In re Kayla I.

Filed 2/22/08 In re Kayla I. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Irwin Garfinkel, Juvenile Court Referee. Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Associate Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Adriana C. (mother) appeals from an order terminating juvenile court jurisdiction over her three children and awarding legal and physical custody to their father, Albert I. (father). We find no error, and we affirm.

FACTS AND PROCEDURAL HISTORY

Kayla (born October 1999), Krystal (born December 2000), and Kianna (born July 2004) came to the attention of the Department of Children and Family Services (the Department) in December 2006, when it received a report that the children and their mother were living in a car and that mother was using methamphetamines. The Department initially offered mother voluntary family maintenance services, but ultimately detained the three children on March 6, 2007.

The Department filed a dependency petition with the juvenile court on March 9, 2007. The petition alleged that mother had a lengthy and unresolved history of substance abuse that rendered her incapable of providing regular care for the children; that mother failed to provide the children with adequate food and that they repeatedly came to school hungry; and that father had failed to provide the children with basic necessities, including food, clothing, shelter, and medical care.

Concurrently with the dependency petition, the Department filed a detention report that detailed the Departments investigation and efforts to avoid detention. It reported that a social worker first contacted mother on December 8, 2006. Mother agreed to come to the Departments office the same day, but did not show up. On December 11, 2006, an administrator at the school attended by the two older children told the social worker that the children often came to school inappropriately dressed and unclean, and that they regularly complained of being hungry. She said the children were in danger of being retained at the end of the current school year because of excessive absences, and that she suspected mother of drug use because one day shes ok, and the next shes 100 mph and then she is slow as molasses. The childrens day care provider gave a similar report: On February 28, 2007, she told the social worker that mother routinely brought the children to the day care center hungry, dirty, and not properly dressed for cold weather, and she asked the social worker to Please help those girls.

Both mothers and fathers relatives also told the Department they were concerned about the childrens safety. The childrens maternal aunts said they believed mother was using drugs because of her recent erratic and aggressive behavior. The childrens paternal relatives said they believed the children were not well cared for, that mother had been socializing with unsavory characters, and that mother is very antsy, jumping up and down at 100 miles per hour like she is on speed . . . she just screams and goes off on these tangents.

According to the detention report, the Department repeatedly asked mother to drug test (on December 12, 2006, and January 11, February 5, and February 9, 2007), but she refused to do so. The Department also encouraged mother to consent to a voluntary family maintenance plan, but although mother initially agreed to participate, she ultimately refused to sign the case plan because she believed that her family was fine and did not need services.

The court held a detention hearing on March 9, 2007. It found that mother had a completely chaotic lifestyle and had refused to drug test despite being asked to do so. Further, it found by clear and convincing evidence that the Department had made reasonable efforts to keep the children with mother, but that those efforts had not been successful. The court ordered mother to participate in a drug treatment program, undergo random drug testing, and submit to a psychological evaluation. It granted mother twice-weekly monitored visits with the children, and it granted father (who resided in Las Vegas) unmonitored telephone calls with the children and unmonitored visitation in Los Angeles.

The Department filed an addendum report on April 23, 2007. It stated that mother had not contacted the Department regarding substance abuse treatment or testing. A psychological report submitted to the court May 1, 2007, stated that mother was only minimally cooperative and had not completed psychological testing. Further, the report said: [Mothers] behavior and failure to follow through with returning to [the psychologists] office to complete tests she knew she had not completed suggests that, at the very least, even while conscious of the impact of her resistance on her childrens lives, namely that they will remain placed away from her, the mother chose not to fully comply with the Courts orders for her evaluation to take place. This clearly does not bode well for her ability to follow through with treatment. [] Given her history of drug abuse and that her rather erratic presentation may be still due at least partially to a relapse[,] the mother should be expected to submit to random, weekly drug testing and test clean for at least three consecutive testing sessions before she is permitted to visit with her children. Such visits should then be permitted to occur only in the presence of a CSW as her erratic behavior suggests a risk of elopement without proper monitoring of her visits.

The court held a contested jurisdiction hearing on May 1, 2007, and sustained the allegations pursuant to Welfare and Institutions Code section (b)(1), (b)(2), and (b)(3)[1] of the petition pertaining to mothers drug use, her failure to provide the children with adequate food, and fathers failure to provide the children with the basic necessities of life. At the dispositional hearing the following day, the court ordered the Department to provide family reunification services to both mother and father; ordered mother to attend individual counseling, parent education, and a drug rehabilitation program with random drug testing; and ordered father to attend parent education and obtain appropriate housing. Further, it granted mother monitored visits twice per week, and it granted father unmonitored visits.

