S.E. v. Super. Ct.

Filed 3/4/10 S.E. v. Super. Ct. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

I. Statement of the Case

Petitioner S.E. (mother) seeks a writ of mandate to reverse an order of the Santa Clara County Juvenile Court denying her request for a contested hearing on the resumption of reunification services and setting a hearing under Welfare and Institutions Code section 366.26.[1] ( 366.26, subd. (l); Cal. Rules of Ct., rule 8.452.) Mother claims the court abused its discretion in denying a contested hearing and in failing to consider all permanency planning options.

We deny the petition.

II. Background and Procedural History

In July 2005, police and a social worker from the Santa Clara County Department of Family and Childrens Services (the Department) conducted an unannounced welfare check at mothers home and found it dirty and unsafe; there was no food for the children; and drug paraphernalia was in mothers bedroom. Mother was arrested, and her four children, including M.C., were taken into protective custody. On a follow-up visit to the home, police found several people using drugs, including two teenagers, who said they used drugs with mother.

The Department filed petitions under section 300 for all four children based on allegations that mothers home was unsanitary; there was no food for the children; drug paraphernalia was accessible; the children were dirty, and two had head lice; mother had a history of drug abuse; two teenagers were found in the home under the influence, and one said that mother had supplied and recently used drugs with them; one of the siblings had injuries consistent with physical abuse; and the previous dependency case had been dismissed after mother had completed her reunification plan, the children were returned to her, and she received additional maintenance services. On August 25, 2005, the court sustained the petition and assumed jurisdiction over the children.[2]

In October 2005, after a contested hearing focusing on whether parents should be offered reunification services, the court took the matter under submission. In November, the court found by clear and convincing evidence that it was not in the childrens best interests for parents to receive reunification services, and they were terminated. The court then scheduled a hearing under section 366.26 to develop a permanent plan for the children.

In February 2006, the court ordered that the children remain in foster care while the Department investigated the suitability of a placement for some of the children with relatives in Arizona. At that time, M.C. was in a non-relative extended-family-member (NREFM) foster care placement. Visitation with parents was continued.

In May 2006, the social worker, Lenore Greene, learned that M.C. had been exhibiting highly sexualized behavior which caused her caregiver to isolate her from her teenage boys. Although Ms. Greene understood the reason for isolating M.C., she considered it somewhat emotionally abusive and sought permission from the court to put M.C. in a more restrictive placement. ( 387.) The court agreed to place M.C. at Eastfield Ming Quongs (EMQ) group home for therapeutic residential treatment and stabilization.

Over the next few years, mothers visitation was gradually decreased. In August 2006, the Department sought to reduce visitation further due to mothers inconsistency and M.C.s distress about it. After a contested hearing, the court reduced mothers visitation with M.C. to monthly two-hour visits.

In June 2007, M.C.s attorney filed a petition seeking to have mothers visits suspended while mother was in jail, to be resumed upon her release. ( 388.) Counsel asserted that mothers visitation up to February 2007, had been sporadic, and thereafter, she was incarcerated. The Department recommended that the petition be granted, and on July 5, 2007, the court did so. At that time, the court also terminated parental rights concerning M.C.s younger brother.

Later in July, the court ordered that M.C. and her two older siblings remain in long-term foster care. Mother had been released, and the court granted her supervised visitation once per month.

In late November 2007, mother was arrested and jailed again. The Department recommended that visitation be reduced to once per quarter. The court adopted that recommendation.

In October 2008, after several continuances, the court held a review hearing under section 366.3. At that time, mother was in prison. After the hearing, the court set a section 366.26 hearing for M.C.s older siblings, and it appears that they were later freed for adoption.

At a post-permanency planning hearing in April 2009, the court continued M.C. in long-term foster care and provided for mother to have quarterly visits after her release. Mother had not had visitation for over a year but had sent letters to M.C., which M.C. enjoyed receiving. At that time, M.C.s appointed advocate reported that M.C.s social and academic skills were improving; she was at grade level in reading and math; and she had expressed a desire to be adopted as long as she could see her siblings. The advocate opined that M.C. was adoptable and that adoption was the best outcome for her.

