In re D.Y.
Filed 7/1/13 In re D.Y.
CA2/8
NOT TO BE PUBLISHED IN THE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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 EIGHT
In re D.Y., et al.,
Persons Coming Under the Juvenile Court Law.
B245144
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
W.Y., et al.,
Defendants and Appellants.
(Los Angeles
County
Super. Ct.
No. CK87038)
APPEAL
from an order of the Superior Court
of
County. Phillip L.
Soto, Judge. Affirmed.
Roland
Koncan, under appointment by the Court of Appeal, for Defendant and Appellant
W.Y.
Cristina
Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant Glenda C.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, William
D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
_________________________________
The juvenile court asserted
K.Y., the two children of Glenda C. (mother) and W.Y. (father). On the day set for a Welfare and Institutions
Code section 366.26 hearing, counsel for mother and father requested a
contested hearing.
title="">[1] Neither parent was present in court. The juvenile court requested an offer of
proof. Following mother’s counsel’s
offer of proof, the court denied the requests for a contested hearing and
terminated parental rights. On appeal,
the parents contend the juvenile court violated their
contested hearing. They also argue the
juvenile court erred in refusing to apply the parent-child beneficial
relationship exception to adoption. We
find no error and affirm the trial court order.
K.Y.
was born in March 2011. At birth he
tested positive for cocaine and marijuana, as did mother. Mother admitted she had used cocaine and
marijuana three days before K.Y. was born.
Father claimed he was unaware of mother’s drug use. He admitted that he used marijuana; as of
March 2011 he had an expired medical marijuana prescription. The Los Angeles County Department of Children
and Family Services (DCFS) detained K.Y. at the hospital, and also detained
three-year-old D.Y. In April 2011, the
parents pled no contest to a dependency
petition asserting the children were persons described by section 300.
A multidisciplinary
assessment team (MAT) evaluated the family and completed a report in June
2011. The assessor noted D.Y.
demonstrated poor boundaries by attempting to sit on the assessor’s lap; the
paternal grandmother also reported D.Y. often spoke to strangers, on two
occasions sat on the laps of strange men, and ran away in public places to
greet strangers. Mother reported D.Y.
had a special bond with father and spent most of her time with him. The assessor noted D.Y. was unable to engage
in age-appropriate communication.
Mother, however, disagreed and would not consent to have D.Y. evaluated
for speech or developmental delays.
Mother also indicated she would not allow D.Y. to attend a public
preschool program because she wanted D.Y. to attend a private school. Mother said D.Y. had not been seen by a
pediatrician since age two because she did not have health insurance.
The assessor described
mother as angry, hostile, and not open to recommendations. Father was quiet during most of the
interview, although he acknowledged better communication was needed with the
paternal grandmother to have more consistent visits.
The children first were
placed with their paternal grandmother, and subsequently moved to a foster
family. In late 2011, DCFS placed the
children with their maternal grandparents in Shasta
County. Mother’s three older children, ages 9, 11,
and 12, had lived with the maternal grandparents for the previous 10
years. At one point, mother and the
three children lived with the maternal grandparents in Southern
California. There was no
dependency history for the older children.
However, when the maternal grandparents moved to Shasta
County, mother agreed to have the
maternal grandparents raise the three older children. Mother reported she visited the older
children every few months and called on a daily basis.
Between March and
December 2011, the parents visited K.Y. and D.Y. (collectively the children)
only sporadically, including while the children were living with the paternal
grandmother. Paternal grandmother
reported that at one visit in May 2011, she discovered mother breastfeeding
D.Y. Mother told the grandmother the
court orders did not prohibit her from breastfeeding D.Y.; the grandmother
reported D.Y. was ill later that evening “to the point of vomiting.â€
spent most of her time holding K.Y. during visits.
Mother told DCFS the
parents were unable to visit the children due to work and program schedules.
parents contacted the children only once.
In October 2011, father began visiting the children. DCFS reported that at one October visit,
father seemed disconnected, did not engage with the children, left D.Y. to play
with other children, and did not know what to do when K.Y. began to cry. Father asked to end the visit early. At a second October visit, father engaged
more with the children but only stayed for one hour of the two-hour scheduled
visit. Father tried to feed
seven-month-old K.Y. Cheetos, which led to K.Y. coughing “in a choking manner.†The foster mother had to intervene. In October 2011, mother told a social worker
she would try to begin visiting the children with father. She said she had not been able to visit
previously because she was attending court-ordered programs. The social worker noted, however, that mother
had been discharged from her drug rehabilitation program for non-attendance in
August 2011.
