In re J.D.

Filed 8/25/08 In re J.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed.

John N. Vega, under appointment by the Court of Appeal, for Defendant and Appellant Jesse D.

Nicole Williams, under appointment by the Court of Appeal, and Richard Pfeiffer, for Defendant and Appellant Kelly D.

Ruth E. Stringer, County Counsel, and P. Joanne Fenton, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer Mack, under appointment by the Court of Appeal, for Minors.

Jesse D. and Kelly D. appeal from orders terminating their parental rights to their children, J.D. and C.D., and freeing the children for adoption by the maternal grandparents. Both parents argue that the juvenile court denied them due process when it refused to permit live testimony in connection with their petitions for modification. (Welf. & Inst. Code, 388.)^[1] Father also contends that the court denied him due process when it refused to allow him to call five-year-old C.D. as a witness at the selection and implementation hearing, in support of fathers argument that the beneficial parental relationship exception applied. ( 366.26, subd. (c)(1)(B)(i).) The parents join in each others arguments.

PROCEDURAL AND FACTUAL HISTORY

Jesse D. (father) and Kelly D. (mother) are the parents of J.D., who is now almost two years old, and C.D., who is six. Both parents have a history of drug abuse, and J.D. tested positive for methamphetamine at birth. Mother tested positive as well. She initially denied having used methamphetamine, but later admitted that she used methamphetamine at times and had done so since 2003. When interviewed the day after J.D. was born, father admitted that he was under the influence of methamphetamine. Petitions pursuant to section 300 were filed by the Department of Childrens Services (DCS) as to J.D., C.D. and their half sister A.S., who is mothers daughter.^[2] A.S. was already living with the maternal grandparents, and the two boys were placed in the grandparents home as well. The petitions alleged that the parents drug use prevented them from adequately parenting the children, and alleged that the parents domestic violence placed the children at risk. The children were ordered detained out of the home on August 25, 2006.

At the jurisdiction/disposition hearing, the court sustained the petition and declared the children court dependents. Reunification services were ordered, and the parents were given monitored visitation for two hours once a week.

The parents visited with the children, but missed some visits. They reported that they missed some visits because of car problems and difficulties resulting from the length of their drive from Crestline to La Mirada, where the children resided, and that on other occasions they had arrived for a scheduled visit to find that the grandparents and the children were not at home. Visits were monitored by the maternal grandparents, initially at their home. However, they eventually refused to allow father in their home because of his behavior, the nature of which was unspecified. Visits were then conducted at a McDonalds which had a play area.

Neither parent maintained contact with the social worker. At the six-month review hearing, the social worker recommended termination of services because neither parent had participated in services to address their substance abuse and domestic violence. On April 18, 2007, the court terminated reunification services and set a hearing pursuant to section 366.26 for August 16, 2007.

Also at the six-month review hearing, DCS asked the court to reduce visitation to once a month. The social worker testified that since January, the parents had missed a number of visits. At that time, they were required to confirm a visit 24 hours in advance, and then to call 15 minutes before they arrived at the McDonalds. The grandparents would then take the children to the McDonalds. Beginning in January, the parents had several times confirmed a visit the day before it was scheduled, but would then fail to show up and would not call to inform the grandparents that they were not coming. She testified that this was extremely upsetting to C.D. The court set a separate hearing on visitation. At that hearing, the court ordered weekly two-hour visits, as before, but provided that if the parents missed two consecutive visits, their visits would be reduced to one a month. On May 21, the court was notified that the parents had missed two consecutive visits. The court reduced visits to two hours on the first Sunday of each month.

On August 16, 2007, the court set a contested section 366.26 hearing on September 19. On August 24, mother filed a section 388 petition seeking reinstatement of reunification services. In the petition, she stated that she and father had moved to Los Angeles County and that on July 18, after the court terminated reunification services, she had on her own engaged in services and completed [her] case plan. She had enrolled in New Directions, a facility which provides substance abuse treatment, parenting and domestic violence programs. She stated that she had tested negative for methamphetamine on the six occasions she was tested at New Directions. She stated that she had completed the New Directions program on August 14, 2007.

