In re A.S.
Filed 2/24/12 In re A.S. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
In re A.S., a Person Coming
Under the Juvenile Court Law.
B235257
(Los Angeles
County
Super. Ct.
No. CK78412)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.S.,
Defendant and Appellant.
APPEAL from
of Los
Angeles, Donna Levin, Juvenile Court Referee
California
Appellate Project, Jonathan B. Steiner, Executive Director, and Anne E.
Fragasso, Staff Attorney, under appointment by the Court of Appeal, for
Defendant and Appellant.
Andrea Sheridan Ordin, County
Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec,
Deputy County Counsel, for Plaintiff and Respondent.
M.S.
(mother) appeals from the juvenile court’s order terminating her parental
rights to her child, A.S., under Welfare and Institutions Code section 366.26.
violated her due process rights when
it denied her request for a contested hearing on the application of the
parental visitation exception to the termination of
subd. (c)(1)(B)(i)). The juvenile court
did not err.
FACTUAL AND PROCEDURAL BACKGROUND
On August 11, 2009, the Department filed
a petition under section 300 alleging pursuant to subdivisions (a) and (b) that
in July 2009, mother had physically abused two-year-old A.S., mother’s child,
by grabbing and pushing A.S., and remedial services failed to resolve the
problem because mother failed to participate in the counseling services. Also pursuant to section 300, subdivision
(b), the Department alleged that on numerous occasions mother left A.S. in the
care of the maternal grandmother and other maternal relatives, and failed to
make a plan for the A.S.’s care and supervision. Pursuant to section 300, subdivisions (b) and
(g), the Department alleged that E.S., A.S.’s father, whose whereabouts were
unknown, failed to provide for A.S.
Two
additional counts were filed by the Department in a first amended petition
under section 300, subdivisions (b) and (d) alleging that in or about September
2009, and on two more occasions, mother, then 15 years old, was sexually abused
by father, M.S’s maternal cousin, and the sexual abuse resulted in mother
becoming pregnant and giving birth to A.S.
It was alleged that the sexual abuse of mother endangered A.S. and
placed A.S. at risk of physical harm, damage, and sexual abuse.
At the
September 4, 2009, pre-trial resolution conference, mother plead no contest to
the first amended petition, and the juvenile court dismissed the section 300,
subdivision (a) and (b) counts pertaining to mother’s physical abuse of A.S.,
and sustained the subdivision (b) count pertaining to mother leaving A.S. in
the care of the maternal grandmother and other maternal relatives, and failing
to make a plan for the A.S.’s care and supervision. As to father, the juvenile court sustained
the section 300, subdivisions (b) and (g) counts that father failed to provide
for A.S., and the subdivision (d) count that father’s sexual abuse of mother resulting
in mother becoming pregnant and giving birth to A.S., endangered A.S. and
placed A.S. at risk of physical harm, damage, and sexual abuse.
DISCUSSION
A. Standard of Review
There is no
clear authority on the standard of review
for the denial of a hearing based on an offer of proof in connection with the
termination of parental rights. Because
a hearing must be granted if the offer of proof sets forth a prima facie case,
arguably the standard of review is de novo.
Yet there are elements of discretion involved. Without deciding the appropriate standard of
review, we hold there is no error under any standard of review.
B. Background Facts and
Relevant Proceedings
On August
6, 2009, A.S., then two years old, was detained from mother and placed in
foster care. At the August 11, 2009,
detention hearing, the juvenile court ordered that A.S. be detained, and mother
to have monitored visits with A.S. to occur a minimum of three times a week for
three hours each visit, or one nine hour visit a week.
At the
November 4, 2009, disposition hearing the juvenile court declared A.S. a
dependant of the juvenile court pursuant to section 300, subdivisions (b), (d),
and (g), ordered reunification services for mother. The juvenile court also ordered that mother
was to have monitored visits with A.S., and the Department had the discretion
to liberalize mother’s visitation.
On May 5,
2010, the Department filed a status review report, stating that on April 13,
2010, A.S. was placed in a different foster home than she was originally placed
upon being detained in August 2009. Mother had been visiting A.S. at least once
a week for two to three hours. The
visits were “appropriate;” mother interacted and played well with A.S.; and
A.S. appeared well bonded to mother and seemed to enjoy mother’s visits. The Department offered mother additional
monitored visits with A.S., but mother was not able to schedule more visits
because of her work schedule. During the
May 5, 2010, six month review hearing, mother’s counsel stated that mother
completed the parenting classes, and the juvenile court ordered, over the
Department’s objection, that mother was to have unmonitored visits with A.S.
