In re
Crystal B.
Filed 7/2/12 In re Crystal
B. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO
In re CRYSTAL B., a Person Coming Under
the Juvenile Court Law.
B237590
(Los Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent.
v.
ARRIANA G.,
Defendant
and Appellant.
Super. Ct. No. CK79445)
APPEAL from a judgment of the Superior Court of
County. Anthony
Trendacosta, Commissioner. Affirmed.
Christopher R. Booth, under
appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy
County Counsel for Plaintiff and Respondent.
Arriana G. (mother) appeals from an
order terminating her parental rights to Crystal B., born in October 2009,
pursuant to Welfare and Institutions Code section 366.26.
trial court erred in denying her a contested
hearing on the applicability of section 366.26, subdivision (c)(1)(B)(i),
which provides an exception to termination of parental rights where the parents
“have maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship.†We affirm the judgment.
PROCEDURAL HISTORY
1. Mother’s
history with DCFS
Mother, born in June 1994, was a
dependent of the juvenile court at the time of Crystal’s
birth. Mother had been a dependent since
January 24,
2006, due to exposure to domestic
violence. As a dependent, mother had a
history of runaway behavior.
On July 12, 2009, the Compton station of the Los Angeles Sheriff’s Department received a report
that there was a verbal and physical altercation in the middle of the
street. Deputies arrived and found
mother, who had an outstanding section 300, subdivision (g) no-bail
warrant. The male at the scene was
mother’s boyfriend, Bobby B. (father), who is Crystal’s father.
possession of marijuana and was taken to juvenile hall. Deputies contacted the
Services (DCFS).
When the social worker arrived at
the Compton station, it was discovered that mother was six months
pregnant. The social worker attempted to
interview mother, but mother was extremely angry, defensive and hostile. Mother refused to tell the social worker
where she had been for the past three weeks since she ran away from her foster
care placement.
On August 9, 2009, the social worker
was called to father’s home due to allegations of domestic violence. According to the deputy sheriff on the scene,
father was beating up mother because he thought mother was cheating on
him. Mother had scratches on her neck
and a black eye. The social worker could
not get any information from mother about what had happened. When the social worker attempted to interview
mother, mother responded, “Get the fuck away from me! I have nothing to say to you. You are stupid. I hate social workers because all of you are
liars and don’t give a shit about anyone.
Just shut the fuck up and leave me the fuck alone.†Mother was seven months pregnant. There was an outstanding warrant for her
arrest because she was a runaway from DCFS.
Mother refused to be medically evaluated or placed in foster care.
On August 26, 2009, DCFS held a Team
Decision Making Meeting (TDM) with mother, the Department of Mental Health, and
group home staff. Mother was
uncooperative during the meeting, and appeared extremely upset and angry. Mother was not willing to cooperate with
placement or other services. Mother was
due to deliver her baby on October 21, 2009.
The social worker noted that
mother’s DCFS history reflected that she had extensive runaway behavior, a
history of domestic violence with father, and that mother threatened to run
away with the baby once it was born, which would place the newborn at
risk. Mother consistently refused to
receive services and placement. Mother
had 10 to 14 separate runaway incidents within the preceding year, and nine
different placements.
2. Section 300
petition and detention hearing
Crystal was born in October
2009. DCFS took Crystal into protective
custody and placed her in a foster home.
Mother and Crystal were in separate placements.
On October 20, 2009, DCFS filed a
section 300 petition on behalf of Crystal, alleging that mother had a history
of chronic runaway behavior and that mother and father had a history of
domestic violence.
At the October 20, 2009 detention
hearing, the juvenile court ordered Crystal detained. It ordered monitored visits for mother a
minimum of three times per week.
Jurisdiction/disposition
In a November 12,
2009 jurisdiction/disposition report, DCFS reported that Crystal was doing well
in her foster placement.
On October 26, 2009, mother ran away
from her foster care placement. Mother
had gone to the movies with the other foster children in the home. The other children reported that mother’s
boyfriend came to the movie and he and mother left together. A protective custody warrant was issued. The social worker went to the home of father,
but paternal grandmother reported that mother was not residing at her
home. At the time that the
jurisdiction/disposition report was filed, mother remained AWOL.
On November 4, 2009, father met with
the social worker at a DCFS office. He
claimed that on the night of mother’s injuries, his former girlfriend had seen
him and mother walking together. The
former girlfriend began beating up mother.