In July 2009, mother was released from prison. She visited M.C. and voluntarily entered a residential drug rehabilitation program, which was very structured. The program allowed children to live with their parents. Father had visited M.C. only once in six months.

At a review hearing on October 19, 2009, the Department recommended that the court set a section 366.26 hearing to adopt a permanent plan of adoption for M.C. In its report, the Department noted that mother wanted M.C. to be placed with her. However, the Department observed that mother was currently in a highly structured and restricted program where she would remain for 13 months until August 2010. Because of mothers long history of drug abuse, the Department questioned whether mother would be able to stay clean and care for herself, let alone M.C., after she completed the program. The Department opined that mother needed to complete her program and live on her own successfully for six months before it would consider recommending placing M.C. with her. The Department concluded that it was not in M.C.s best interests to be returned to mother at this time.

The report further noted that M.C. was almost 10 years old and had been a ward of the court for five years. Despite this, she has been doing well, her behavior and academic performance were good, and she engaged well with other children. The Department had been seeking potential adoptive parents for a long time and had located a couple with whom M.C. had begun to establish a relationship. The transition to a placement with them was proceeding well and would occur by November 2009.

At the hearing, mother requested mediation concerning whether to reinstitute reunification services. Mothers counsel noted that mother had completed various parenting classes while incarcerated. Counsel further noted that mother was currently in a residential program at Walden House and taking two parenting classes. Counsel also noted that mother was in a family reunification program focused on reunifying children with parents who have been incarcerated.

Counsel for M.C. stated that M.C. had emphatically indicated that she wanted to be adopted.

Mediation was scheduled for December 2009. Meanwhile, M.C. was placed with the prospective adoptive parents. By the time of the scheduled mediation, M.C. had fully and easily adjusted to life with the prospective adoptive parents, she was happier than she had ever been in the last two years, and she repeatedly had said she wanted to be adopted by them.

At a review hearing in December 2009, the parties reported that mediation had not resolved any issues. The Department reiterated its recommendation for a hearing on changing M.C.s plan from long-term foster care to adoption. Counsel for mother disagreed with the Departments recommendation and asked to be assessed to have M.C. placed with her; alternatively, she requested that reunification services be resumed for six months. Counsel reiterated that when mother was incarcerated, she completed a number of parenting courses. After her release in July 2009, mother voluntarily entered a sober living residential treatment program, where children are allowed to live. Counsel explained that the program provided for a childs gradual transition to living full time with his or her mother. Counsel also noted that at the program, mother had a large support network, she had been able to maintain her sobriety, and she had started to formulate a career plan to be a drug counselor.[3]

Counsel for M.C. agreed with the Departments recommendation that the court set a section 366.26 hearing and reiterated that M.C. wanted to be adopted.

The court noted that at this point, it was required to order a section 366.26 hearing unless it found by clear and convincing evidence a compelling reason to find that not doing so was in M.C.s best interests. Citing M.T. v. Superior Court (2009) 178 Cal.App.4th 1170 (M.T.) and Sheri T. v. Superior Court (2008) 166 Cal.App.4th 334 (Sheri T.), the court explained that mother and father had the burden to show that setting a hearing was not in M.C.s best interest. To this end, the court asked for an offer of proof.[4]

Counsel for mother said she was unable to respond at the time and asked for an opportunity to brief the issue. When the court said that it expected counsel to come to court prepared, counsel said she was not aware of M.T., supra, 178 Cal.App.4th 1170, which had been decided a month earlier. In any event, counsel argued that mother had a right to a contested hearing.

Counsel for the Department responded that it had already considered and rejected placing M.C. with mother. Counsel noted that the Department had reviewed the certificates showing that mother had completed parenting classes and acknowledged that she was currently living in a sober living environment. Counsel also acknowledged that mother had had some visitation with M.C. However, counsel noted that this was the second dependency; M.C. had not lived with mother since 2005; and mother would be in the residential treatment program until August 2010. Counsel reiterated that it was not clear how mother would transition to independent living and deal with the responsibilities of getting a job and housing, paying for bills, and parenting M.C. Counsel asserted that given these circumstances, the Department recommended a plan of adoption rather than placement with mother.