Once DCFS placed the
children with the maternal grandparents in December 2011, the parents regularly
contacted the children by telephone and internet video calls (Skype). Beginning in February 2012, the parents
traveled to Shasta County
once each month to visit the children in person. In June 2012, the parents moved to Shasta
County and visited the children on
an almost daily basis, “at baseball games, football games, birthday parties and
at the park.†Visits also took place at
the parents’ home or the maternal grandparents’ home. In October 2012, the maternal grandmother
reported the visits were “great.†She
also reported: “[D.Y.] loves her parents very much and like[s] spending as much
time with them as our schedules allow.
[K.Y.] has gotten to know his parents and enjoys playing with his
parents.â€
Parents’ Progress in Case Plans
Father submitted eight
required clean random drug tests, and continued providing clean tests. He also completed parenting and domestic
violence classes. He received counseling
services but did not secure a completion certificate. Mother, however, had numerous missed or
diluted random drug tests. She was
discharged from two substance abuse programs due to non-attendance. Social workers noted father deferred to
mother on family issues and the parents continued living together. DCFS opined father had not shown himself able
to protect the children from risks or harm in the home.
Review Hearings and Reports
In
November 2011, the court held a contested hearing pursuant to section 366.21,
subdivision (e). The parents objected to
the DCFS recommendation that the court terminate reunification services. The parties stipulated that, if called,
father would testify that between March and June 2011, he visited the children
as much as the court-ordered minimum.
From late June 2011 until mid-September 2011, he did not visit the
children because of his work schedule and because the children’s caregiver was
only able to accept visits during weekdays.
The parties further stipulated father would testify that from
mid-September to late October 2011, he visited the children once a week in a
conjoint counseling setting.
Mother testified she
initially had difficulty getting to her assigned drug testing facility from her
job. Mother testified the testing
facility was in Van Nuys, yet she worked in Glendale,
helping to run an auto body shop. She
sometimes needed to work until 7:00 or 8:00 p.m. According to the DCFS report, mother missed
one random test in August, and three in a row between September 6 and October
4, 2011. Mother explained she missed one
test because she could not get away from work, on another occasion she had a
“menstrual mishap,†and on another occasion the facility was closed when she
arrived. Mother asserted the social
worker did not allow her to provide an on-demand test. In July 2011, she requested a different
testing facility; the request was granted in September 2011. Mother explained she had diluted tests in
May, June, and July because she worked outside in those months and drank a lot
of water. Although she had worked at the
auto body shop for four years, mother testified she was terminated after taking
a quick break one day in late October.
hearing.
Mother testified she
completed 36 sessions of group drug counseling, was not in a program for two
months, then enrolled in a new program.
She explained she left the first program because it “kept changing the
dollar amountsâ€; she was the only “cash patient,†and they did not give her a
completion certificate. After leaving
she conducted research to try to find a facility that would meet her needs,
however she was denied acceptance from one program before she found
another. She testified that although she
completed parenting classes, the program could not find her file to give her a
completion certificate.
Mother
testified that when the children were placed with the paternal grandmother, she
visited them every week, for 11 hours each week. However, she did not visit them often once
they were placed in a foster home.
Mother said the social worker did not set up a visitation schedule, she
could not visit because DCFS could not provide a monitor, and the foster mother
could not accommodate weekend or weeknight visits. Mother was unable to find a monitor. Mother also tried calling the foster mother
to ask about the children but had difficulty communicating with her because she
spoke only Spanish.
Mother
further testified that before 2006, she and the three older children were
living with her parents in Ventura, where she managed a car dealership. Mother’s parents decided to retire and move
to Shasta County. Because mother was
single, she decided to let her parents take the three children so they would
not be “latch-key†kids. Mother asserted
she called the children every other day, and gave her mother $500 each month to
care for the children.