Father broke up the fight and pulled his ex-girlfriend off of
mother. Mother was injured, but not
badly. Father denied seeing mother since he met her at the movies. He stated that they got in a fight and he had
not seen her since.
Mother had participated in two
visits with Crystal. On October 21,
2009, mother had her first visit with Crystal.
Mother held the baby, fed her, and behaved appropriately. At a second visit on October 23, 2009, mother
was affectionate with Crystal. Father
inappropriately questioned mother about whether she had another boyfriend, and
the social worker had to redirect the parents about the purpose of the
visits. Mother had no other visits with
Crystal because she ran away on October 26, 2009.
In a January 19, 2010, last minute
information for the court, DCFS reported that mother had been placed in a
foster home on November 12, 2009.
However, mother ran away on November 16, 2009, and as of January 2010,
mother was still AWOL.
At the January 19, 2010 adjudication
hearing, the juvenile court sustained counts b-1 and b-2, alleging that
mother’s chronic runaway behavior, and the history of domestic violence between
mother and father, put Crystal at risk of harm.
The juvenile court declared Crystal a dependent of the court and
provided the parents with reunification services, including monitored
visits. Mother was permitted monitored
visits three times per week for a minimum of one hour. The court also ordered a TDM to address the
possible placement of mother with Crystal in a foster home.
4. Interim
reports and six-month review hearing
In a July 5, 2010 status review
report, DCFS reported that on May 13, 2010, mother ran away from her
placement. As of July 2010, mother’s
whereabouts were unknown.
Mother was in a foster care
placement from February 2 through May 11, 2010.
She had monitored visits with Crystal for two hours per week. Mother was compliant during the visits but
the foster parent observed that mother did not pay full attention to Crystal. Mother was consistently on her cell phone
talking or sending text messages, and had to be redirected to provide proper
care to Crystal, including feeding her and changing her diaper. No visits occurred since mother ran away from
her placement.
Crystal continued doing well in her
foster home.
In an August 13, 2010, last minute
information for the court, the social worker reported that mother had called on
July 20, 2010, stating that she was at father’s home and wanted to surrender
herself. The social worker went to
father’s home and father reported that mother was not there, although she had
been there earlier. On July 26, 2010,
mother again contacted the social worker, stating she was at father’s home and
wanted to surrender. The social worker
placed mother in a foster home on that date, but on July 28, 2010, mother ran
away from the placement. Mother’s
whereabouts were unknown at the August 13, 2010 six-month review hearing.
At the six-month review hearing, the
court found mother in partial compliance and terminated reunification
services. The matter was set for a
section 366.26 permanency planning hearing.
5. Mother’s
section 388 petition
DCFS filed a section 366.26 report
on December 10, 2010. DCFS reported that
there were several families interested in adopting Crystal.
Mother ran away from her placement
on May 8, 2010, and did not reappear until September 18, 2010. Since September 18, 2010, mother had only
completed two monitored visits with Crystal.
The social worker noted that mother was again pregnant and due on April
19, 2011.
On April 7, 2011, mother filed a
section 388 petition, requesting that Crystal be returned to mother’s custody,
or in the alternative, placed in the same foster home as mother or that the
court reinstate reunification services and provide mother with unmonitored
visits.
title="">[3] As changed circumstances,
mother alleged that she had been in a stable placement for seven months and
that she had been compliant with the rules of her foster home. Mother claimed that the change of order would
be in Crystal’s best interest because mother had weekly visits with Crystal for
the past seven months and had a positive relationship with Crystal. The juvenile court set mother’s section 388
petition for a hearing.
In an April 8, 2011, last minute
information for the court, DCFS reported that Crystal’s prospective adoptive
parents’ home study had been approved since December 13, 2010. Crystal was placed in the prospective
adoptive parents’ home on January 11, 2011.
Crystal was adjusting well in the home and the prospective adoptive
parents were committed to adopting Crystal and raising her as their own
daughter.
In its May 25, 2011 interim review
report, DCFS stated that mother had not made enough progress and had not bonded
enough with Crystal to justify a change in the court’s orders.
Mother gave birth to her second
child in April 2011.
At the May 31, 2011 hearing on
mother’s section 388 petition, the juvenile court granted mother’s petition in
part. The court granted mother further
reunification services, including weekly monitored visits three times per week
for three hours each.
6. Section
366.26 permanency planning hearing
In an October 28, 2011, last minute
information for the court, DCFS reported that mother was not consistently
visiting with Crystal. Mother was
provided with visits three times per week, but was only visiting once per
week. In addition, the social worker
noted that on October 17, 2011, mother ran away from her most recent placement
with her second child.