The court found that mother had failed show any reason why it was not in M.C.s best interests for the court to set a section 366.26 hearing. Accordingly, the court denied the request for a contested hearing. Nevertheless, the court invited mother to file a petition under section 388 if she wanted the court to consider changed circumstances. Concerning placement with mother, the court stated that it was unwilling to take that risk given the history of this case and it is clear that [mother] does well when she has structure, but the Court is aware that without that structure, [mother] has not fared so well, resulting in a second dependency. Accordingly, the court adopted the findings and recommendation of the Department and set a section 366.26 hearing.

Thereafter, mother filed the instant petition for a writ of mandate.

III. Denial of Contested Hearing

Mother contends that the court abused its discretion and denied her due process of law in refusing to grant a contested hearing on her alternative request to reinstate reunification services for six months. Mother claims she had a right to show that further reunification services were in M.C.s best interests.

Generally, when a dependency is at the post-permanency planning stage, the child is not living with the parent, reunification services have been terminated, and the case is subject to periodic reviews under section 366.3, subdivision (d), which provides, If the child is in a placement other than the home of a legal guardian and jurisdiction has not been dismissed, the status of the child shall be reviewed at least every six months.

At these review hearings, the court must inquire about the progress being made to provide a permanent home for the child, consider the safety of the child, and determine, among other things, the extent of the Departments compliance with the case plan in making reasonable efforts either to return the child to the safe home of the parent or to complete whatever steps are reasonably necessary to finalize the permanent placement of the child. ( 366.3, subd. (e)(4).) Moreover, [i]f the [court] determines that a second period of reunification is in the childs best interests, and that there is a significant likelihood of the childs return to a safe home due to changed circumstances of the parent, pursuant to subdivision (f), the specific reunification services required to effect the childs return to a safe home shall be described. (Ibid.) The court must also determine [t]he extent of the progress the parents . . . have made toward alleviating or mitigating the causes necessitating placement in foster care. ( 366.3, subd. (e)(7).)

Section 366.3, subdivision (f) provides: Unless their parental rights have been permanently terminated, the parent or parents of the child are entitled to receive notice of, and participate in, those hearings. It shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order that further reunification services to return the child to a safe home environment be provided to the parent or parents up to a period of six months, and family maintenance services, as needed for an additional six months in order to return the child to a safe home environment. (Italics added.)

Section 366.3, subdivision (h), provides, in relevant part, At the review held pursuant to subdivision (d) for a child in long-term foster care, the court shall consider all permanency planning options for the child including whether the child should be returned to the home of the parent, placed for adoption, . . . or appointed a legal guardian, or, if compelling reasons exist for finding that none of the foregoing options are in the best interest of the child, whether the child should be placed in another planned permanent living arrangement. The court shall order that a hearing be held pursuant to Section 366.26, unless it determines by clear and convincing evidence that there is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interest of the child because the child is being returned to the home of the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship. (Italics added.)

At a post-permanency plan review hearing, a parent seeking to renew reunification services and/or avoid the setting of a section 366.26 hearing bears the burden of proof. Specifically, the parent must rebut the presumption that continued care is in the childs best interests and show by a preponderance of the evidence that renewing reunification services is the best alternative for the child. ( 366.3, subd. (f); Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1147 (Maricela C.); In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1332.) In addition, and to forestall the setting of a section 366.26 hearing, which the court is required to set, a parent must establish by clear and convincing evidence that there is a compelling reason not to set the hearing, a compelling reason being one of the statutorily enumerated exceptions. ( 366.3, subd. (h); M.T., supra, 178 Cal.App.4th at p. 1179; Sheri T., supra, 166 Cal.App.4th at pp. 340-341.)

We note that where, as here, reunification services have been terminated, courts have found it reasonable and proper to require a parent to make an offer of proof on an issue that he or she wants to contest and on which the parent bears the burden of proof before conducting a full evidentiary hearing on that issue. The two cases cited by the court belowSheri T., supra, 166 Cal.App.4th 334 and M.T., supra, 178 Cal.App.4th 1170are pertinent examples of this procedure.