On September 10, father filed a section 388 petition seeking the return of the children or reinstatement of reunification services. He stated that he, too, had enrolled in New Directions and had an estimated completion date of August 14 for programs in drug counseling, domestic violence and parenting. He stated that he was continuing to work with New Directions. Both parents stated in their petitions that mother had given birth on June 22, 2007. Father stated that DCS had made a referral concerning that child to the Los Angeles County child welfare authorities. He stated that a social worker for Los Angeles County had visited them and was willing to testify that the infant was not at risk.

The court set a hearing on the petitions. After hearing argument, the court denied the petitions.^[3]

At the section 366.26 hearing, the social worker recommended that parental rights be terminated and a permanent plan of adoption be implemented. The adoptions social worker also recommended adoption. In her report prepared for the hearing, the social worker stated that at the visit in June, father had reportedly threatened the maternal grandfather with physical harm and had threatened to kidnap J.D. and C.D. The maternal grandparents were then preparing to move out of state. They had sold their home and had purchased a home in another state. Termination of visitation was requested to protect the adoptive family and to maintain confidentiality of their location. The court had authorized the grandparents to move out of state with the children, and by the time of the section 366.26 hearing, they had done so.

The parents testified at the hearing. They explained the reasons for some of the missed visits, and contended that they had been reported as no-shows at some visits when they were merely late. Father denied having threatened the grandfather or having threatened to kidnap the children. Both parents asserted that J.D. and C.D. were bonded to them and that a continued parental relationship would be beneficial to the children.

The court found that any harm the children would suffer from termination of the parental relationship would be outweighed by the benefit they would receive from a permanent, stable home. The court terminated parental rights and ordered a permanent plan of adoption.

The parents filed timely notices of appeal.

LEGAL ANALYSIS

THE PARENTS HAVE FAILED TO DEMONSTRATE THAT THE JUVENILE COURT VIOLATED THEIR DUE PROCESS RIGHT TO A FULL EVIDENTIARY HEARING ON THEIR SECTION 388 PETITIONS

Under section 388, a parent may petition the juvenile court to modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and that the proposed modification is in the childs best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

In this case, both parents filed petitions seeking modification of the order terminating reunification services and setting a hearing pursuant to section 366.26. Mother cited her completion of a program addressing substance abuse, domestic violence and parenting skills as changed circumstances, and asserted that reinstatement of reunification services would be in the childrens best interest, based on the bond she had with the children. She asserted that she had maintained regular visitation with the children and that the visits were always positive. Father also cited his completion of the same program, in tandem with his wife, and argued that it is in all of [the] childrens best interest that they be permitted to . . . grow up with each other, particularly in the care of their parents. He sought either the return of the children or the reinstatement of reunification services.

The court found that both petitions made a prima facie showing that the best interest of the children might be promoted by the requested new order and set both petitions for hearing. The order stated that the court would not hold an evidentiary hearing, but would decide the petitions based solely on the documents provided by the parties. At a hearing on the petitions, both parents argued that there was good cause to hold a full evidentiary hearing. Mother argued that she needed to have witnesses testify to rebut DCSs contention that the program she attended did not satisfy county requirements and to show that she was continuing to participate in the program and to make progress. Father concurred, and asked to be allowed to adduce testimony that the program was approved in Los Angeles County, where the parents resided.

The court ruled that it did not find good cause to set an evidentiary hearing. After considering the documents filed in connection with the section 388 petitions and prior findings and orders made by the court, the court found that the best interest of the children would not be promoted by the requested order. Accordingly, it denied the petitions.

The parents now contend that the denial of an evidentiary hearing violated their right to due process. Mother contends that she had a due process right to an evidentiary hearing because virtually all of the issues she raised in the petition were contested by the social worker and that there were issues of credibility that could only be resolved by live testimony. Specifically, she notes that while she asserted that she continued to visit the children on a regular basis, the social worker reported that mother had not maintained regular visitation with the children. And, while mother asserted that she and the children shared a bond and the children looked forward to the visits, the social worker reported that the children did not indicate that they looked forward to the visits or that they missed their mother, and offered her opinion that the children displayed no bond to either parent. Mother contends that because the juvenile court denied her petition on the ground that she failed to demonstrate that the requested modification was in the childrens best interest, she was entitled to cross-examine the social worker and to testify concerning the frequency of the contacts as well as the nature of the relationship between her and the children.^[4]