The Department filed an interim review report on May 31, 2007. It stated that father had obtained appropriate housing and would complete his parenting classes the following month. Additionally, his mother had moved to Las Vegas and was sharing an apartment with him in order to help with the childrens care.

Father filed a petition to modify pursuant to section 388 on June 21, 2007. In it, he alleged that he had obtained appropriate housing and a full-time job, as ordered by the court, and would complete court-ordered parenting classes by the end of the month. Further, he said that his mother had relocated to Las Vegas to assist him in caring for the children. Thus, he requested that the court make a Home of Parent order and place the children in his care.

The Department filed an interim review report on July 13, 2007. It reported that father had rented a two-bedroom apartment in Las Vegas and had obtained a full-time job for a concrete cutting company. His mother had moved to Las Vegas and had agreed to care for the girls while father was at work. Father had consistently visited the children in Los Angeles and had maintained regular telephone contact with them. The Department recommended placing the children with father, granting father legal and physical custody, and terminating juvenile court jurisdiction.

The court held a hearing on fathers petition to modify on July 13, 2007. There, mothers counsel said that mother is in agreement with the recommendation to have the kids live with the father and to close the case out with a family law order. However, she opposed the grant of sole legal custody to father, instead requesting that the court grant the parents joint legal custody. Mother requested a contested hearing be set the following week on the issue of legal custody.

The court asked what the mother has done to ameliorate the problems that brought the case to court; that to me, that is a significant issue with respect to whether [custody is] sole legal or joint legal. . . . Again, Id like to know what the mother has done . . . since this case came to court to ameliorate her substance abuse problems. The court noted that the original charges in the case were that mother had a substance abuse problem of long standing and failure to provide for the children in an adequate basis, and said that Im really just interested in what shes done to take care of the substance abuse problem. Mothers counsel asked to address that issue at a contested hearing, but the court said again that it would not grant legal or physical custody to mother unless she could demonstrate progress with regard to her case plan. It asked mothers counsel to tell me about her progress. I mean, she can tell you what programs shes in, if any, and what shes doing, and then Ill consider it. If I dont think thats sufficient, Ill grant you a contest. Im not going [to] set it for contest just to have her come in and say she just started a program yesterday. Further, the court told mothers counsel, If there is anything that you can tell the court today that would say, well, I can get proof that shes been in a program, that shes done certain things, that she deserves to have joint legal custody, then I would set it over for you for a hearing.

After consulting with mother, her attorney said mother had visited the children regularly but had not enrolled in any of the court-ordered programs. The court thus denied the request for a contested hearing and granted fathers section 388 petition, awarding legal and physical custody to the father. The court granted mother twice-weekly monitored visitation and terminated juvenile court jurisdiction, stating that mother can go to family law court and ask for change in [the custody award] when she can produce, to the court, evidence that shes complied with any court orders.

The court entered final judgment on July 13, 2007. Mother filed a timely appeal from the judgment on July 19, 2007.

DISCUSSION

Mother asserts that her due process rights were violated when the juvenile court granted father sole legal custody over her objection and without a hearing. Specifically, she contends that her rights were violated because: (1) she did not receive notice of the section 388 petition or of the Departments recommendation to vest sole legal custody in father; and (2) she was denied a contested hearing on the issue of legal custody.[2]

For the following reasons, we reject mothers contentions.

I. Mother Received Proper Notice of Fathers Section 388 Petition and of the Departments Recommendations

It is undisputed that mother was entitled to notice of the hearing on fathers section 388 petition, as she contends. ( 302, subd. (b) [Unless their parental rights have been terminated, both parents shall be notified of all proceedings involving the child]; 388, subd. (c) [If it appears that the best interests of the child may be promoted by the proposed change of order . . . , the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given . . . .], italics added; In re Kelley L. (1998) 64 Cal.App.4th 1279, 1284-1285 [reversing order terminating juvenile courts jurisdiction because father was not given notice of hearing].) However, the evidence is that mother did receive such notice. The proof of service attached to fathers section 388 petition reflects that it was served on mother and her attorney, and both mother and her attorney appeared at the July 13, 2007 hearing on the petition.[3] Thus, mothers asserted lack of notice of the hearing does not provide a basis for reversing the juvenile courts orders.