Crystal had blossomed in the
prospective adoptive parents’ home, and had a strong parent-child bond with her
prospective adoptive parents.
Mother was not present at the
October 28, 2011 section 366.26 hearing.
The juvenile court terminated reunification services because mother had
run away and put her second child at risk.
The court determined that it was not in Crystal’s best interest to
continue reunification services.
Mother’s counsel requested that the
juvenile court set the section 366.26 hearing for a contest. The juvenile court asked mother’s counsel for
an offer of proof. Mother’s counsel said
that mother had been regularly visiting Crystal from May through October 17,
2011, when she ran away. Mother’s
counsel claimed that mother had a bond with Crystal and that it would be
detrimental to Crystal if the bond were terminated.
Crystal’s counsel requested that the
juvenile court proceed to permanency, since mother had not regularly and
consistently visited with Crystal.
The juvenile court noted that mother
was “whereabouts unknown†with her second child and that “speaks for
itself.†The juvenile court found that
mother had not regularly and consistently visited with Crystal. The court explained to mother’s counsel that
it could not accept her offer of proof because mother was essentially arguing
“Well, she’s had regular and consistent visits up until the time she stopped
having regular and consistent visits because she ran away.†Because mother’s offer of proof was
insufficient, the court denied mother’s request for a contested hearing and
indicated it was “ready to proceed today.â€
The court then terminated mother’s
parental rights. The court noted that
“for almost ten months, almost all of last year, the mother . . . was AWOL and
did not make any inquiries into the child.â€
The court acknowledged that mother returned and started visits again,
but that “she’s again AWOL with her new baby and has no contact.†The court also noted that mother had 15
separate runaway incidents. In addition,
during the visits that she did have, it did not appear that mother paid full
attention to Crystal.
The court found by clear and
convincing evidence that Crystal was adoptable, and terminated parental rights,
freeing Crystal for adoption.
On November 15, 2011, mother filed a
notice of appeal.
I. Relevant law
and standard of review
At a section 366.26 hearing, the
juvenile court must make a permanent plan for the child. (§ 366.26, subds. (b)(1)-(5).) The permanent plan preferred by the
Legislature is adoption. If a juvenile
court finds a child adoptable, it must terminate parental rights absent
specified circumstances in which termination of parental rights would be
detrimental. (§366.26, subds. (c)(1)(A)
& (B).) “After the parent has failed
to reunify and the court has found the child likely to be adopted, it is the
parent’s burden to show exceptional circumstances exist†to justify a decision
not to terminate parental rights. (
567, 573-574 (Autumn H.).)
At a permanency planning hearing
pursuant to section 366.26, the juvenile court may exercise its power to
request an offer of proof to identify the contested issues and “to insure that
before limited judicial and attorney resources are committed to a hearing on
the issue, [there is] evidence of significant probative value.†(In re
Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) “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.†(
insufficient and declines to hold a contested hearing, the issue is preserved
for appeal so that a reviewing court can determine error and assess
prejudice. (Ibid.)
“It is the burden of the proponent
of evidence to establish its relevance through an offer of proof . . . . [Citation.]â€
(People v. Schmies (1996) 44
Cal.App.4th 38, 51.) A trial court’s
rejection of an offer of proof is generally reviewed for abuse of
discretion. (See, e.g.,
684; People v. Foss (2007) 155
Cal.App.4th 113, 124-125.)
mother’s request for a contested hearing
The parent-child bond exception to
termination of parental rights is set forth in section 366.26, subdivision
(c)(1)(B)(i). This exception permits a
court to decline termination of parental rights if “[t]he parents have maintained
regular visitation with the child and the child would benefit from continuing
the relationship.†Mother acknowledges
that she bore the burden of proving the parent-child bond exception to the
termination of parental rights. Mother
further acknowledges that in order to prove this exception, she would have to
prove that she occupied a parental role in Crystal’s life, resulting in a
significant, positive emotional attachment, and that regular visits and contact
have continued or developed that attachment.
(Autumn H., supra, 27
Cal.App.4th at p. 575.)
Mother argues that her offer of
proof was sufficient to show regular contact and visitation with Crystal. She states that she regularly began visiting
Crystal immediately after Crystal’s October 20, 2009 detention, including one
visit on October 21, 2009, and another visit on October 23, 2009. Mother also points out that she visited with
Crystal twice weekly between February and May 2010. Mother admits that there may have been some
gaps in her visitation -- and that it may not have been frequent enough for
DCFS’s liking -- but nevertheless, mother argues, mother and Crystal shared
visitation over the two-year period of Crystal’s detention. Mother argues that this was enough for a
successful offer of proof meriting a contested hearing.
