In re Ian G.
Filed 1/10/13 In
re Ian G. CA2/6
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 SIX
In re IAN G. et
al., Persons Coming Under the Juvenile Court Law.
2d Juv. No. B241004
(Super. Ct. Nos.
J-1379430, J-1379431)
(Santa Barbara County)
SANTA BARBARA COUNTY CHILD
WELFARE SERVICES,
Plaintiff and Respondent,
v.
PRISCILLA F.,
Defendant and Appellant.
Priscilla F. (mother)
appeals from the Welfare and Institutions Code, section 366.26
parental rights to her children. She
argues that the order must be reversed because the court abused its discretion
by denying her a contested evidentiary hearing.
Mother had also argued that the Santa
County Department of Social Services/Child Welfare Services (CWS) did not
comply with the notice requirements of the Indian
Child Welfare Act (ICWA). (25 U.S.C.
§ 1901 et seq.) We granted
respondent's motion to augment the record with documents relevant to that
issue. Mother now concedes the ICWA
issue. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On July 23, 2010, CWS
filed petitions alleging that mother's four-year-old son, Ian G., and
twenty-one-month-old daughter, Alina, F., came within the provisions of section
300, subdivisions (b), (c), and (g). Ian
and Alina have different fathers.
Neither father is a party to this appeal.
CWS detained the
children and placed them in protective
custody. Both children had
significant developmental delays. For
example, Alina was not yet walking at the age of twenty-two months. On October 4, 2010,
the juvenile court declared the children to be dependents of the court and
removed them from parental custody. The
court ordered reunification services for mother. CWS placed the children in foster care
together.
On April 20, 2011, the juvenile court terminated mother's reunification services and
set the matter for a section 366.26 hearing permanency planning hearing. In its August 15, 2011,
section 366.26 report, CWS recommended that the court terminate parental rights
and find the children adoptable. The
children had lived in the same foster adoptive home since October 2010, and
called their foster parents mom and dad.
Both children made significant developmental improvements in their
care.
The juvenile court
conducted a section 366.26 hearing.
Mother requested a contested hearing.
The court ordered her to file an offer of proof to establish a need for
a contested hearing, and continued the hearing.
Mother submitted a written offer of proof claiming that the section
366.26, subdivision (c)(1)(B)(i) beneficial parental relationship exception to
the termination of parental rights applied to her children's dependency
cases. She also submitted
was insufficient to justify holding a contested hearing regarding the existence
of a beneficial parental relationship.
The court found that the children were adoptable and terminated mother's
parental rights.
DISCUSSION
Mother asserts that the
juvenile court abused its discretion by denying her request for a contested
evidentiary hearing to allow her to establish the beneficial parental
relationship exception to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.
Section 366.26,
subdivision (c)(1) requires the juvenile court to terminate parental rights if
it finds by clear and convincing evidence that a child is likely to be adopted,
unless the court finds a compelling reason for determining that termination
would be detrimental to the child due to an enumerated statutory
exception. The beneficial parental
relationship exception of section 366.26, subdivision (c)(1)(B)(i) requires a
showing of "regular visitation and contact" and "benefit"
to the child from "continuing the relationship." (In re
Angel B. (2002) 97 Cal.App.4th 454, 466.)
A parent who has failed to reunify with an adoptable child may not
derail an adoption merely by showing the child would derive some benefit from
continuing a relationship maintained during periods of visitation with the
parent, or that the parental relationship may be beneficial to the child only
to some degree. (Ibid.) The parent must also
show that continuation of the parent-child relationship will promote "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." (In re
Autumn H. (1994) 27 Cal.App.4th 567, 575.)
The juvenile court has
discretion to request an offer of proof regarding an enumerated exception to
the termination of parental rights. (
1050, 1053.) "[T]he court can
require an offer of proof to insure that before limited judicial and attorney
resources are committed to a hearing on the issue, [the parent] ha[s] 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." (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122 [offer of proof
regarding beneficial parental relationship exception].)
Mother's written offer
of proof represented that she had attended all scheduled visits with her
children; the visits had gone well; the children showed attachment to her;
mother was involved actively in her recovery from substance abuse and attended
AA regularly; mother had stayed out of destructive relationships and had a
three-year restraining order against Ian's father; mother completed parenting
courses; she was employed in December 2011 and January 2012; and she
volunteered at a recovery center. She
also submitted the following documents to the court: the drug testing policy of a residential
facility; a letter from mother stating she was a resident and volunteer staff
member of Bridge House in Lompoc; the Bridge House schedule; a letter from her
employer stating that she was employed 20-25 hours per week; and a letter from
Transitions Mental Health Association regarding her participation in their
program since December 2011.
The juvenile court did
not err by denying mother a contested evidentiary hearing. "The 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." (In re
Tamika T., supra, 97 Cal.App.4th at p. 1124.) Here, taken together, the relevant portions
of mother's offer of proof claimed that she regularly visited her children and
the visits went well, and concluded the children showed an attachment to
her. The offer did not set forth the
actual evidence she would present to show that continuation of the parent-child
relationship would promote "the well-being of the child[ren] to such a
degree as to outweigh the well-being the child[ren] would gain in a permanent
home with new, adoptive parents." (
at p. 575; In re Dakota H. (2005) 132
Cal.App.4th 212, 229 ["To meet the burden of proof, the parent must show
more than frequent and loving contact, an emotional bond with the child, or
pleasant visits"].) The court
reasonably found that mother's offer of proof was insufficient to warrant an
evidentiary hearing.
DISPOSITION
The
order is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We
concur:
GILBERT, P.J.
YEGAN, J.
>
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Amy Z. Tobin, under
appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall,
County Counsel, County of Santa Barbara, Toni Lorien and Sarah A. McElhinney
Deputies, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references
are to the Welfare & Institutions Code unless otherwise stated.
