In re Manuel M.
Filed 1/29/14 In re Manuel M. CA2/4
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 MANUEL M.,
a Person Coming Under the Juvenile Court Law.
B249328
(
Super. Ct. No. CK80155)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
YOLANDA M.,
Defendant
and Appellant.
APPEAL from orders of the
Donna Levin, Referee. Affirmed.
Julie E. Braden, under appointment by
the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James
M. Owens, Assistant County Counsel, and Kimberly A. Roura, Associate County
Mother Yolanda M. appeals from the
juvenile court’s orders denying her request for a contested hearing under
section 366.26
title="">[1]
and terminating her parental
rights over her eight-year-old son Manuel.
We affirm.
In March 2010, the juvenile court
sustained a section 300 petition filed by the Los Angeles County Department of
Children and Family Services (DCFS) alleging that Manuel (then 5) and his
sister Monique (then 8)
name="_ftnref2" title="">[2]
were at risk based on, inter alia, domestic violence between Mother and the
children’s father (Father).
name="_ftnref3" title="">[3] The court removed the children from Father’s
custody, and gave custody to Mother, who
was then living in a shelter. The court
ordered Mother to attend domestic violence and individual counseling, and
granted a permanent restraining order protecting Mother and the children from
Father.
Following reports of Monique’s severe
mental and emotional problems, Monique was detained, and Mother admitted the
allegations of a supplemental petition as to her in August 2010. By that time, Mother and Manuel were living
at their sixth shelter. However, in
December 2010, they moved in with Father, in violation of court orders. The parents engaged in domestic violence in
Manuel’s presence (including Father telling Manuel that he was going to kill
Mother). Manuel stopped attending school
and Mother stopped attending counseling.
In January 2011, the court ordered Manuel detained from Mother, and
granted her monitored visitation three times a week. By April 2011, when the court sustained a
supplemental petition as to Manuel, Mother was visiting him one day each week
at a neutral location arranged with the foster parents. The court
removed Manuel from Mother’s custody and ordered reunification services
for Mother, with monitored visitation three times a week, parenting class, and
individual and domestic violence counseling.
Although by August 2011 Mother had
secured housing in a three-bedroom unit and enrolled in domestic violence
counseling and a parenting class, she
soon resumed her relationship with Father.
By December 2011, she only sporadically attended domestic violence and
parenting counseling, and did not return to individual counseling. In February 2012, Manuel’s foster mother
reported that Mother was visiting Manuel only every other week.
On March
12, 2012, Father assaulted Mother, striking her on the head. She was able to escape, but when she returned
to her home she discovered that it had been severely damaged. She called the police, who had to forcibly
remove Father from the residence using rubber bullets and a taser. On May 4,
2012, at a contested hearing, the court terminated Mother’s reunification
services as to Manuel, and scheduled a section 366.26 hearing.
On May
18, 2012, Manuel was placed with prospective adoptive parents, Mr. and Mrs. T. His therapist reported that he suffered from
adjustment disorder with depressed mood, and would continue to suffer symptoms
until he achieved permanency. By August
2012, he was happy with the T’s, called them “mommy and daddy,†and had begun
to excel in school. His therapist
reported that the placement “seem[ed] to be a good fit.†Manuel continued to show attachment to
Mother. He said that he would like to be
adopted by the T’s if he could not reunify with Mother, but asked if Mother
could live with them after the adoption.
By June 2012, Mother had resumed contact
with Father, and by August 2012 was living with him. On August 8,
2012, Mother informed DCFS that she had checked herself into a mental health
center for severe depression. She missed
a visit with Manuel that day, causing him to become extremely upset for the
next three to four days. His therapist
reported that when Mother missed visits, Manuel feared something bad might have
happened to her. According to Mother,
she had lost her Section 8 housing because Father was taking her mail. She moved in with Father, but he threw her
out “with nothing.†She stopped taking
her medication, felt suicidal, and checked herself into a hospital. Mother’s mental health case manager reported
that Mother had attempted suicide by jumping in front of a train, and was
hospitalized for 17 days, then transferred to another facility from which she
was discharged on October 11, 2012. Mother then moved into a homeless
shelter.