In Sheri T., supra, 166 Cal.App.4th 334, reunification services were terminated, the child was placed in long-term foster care, and section 366.3 post-permanency planning review hearings were held. As here, the social services agency recommended that the childs plan be changed from long-term foster care to adoption and requested a section 366.26 hearing. The mother requested an evidentiary hearing on whether to set the hearing. In an offer of proof, she noted that at the previous review hearing, the parties had stipulated that there was a beneficial relationship between her and her child based on regular visitation. The court declined to hold a contested hearing and set the section 366.26 hearing. (Id. at pp. 336-339.)

The mother challenged the order, claiming the court abused its discretion and violated her right to due process. The reviewing court disagreed. It explained that the statutory scheme under section 366.3 provides that a child in long-term foster care shall not slip into oblivion; her status shall be reviewed every six months to make sure efforts are continuously being made to find her a more permanent placement. While the juvenile court is mandated to order a new permanent plan selection hearing every 12 months, unless such a hearing is not in the best interests of the child, it may order a new permanent plan selection hearing more frequently if circumstances have changed. [Citations.] The legislative preference is for adoption over legal guardianship over long-term foster care. [Citation.] When the court conducts the review hearing, it proceeds under a presumption that long-term foster care is inappropriate. It is obligated to act accordingly. [Citation.] Therefore, when circumstances have changed, the court should hold a permanent plan selection hearing unless the mother proves there is a compelling reason not to do so. (Sheri T., supra,166 Cal.App.4th at pp. 340-341, fn. omitted, italics added.)

The mother acknowledged her burden to show that a new hearing was not in the childs best interest (366.3, subd. (h)) but nevertheless claimed that she had an absolute due process right to a contested hearing. (Sheri T., supra, 166 Cal.App.4th at p. 341.) In rejecting this claim, the court concluded that [t]he juvenile court properly asked for an offer of proof, which was inadequate to compel a hearing. The mother merely claimed the courts finding six months previously that adoption would be detrimental to [the child] because of their beneficial relationship was sufficient to carry the burden. But dependency proceedings are dynamic, and the statutory scheme is designed to allow the juvenile court to assess and reassess the child as her circumstances change. (Sheri T., supra, 166 Cal.App.4th at p. 341.) The court then noted undisputed evidence that the circumstances had changed over the last six months: the mother had had less contact with her child; and potential adoptive parents had come forward. (Ibid.)

M.T., supra, 178 Cal.App.4th 1170 also involved a recommendation to change a plan from long-term foster care to adoption. There, the court assumed jurisdiction over three children in 2002. In 2004, after the 18-month review hearing, the court terminated reunification services for the mother. The father had never sought such services, and none were provided. He also had not visited the children since 2001. The court ordered long-term foster care as the permanent plan. Over the next four years, the court conducted section 366.3 review hearings. During this period, the father did not visit or call the children. In 2009, the welfare agency recommended that the permanent plan for two children be changed to adoption and sought a section 366.26 hearing. The father requested a contested hearing on whether to set the hearing. The agency insisted on an offer of proof to justify a contested hearing. Before the court ruled, the father conceded that he could not make the necessary showing. The court then ordered a section 366.26 hearing for the two children. (Id. at pp. 1174-1177.)

The father challenged the order claiming an absolute right to an evidentiary hearing to contest a recommendation to set a section 366.26 hearing. (M.T., supra, 178 Cal.App.4th at p. 1177.) The reviewing court found that Sheri T. was directly on point and dispositive of the fathers claim. (Id. at p. 1179.)

Father claimed that Sheri T. was wrongly decided and argued that under section 366.3, subdivision (f), he had a right to participate in the review hearing, which meant that he had an absolute right to a contested hearing. (M.T., supra, 178 Cal.App.4th at p. 1179.) The court disagreed.