Counsel for DCFS argued mother’s
testimony conflicted with multiple DCFS reports indicating the department had
set up visitation plans; mother failed to visit the children regularly when
they were placed with the paternal grandmother; it was not credible that
mother’s drug tests were diluted because she drank a lot of water; and mother’s
drug rehabilitation program terminated her for lack of compliance.
The
court indicated it did not find mother particularly credible. However, it allowed the parents additional
reunification services. The court
ordered the parents back for a section 366.21, subdivision (f) hearing on May
22, 2012.
A May 22 DCFS report
indicated the social worker had been unable to get in touch with father. He had not returned telephone calls or
written communications. Mother was
terminated from her drug rehabilitation
program in April 2012 due to nonattendance.
However, mother’s drug testing had become more consistent, with only one
missed test between November 2011 and March 2012. DCFS reported the maternal grandparents
continued to care for the children, including by participating in developmental
services with them, attending regular medical appointments, maintaining a
supportive and nurturing home environment, and facilitating a bond between the
children and their three older half-siblings.
Father
was present for the May 22 hearing.
Mother was not. Mother’s counsel
reported father had brought a note from mother indicating she was ill and could
not come to court. Counsel for both
parents requested a contested hearing under section 366.21, subdivision
(f). The court granted father’s request
that it order DCFS to consider whether the children could be placed with him if
he moved in with the maternal grandparents in Redding, in Shasta County. The court set a contested hearing for June
26.
On
June 22, DCFS provided a last minute information for the court indicating
mother had given birth to another child in early June 2012. At the hospital, mother indicated she planned
to move to Redding. Father did not speak
to the DCFS worker, but instead “kept his face turned with an article of
clothing covering a portion of his face.â€
Days later, an emergency DCFS worker reported mother, father, and the
newborn were living together in a filthy and cluttered home that, for the past
two months, did not have electricity or gas.
Subsequent efforts to get in touch with the parents were
unsuccessful. In late May, the maternal
grandfather told a DCFS worker there was not enough room in the maternal
grandparents’ home for the parents to live with them. He did not know where the parents were
intending to move.
Only
father attended the June 26 hearing.
Mother told her counsel she could not attend the court hearing due to
financial difficulties. DCFS’s counsel
offered several DCFS reports as evidence.
The parents, through counsel, did not object or seek to challenge the
evidence. Neither parent offered any
affirmative evidence. Both parents
requested additional reunification services.
Father’s counsel reported father had moved to Shasta County. He was living in a motel while looking for
work and a new residence. Mother’s
counsel reported mother was living in a different motel. Counsel also reported mother was not enrolled
in a substance abuse program, although she was participating in a 12-step
program. Counsel indicated she believed
mother’s new baby was born “clean from all substances.†Mother asked counsel to communicate that she
did not believe the social worker was assisting the maternal grandparents in
the care of the children, and the worker was even less helpful to the parents.
The juvenile court
terminated the parents’ reunification services.
The court set a section 366.26 hearing for October 23, 2012. In the DCFS section 366.26 report, the
department reported the maternal grandparents wished to adopt the
children. The grandparents indicated
they were “frustrated†with mother’s choices and they would not allow her to
have contact with the children if they felt her behavior would affect the
children negatively.
Section 366.26 Hearing
At the October 23, 2012
hearing, the parents were not present.
the matter for a contested hearing. The
court asked for an offer of proof.
Mother’s counsel responded: “The bond, the .26(c)(1)(b)(i)
exception.†The court asked who counsel
planned to have testify. Mother’s counsel answered: “Probably the mother, at
least, and maybe maternal grandmother.â€
Father’s counsel did not make a separate offer of proof. Counsel for both parents informed the court
they had not been in contact with the parents.
The court denied the request to set the matter for contest, explaining:
“Unless I have some reasonable expectation that they are going to actually come
in – I’ll go ahead and hear argument – but I don’t see any cause to go over
longer than this. [¶] Notices have been made properly. The parents were given plenty of opportunity
to come to court. Personal service was
made on the mother and, I believe, we had personal service on the father, too .
. . . I’ll certainly give you reasonable time to argue about an exception. You are welcome to argue it, but I will not
put it over to have mother show up who didn’t show up today.â€
Mother’s
counsel argued as follows:
“As I stated earlier, unfortunately,
my client is not here. I think she would
want to testify. I know that according
to the report, the children are with the maternal grandmother or the
grandparents and the children are quite young.
