The trial court can therefore
exercise its power to request an offer of proof to clearly identify
the contested issue(s) so it can determine whether a parent’s
representation is sufficient to warrant a hearing involving
presentation of evidence and confrontation and cross-examination
of witnesses.” (Ibid.) The parent’s offer of proof “must be specific,
setting forth the actual evidence to be produced, not merely the
facts or issues to be addressed and argued.” (Id. at p. 1124.)




                                 7
2.     The Offer of Proof for the Beneficial Parent-Child
Relationship Exception to Termination of Parental Rights
       Thus, at issue is whether Father’s offer of proof was
sufficient to warrant a contested hearing on the applicability of
section 366.26(c)(1)(B)(i), i.e. the beneficial parent-child
relationship exception (also known as the parental visitation
exception). Application of the beneficial parent-child relationship
exception consists of a two-prong analysis. (In re Aaliyah R.
(2006) 136 Cal.App.4th 437, 449-450.) The first prong inquires
whether there has been regular visitation and contact between
the parent and child. (Id. at p. 450.) The second asks whether
there is a sufficiently strong bond between the parent and child
that the child would suffer detriment from its termination. (Ibid.)
       The first prong is quantitative and relatively
straightforward, asking whether visitation occurred regularly
and often. (See 1 Seiser et. al., Cal. Juvenile Courts Practice and
Procedure (Matthew Bender 2014) Selecting and Implementing
an Alternative Permanency Plan § 2.171[5][b][ii][A], pp. 2-590 to
2-591 [“The first prong is somewhat self-explanatory. The second
is not.”].) It is not an inquiry into the quality of visitation; this
prong simply evaluates whether the parent consistently had
contact with the child. (In re I.R. (2014) 226 Cal.App.4th 201,
212 [“Regular visitation exists where the parents visit
consistently and to the extent permitted by court orders.”].)
       In contrast, the second prong involves a qualitative, more
nuanced analysis, and cannot be assessed by merely looking at
whether an event, i.e. visitation, occurred. Rather, the second
prong requires a parent to prove that the bond between the
parent and child is sufficiently strong that the child would suffer
detriment from its termination. (In re Aaliyah R., supra,
136 Cal.App.4th at p. 450). In applying this exception, the court
must take into account numerous variables, including but not



                                  8
limited to: 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 parent and child, and 4) the child’s
unique needs. (Autumn H., supra, 27 Cal.App.4th at p. 576.).
       This is particularly challenging because, as the court in
Autumn H. noted, “[i]nteraction between natural parent and
child will always confer some incidental benefit to the child,”
requiring the balancing of the natural parent relationship
against the benefit of a stable, permanent adoptive home.
(Autumn H., supra, 27 Cal.App.4th at p. 575.) The application of
the beneficial parent relationship exception requires a robust
individualized inquiry given that “[p]arent-child relationships do
not necessarily conform to a particular pattern,” and no single
factor–such as supervised visitation or lack of day-to-day contact
with a noncustodial parent–is dispositive. (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1350; In re S.B. (2008) 164
Cal.App.4th 289, 294-300 [reversing termination of parental
rights even though father only had supervised visitation with
daughter]; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [“Day-to-
day contact is not necessarily required, although it is typical in a
parent-child relationship.”].)
3.     Father’s Offer of Proof was Sufficient to Warrant a
Contested Hearing
       In this case, Father’s offer of proof with respect to the first
prong (about visitation and contact) was undisputedly sufficient:
the proposed testimony addressed the consistency of his weekly
visitation with the children. In addition, it appears from the
record that DCFS’s reports likewise support the conclusion that
Father maintained regular visitation. The juvenile court also
acknowledged this fact and stated that, “Father has had regular
contact with the child.”