The court pointed out that at a section 366.3 post-permanency status review hearing for a child in long-term foster care, the court is required to set a section 366.26 hearing unless there is clear and convincing evidence that it would not be in the best interest of the child to do so, and, therefore, the father had the burden to prove that setting the hearing would not be in the childs best interest. (M.T., supra, 178 Cal.App.4th at p. 1180.) With this in mind, the court explained that [t]he determination of whether a party must tender an offer of proof to justify a contested hearing turns upon who bears the burden of proof. A party cannot be required to make an offer of proof for a contested hearing if what the party wants to contest is a finding or issue on which a different party, such as the social services agency, has the burden of proof. A party can be required to make an offer of proof if the issue is one on which that party has the burden of proof [citations]. [Citation.] Thus, in In re Thomas R. (2006) 145 Cal.App.4th 726 . . . , this court held that a parent was not required to make an offer of proof but instead had an unconditional right at a section 366.26 hearing to conduct examination and test the sufficiency of the evidence offered by a social service agency on the issue of adoptability, an issue on which the agency bears the burden of proof. We acknowledged, however, that courts may require offers of proof on issues where the parent has the burden of proof, such as establishing an exception to the termination of parental rights. [Citation.] (M.T., supra, 178 Cal.App.4th at p. 1180.)

The court continued, Another factor bearing on the right to a contested hearing is the stage of the dependency proceeding, which is closely tied to the issue of which party has the burden of proof. Different levels of due process protection apply at different stages of dependency proceedings. [Citations.] [Citation.] In the initial phases of a dependency proceeding, family preservation is the primary focus and the parent's interest in reunification is given precedence over the childs need for stability and permanency. [Citation.] [Citation.] However, [o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. [Citation.] [Citation.] Thus, cases holding that a parent has an unfettered due process right to confront and cross-examine adverse witnesses at review hearings held before the permanency planning stage do not compel the identical conclusion with respect to hearings held after reunification services are terminated. [Citations.] (M.T., supra, 178 Cal.App.4th at pp. 1180-1181.)

Under the circumstances, the court concluded that because the father had the burden of proof to show by clear and convincing evidence that the matter should not be set for a section 366.26 hearing at this late stage of the dependency proceeding, the juvenile court was justified in requiring him to tender an offer of proof before granting a contested hearing. (M.T., supra, 178 Cal.App.4th at p. 1181.)

The court also rejected the fathers claim under section 366.3, subdivision (f) that his right to participate in a section 366.3 hearing meant that he had an absolute right to an evidentiary hearing. It is plainly not the case that a parent may insist upon an evidentiary hearing at every postpermanency review, irrespective of the nature of the parents objection to the social service agencys recommendations. When the parent has the burden of proof, the right to participate in a section 366.3 hearing is meaningful only if the parent can present sufficient admissible, relevant evidence that bears upon the matter that must be proved. . . . 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.] (M.T., supra, 178 Cal.App.4th at p. 1181, quoting Maricela C., supra, 66 Cal.App.4th 1138, 1146-1147, italics added.)

Here, mother requested either to be assessed to have M.C. placed with her or to have reunification services be resumed for six months and sought an evidentiary hearing. Because the court was required to set a section 366.26 hearing unless mother established a compelling reason not to, the court asked her for an offer of proof. As noted, although mothers counsel reported that mother had completed some parenting classes while in prison and was residing at a treatment facility that allowed children to live with their parents, counsel said she was unprepared to make an offer of proof and asked for an opportunity to brief the issue. The court declined to delay the matter further, found that mother had failed to make a sufficient offer of proof, and scheduled the hearing.[5]

Mother claims that the court abused its discretion in treating her request to renew reunification as an objection to setting the section 366.26 hearing and requiring an offer of proof concerning a compelling reason not to set the hearing. She argues that in doing so, the court overlooked her right to be assessed for further reunification services under section 366.3, subdivision (f). However, mother ignores the ultimate burden she bore to forestall the setting of a section 366.26 hearing.