Mother also contends that even if she had notice of the section 388 petition, her due process rights were violated because she did not receive timely notice of the Departments recommendations that the juvenile court terminate its jurisdiction over the children and grant father sole legal custody. Mother does not say when she received the Departments report containing its recommendations, but she suggests that notice necessarily was untimely because the report was not completed until July 11, 2007, just two days before the section 388 hearing, and was not filed with the court until July 12.

Although mother accurately represents the dates the report was prepared and filed, we do not agree that it was untimely. Pursuant to section 302, the Department was required to deliver the report to mother prior to the hearing. ( 302, subd. (b).)[4] There is no suggestion in the record that the Department did not do soi.e., that it did not provide her with the report before the July 13 hearing. Further, mothers counsels remarks at the hearing demonstrate that mother and her counsel were fully aware of the Departments recommendations prior to the hearing: Counsels very first statement to the court was that Mother is in agreement with the recommendation to have the kids live with the father and to close the case out with a family law order; however, the Department is asking for sole legal custody to father, and I dont think thats appropriate. Accordingly, we reject mothers contention that she did not receive timely notice of the Departments recommendation to award father sole legal custody.

II. Mother Was Not Entitled to a Full Evidentiary Hearing Under the Facts of this Case

There can be no reasonable dispute that mother had a due process right to be heard on the Departments recommendation that the juvenile court grant father sole legal custody. (In re Kelley L., supra, 64 Cal.App.4th 1279; In re Michael W. (1997) 54 Cal.App.4th 190.) Mother contends, however, that her due process right to be heard was not satisfied by the opportunity the court granted her to make an offer of proof on the issue of legal custody. Instead, she contends, she was entitled to a full evidentiary hearing on the legal custody issue, even if she could not identify any relevant evidence that she intended to introduce at such a hearing.

We do not agree. This division repeatedly has held that a juvenile court does not violate due process by requiring an offer of proof before setting a contested dependency hearing, even where termination of parental rights is at issue. For example, in In re Tamika T. (2002) 97 Cal.App.4th 1114, a mother attempted to defeat the termination of her parental rights by contending that the trial court had no discretion to require an offer of proof before setting a contested hearing on the applicability of a statutory exception to section 366.26. She argued that the courts denial of her request for a contested hearing was prejudicial per se, requiring reversal. (Id. at p. 1119.) We rejected her contention: 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 parents representation is sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses. While a parent in a juvenile dependency proceeding has a due process right to a meaningful hearing with the opportunity to present evidence [citation], parents in dependency proceedings are not entitled to full confrontation and cross-examination. [Citation.] Due process requires a balance. [Citation.] 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. [Citation.] 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 (1998) 66 Cal.App.4th 1138, 1146-1147, italics added.) 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. (Id. at p. 1122.)

We reached a similar conclusion in In re Earl L. (2004) 121 Cal.App.4th 1050, where we considered whether the juvenile court had discretion to require parents to make an offer of proof before setting a contested hearing to determine whether the sibling exception of section 366.26, subdivision (c)(1)(E) applied; and in In re Jeanette V. (1998) 68 Cal.App.4th 811, where we considered the same issue with regard to a parents right to cross-examine the authors of Department reports in connection with a section 366.26 hearing. In both cases, we held that the juvenile court did have discretion to require offers of proof to clearly identify the contested issue(s) prior to determining whether a hearing is warranted. (In re Earl L., supra, at p. 1053; In re Jeanette V., supra, at p. 817.)

We know of no reason why our holdings in Tamika T., Earl L., and Jeanette V. should not apply equally in the present case. Indeed, the asserted due process right to present evidence without first making an offer of proof is significantly weaker here than in the cited cases because termination of mothers parental rights is not at issue. To the contrary, by terminating its own jurisdiction, the juvenile court eliminated the threat to mothers parental rights and held open the possibility that mother could regain legal and/or physical custody of the children through the family court. Thus, we conclude that the juvenile court did not violate mothers due process rights by conditioning her right to a contested hearing on legal custody on an adequate offer of proof.

In re Michael W. (1997) 54 Cal.App.4th 190, on which mother relies, does not suggest a different result. There, the court did not consider the issue raised by the present casei.e., whether the juvenile court must grant an evidentiary hearing even if the parent cannot identify any relevant evidence that he or she will introduce at such a hearing. Instead, the issue in Michael W. was whether, when returning legal and physical custody to a parent, the juvenile court had the power to hear evidence relevant to the noncustodial parents visitation rights. The court held that the juvenile court did have such power, reasoning that it makes no sense to interpret section 364 to preclude the court from considering evidence relevant to the order it would issue. (Id. at p. 195.) The issue in the present case is not the courts power to hear evidence, but rather its discretion not to, and thus Michael W. does not assist mother.