On June 24,
2010, at a contested hearing, the juvenile court denied the Department’s
section 388 petition requesting that the juvenile court change its order that
mother have unmonitored visits. The
petition had alleged that on May 16, 2010, during an unsupervised visit, mother
dropped off A.S. in a truck, without a car seat, and with mother’s boyfriend,
whom mother agreed not to allow to be around A.S. because the boyfriend’s
background check had not yet been completed.
The juvenile court continued to grant mother unmonitored day visits with
A.S., but ordered that only people approved by the Department could be present
during the visit, and if A.S. was to be transported by car, there must be an
approved car seat in the back of the car for A.S.
On July 26,
2010, the Department filed a second section 388 petition requesting that the
juvenile court change its order that mother have unmonitored visits. The petition had alleged that on July 3 and
4, 2010, mother returned A.S. from unmonitored visits in a car driven by and
unlicensed driver who did not have automobile insurance. Mother claimed that it had been difficult to
obtain transportation for the visits because mother did not have a bus
pass. It was alleged that the Department
made several attempts to meet with mother to provide her with a bus pass but
mother did not confirm or schedule an appointment. On July 12, 2010, the Department provided
mother with a bus pass. At the August 3,
2010, hearing on the second section 388 petition, the juvenile court scheduled
a contested hearing, and in the interim ordered that mother have monitored
visits with A.S., mother was not permitted to have anyone else attend, and if
A.S. was to be driven in a vehicle it must be equipped with a child seat and
the driver must have automobile insurance.
On October
14, 2010, the Department filed an addendum report stating that the Department
provided mother with three hours of visits with A.S. each Monday. On June 17, 2010, mother’s visit was
cancelled because she was 45 minutes late.
On June 21, 2010, and July 16, 2010, there were no visits because mother
did not confirm them. The Department
stated that mother had poor parenting skills, and most of the time during
mother’s monitored visits were spent on the Department’s training mother on
them. When mother visited A.S., they
played for about 5-10 minutes, and thereafter mother usually sat on the sofa
and watched A.S. play. The Department
had several discussions with mother on how to play and read to A.S., but mother
failed to follow through with the Department’s directions. Mother instead preferred to do nothing or
take a nap with A.S. The Department
reported that A.S. “continually rejects [mother’s] affection, refuses to sit on
[mother’s] lap, and has tried to leave the visits asking for the foster mother
or the . . . Social Worker.
The Department’s social worker stated, “‘I believe the deterioration of
this relation is due to several factors.
First [A.S.] is in a home where she receives consistent love, nurturing,
limits, and encouragement. [A.S.] has
responded positively to this environment and has a deep attachment to the
family and obviously feels very safe and secure in this home. As a result when she is now with [mother] her
equilibrium is disturbed and this is upsetting to her. In addition, . . . [mother]
has not been able to provide the security as well as the emotional necessities
[A.S.] obviously needed as a baby and toddler.
As [A.S.] has grown accustomed to positive environment, [A.S.] is making
the choice of where she prefers to be.’”
The
Department addendum report stated that on September 13, 2010, mother’s visit
with A.S. went well. A.S. hugged and
kissed mother, and mother bought food for A.S.
On September 17, 2010, the Department arranged for mother to have six
hours of monitored visits with A.S. on Mondays.
On September 20, 2010, during mother’s visit with A.S., A.S. was anxious
and upset because mother did not interact with her and she and mother were in
one room for six hours. During a three
hour monitored visit between mother and A.S., mother did not engage A.S., and
there was minimal interaction between mother and A.S. Mother and A.S. rejected each other when one
attempted to get close to the other.
A.S. dominated mother, and mother gave in to A.S.’s demands. On September 27, 2010, the Department
arranged for mother to have visitation with A.S. at a local park.
According
to the Department’s October 14, 2010, addendum report, A.S. underwent an annual
physical examination and “was found to be at a healthy height/weight range, and
is a “‘Well Child’ and there are no abnormal findings.” A.S. was not a client of Regional Center and
did not appear to be in need of an evaluation.