We acknowledge that at a section 366.3 review hearing, reunification services can be ordered long after they have been terminated if, as noted, a parent shows by a preponderance of the evidence that additional services offer the best alternative for the child, presumably because ultimate reunification has become possible again. (In re Kelly D. (2000) 82 Cal.App.4th 433, 438.) Nevertheless, where, as here, a child is in long-term foster care, the court must order a section 366.26 hearing unless the parent can show by clear and convincing evidence one of the statutory reasons not to do so. Thus, in requesting renewed reunification services, mother was implicitly objecting to the setting of a section 366.26 hearing and had the burden to show a compelling reason not to do so. Under the authority of Sheri T., supra, 166 Cal.App.4th 334 and M.T., supra, 178 Cal.App.4th 1170, the court properly insisted that mother make on offer of proof on that issue.

Mother argues that the burdens she bore in order to obtain additional reunification services and to forestall a section 366.26 hearing can harmonized. She asserts that if a parent can show that renewing reunification services for six months is the best alternative for a child, then that showing would constitute a compelling reason not to set a section 366.26 hearing. We disagree.

Section 366.3, subdivision (h) enumerates only three compelling reasons not to set a hearing: the child is being returned to the home of the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship. (Italics added.) During the course of regular review hearings under section 366.3, negative developments in a childs placement and improvements in a parents situation could render the renewal of reunification services the best alternative under the circumstances. However, a showing by a preponderance of the evidence that a renewal may be the best alternative is not necessarily or invariably the equivalent to a showing by clear and convincing evidence that the child is being returned to the home of the parent. ( 366.3, subd. (h).) At best, a renewal of reunification services could mean a significant likelihood of the childs return to a safe home due to changed circumstances of the parents. ( 366.3, subds. (e)(4) & (f).) However, return of the child still depends on the success of the reunification process. Thus, renewal does not itself mean that the child is being returned.

In any event, even if we accept mothers merger-of-burdens theory for purposes of argument, she still cannot establish that the court abused its discretion in requiring an offer of proof as a precondition to a contested hearing on whether to afford her six months of reunification services and not set a section 366.26 hearing.

Mother concedes that [t]he court may certainly request an offer of proof before granting a contested hearing, but she argues that if the parent indicates that he or she has sufficient admissible, relevant evidence that bears upon the matter that must be proved, the parent should have her day in court.

Contrary to mothers suggestion, a parents mere indication that he or she has admissible and relevant evidence concerning a contested issue on which the parent bears the burden of proof would, in our view, never be sufficient to compel a contested hearing. Rather, to justify both the expenditure of court resources that a full evidentiary hearing would entail and the delay in a dependency case, a parent must make an actual offer of proof of facts and circumstances that could support relief.

Here, mother cannot show that the court abused its discretion in finding counsels showing insufficient to warrant a contested hearing concerning the issues on which she bore the burden of proof. As noted, counsel said that mother had completed some parenting classes; and her residential treatment program provided support for mother, allowed children to live with their parents, and helped children make the transition to living with parents in the program.

The court implicitly found, and we agree, that under any standardpreponderance of the evidence or clear and convincing evidencethese facts and circumstances would not establish that that resuming reunification services for six months was the best alternative for M.C. or that there was a significant likelihood that M.C. would be returned to a safe home with mother. This is especially so in light of the presumption that continued care was in M.C.s best interests, the preference for adoption over long-term foster care, the fact that mother would be in the residential program for more than six months, and the undisputed evidence that M.C. had not lived with mother for years, mother had had only quarterly visitation with M.C., and M.C. was thriving in the home of prospective adoptive parents. Moreover, mother does not now suggest what other facts or circumstances she could possibly have presented that would have rendered additional reunification services and indefinitely postponing a section 366.26 hearing in M.C.s best interests.

In short, mother has not convinced us that the courts denial of a contested hearing on whether to renew reunification services was either an abuse of discretion or a violation of her right to due process.

Mother also claims the court abused its discretion in failing to consider her offer of proof in determining whether to conduct a contested hearing. She notes that the addendum to the October 2009 review hearing report that was prepared for the December 2009 hearing contained almost no current information about mothers circumstances after October. She further notes that at the December hearing, the court failed to conduct a thorough inquiry concerning the Departments position on returning M.C. to mother and the frequency of visitation.

