In re E.M.-H. CA4/2

Opinion

Filed 8/25/26 In re E.M.-H. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

1 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 1 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. 2 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 1 All further statutory references are to the Welfare and Institutions Code. 2 We need provide only a brief recitation of the facts and procedural background to resolve this appeal.

2 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 3 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.”

4 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 5 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 3 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 3 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.

6 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 7 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 4 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 5 its termination” should be considered, subject to the usual rules of evidence. (Grace P., 4 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.) 5 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.

8 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 6 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.

6 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.

9 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.