On September 20, 2010, A.S. was enrolled in the Head Start program, and
classes were scheduled for three and one-half hours, Mondays through Fridays.
At the
October 14, 2010, adjudication hearing on the Department’s second section 388
petition, which involved mother and A.S. being in a car driven by an unlicensed
uninsured driver, the juvenile court granted the petition, ordered monitored
visits for mother, and granted the Department discretion to liberalize the
visits. The juvenile court stated, “The
mother had a chance. I denied the first
388 petition and the mother despite what the court ordered went and did the
same thing all over again.” The juvenile
court advised mother, “You were very close to getting your child back in your
home, and you refused to follow anyone’s orders. This is about the safety of your child. That all it is about.” The juvenile court also stated that a six
hour visit in an office was a “bad idea,” and if mother could find an
appropriate monitor, the visits did not have to be in an office; they could be
at a park, restaurant, or wherever mother could arrange to go.
On November
3, 2010, the Department filed a status review report, stating that the
Department made several attempts to ensure that mother’s monitored visits are
planned and carried out to best meet mother’s work and alleged school
schedule. Mother received six hours of
weekly monitored visits on Mondays. As
of September 27, 2010, three hours of mother’s monitored visits with A.S. were
taking place outside the office, with each week alternating between a park and
McDonald’s restaurant. The other three
hours of mother’s monitored visits occurred at a mall.
The
November 3, 2010, status review report provided that A.S. was potty trained,
able to remove and put on clothes without assistance, and able to communicate
with her caretakers. A.S.’s foster
parents, with whom she lived since April 13, 2010, provided consistent care for
A.S. and assured that her needs are met.
A.S. had adapted well in the foster family home, and A.S. appeared to be
attached to her foster parents. A.S. showed
the Department her bedroom and stated, “‘This is where the Princess sleeps. You know, I’m a beautiful princess. My “papi jai jai” and “mami tif” [A.S’s
foster parents] tells me so.’” The
foster parents expressed an interest in adopting A.S.
According to the Department’s February 3,
2011, status review report, a social worker who monitors mother’s visits with
A.S., stated, “‘There continues to be a disruption in the attachment between
[A.S.] and [mother]. [A.S.] is a very
sweet and kind little girl comfortable in her current environment
. . . . [A.S.’s foster family]
prepare [A.S.] for her visit with [mother] and [A.S.’s foster family] get
excited about it, attempting to serve [as] a positive role
model. . . .
[A.S.’s] visits [with mother] become increasingly difficult for
[A.S.]. [A.S.] did not want to separate
from her foster parents. She would cry,
slam the door on [mother] and ask for her ‘Mommy & daddy’ meaning [A.S.’s
foster parents]. During the visit [A.S.]
would sit on the sofa across from [mother] and cover her face. [A.S.] would kick and hit [mother] if [mother]
came close, saying “No!” and crying.
When visits were changed to the . . . Mall this provided
a distraction for [A.S.] There were
other children, a play area and the focus was not on visiting with [mother],
but rather going to a fun play area. She
still did not always like separating and she asked for “Mommy &
Daddy.” . . . [¶] [A.S.] will play with [mother] for about 40
minutes and then become bored. She
states she is hungry, thirsty, wants to leave.
She would often come visit by the [social worker monitoring the
visits]. [Mother] was never able to take
the lead in terms of determining when [A.S.] needed a drink, had to use the
restroom or needed lunch. . . .
[¶] When [A.S.] needed to use the
restroom or had a question, she never sought out [mother], always the [social
worker] . . . . While [mother]
did attend her visits once a week she called [A.S.] only twice during this
three month period [and] it is important to note [mother] does not call on
holidays. . . .
[¶] [A.S.] enjoyed the distraction
of the mall. She would play with
[mother], but in short intervals. [A.S.]
became bored easily. [The social worker]
suggested walks to Santa and the bookstore.
[A.S.] really enjoyed the bookstore, but became frustrated when [mother]
would not want to read books to her.
[A.S.] would bring the books to [the social worker] to read. [The social worker] would encourage [A.S.] to
ask [mother] to read them. Intervention
between [A.S.] and [mother] was more like two playmates than
mother/daughter. [Mother] had difficulty
identifying and fulfilling [A.S.’s] needs, thus [A.S.] did not seek [mother]
out to get [A.S.’s] needs met. [A.S.]
would always come to [the social worker].’”