A court must set a hearing on a section 388 petition if it appears that the best interest of the child may be promoted by the proposed modification. ( 388, subd. (c).) However, neither the statute nor due process requires a full evidentiary hearing in all cases. Rather, the hearing may be limited to documentary evidence and argument unless [t]here is a due process right to confront and cross-examine witnesses. (Cal. Rules of Court, rule 5.570(h)(2)(B), (i).) Due process requires that the parent be given the opportunity to present oral testimony and to confront and cross-examine witnesses against them if there are material conflicts in the evidence or material issues of credibility. (See, e.g., In re Clifton V. (2001) 93 Cal.App.4th 1400, 1404-1405; In re Matthew P. (1999) 71 Cal.App.4th 841, 851.) However, the right to a full evidentiary hearing may be waived if the party fails to request it. (Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 427 [failure to object to a social workers report or to request a hearing effectively waives right to a hearing otherwise mandated by due process].) Here, the parents petitions focused almost exclusively on their participation in New Directions and asserted only summarily that the childrens best interests would be promoted by the modification they sought. Neither parent sought to present any evidence pertaining to the best interest of the child prong of section 388 or identified any conflicts or credibility issues pertaining to the best interest prong. Rather, they sought only to adduce evidence that their participation in the New Directions program satisfied the requirements of their case plan and asserted a need for live testimony only on that issue. Because neither parent sought to present evidence concerning the best interest prong of section 388 or identified any due process basis for a request for a hearing on issues pertaining to the best interest prong, it is arguable that they waived any claim that the juvenile court violated their right to due process by not providing such a hearing.^[5]

Even if they did not waive their right to such a hearing, however, any error in denying them an evidentiary hearing on the best interest prong was harmless beyond a reasonable doubt^[6]because neither parent made any offer of proof below as to how reinstatement of reunification services would have promoted the childrens best interests, and on appeal, mother has not cited any evidence which would support the conclusion that reinstatement would promote the childrens best interests. Rather, both below and on appeal, the parents merely assert that because they have a bond with their children, it would be in the childrens best interests to return custody to them or to reinstate reunification services. That is not sufficient to meet the parents burden.

After reunification services have been terminated, the focus of dependency proceedings is promoting the childs interest in a placement that is stable and permanent and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) At that juncture, there is a rebuttable presumption that foster care is in the childs best interest. (Id. at pp. 302, 309; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The presumption becomes more difficult to rebut where the permanent plan selected for the child is adoption, and the child has been placed in the prospective adoptive home for a significant period of time. (In re Angel B. (2002) 97 Cal.App.4th 454, 464-465.) A parent seeking an order reinstating reunification services therefore has the burden of proving by a preponderance of the evidence that the benefit to the child of resuming reunification efforts outweighs the benefit the child would derive from the stability of his or her permanent placement. (Ibid.) The fact that a bond exists between the parent and the child is not sufficient to meet this burden. Rather, the parent must affirmatively show that the bond is sufficient to outweigh the childs other needs, including those for permanency, consistency, structure and insightful parenting. (In re Dakota H. (2005) 132 Cal.App.4th 212, 231.)^[7] Thus, even if the parents could have demonstrated a significant parental bond with the children if they had been allowed to testify, that fact would not, in itself, demonstrate that resumption of reunification services would be in the childrens best interests.

The absence of any showing as to how the interests of the children would be promoted is, of course, fatal to a section 388 petition. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.) In the absence of any evidence, aside from the parents asserted bond with the children, which would have supported a conclusion that resumption of reunification services would promote the childrens best interests, the court would necessarily have denied the petitions. Because there was no such evidence in this case, any error in the juvenile courts refusal to hold a full evidentiary hearing on the section 388 petitions would be harmless beyond a reasonable doubt.

THE COURTS FAILURE TO ALLOW FATHER TO CALL C.D. AS A WITNESS AT THE SECTION 366.26 HEARING DID NOT VIOLATE FATHERS DUE PROCESS RIGHTS

Father asserts that the juvenile court violated his right to due process when it denied his request to have five-year-old C.D. testify in support of fathers claim that the beneficial parental relationship exception ( 366.26, subd. (c)(1)(B)(i)) applied to prevent termination of his parental rights.^[8]

A parent in a juvenile dependency proceeding has a due process right to a meaningful hearing with the opportunity to present evidence. (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146.) However, that right is not absolute or unlimited. For example, parents in dependency proceedings are not entitled to full confrontation and cross-examination. (In re Sade C. (1996) 13 Cal.4th 952, 992.) Due process requires a balance. (Id. at pp. 986-991.) The states strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence [citation], such as when the presentation of the evidence will necessitate undue consumption of time. (Evid. Code, 352.) The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.] (Maricela C. v. Superior Court, supra, at pp. 1146-1147.)