                                   9
       As to the second prong, Father offered his testimony about
the positive quality of his visitation, how he parented all three
children during visits, and how the children considered him to be
a father figure. Father also offered Grace’s testimony regarding
how she enjoyed visits with Father, saw Father as a parent, and
would be sad if visitation with Father ended.4 The juvenile court
opined this offer of proof was not sufficient to warrant a contested
hearing. We disagree.
       By comparison, In re Jeanette V. (1998) 68 Cal.App.4th 811,
is instructive. There, as here, the appellant father sought a
contested section 366.26 hearing to prove that the beneficial
parent-child relationship exception proscribed termination of his
parental rights. The father solely sought to cross-examine the
social workers regarding their reports on the quality of his
visitation. (Id. at p. 815.) However, the father had no contact
with the child for more than two years and thus, “could not deny
[his] failure to satisfy the ‘maintain regular visitation and
contact’ element, and could only suggest that cross-examination
[of the social worker who authored the reports] would reveal
something about [the father’s] visitation during an unspecified
earlier period.” (Id. at p. 817.) The appellate court noted that the
beneficial relationship exception required both prongs and thus
the trial court did not err in denying the contested hearing.
(Ibid.) Essentially, evidence of the nature of the visits would be
ineffective in proving a beneficial parent-child relationship,
where the parent failed to maintain consistent and frequent

4     Other than his own testimony, Father only offered
testimony from Grace. That he did not offer testimony from the
two younger children does not undercut his claim of a beneficial
parental relationship to all three children. The other two
children were very young, and Father’s testimony was intended
to address his relationship with all three children.


                                10
contact with the child. (See In re I.R., supra, 226 Cal.App.4th at
p. 212 [Significant lapses in visitation “fatally undermine any
attempt to find the beneficial parental relationship exception.”];
In re C.F. (2011) 193 Cal.App.4th 549, 554 [“Sporadic visitation is
insufficient to satisfy the first prong of the parent-child
relationship exception to adoption.”].)
       In contrast, since Father satisfied the first prong in the
case at bar, 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. As we mention
above, this qualitative inquiry regarding the nature of the
relationship between the parent and child cannot be as directly
and summarily assessed as the first prong regarding contact.
The second prong requires the court’s careful assessment of the
child’s relationship with the parent. Because this is an
individualized inquiry and parenting styles and relationships
differ greatly between families, the juvenile court must take
caution before denying a contested hearing on this issue when a
parent has clearly maintained regular contact with the child.
       We note even when a parent makes a prima facie case and
obtains a contested selection and implementation hearing under
section 366.26, the juvenile court continues to exercise its
discretion to limit the hearing to relevant evidence. (See Stephen
Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758
[ A trial court has “ ‘inherent power to control litigation.’ ”]; In re
Tamika T., supra, 97 Cal.App.4th at p. 1122.) In addition, that a
parent satisfies a prima facie showing does not guarantee the
court finding the existence of the exception: the court may still
find that the parent-child relationship is not significant enough
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.) The contested hearing solely provides



                                  11
the parent the opportunity to make his or her best case regarding
the existence of a beneficial parental relationship that has been
fostered by the continued and regular contact.
       DCFS argues that the offer of proof was insufficient
because the proposed testimony would not provide new
information to the court since DCFS’s reports documented
Father’s interactions with the children. DCFS also argues that
based on its own reports, Father was incapable of proving a
sufficiently strong relationship with the children to satisfy the
exception. DCFS’s arguments are based entirely on the evidence
it offered at the selection and implementation hearing. Father’s
proposed evidence, which purported to address the existence of a
beneficial parent-child relationship, was not admitted. Without
such evidence, we cannot conclude that Father was incapable of
proving the exception. Without the evidence, we cannot conclude
that Father’s and Grace’s testimony would be duplicative of the
DCFS reports. On the contrary, the offer of proof indicated that
Father and Grace would expound on the details of the
relationship that has been positively (though concisely)
documented by DCFS.
       Based on the foregoing analysis, we conclude that the trial
court abused its discretion in denying the contested selection and
implementation hearing.




                               12
                           DISPOSITION
      We reverse the termination of parental rights. We remand
for the juvenile court to conduct the contested hearing and
determine whether a beneficial parent-child relationship exists
and prevents the termination of parental rights pursuant to
section 366.26(c)(1)(B)(i). We express no opinion how the trial
court should exercise its discretion.

      CERTIFIED FOR PUBLICATION




                                           GOSWAMI, J.*


We concur:




             ALDRICH, Acting P. J.




             LAVIN, J.




*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.


                                13