In the meantime, on August 24, 2012, the court reduced Mother’s
visitation to one monitored visit of one hour per month. In October 2012, DCFS reported that Manuel
was happy living with the T’s, was doing well in school, and his emotional
outbursts had decreased.
In December 2012, Mother filed a
section 388 petition seeking reinstatement of reunification services. The court set the matter for the same date as
the section 366.26 hearing. For the
hearing, DCFS reported that Manuel was bonded to the T’s and had been named
Student of the Month at his elementary school.
Since August 2012, Mother had visited Manuel only once (on November 1,
2012), though she had telephone conversations with him four times in September,
three times in October, and twice in November.
As of February
25, 2013, Mother was still residing in a homeless shelter. She had not visited Manuel since the November 1, 2012 visit. She told DCFS that she had had no contact
with Father since she was admitted to the hospital. She stated that she finally
realized that she was better off without him and that she had put Manuel in
danger by going back with Father. Mother
was looking into housing programs that would accommodate her children. She was seeing a psychiatrist to get
medication, but was not participating in any therapy. Mother explained her lack of in-person visits
as the result of not having money for transportation, and her sporadic
telephone contact as the result of her phone frequently being missing.
Manuel told DCFS that he felt “goodâ€
about living with the T’s. When asked if
he wanted to visit Mother, he said yes, and also wanted to see Father. Manuel said that he would like to live with
the T’s, but also would like to live with Mother. He stated that “[t]he court said I can’t go
back to my mom. I think she’s trying
really hard.â€
On February
25, 2013, the court conducted a joint hearing on Mother’s section 388 petition
and the section 366.26 disposition. In
support of the section 388 petition, Mother testified that she had last seen
Father six months ago and was now maintaining a separate residence. She was taking psychotropic medication and
seeing a psychiatrist to regulate that medication. She had visited Manuel last “Friday,†and
before that had seen him “in December . . . or . . . the end of November.†She explained that “it is really hard . . . because
I have transportation problems, but they bring him to me. But during the last few weeks or month, I
have been very busy trying to get . . . housing and everything.†She later admitted that she had not visited
Manuel in December, January, or February.
Mother was requesting unmonitored visits and a reinstatement of
reunification services, and promised to comply with all court orders.
Mother’s counsel argued that Mother
had been frustrated in her attempts to visit Manuel and Monique and have a meaningful
relationship with them since reunification services were terminated, because
she did not have funds for transportation.
However, Mother was determined to remain separated from Father, to take
her medication, and to make a home for Manuel and Monique.
Manuel’s counsel argued against
granting the petition, pointing out that Mother had a consistent history of
returning to Father and had failed to protect Manuel from domestic
violence. Counsel characterized Mother’s
recent efforts as being “a little too late.â€
Counsel for DCFS joined in opposing the petition.
The trial court denied the
petition. It noted that the case had
been pending for approximately two-and-a-half years, that Mother had failed to
complete her case plan, and that she had not visited Manuel or Monique since
November. Because the children were in
need of permanence, it was not in their best interest to grant the section 388
petition.
Turning to the section 366.26 hearing
as to Manuel, Mother’s counsel stated that Mother “wishes to contest the nature
of the relationship between [her] and the child being such that it would be
detrimental to terminate parental rights.â€
This was an implicit reference to the exception to termination of
parental rights under section 366.26, subdivision (c)(1)(B)(i). The court noted that although the issue in
the section 388 petition was “slightly different,†the petition asked for a “return
to mother†and “further family reunification services. . . . The Mother has not visited on a regular basis
and . . . has not had unmonitored visitation in a long time. . . . And as to Manuel, he is in a good
pre-adoptive home.†Nonetheless, the
court offered to hear any showing as to why the section 366.26 hearing should
be contested.
Mother’s counsel asked to examine
Manuel. The court responded that Manuel
was under 12 years of age, and his feelings were really “not relevant . . . and
he is, in the report, stating that he likes the home he’s in.†Mother’s counsel noted that Manuel also said
that he liked having contact with Mother.
