In re D.M.
Filed 4/10/13 In re D.M. CA2/4
NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION FOUR
In
re D.M., a Person Coming Under the Juvenile Court Law. ___________________________________LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
NANCY
M.,
Defendant and Appellant.
B242264
(Los Angeles County
Super. Ct. No. CK63683)
APPEAL
from an order of the Superior Court of
County, Stephen Marpet, Commissioner. Affirmed.
Grace
Clark, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County
Counsel, Jeanette Cauble, Deputy County Counsel, for Plaintiff and
Respondent.
______________________________
Nancy M.
(mother) appeals from the order terminating parental
rights to her daughter D.M. She
argues the juvenile court erred in denying her request for a contested
hearing. We find no basis for
reversal.
D.M., who
was born in July 2010, tested positive for amphetamines at birth. The Department
of Children and Family Services (DCFS) placed her in foster care, and filed
a Welfare and Institutions Code section 300
petition on her behalf. Mother admitted
to using drugs, including during her pregnancy.
Her two older children had been removed from her care in 2006, due to
her substance abuse.
In August
2010, the juvenile court detained D.M. and ordered monitored visits for
mother. In the following two months, it
sustained the petition and granted mother reunification services. Mother was ordered to complete a drug
rehabilitation program with random drug testing, a parenting education class,
and individual counseling.
D.M. was
diagnosed with Down’s Syndrome and various other conditions, such as umbilical
hernia, congenital heart disease, reactive airway disease with asthma, low
blood cell count, depressed immunity, and developmental delays. She had recurrent respiratory infections and
required frequent nebulization therapy, as well as occupational, developmental
and physical therapy.
In January
2011, DCFS reported mother was drug-free and actively participating in her
treatment plan. She visited with D.M. twice
a week but did not go to her medical appointments. The dependency court ordered DCFS to refer
mother for training to deal with D.M.’s medical conditions and to keep her
informed of D.M.’s medical appointments.
Although mother was progressing well with her plan, the court denied
unmonitored visits in March 2011 because D.M.’s pediatrician advised the baby
was medically fragile and required complex health care. Mother had been to only one medical
appointment and had not been trained on any of D.M.’s therapies. At the six-month review hearing in April
2011, the court advised mother that the only requirement left for her
reunification with D.M. was to be involved in the child’s medical care.
By
September 2011, mother had attended two developmental therapy sessions, during
which she did not actively participate, and she did not attend any
therapy sessions. She was going to
school and continued to test negative for drugs, but missed five scheduled
tests. DCFS recommended terminating
mother’s reunification services, and the matter was continued for a contested
12-month review hearing. At the contested
hearing in December 2011, mother admitted that since October she attended seven
or eight of D.M.’s 21 therapy sessions.
She did not attend all of D.M’s medical appointments. The trial court found her in substantial
compliance and continued her reunification services to January 2012.
In January
2012, DCFS reported mother did not engage D.M. during visits and did not appear
to have bonded with her. She had not
trained on the nebulizer even though D.M. needed two treatments a day. DCFS continued to recommend terminating
mother’s reunification services, and the matter was set for a contested
18-month review hearing. Before the
contested hearing in February 2012, DCFS reported mother and the maternal
grandmother attended some of D.M.’s occupational and physical therapy sessions,
but did not participate in them, which concerned the therapists because active
participation in therapy was crucial to D.M.’s development. Mother did not attend the contested hearing,
and the court found overwhelming evidence that she was not consistently involved
in D.M.’s therapy and was not able to take care of her. The court terminated mother’s reunification
services and set a section 366.26 permanent plan hearing.
Between
March and June 2012, mother visited D.M. five times. DCFS recommended termination of mother’s
parental rights since D.M. was likely to be adopted by the foster mother whose
adoptive home study had been approved in December 2011. At the section 366.26 hearing in June 2012,
an attorney standing in for mother’s counsel requested that the matter be set
for a contested hearing. The court
stated that based on the reports before it, mother’s visitation with D.M.
“appear[ed] to be meager at best, one time a month for the last three or four
months,†and did not meet the exception to terminating parental rights in
section 366.26, subdivision (c)(1)(B)(i).
It added that the request would be denied and asked if there was
anything further. Not receiving any
response, the court terminated mother’s parental rights. At that point, mother interjected that she
visited with D.M. even though the social worker had told her it did not matter
what she did once her reunification services were terminated. The minute order indicates the court found no
good cause to allow a contested hearing, and its findings were over mother’s
and her counsel’s objections.
This timely
appeal followed.