But I know that [D.Y.], at least, has a bond with her mother. On page six of today’s .26 report, the
grandparents report that the visits are great.
That [D.Y.] loves her parents very much.
She’s four years old. And she
loves her parents very much and she likes to spend time with them. [K.Y.] is younger. He’s only one. It says that he’s gotten to know his
parents. It looks like there may be a
bond there. I believe it may be
detrimental to sever this bond with the parents and without having my client
here. That’s all the information that I
do have for the court at this time.â€
Father’s counsel joined in mother’s counsel’s
argument. He further noted father had
moved to Redding to be close to the children and to have a relationship with
them.
After
hearing argument, the court concluded the children were adoptable, and no
exception to adoption applied. The court
explained: “[A]lthough there is some kind of a relationship between the parents
and the children, the children are with maternal relatives. They are doing quite well in that home. They have a relationship with them that is
that of a parent and child. It would not
benefit them, the relationship between these parents and the children, that
would outweigh the permanency that these children would be getting with
maternal relatives in Shasta County. And
even though there are visits that are going on, that does not rise to the level
of a parental relationship that outweighs severing this natural relationship
and freeing the children up for adoption.â€
The parents’ appeals followed.
I. The
Trial Court Did Not Err in Denying a Contested Hearing, or in Requesting an
Offer of Proof
Both
parents assert the juvenile court violated their
requests for a contested hearing.
name="_ftnref7" title="">[7] The parents contend the court should have
provided them the opportunity to present evidence on the applicability of the
beneficial parent-child relationship exception to adoption. We find no error.
Under section 366.26,
subdivision (c)(1), the juvenile court must terminate parental rights if it
finds by clear and convincing evidence it is likely the child will be adopted
if parental rights are terminated.
However, the court will not terminate parental rights if it determines
doing so would be detrimental to the child based on one of several statutory
exceptions. (§ 366.26, subd.
(c)(1)(B).) The party challenging
termination of parental rights bears the burden of proving that one or more of
the statutory exceptions applies. (
553; In re I.W. (2009) 180
Cal.App.4th 1517, 1527.)
To
establish the beneficial parent-child relationship exception, the parents had
to prove termination of parental rights would be detrimental to the children
because 1) the parents maintained regular visitation and contact with them, and
2) the children would benefit from continuing their relationship with the
parents. (§ 366.26, subd. (c)(1)(B)(i).) “ ‘Sporadic visitation is insufficient to
satisfy the first prong . . .’ of the exception. [Citation.]
Satisfying the second prong requires the parent to prove that ‘severing
the natural parent-child relationship would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly
harmed. [Citations.] A biological parent who has failed to
reunify with an adoptable child may not derail an
merely by showing the child would derive some benefit from continuing a
relationship maintained during periods of visitation with the parent.’ [Citation.]
Evidence that a parent has maintained ‘ “frequent and loving
contact†is not sufficient to establish the existence of a beneficial parental
relationship.’ [Citation.]†(In re
Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
“Because a parent’s claim
to . . . an exception [to termination of parental rights] is evaluated in light
of the Legislature’s preference for adoption, it is only in exceptional
circumstances that a court will choose a permanent plan other than adoption. [Citation.]â€
(In re Scott B. (2010) 188
Cal.App.4th 452, 469.)
Section 366.26 sets forth
procedures for hearings terminating parental rights. At the hearing, the court is to review
reports provided by the social services agency, and “shall receive other
evidence that the parties may present . . . .â€
(§ 366.26, subd. (b).) Father
argues the court denied his right to a hearing and did not request an offer of
proof. Mother contends the court erred
by conditioning her right to a contested
hearing on a successful offer of proof.
In In re Tamika T. (2002) 97 Cal.App.4th 1114 (Tamika T.), our colleagues in Division Four of this court rejected
arguments similar to those the parents assert here. In Tamika
T., the juvenile court set a section 366.26 hearing. The mother’s whereabouts were unknown for
over a year. When mother resurfaced, she
requested a contested hearing. The court
set a hearing date, conditioned upon an offer of proof from the mother. (Id.
at p. 1118.) On the date of the hearing,
mother’s offer of proof was that she had maintained an emotional bond with the
child, had written to her recently, and it would be in the child’s best
interests to have contact with the mother.