Mother also contends that even if the juvenile court had the right to require an offer of proof, it should not have limited her offer to evidence of her progress towards reunification. Instead, she says, she was entitled to present any and all evidence relevant to a custody determination, and that evidence should not have been limited to her progress toward reunification.

We do not agree. As an initial matter, we note that mother has not identified the factors she contends were relevant to a custody determination or cited any legal authority for the proposition that factors other than her progress towards reunification were relevant. Thus, she has forfeited any claim of error. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 844, fn. 3 [appellant forfeited contentions on appeal by failing to present argument (with citation to appropriate legal authorities) that these rulings were erroneous]; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2, quoting In re Steiner (1955) 134 Cal.App.2d 391, 399 [A point which is merely suggested by appellants counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion].) Moreover, neither at the juvenile court hearing nor on appeal has mother identified the additional evidence she would have presented had she been given an opportunity to do so. Accordingly, even if her claim of error had been sufficiently developed, mother still could not prevail because she has not established that she was prejudiced by the alleged error. (E.g., In re S.C. (2006) 138 Cal.App.4th 396, 407.)

Further, we conclude on the merits that the juvenile court did not abuse its discretion by finding that mother should not be awarded legal custody unless she could demonstrate that she had meaningfully addressed the conditions that brought the children to the Departments attention. Although the Welfare and Institutions Code does not specifically outline the factors relevant to a custody determination in a case like the present one, where the court is terminating its own jurisdiction and granting custody to the noncustodial parent, it does describe how the court should decide whether a child can be returned to a parent where the only issue is the parents ability to provide a safe home. In those circumstances, section 366.21, subdivision (e) provides that at the six-month review hearing, the court shall not return a child to his or her parents custody if it concludes that return would create a substantial risk of detriment to the child, and it further provides that the failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making a determination of detriment, the court shall review the relevant reports and shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself to services provided. Similarly, in determining whether to continue the permanency review hearing beyond 12 months, the court must find that there is a substantial probability that the child will be returned to the parents custody within the next six months because the parent has consistently and regularly contacted and visited the child, made significant progress in resolving problems that led to the childs removal from the home, and demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the childs safety, protection, physical and emotional well-being, and special needs. ( 366.21, subd. (g)(1)(A)-(C).)

Applying these standards, the court in Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 625, held that the juvenile court did not abuse its discretion in concluding that the children could not safely be returned to their mothers custody because mother had failed to comply with her reunification plan: The mothers failure to attend a residential treatment program, as ordered by the court in October 1995, was prima facie evidence that the return of the children to her custody would be detrimental. Her failure to take advantage of the other reunification services offered to her by the Agency confirmed that the dangers which led to the childrens detention had not been ameliorated and the childrens return to her custody would in fact be detrimental to their physical and emotional well-being. The court similarly held in Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763, that substantial evidence supported the trial court finding of detriment if the children were returned to their mother because [t]he evidence shows that after a lengthy reunification period, [she] failed to meaningfully address the conditions that brought her children to the attention of the juvenile court, and that she was still quite unfit to care for her children. (See also Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748 [In deciding whether it would be detrimental to return a child, the easy cases are ones where there is a clear failure by the parent to comply with material aspects of the service plan].)

These statutory provisions and cases make clear that if a parent fails to comply with her reunification plan, the juvenile court need not return her children to her custody, even if there is no other parent able to assume custody. A fortiori, a parent who fails to comply with her reunification plan need not be granted custody if the other parent is able to assume custody. The juvenile court did not abuse its discretion in so concluding.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.

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[1]All statutory references are to the Welfare and Institutions Code.

[2] In her appellants reply brief, mother contends that even though her only objection in the juvenile court was to the award of sole legal custody to father, she should not be deemed to have forfeited her right to challenge other aspects of the July 13 order.  Perhaps so, but because mothers appellate arguments do not address any other aspect of the July 13 order, we confine our analysis to the issue of legal custody.

[3] Mothers counsel told fathers counsel at the July 13 hearing that I didnt even receive the notice of it [the hearing on the section 388 petition], but when cautioned to direct [a]ll colloquy . . . toward the bench, she did not repeat her claim or seek to continue the section 388 hearing for that reason.

[4] That section provides in relevant part: In any case where the social worker is required to provide a parent or guardian with notice of a proceeding at which the social worker intends to present a report, the social worker shall also provide both parents, whether custodial or noncustodial, or any guardian, or the counsel for the parent or guardian a copy of the report prior to the hearing, either personally or by first-class mail.