The court responded: “The only
relevance would be if Mother can show that the bond is such that he should have
a continuing relationship with the mother.
I don’t have anything in the reports to show that, and all I have is disappointment
in the mother in her not showing up for visits. . . . I agree he does say at some point [he likes
contact with Mother], . . . but he did actually say that he wants to stay in
the family he is with and he likes it there and he has a good home. So Manuel’s bond with the mother is not
strong enough to say ‘I would rather be with Mom than these people.’ He’s not saying that. The mother can’t show that she has a bond
with Manuel. He hasn’t been in her home
for a couple of years now, and she has not had unmonitored visitation with him.†The court then denied the request for a
contested section 366.26 hearing. The
court terminated Mother’s parental rights, made adoption the permanent plan,
and designated the T’s as the prospective adoptive parents.
DISCUSSION
Mother contends that the court erred
in denying her a contested section 366.26 hearing as to Manuel. We disagree.
As held in In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122 (
properly request an offer of proof before permitting a contested section 366.26
hearing based on one of the statutory exceptions to termination of parental
rights: “Because due process is . . . 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.†(Tamika
T., supra, 97 Cal.App.4th at p.
1122.)
Here, as in Tamika T., Mother requested a contested hearing so as to litigate
the exception to parental rights found in section 366.26, subdivision
(c)(1)(B)(i). That exception requires
the parent to show that he or she “ha[s] maintained regular visitation and
contact with the child and the child would benefit from continuing the
relationship.†The parent must show that
the nature of the relationship “‘promotes 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 other
words, the court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of
belonging a new family would confer. If
severing the natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that the child would be greatly
harmed, the preference for adoption is overcome and the natural parent’s rights
are not terminated.’ [Citation.] [¶] The
parent must do more than demonstrate ‘frequent and loving contact[,]’
[citation], an emotional bond with the child, or that parent and child find
their visits pleasant. [Citation.] Instead, the parent must show that he or she
occupies a ‘parental role’ in the child’s life.†(In re Derek
W. (1999) 73 Cal.App.4th 823, 827.)
The juvenile court properly asked Mother’s
counsel for an offer of proof, noting that at the immediately preceding hearing
on the section 388 petition Mother failed to “show[] any basis in order to have
a contested .26 . . . but I am willing to have it now.†In response, Mother’s counsel requested to
examine Manuel, because he had said that he “like[d] having the contact with his
mother.†But as the court stated, Manuel
also wanted to continue living with the T’s, and there was nothing to suggest
that Mother could show the kind of bond required to sustain the section 366.26,
subdivision (c)(1)(B)(i) exception.
Moreover, Mother could not show regular visitation. The court was correct. Manuel’s equivocation – wanting to remain
with the T’s while at the same time remaining with Mother – was insufficient to
show that Mother and Manuel’s relationship was such as to outweigh the
well-being Manuel would gain in a permanent home with the T’s. In any event, it was undisputed below that
Mother could not meet the requirement of showing regular visitation. Thus, the court did not err in denying Mother
a contested hearing.
Mother contends that the court was
required to hear Manuel’s testimony to determine whether the sibling exception
of section 366.26, subdivision (c)(1)(B)(v) applied.
it is therefore forfeited. (
395, 403 [failure to raise sibling exception at section 366.26 hearing forfeits
the issue].) Mother contends that DCFS
failed to perform an adequate evaluation of the sibling relationship as
required by section 361.5, subdivision (g)(1)(B).
that can be raised for the first time on appeal. She is wrong.
The failure to object to the adequacy of the report under section 361.5
forfeits the issue on appeal. (
p. 399; In re Crystal J. (1993) 12
Cal.App.4th 407, 411-412.) In any event,
the DCFS reports complied with section 361.5, subdivision (g)(1)(B), by
reporting on Manuel and Monique’s joint visits and their enjoyment of
them.
The
orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We
concur:
EPSTEIN,
P. J. SUZUKAWA, J.
undesignated section references are to the Welfare and Institutions Code.
is not a party to this appeal.