(Ibid.) The juvenile court determined the mother’s
offer of proof was insufficient, concluded no exceptions to adoption applied,
and terminated the mother’s parental rights.
(Id. at p. 1119.) The mother appealed, arguing she had a due
process right to a contested hearing on the applicability of the beneficial
parent-child relationship exception to adoption, and the juvenile court had no
discretion to require an offer of proof before conducting a contested
hearing. (Id. at p. 1120.)
The Court of Appeal,
quoting its earlier opinion in In re
Jeanette V. (1998) 68 Cal.App.4th 811 (Jeanette
V.), explained that while a parent “of course . . . has a right to due
process†at a section 366.26 hearing, “ ‘due process is not synonymous with
full-fledged cross-examination rights.
[Citation.] Due process is a
flexible concept which depends upon the circumstances and a balancing of
various factors. [Citation.] The due process right to present evidence
is limited to relevant evidence of significant probative value to the issue
before the court. [Citations.] Even where cross-examination is involved, the
trial court may properly request an offer of proof if an entire line of
cross-examination appears to the court to be irrelevant to the issue before the
court. [Citations.]’ [Citation.]†(Tamika
T., supra, 97 Cal.App.4th at p. 1120, italics in original.) The court concluded requiring an offer of
proof before setting a contested hearing on the beneficial relationship
exception did not violate the mother’s right to due process. The Tamika
court further noted mother’s offer of proof was only a conclusory statement
that she had maintained an emotional bond with the child. (Id.
at p. 1121.) The court thus explained:
“Because due process is,
as we noted in [Jeanette V.,]
a flexible concept dependent on the circumstances, the court can require an
offer of proof to insure that before limited judicial and attorney resources
are committed to a hearing on the issue, mother had evidence of significant
probative value. If due process does not
permit 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. 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. . . . We therefore
conclude it does not violate due process for a trial court to require an offer
of proof before conducting a contested hearing on one of the statutory
exceptions to termination of parental rights.â€
(Tamika, T., supra, at p.
1122.)
The Tamika T. court also distinguished In re James Q. (2000) 81 Cal.App.4th 255 (James Q.). In
require a party to a review hearing to tender an offer of proof as a condition
to obtaining a contested hearing. (
T. court noted James Q.
considered due process rights in connection with a section 366.21, subdivision
(e) hearing, and distinguished the case on that basis. (Tamika
T., at p. 1122.) Further, the
reasoning of James Q., explaining it
did not adequately acknowledge that due process is a flexible concept in
dependency proceeding. (
We agree with the
process rights by requesting an offer of proof in connection with their request
for a contested hearing, or by refusing to conduct a contested hearing upon
finding the offer of proof insufficient.
(In re Earl L. (2004) 121
Cal.App.4th 1050, 1053.) The parents’
right to present evidence was limited to “relevant evidence of significant
probative value to the issue before the court.â€
The only issue the parents raised was the applicability of the
beneficial relationship exception. They
had the burden of proof on this issue.
(See In re Thomas R. (2006)
145 Cal.App.4th 726, 732 [on court’s demand for offer of proof, distinguishing
between issues on which department has burden of proof, and issues on which
parent has burden of proof].)
Here, the parents were
not present and had not been in contact with their counsel. Mother did not appear at the previous two
hearings, including the contested hearing at which the court terminated
reunification services. In the more than
18 months since the dependency proceedings began, the parents had only visited,
the children regularly in the last four months.
Both children were under five years old.
K.Y. was detained when he was only days old. He had not been in the parents’ care since
the original detention. DCFS reports
indicated the maternal grandparents had been fulfilling a parental role for the
children since December 2011. Before
granting a request that would delay the proceedings, and therefore further
postpone the implementation of a permanent and stable arrangement for the
children, the trial court could properly request an offer of proof to determine
whether the parents’ proposed evidence would be of significant probative
value. (In re Zeth S. (2003) 31 Cal.4th 396, 412-413 (Zeth S.) [state has a strong interest in the “expeditiousness and
finality†of juvenile dependency proceedings].)
We also disagree that the
facts of Tamika T. significantly
distinguish it from this case, rendering its legal analysis inapplicable
here. In Tamika T., the evidence was undisputed that the mother had not
maintained regular visitation for a period of years. (Tamika
T., supra, 97 Cal.App.4th at p.