The
Department’s February 3, 2011, status review report, stated that A.S. is
adjusting well to her educational routine, and enjoyed participating in the
Head Start program. A.S. was
assimilating to the rules of her foster home by picking up her toys and
clothes, and learning not to interrupt when others were speaking.
On April 1,
2011, A.S.’s foster parents filed a de facto parent statement, stating in a
sworn statement, “[A.S.] is in great health & eats salads &
vegetables. She is extremely courteous,
obidient, [sic] &
respectful. As a young student she is
advancing well above [the] normal rate.
She refers to us as her ‘Mommy & Daddy.’” The de facto parent statement attached
several letters stating that A.S.’s demeanor, emotional condition, and overall
well-being was extremely good, and had substantially improved since being in
the care of her foster parents.
At the
April 4, 2011, contested section 366.22 hearing, the juvenile court terminated
mother’s reunification services, and ordered mother to have monitored visits at
a minimum of one time a month and one hour for each visit. The juvenile court scheduled a section 366.26
selection and implementation hearing for August 1, 2011.
On August
1, 2011, the Department filed a 366.26 “WIC report” [Welfare and Institutions
Code Report] stating that during a one hour visit between A.S. and mother on
June 10, 2011, A.S. cried and lay on the floor.
Mother attempted to comfort A.S., but A.S. did not respond to mother’s
attention and instead tried to “scoot” herself away from mother. The report stated, “Case records describe that
the mother and child seem to have a strained and unhealthy relationship. The mother seems to be going through the
‘motions’ and in most cases, [A.S.] has not consistently responded
appropriately to [mother’s] attention.
As reported, some of the visits were reported to go well, whereas others
were difficult and traumatizing for the child.
The mother was reported to show no emotion toward her mother [sic] and
[mother] was not able to sense how important it was to cue into her child’s
needs and requests.” A.S’s foster
parents “are open to future contact with [mother] as long as it is in the best
interests of [A.S.]”
According
to the Department’s August 1, 2011, 366.26 WIC report, A.S. was seen for a
physical examination on June 23, 2010, and no medical concerns were noted. A.S. was also seen for a dental examination
on June 30, 2010, and no dental concerns were noted. A.S. began the Head Start program in January
2011, adapted easily to the structure of preschool, and enjoyed her new friends
and the environment of her school. A.S.
was “developmentally on target,” friendly, talkative, and able to run and
jump. A.S. was a “spontaneous, friendly
and [an] engaging child and [who] shows confidence when visited by” the social
worker.
The 366.26
WIC report stated that A.S. remained in the home of her foster parents. The foster parents considered A.S. as part of
their family, and had reaffirmed their desire to adopt A.S. Their home study had been approved. The foster mother had one arrest in 2003, but
the case was dismissed. The foster
father had two arrests in 2004 and 2006, respectively; these incidents were
explored and discussed by the adoption worker prior to the approval of the
foster parent’s home study. The
relationship between A.S. and the foster parents was natural and loving, and a
strong emotional attachment had been observed between A.S. and the foster
parents. A.S. naturally sought comfort
and guidance from them. The report
stated, “Case records state that [A.S.] has been observed to have an ‘extremely
strong attachment and bond to [the foster parents] and [A.S.] refers to them as
mommy and daddy.’” The report also
stated, “The [foster parents] are meeting the needs of [A.S.] and they are
committed to providing a permanent home for her through the plan of
adoption. [A.S.] is adoptable.”
At the
August 1, 2011, section 366.26 hearing, mother’s counsel requested a contested
hearing. The juvenile court requested
that mother’s counsel provide an offer of proof, and mother’s counsel responded,
“She claims that she has a relationship with the child and that it would be
detrimental to the child to terminate that relationship.” Mother’s counsel advised that the juvenile
court’s latest order provided that mother was to have visits with A.S. once a
month, and mother’s last visit occurred the prior month, and it was
monitored. The juvenile court stated,
“Based on mother’s offer of proof . . . , I don’t see how it is
possible for her to meet the burden in both imposed by 366.26. I will deny the request for a contested .26
hearing.”