We find no abuse of discretion. The December addendum was just that an addendum to the October 2009 report, and that report revealed that mother had been released from prison in July 2009 and entered a 13-month drug residential drug rehabilitation program with a parenting component. While incarcerated and continuing upon her release to the program, mother had been drug free. Mother found that her incarceration supported her in maintaining sobriety and taking responsibility for her previous poor parenting. At the hearing in October 2009, mothers attorney added that mother had completed parenting classes while in custody and was taking classes at her residential program. In December 2009, mothers attorney added that the program allowed children to stay with parents and supported a gradual transition to that end. Counsel also said that mother was formulating career plans to be a drug counselor. Had there been additional relevant facts and circumstances, mothers counsel could and should have brought them to the courts attention.

Moreover, the court asked counsel for the Department whether it had considered placing M.C. with mother. Counsel explained that the Department did not consider a possible return to be in M.C.s best interests, noting that M.C. was doing well with her prospective adoptive parents. Counsel also noted that mother would not be out of the residential program and on her own until August 2010, and it was not clear how she would respond to the added responsibility of obtaining employment and housing and paying bills, let alone the responsibilities of taking care of M.C., with whom she had not lived for years.

Although mother now argues that there is no evidence in the record that the court focused its attention on the evidence presented or considered whether [her] representations were sufficient to warrant a contested hearing, her attorney at the time added nothing more to her factual presentation; she did not draw the courts attention to any fact or circumstance that it might be overlooking; and she did not suggest that the court was failing to consider any particular permanency planning option. On the contrary, we note that the court invited mother to file a petition under section 388 if she thought there were changed circumstances that warranted a change of or modification in the courts order.

In sum, mother fails to demonstrate, and the record does not establish, that the court failed to consider all pertinent permanency planning options, including placement with mother, continuing long-term foster care, and adoption.

IV. Disposition

The petition is denied.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

DUFFY, J.

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

[2] This was not the first time the children had been declared wards of the court. In June 2003, the court did so based on findings that mother had physically abused the children; the children had seen father injure mother, conduct for which he was arrested; and mother and father were abusing methamphetamines. The children were placed in foster care. Mother and father were ordered to participate in reunification services, including parenting classes, counseling, drug testing, substance abuse programs, and domestic violence services. The court ordered weekly visitation. In January 2005, despite lingering concerns, the Department recommended that the children be gradually returned to mother under a Family Maintenance Plan and that fathers reunification services be terminated, and the court adopted that recommendation. In March 2005, the children were returned to mothers custody, and the court dismissed the dependency case. At that time, father was incarcerated.

As noted, four months later in June 2005, mother was arrested and this instant dependency case commenced.

[3] Father opposed setting the section 366.26 hearing and requested that the Department assess him for M.C.s placement or provide him with additional reunification services to allow M.C.s placement in six months.

[4] Only mother is challenging the courts order. Therefore, we focus on her response.

[5] As summarized above, the trial court implicitly criticized mothers counsel for being unprepared to make an offer of proof. This criticism was warranted. M.T., supra, 178 Cal.App.4th 1170 had been decided over a month before the hearing. And even if counsel could be excused for failing to follow recent and pertinent developments in dependency law that bore directly on a pending case, counsel certainly should have been aware of Sheri T., supra, 166 Cal.App.4th 334, which was decided well over a year before the hearing. Indeed, even before Sheri T., where, as here, reunification services had been terminated, courts had considered it proper to require parties to make an offer of proof to justify a request for a contested hearing on various issues. (E.g., In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817; In re Tamika T. (2002) 97 Cal.App.4th 1114, 1121.)

Furthermore, we find that it was proper and appropriate for the court to reject counsels request for additional time to brief the issue. Simply put, there were no legal issues to brief. The court sought only an offer of proof concerning facts and circumstances which, if true, would support a finding that setting a 366.26 hearing was not in M.C.s best interests. It was reasonable for the court to expect counsel to be sufficiently familiar with the history of the dependency and any facts and circumstances of her case, especially recent developments, to make an offer of proof concerning M.C.s best interests. Accordingly, we do not find that the court abused its discretion in refusing to delay the case for further briefing.