1121.) The mother told the court her
last visit with her child was 18 months earlier. (Id.
at p. 1121.) As the Tamika T. court noted, the juvenile court in that case could
“reasonably be skeptical whether mother could offer probative evidence on the
regular visitation and contact exception.â€
(Id. at p. 1122.) However, the court’s analysis was not limited
to those specific facts because the mother contended the juvenile court had no
right to request an offer of proof, regardless of the facts. (Ibid.) In response to that contention, the
court may require an offer of proof before committing limited judicial and
attorney resources to a contested hearing.
The court acknowledged that a parent has a right to a contested hearing
on the exceptions to termination of parental rights. But it explained: “The real issue is whether
due process makes that right absolute so as to preclude a court from requiring
a parent to make an offer of proof before a contested hearing is held.†(Id. at
p. 1123.) The court concluded due
process does not preclude a court
from requiring an offer of proof before allowing a parent to present evidence
on a contested issue at a section 366.26 hearing. (Id.
at p. 1124.) We do not understand
proposition that the court may only require an offer of proof without offending
due process if the evidence already in the record establishes the parent has no
legitimate chance of proving an exception to adoption will apply.
Moreover, this case is
not dissimilar from Tamika T. in
that, on the evidence before it, the juvenile court here could reasonably
question whether the parents would offer additional significant probative
evidence on the parent-child beneficial relationship exception. Even though mother requested a contested
section 366.21, subdivision (f) hearing, she did not appear at that
hearing. At that contested hearing, the
parents’ counsel did not present any affirmative evidence or challenge the DCFS
reports. Further, as noted above, K.Y. had lived in the parents’ care only the
first few days of his life. The parents had
only recently started regular, consistent visitation. While the section 366.26 report was fairly
brief, earlier reports also lacked details suggesting the parents served a
parental role for the children, the children had any significant emotional attachment
to the parents, or that severing the parent-child relationship would greatly
harm the children. On these facts, the
juvenile court could reasonably request an offer of proof before setting the
matter for a contested hearing.
Mother asserts the juvenile
court denied a contested hearing because she was not present, and the court’s
decision was unrelated to the offer of proof.
We disagree. The juvenile court
asked for an offer of proof after the parents requested a contested hearing,
then, after hearing mother’s offer, indicated it saw no basis to delay the
proceedings for a contested hearing. On
this record, we must conclude the juvenile court considered mother’s offer of
proof, which it had requested, and found it insufficient to warrant a contested
hearing. (In re Zamer G. (2007) 153 Cal.App.4th 1253, 1271 [on appeal we
indulge all presumptions to support lower court order on which record is
silent; review is of ruling, not reasons].)
On appeal, the parents
also assert they eventually made it to court on the date of the section 366.26
hearing, as evidenced by the fact that their notices of appeal were signed and
filed on that date. Even were we to
accept the notices of appeal as evidence the parents came to court on the date
of the hearing, it would not change our conclusion that the juvenile court did
not violate their due process rights by requesting an offer of proof before
setting the matter for a contested hearing,
or in finding the offer insufficient.
Both parents were
represented by counsel. At the time of
the hearing, the juvenile court had no indication the parents were on their way
to court, or that they had any intention of appearing. Mother had missed the previous two
hearings. Neither counsel suggested the
parents were on their way to court.
Indeed, the court asked the
parents’ attorneys if they had been in contact with their clients. They had not.
We cannot find error in the juvenile court’s failure to act based on
information it could not have had. (
405-406, 413 [appellate court may not consider postjudgment evidence to reverse
juvenile court order terminating parental rights; appeal reviews the
correctness of judgment at the time of rendition, upon a record of matters
which were before the trial court for its consideration]; § 366.26, subd. (i)
[after making order terminating parental rights, court has no power to set
aside, change, or modify it, except by direct appeal].) And, even if we were to consider evidence of
what caused the parents to be absent from the .26 hearing or the circumstances
surrounding the filing of the notices of appeal, there is nothing before us
that in fact sheds light on these events.