Also at the
section 366.26 hearing, after the juvenile court denied mother’s request for a
contented section 366.26 hearing, mother’s counsel stated, “The mother would
object to going forward at this time. I
would also note that the issue of adoptability is involved, and she would raise
that as an issue as well.” The juvenile
court stated, “Well, as to the issue of adoptability, this child has been in
the home of the prospective adoptive parents for over a year. They have filed for de facto status based on
their intention to adopt this child. . . . [¶]
There’s an approved home study, and I will find and I have found previously
that this child is adoptable. There are
parents ready, willing, and able to adopt [her]. . . . [¶]
The court finds—the court has read and considered and admits into
evidence the social worker’s report dated today’s date August 1st, 2011, and all
prior reports. . . . The
court finds by clear and convincing evidence that the child is adoptable.”
C. Relevant Legal
Principles
of Proof
“[A] parent
has a right to ‘due process’ at the hearing under section 366.26 which results
in the actual termination of parental rights.
This requires, in particular circumstances, a ‘meaningful opportunity to
cross-examine and controvert the contents of the report.’ (In re
Malinda S. (1990) 51 Cal.3d 368, 379 [272 Cal.Rptr. 787, 795 P.2d 1244];
see In re Crystal J. (1993) 12
Cal.App.4th 407, 412-413 [15 Cal.Rptr.2d 613].)
But due process is not synonymous with full-fledged cross-examination
rights. (In re Sade C. (1996) 13 Cal.4th 952, 992 [55 Cal.Rptr.2d 771, 920
P.2d 716].) Due process is a flexible
concept which depends upon the circumstances and a balancing of various
factors. (Id. at pp. 986-991.) The due
process right to present evidence is limited to relevant evidence of
significant probative value to the issue before the court. (People
v. Marshall (1996) 13 Cal.4th 799, 836 [55 Cal.Rptr.2d 347, 919 P.2d 1280];
Maricela C. v. Superior Court (1998)
66 Cal.App.4th 1138, 1147 [78 Cal.Rptr.2d 488].)” (In re
Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.)
“Because
due process is, as we noted in In re
Jeanette V., supra, 68
Cal.App.4th 811, 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.” (In re
Tamika T. (2002) 97 Cal.App.4th 1114, 1122.)
A juvenile court does not violate a
parent’s right to due process by requiring the parent to make an offer of proof
before the juvenile court holds a contested hearing on the applicability of the
parental visitation exception to the termination of parental rights under
section 366.26(c)(1)(B)(i). (
“A proper offer of proof gives the trial court an opportunity to
determine if, in fact, there really is a contested issue of fact. The offer of proof must be specific, setting
forth the actual evidence to be produced, not merely the facts or issues to be
addressed and argued.” (
2. The Parental Visitation Exception
“At a permanency plan hearing, the court may order
one of three alternatives: adoption, guardianship or long-term foster
care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7 [2 Cal.Rptr.2d 810].) If the dependent child is adoptable, there is
a strong preference for adoption over the alternative permanency plans. [Citations.]”
(In re S.B. (2008) 164
Cal.App.4th 289, 296-297.)
“‘Once reunification services are
ordered terminated, the focus shifts to the needs of the child for permanency
and stability.’ [Citation.] ‘A section 366.26 hearing . . .
is a hearing specifically designed to select and implement a permanent plan for
the child.’ [Citation.] It is designed to protect children’s
‘compelling rights . . . to have a placement that is stable,
permanent, and that allows the caretaker to make a full emotional commitment to
the child.’ [Citation.] ‘'The Legislature has declared that
California has an interest in providing stable, permanent homes for children
who have been removed from parental custody and for whom reunification efforts
with their parents have been unsuccessful.’
[Citation.]” (
52-53.)
When a juvenile court finds that a
child is likely to be adopted after removing the child from parental custody
and has terminated reunification services, parental rights may be terminated
unless the court finds a compelling reason for determining that doing so would
be detrimental to the child under certain exceptions set forth in section
366.26, subsection (c)(1). (
“The statutory exceptions merely permit the court, in exceptional circumstances [citation],
to choose an option other than the norm, which remains adoption.” (Id.
at p. 53; In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1350 [“Because a section 366.26 hearing occurs only after the
court has repeatedly found parent unable to meet the child’s needs, it is only
in an extraordinary case that preservation of the parent’s rights will prevail
over the Legislature’s preference for adoptive placement”].)