When a parent asserts the beneficial relationship exception in termination proceedings, the issue before the court is whether there are exceptional circumstances which create a compelling reason not to terminate parental rights. (In re Celine R., supra, 31 Cal.4th at p. 53.) Here, the court stated that it [did not] see how the five-year-old child would have any relevant testimony on the issue of beneficial relationship exception, assuming that he even could be found to be competent and testify. Father made no offer of proof as to C.D.s competence to testify or to any specific testimony C.D. could give if the court granted his request to have him testify. He merely stated that he believe[d] that C.D. could demonstrate the nature of the relationship between [father] and his son. This is not sufficient to show that there were exceptional circumstances which could make a compelling case against termination of parental rights. (Ibid.) We therefore see no abuse of discretion in the courts decision not to allow C.D. to testify.

Even if we assume that C.D.s testimony would have supported fathers contention that he had a great relationship with his son, moreover, any error in refusing to allow the child to testify was harmless. The Legislature has expressed its preference for adoption in all cases in which a court finds that a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) In an exceptional case, in which one of the section 366.26, subdivision (c)(1) circumstances exists, the court may choose another option, if it finds a compelling reason to do so. (In re Celine R., supra, 31 Cal.4th at p. 53.) It is not enough that the parent has a loving relationship with the child. Rather, the exception applies only when severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. In addition, the benefit the child would derive from continuing the parent-child relationship must promote the well-being of the child to such an extent as to outweigh the benefit the child would gain from having a permanent home with his or her adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576 [discussing former 366.26, subd. (c)(1)(A)].) Thus, merely showing the existence of a bond and a desire by the child to maintain a relationship with the parent is not enough to show a compelling reason not to terminate parental rights. Father has not cited any evidence in the record which would constitute a compelling reason not to terminate his parental rights. Accordingly, even if we assume that father did have a due process right to have C.D. testify, the courts refusal to permit the child to testify was harmless beyond a reasonable doubt.

DISPOSITION

The orders terminating parental rights and freeing J.D. and C.D. for adoption are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Gaut

J.

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^[1]All statutory citations refer to the Welfare and Institutions Code unless otherwise indicated.

^[2]A.S. was 14 at the inception of the dependency proceedings. She opposed adoption and was placed in a permanent planned living arrangement with her maternal grandparents. She is not a party to this appeal.

^[3]The petitions and the proceedings are discussed in further detail below.

^[4]Father joins in mothers arguments. He makes no meaningful argument of his own on this issue. Accordingly, we refer only to mothers arguments.

^[5]Neither mother nor father asserts any error in the courts denial of the hearing based on their offers of proof on the changed circumstances prong. Therefore, we conclude that they have waived review of that issue.

^[6]In dependency proceedings, violations of due process are subject to the harmless beyond a reasonable doubt standard of prejudice. (In re Justice P. (2004) 123 Cal.App.4th 181, 193.)

^[7]The child in In re Dakota H., was a special needs child, and the court held that many factors associated with those needs outweighed his bond to his mother in the determination that providing further services or returning custody to the mother would promote the childs best interests. (In re Dakota H., supra, 132 Cal.App.4th at p. 231.) We do not mean to suggest that the situation in this case is equivalent. We cite In re Dakota H. merely for the basic proposition that the existence of a parent-child bond is not, in and of itself, sufficient to demonstrate that modification of the childs placement or a delay in terminating parental rights to afford the parent more time for reunification is in the childs best interest.

^[8]As pertinent here, section 366.26, subdivision (c)(1) provides that a juvenile court shall terminate parental rights unless (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).)

A parent asserting the beneficial relationship exception must prove the existence of exceptional circumstances which present compelling reasons not to terminate parental rights. (In re Celine R. (2003) 31 Cal.4th 45, 53.)