But more importantly, we
do not agree the record demonstrates the juvenile court requested an offer of
proof, or found it insufficient, simply because the parents were not
present. “After reunification efforts
have failed, it is not only important to seek an appropriate permanent
solution—usually adoption when possible—it is also important to implement
that solution reasonably promptly to minimize the time during which the child
is in legal limbo. A child has a
compelling right to a stable, permanent placement that allows a caretaker to
make a full emotional commitment to the child.
[Citation.] Courts should strive
to give the child this stable, permanent placement, and this full emotional
commitment, as promptly as reasonably possible consistent with protecting the
parties’ rights and making a reasoned decision.†(In re
Celine R. (2003) 31 Cal.4th 45, 59.)
The juvenile court could properly request an offer of proof before
setting a contested hearing, in line with its obligation to seek and implement
a permanent solution for the children as promptly as possible, and without
violating the parents’ due process rights.
Mother’s Offer of Proof Insufficient
Father asserts the
juvenile court failed to request an offer of proof. This is incorrect. The juvenile court specifically asked counsel
for an offer of proof. Father’s counsel
did not make one. Mother’s counsel did make an offer; on appeal mother contends
it was sufficient to warrant a contested hearing. We conclude the trial court did not abuse its
discretion in finding her offer of proof insufficient. (Ingrid
E. v. Superior Court (1999) 75 Cal.App.4th 751, 759 (Ingrid E.).)
The Tamika T. court explained that an 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.†(
1124.) In Tamika T., the mother’s offer of proof was clearly insufficient
because, in addition to simply being a conclusory statement, the evidence she described
would not have established the beneficial parent-child relationship applied.
even describe any evidence. Mother’s
only offer of proof was a statement that counsel would elicit evidence
regarding the beneficial relationship exception, and “probably†she, in
addition to “possibly†the maternal grandmother, would testify about mother’s
bond with the children. Mother’s counsel
provided no statement of actual evidence mother would present. She did not mention cross-examination, or
highlight any portion of the DCFS reports mother would seek to challenge. The juvenile court reasonably found this
offer of proof insufficient to warrant a contested hearing on the beneficial
relationship exception.
Mother’s reliance on
misplaced. In Ingrid E., the mother provided a written statement that “set forth
the elements of proof that she hoped to establish at the hearing. Those elements included not merely the names
of prospective witnesses, but also a summary of the issues relevant to the
witnesses.†(Ingrid E., supra, 75 Cal.App.4th at p. 759.) The Court of Appeal concluded the juvenile
court erred in finding this offer of proof insufficient to trigger a contested
review hearing under section 366.22. (
describe the elements of proof, or any facts she hoped to establish at the
hearing. Counsel offered only the most
general summary of the issues she expected mother’s or maternal grandmother’s
testimony to address. Unlike the
mother’s offer of proof in Ingrid E.,
mother’s offer here was exceedingly minimal and generic. Thus, Ingrid
E. does not support mother’s arguments.
Even if we consider
counsel’s argument as part of the offer of proof, the juvenile court could
still reasonably find the offer insufficient.
Mother’s counsel explicitly admitted the only information she had was
that included in the DCFS section 366.26 report. This information was already before the
court. A contested hearing was not
necessary to introduce evidence already in the record. In making an offer of proof, it was incumbent
on the parents to describe other
evidence, such as the nature and quality of the relationship between the
parents and the children, or evidence to prove severing the parental
relationship would be detrimental to the children. Mother’s offer of proof did not identify any
such evidence. Under any standard of
review, the trial court did not err in finding the offer of proof insufficient
to trigger a contested hearing.
III. Substantial
Evidence Supported the Juvenile Court Finding that No Exception to Adoption Applied
The parents argue the
trial court erred in finding the beneficial parent-child relationship exception
to adoption did not apply. We disagree.
“[T]he review of an
adoption exception incorporates both the substantial evidence and the abuse of
discretion standards of review. [Citation.] . . . . [T]he juvenile court's
decision whether an adoption exception applies involves two component
determinations: a factual and a discretionary one. The first determination—most commonly whether
a beneficial parental or sibling relationship exists . . . is, because of its
factual nature, properly reviewed for substantial evidence.
[Citation.] The second
determination in the exception analysis is whether the existence of that
relationship or other specified statutory circumstance constitutes ‘
under the deferential abuse of discretion standard. [Citation.]â€
(In re K.P. (2012) 203
Cal.App.4th 614, 621-622 (K.P.).)