The parental visitation exception
in section 366.26(c)(1)(B)(i) (formerly section 366.26, subdivision (c)(1)(A)
provides that parental rights will not be terminated and a child freed for
adoption if parent has “maintained regular visitation and contact with the child
and the child would benefit from
continuing the relationship.” (
437, 449-450.) Application of the
parental visitation exception requires a two-prong analysis. The first is whether there has been regular
visitation and contact between parent and child. (Id.
at p. 450.) The second is whether there
is a sufficiently strong bond between parent and child that the child would
suffer detriment from its termination. (
The parent/child relationship must promote “the well-being of the child
to such a degree as to outweigh the well-being the child would gain in a
permanent home with new, adoptive parents.
In 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.” (
567, 575; In re Dakota H. (2005) 132
Cal.App.4th 212, 229.) The visitation
exception does not apply when a parent fails to occupy a parental role in his
child’s life. (In re Jasmine D., supra,
78 Cal.App.4th at p. 1350; In re Beatrice
M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [parents who have
essentially never had custody of children or advanced beyond supervised
visitation will have a difficult time establishing the parental visitation
exception].)
Parents bear the burden of
establishing that the visitation exception to termination of parental rights
applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) A relationship sufficient to support the
visitation exception “aris[es] from day-to-day interaction, companionship and
shared experiences.” (
“[T]o establish the exception in section 366.26, subdivision (c)(1)(A),
the parents must do more than demonstrate ‘frequent and loving contact’
[citation], an emotional bond with the child, or that the parents and child
find their visits pleasant.
[Citation.]” (
1093, 1108.) A parent must show that he
has maintained regular visitation and contact with the child and that a benefit
to the child from continuing the relationship would result. (In re
Mary G. (2007) 151 Cal.App.4th 184, 207; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) “The parent must show he or she occupies a
parental role in the child’s life, resulting in a significant, positive,
emotional attachment between child and parent.
[Citations.]” (
that “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 re Autumn H., supra,
27 Cal.App.4th at p. 575.)
Whether the exception applies is
determined “on a case-by-case basis, taking into account the many variables
which affect a parent/child bond. The
age of the child, the portion of the child’s life spent in the parent’s
custody, the ‘positive’ or ‘negative’ effect of interaction between parent and
child, and the child’s particular needs are some of the variables which
logically affect a parent/child bond.” (
D. Application of Relevant
Legal Principles
Mother
contends that her offer of proof was sufficient to require a contested hearing
on the parental visitation exception. We
disagree.
Mother’s
offer of proof that she “has a relationship with the child and that it would be
detrimental to the child to terminate that relationship” was not specific about
the nature of mother’s claimed relationship with A.S. because it failed to
address the strength of mother’s relationship with A.S. or explain how the
termination of that relationship would be detrimental to A.S. (In re
Aaliyah R., supra, 136
Cal.App.4th at p. 450; In re Tamika T.,
supra, 97 Cal.App.4th at p. 1124.) Moreover, mother’s offer of proof failed to
establish a basis for a contested hearing because it failed to identify
evidence of a relationship between mother and A.S., the termination of which
would greatly harm A.S. (
The juvenile court did not err.
Even if the
juvenile court erred in denying mother’s request to set the matter for a
contested hearing, it was harmless error beyond a reasonable doubt. (Andrea
L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1387.) At the time mother’s parental rights were
terminated, A.S. was four years old, and she had not been living with mother
since she two years old. And, A.S. had
been living with her current caretakers and prospective adoptive parents for 18
months when mother’s parental rights were terminated.
With the
exception of approximately three months, mother’s visits with A.S. were
monitored. One of mother’s visits in
June 2010 was canceled because she was 45 minutes late, and on two occasions in
June and July 2010, there were no visits because mother failed to confirm
them. Although mother’s initial visits
with A.S. went well, the Department reported that they deteriorated over
time. There is evidence in the record
that the Department often spent most of the time of mother’s visits with A.S.
on training mother about parenting skills.