Mother argues the juvenile court
improperly denied the request for a contested section 366.26 hearing without
giving her attorney a reasonable opportunity to provide an offer of proof, and
any offer of proof would have been futile in light of the court’s express
intent to deny a contested hearing.
The juvenile court may require “an
offer of proof before conducting a contested hearing on one of the statutory exceptions
to termination of parental rights†in section 366.26. (In re
Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) Mother argues the court cut off her counsel
before he could articulate an offer of proof.
The record does not support the claim that the attorney who stood in for
mother’s counsel attempted to or was prepared to make an offer of proof. Rather, the attorney only requested that the
matter be set for a contested hearing and did not offer “[a]nything furtherâ€
when prompted by the court.
Mother argues any offer of proof
would have been futile in light of the court’s indication that based on the
reports before it, the request for a contested hearing would be denied. M.T. v.
Superior Court (2009) 178 Cal.App.4th 1170 (M.T.), on which mother relies, is distinguishable. There, the presumed father’s counsel
initially maintained his client was entitled to a contested hearing
‘“unfettered by an offer of proof.â€â€™ (
the issue, counsel conceded that an offer of proof was required under
166 Cal.App.4th 334 (Sheri T.),
and he could not make the necessary showing.
(M.T., at pp.
1176–1177.) The appellate court rejected
DCFS’s contention that counsel’s concession forfeited any error on appeal. (Id.
at p. 1177.) The court reasoned that an
objection would have been futile because the juvenile court “was bound to
follow Sheri T. under the principle
of stare decisis. [Citation.]†(M.T.,
at p. 1177.)
distinguishable. In that case, the
appellate court held the mother’s request for sibling visitation of her
children with a half-sibling would have been futile before the juvenile court’s
ruling that the half-sibling was not a sibling was reversed on appeal. (Id.
at pp. 995, 1001.)
Here, in contrast, there was no prior
juvenile court order or controlling appellate precedent that would render an
offer of proof futile. The juvenile
court stated it would deny the request for a contested hearing because the
record showed mother had visited D.M. only once a month since her reunification
services were terminated. There is no
indication this ruling would not have changed had mother’s counsel made an
adequate offer of proof. On the
contrary, the court expressly invited counsel to offer “[a]nything further†and
terminated mother’s parental rights only after “[h]earing nothing.†The court did not deny mother an opportunity
to make an offer of proof, and an offer of proof would not have been futile in
light of the court’s invitation of further argument.
Additionally, mother has not
established she suffered any prejudice requiring reversal. ‘“The standard of review where a parent is
deprived of a due process right is whether the error was harmless beyond a
reasonable doubt. [Citation.]’ [Citation.]â€
(M.T., supra, 178 Cal.App.4th at p. 1182.)
The exception to terminating parental rights in section 366.26,
subdivision (c)(1)(B)(i) applies when “[t]he parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.†To
overcome the presumption in favor of adoption, the parent must prove that
severing the parent-child relationship will cause great harm to the child. (In re
Brittany C. (1999) 76 Cal.App.4th 847, 853.) Relevant factors include “[t]he 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 . . . .â€
(In re Autumn H. (1994) 27
Cal.App.4th 567, 576.) A beneficial
parent-child relationship is difficult to establish “where the parents have
essentially never had custody of the child nor advanced beyond supervised
visitation.†(In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Mother claims the record itself
establishes her right to a contested hearing because DCFS authorized
unmonitored visits, and mother had increased interaction with D.M. The record does not support this claim. In January 2012, the social worker apologized
for incorrectly stating mother’s visits with D.M. were unmonitored, and the juvenile
court’s order that month reflects that mother’s visits were still monitored. Also in January 2012, the foster mother
reported mother did not engage D.M. during visits and did not appear to have
bonded with her. In February 2012,
D.M.’s occupational and physical therapists reported their concern that mother
and the maternal grandmother did not actively participate in therapy
sessions. After her reunification
services were terminated, mother’s visitation with D.M. was minimal. On the other hand, D.M.’s foster
care placement since birth had been stable.
The foster mother took appropriate care of D.M.’s special needs and was
committed to adopting her. The record
does not support mother’s claim that she can establish a beneficial
parent-child relationship, the severing of which would greatly harm D.M.
Mother
suggests alternatively that a contested hearing would not be necessary if the
only evidence she had to offer was contained in the record.
But we
cannot speculate whether any extra-record evidence exists that is sufficient to
entitle her to a contested hearing.
The June 19, 2012 order is affirmed.
NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS
EPSTEIN,
P. J.
We concur:
WILLHITE,
J.
MANELLA,
J.
Code.