The beneficial
relationship exception only applies when there is a relationship that promotes
the child’s well-being to such a degree that it outweighs the well-being the
child would gain in a permanent, stable home with adoptive parents. (K.P.,
supra, 203 Cal.App.4th at pp. 621-622; In
re Jason J. (2009) 175 Cal.App.4th 922, 936 (Jason J.).) The relationship
is one characterized by a significant, positive, emotional attachment from
child to parent, resulting from the parent’s attention to the child’s needs,
and arising from frequent interaction, companionship, and shared
experiences. (Jason J., at p. 936; In re
Autumn H. (1994) 27 Cal.App.4th 567, 575.)
The emotional attachment must be one of parent and child, rather than
the attachment a child might feel to a “friendly visitor†or nonparent
relative. (Jason J., at p. 938; In re
Angel B. (2002) 97 Cal.App.4th 454, 468.)
To establish the exception applies, a parent must show more than the
child would gain some benefit from
continuing a relationship with the parent.
“ ‘A child who has been adjudged a dependent of the juvenile court
should not be deprived of an adoptive parent when the natural parent has
maintained a relationship that may be beneficial to some degree, but
that does not meet the child's need for a parent.’ [Citation.]â€
(Jason J., at p. 937.)
Substantial evidence
supported the juvenile court finding that no beneficial parent-child
relationship existed in this case. The
evidence indicated that after the parents moved to Shasta County, K.Y. had
merely “gotten to know them†by late October 2012. K.Y.’s only experience with the parents was
limited to monitored visits. Although
there was evidence K.Y. enjoyed playing with the parents, there was no evidence
of a beneficial parental relationship between them.
There was evidence from
the maternal grandmother that D.Y. loved her parents very much and liked
spending as much time with them as schedules allowed. But, although it was undisputed that after
June 2012, the parents visited the children regularly, there was still no
evidence that the relationship between the parents and D.Y. was more than one
of pleasant supervised visits. D.Y. was only three years old when she was
removed from the parents’ custody, and, for almost a year, the parents did not
visit her regularly. The evidence in the
record indicated the maternal grandparents handled parental tasks such as taking
the children to medical appointments and participating in developmental
services. There was no evidence that the
parents had taken on a parental role with either child. There was no evidence that the children had difficulty
separating at the end of visits.
Evidence of frequent and loving contact alone is not sufficient to
establish the existence of a beneficial parental relationship. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1316.)
Moreover,
even assuming there was evidence of a beneficial parental relationship, the
juvenile court did not abuse its discretion in concluding the relationship did
not constitute a compelling reason for determining that terminating parental
rights would be detrimental to the children.
(Marcelo B., supra, 209
Cal.App.4th at p. 644 [despite warm and affectionate relationship with child,
substantial evidence supported finding child would not suffer detriment from
termination of relationship].) By the
time of the section 366.26 hearing, the parents had not moved beyond supervised
visitation. While there was evidence the
children enjoyed spending time with the parents, there was no evidence in the
record that termination of the parent-child relationship would be detrimental
to the children, or that the relationship “conferred benefits [to the children]
more significant than the permanency and stability offered by adoption.†(K.P.,
supra, 203 Cal.App.4th at p. 623; Marcelo
B., supra, 209 Cal.App.4th at p. 644; Jason
J., supra, 175 Cal.App.4th at p. 938.)
Neither the parents’ relocation to Redding, nor the regularity and
frequency of the parents’ visits between June and October 2012, was evidence
that the parents’ relationship with the children was such that the children
would be greatly harmed if parental rights were terminated. We can find no abuse of discretion in the
court’s conclusions.
DISPOSITION
The
juvenile court order is affirmed.
BIGELOW,
P. J.
We concur:
RUBIN,
J.
FLIER,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
March 2011, the maternal grandparents provided a letter to DCFS indicating they
could not attend an upcoming placement meeting due to the older children’s
school and schedule of extracurricular activities. However, they expressed their concern for
D.Y. and K.Y. They indicated they were
prepared to take the children in, and to make any necessary adjustments to keep
all of the siblings together. They also
provided two letters of reference attesting to their care of the three older
children, both of which noted the grandparents’ commitment and dedication in
parenting mother’s older children.