The juvenile court found this offer
of proof insufficient. This decision did
not constitute an abuse of discretion.
The record shows that mother did not maintain regular visitation with
Crystal. Mother had two visits with
Crystal after her initial detention in October 2009, but no further visits
until February 2010. During these
visits, mother did not pay full attention to Crystal -- instead, she was
consistently on her cell phone. Mother
ran away from her placement and did not visit Crystal between May and September
of 2010. While mother consistently
visited Crystal between September 2010 and April 2011, she did not take
advantage of the juvenile court’s permission to visit with Crystal three times
per week starting in May 2011. Instead,
she visited Crystal only once per week, until mother ran away again in October
2011. Mother was “whereabouts unknownâ€
at the time of the section 366.26 hearing in October 2011.
In order to prove that the
parent-child bond exception to termination of parental rights applies, a parent
is required to show that her relationship with her child “promotes the
well-being of the child to such a degree as to outweigh the well-being the
child would gain in a permanent home with new, adoptive parents. In other words, the court balances the
strength and quality of the natural parent/child relationship in a tenuous
placement against the security and the sense of belonging a new family would
confer.†(Autumn H., supra, 29 Cal.App.4th at p. 575.) Even frequent and loving contact is not
sufficient if the parent does not “occupy a parental role†in relation to the
child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
Where a parent does not “act
parentally,†and does not focus her full attention on the child during visits,
there is insufficient evidence to support the section 366.26, subdivision
(c)(1)(B)(i) exception to termination of parental rights. (In re
L. Y. L. (2002) 101 Cal.App.4th 942, 954-955.) The record supports the trial court’s
findings that mother did not visit regularly, and that when she did visit, she
did not act parentally and did not focus her full attention on Crystal. Under the circumstances, the juvenile court
did not err in declining to find mother’s offer of proof sufficient to merit a
contested hearing.
III. Any error
was not prejudicial
Even if the juvenile court had erred
in declining to set a contested hearing on termination of mother’s parental
rights -- which it did not -- we would not reverse the judgment because there
is no evidence that a result more favorable to mother would have resulted if
the court had granted mother a contested hearing.
Under the California Constitution,
article VI, section 13, reversal of a judgment is impermissible unless the
error complained of resulted in a “miscarriage of justice.†(See also
Evid. Code, § 354 [judgment shall
not be set aside unless the erroneous exclusion of evidence resulted in a
miscarriage of justice].) A miscarriage
of justice occurs when the appellate court determines, after reviewing the entire
record that “‘“it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.â€â€™ [Citation.]â€
(Pool v. City of Oakland (1986)
42 Cal.3d 1051, 1069.)
It is not reasonably probable that a
more favorable result would have been reached if mother had been granted a
contested hearing on termination of parental rights. As set forth above, mother did not maintain
regular visitation with Crystal.
Instead, her visits with Crystal were interrupted on the several
occasions when mother disappeared, sometimes for months at a time, without
informing DCFS of her whereabouts.
During these absences from Crystal’s life, mother did not inquire about
Crystal’s well-being. When mother did
visit with Crystal, she did not pay full attention to Crystal, instead talking
on her cell phone or sending text messages.
When the court granted mother a new opportunity to reunify with Crystal,
mother did not take advantage of this opportunity. Instead of visiting three times per week as
the court allowed, mother visited only once a week.
Further, there was no evidence that
Crystal would suffer any detriment from severance of the parent-child
relationship. Crystal never lived with
mother. She was in a permanent home with
prospective adoptive parents, whose adoption home study had been approved. Crystal was bonded to her prospective
adoptive parents, and they were committed to providing her with a permanent
home. Mother points to no evidence
suggesting that the potential benefit from Crystal’s continuing relationship
with her could possibly outweigh the benefit Crystal would obtain in her new,
adoptive home. Under the standard
explained above as set forth in Autumn H.,
the section 366.26, subdivision (c)(1)(B)(i) exception to termination of
parental rights does not apply in this case.
DISPOSITION
The judgment is
affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
_________________________,
J.
CHAVEZ
We concur:
___________________________, Acting P. J.
DOI TODD
___________________________, J.
ASHMANN-GERST
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code unless otherwise noted.
name="_ftn2" title="">[2] Father is not a party to this appeal.