The Department also reported that when mother visited A.S., they would
play for about 5-10 minutes, and thereafter mother usually sat on the sofa and
watched A.S. play. There was evidence
that mother preferred to do nothing, or take a nap with A.S., instead of
playing with or reading to A.S. The
Department also reported that A.S. continually rejected mother’s affection,
refused to sit on mother’s lap, and tried to leave the visits asking for the
foster mother or the Social Worker.
There was also evidence that in September 2010, A.S. was anxious and
upset because mother did not interact with A.S., and mother and A.S. rejected
each other when one attempted to get close to the other.
The
Department’s February 3, 2011, status review report stated that a social worker
who monitored mother’s visits with A.S. reported that there “continues to be a
disruption in the attachment between [A.S.] and
[mother]. . . .
[A.S.’s] visits [with mother] become increasingly difficult for [A.S.]. [A.S.] did not want to separate from her
foster parents. She would cry, slam the
door on [mother] and ask for ‘Mommy & daddy’ meaning [A.S.’s foster
parents]. During the visit [A.S.] would
sit on the sofa across from [mother] and cover her face. [A.S.] would kick and hit [mother] if
[mother] came close, saying “No!” and crying. . . . [¶]
[A.S.] will play with [mother] for about 40 minutes and then become
bored. She states she is hungry,
thirsty, wants to leave. . . . [Mother] was never able to
take the lead in terms of determining when [A.S.] needed a drink, had to use
the restroom or needed lunch. . . . [¶]
When [A.S.] needed to sue the restroom or had a question, she never
sought out [mother], always the [social worker]. . . . While [mother] did attend her visits once a
week she called [A.S.] only twice during this three month period [and] it is
important to note [mother] does not call on
holidays. . . .
[¶] [A.S.] enjoyed the
distraction of the mall. She would play
with [mother], but in short intervals.
[A.S.] because bored easily. . . . [A.S.] really enjoyed the bookstore, but
became frustrated when [mother] would not want to read books to her. [A.S.] would bring the books to [the social
worker] to read.’”
Mother
contends, “Even the foster parents who wished to adopt [A.S.] acknowledged that
it was in [A.S.’s] best interest not to terminate her relationship with
mother.” The record, however, does not
support mother’s contention. The
Department reported that the foster parents stated they “are open to future
contact with [mother] as long as it is in the best interests of [A.S.]”
To the
extent mother contends that the juvenile court erred in requiring mother to
make an offer of proof on the issue of adoptability, mother mischaracterizes
the record. The juvenile court did not
require that mother make an offer of proof on the issue.
Also, to
the extent mother contends that the juvenile court erred in denying her a
contested hearing on the issue of adoptability because the Department bore the
burden of proof, mother failed to establish reversible
error. (Andrea L. v. Superior Court, supra,
64 Cal.App.4th at p. 1387.) The question
of adoptability focuses on whether the child’s age, physical condition and
emotional state make it difficult to find a person willing to adopt that
child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) A “child's young age, good physical and
emotional health, intellectual growth and ability to develop interpersonal
relationships are all attributes indicating adoptability.” (In re
Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) A.S. is only four years old, is in good
physical and emotional health, and is developmentally on target. In addition, A.S.’s foster parents have
stated that they are interested in adopting A.S. “[T]he fact that a prospective adoptive
parent has expressed interest in adopting the minor is evidence that the
minor’s age, physical condition, mental state, and other matters relating to
the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive
parent’s willingness to adopt generally indicates the minor is likely to be
adopted within a reasonable time either by the prospective adoptive parent or
by some other family.” (
As stated
in one case, “On this record, we confidently conclude, beyond a reasonable
doubt, no different result would have obtained had mother’s request for a
contested hearing been granted.
Accordingly, even under the most stringent test of prejudice applicable
to a denial of due process, remand for a contested hearing would constitute an
idle act and the juvenile court’s error must be seen as harmless beyond a
reasonable doubt. [Citations.]” (Andrea
L. v. Superior Court, supra, 64
Cal.App.4th at p. 1387.)
DISPOSITION
The juvenile
court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER,
J.
name="_ftn1" title="">[1] All
statutory references are to the Welfare and Institutions Code, unless otherwise
indicated.
name="_ftn2" title="">[2] Section
366.26, subdivision (c)(1)(A) was renumbered 366.26(c)(1)(B)(i) effective
January 1, 2008. (Stats.2006, ch. 838, §
52.)
