In re C.J.
Filed 1/9/14 In re
C.J.CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
In re C.J., a
Person Coming Under the Juvenile Court Law.
B249199
(Los
Angeles County
Super. Ct. No. CK
78011)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
KATHLEEN J. et
al.,
Defendants and Appellants.
APPEAL
from an order of the Superior Court of Los
Angeles County, Marilyn K. Martinez, Temporary Judge. (Pursuant to Cal. Const., art.
VI, § 21.) Affirmed.
Suzanne
Davidson, under appointment by the Court of Appeal, for Defendant and Appellant
Kathleen J.
Grace
Clark, under appointment by the Court of Appeal, for Defendant and Appellant
David J.
John F.
Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and Stephen D. Watson, Associate County
Counsel, for Plaintiff and Respondent.
Kathleen
J. (mother) and David J. (father) appeal the juvenile court’s order denying
parents’ request for a contested Welfare
and Institutions Code section 366.26 hearing.
court denied their request to present evidence of the “beneficial parent-child
relationship†and “sibling relationship†exceptions to the termination of
parental rights after hearing their offers of proof. (See § 366.26, subd. (c)(1)(B)(i) &
(v).) We reject this challenge, and
affirm the order.
C.J. was born in July 2011. A
C.J. tested positive for marijuana. Although
mother initially denied current substance abuse, she admitted she smoked a
little marijuana but “did nothing to put her baby’s health into jeopardy.†Father, who tested negative for drugs, stated
he was unaware of mother’s use of marijuana during her pregnancy.
On August 1, 2011, the Los Angeles County Department
of Children and Family Services (DCFS) filed a petition on C.J.’s behalf.
came within the juvenile court’s
jurisdiction under section 300, subdivision (b), because mother’s use of
illicit drugs caused C.J. to be prenatally exposed to marijuana, rendered her
incapable of providing care for C.J., and endangered the child’s physical
health and safety. The petition further
alleged father knew of mother’s illicit drug use, failed to protect C.J., and
placed her at risk of physical harm and danger.
C.J. was detained
and placed in foster care. For mother,
the court ordered monitored visitation of a minimum of three visits per week,
three hours per visit. Father was permitted
to have monitored visits except at the location of C.J.’s placement where his
visits could be unmonitored. C.J.’s three
older siblings were ordered to have monitored visits with C.J.
During August and
September 2011, eight visits were scheduled for C.J. and her parents at
the Inner Circle Foster Family Agency.
the scheduled visits. Father was not
present for three of the eight visits. According
to the monitors, the visits generally went well and there was no need for the
monitors to intervene. On a couple of
occasions, the monitor noted mother’s maternal instincts were evident as she
was able to tell what C.J. wanted or needed. Father, however, looked uninterested in C.J.
or fell asleep during several of the visits. The siblings usually engaged with C.J. and
took turns holding her.
On November 1, 2011, DCFS recommended and the
court declared C.J. a dependent of the court.
The court permitted parents to have unmonitored day visits with C.J. after
November 28, 2011, provided they complied with all court orders, which
included (1) father’s participation in weekly Narconon
maintenance of an attendance card, (2) mother’s attendance in a drug
rehabilitation program and submission to weekly random drugs tests, and (3)
mother’s participation with C.J. in a family therapy program.
In an
interim review report filed by DCFS, father was reportedly attending weekly
Narconon meetings but failed to provide an attendance card. Mother submitted to six random drug tests
between October and November 2011, all of which returned negative results.
Although mother stated she was enrolled
in a drug treatment program, she could not provide proof of her enrollment
and/or attendance. In addition, while the
court ordered a minimum visitation of three times a week, mother visited C.J.
twice weekly, and father once weekly, during the two weeks prior to the
report’s date. DCFS noted its concern
regarding the parents’ continued failure to fully comply with the court’s
orders despite knowing that full compliance was necessary to gain liberal
visitation with C.J.
On December 20, 2011, DCFS
recommended and the court ordered C.J.’s removal from mother and father’s
custody and placed her in DCFS’s care for suitable placement. The court ordered family reunification
services and monitored visitation for the parents.
On May 3, 2012, DCFS filed a section 342
petition after father and mother engaged in a physical altercation during a
domestic dispute. The petition was
dismissed as to C.J. C.J.’s permanency
plan hearing was continued to June 12,
2012.
In reports
prepared for the June 12 hearing, DCFS reported C.J. bonded with her
foster mother and appeared to be responsive to mother and her siblings. Mother visited C.J. through the foster mother
once or twice a week and called about three times per week. According to the foster mother, the quality of
the visits was good. C.J.’s siblings
accompanied mother on her visits at least once a week. Mother stated father visited C.J. through her
foster mother on May 13,
2012. The social worker
attempted to contact father on at least six separate occasions, but was
unsuccessful. Father did not contact
DCFS to schedule a monitored visit with C.J.
As for
mother’s weekly drug tests, DCFS reported mother tested positive for marijuana
on four out of eight tests.
name="_ftnref6" title="">[6]
C.J.’s June 12, 2012 permanency plan hearing was
continued to July 25, 2012. At the July 25 hearing, the court
determined C.J.’s return to the physical custody of either parent would create
a substantial risk of physical or emotional harm. The court set the matter for judicial review
on January 23, 2013.
A status
review report prepared for the January 2013 hearing discussed mother and
father’s continuing failure to comply with the court’s orders. Mother failed to appear at 12 of the 24
scheduled drug tests,
name="_ftnref7" title="">[7] tested positive
for marijuana on three separate occasions,
for alcohol on one occasion.
name="_ftnref9" title="">[9] Mother failed to enroll in a drug
rehabilitation program and did not participate in conjoint therapy with C.J. Father failed to contact DCFS to provide
information as to his enrollment and progress in the court ordered programs.
DCFS further
reported both parents and the siblings had sporadic visits with C.J. between October
2012 and January 2013. Father did
not appear for six of the 10 scheduled visits with C.J. and made no attempts to
reschedule those visits.
name="_ftnref10" title="">[10] Mother did not appear for nine of 13
scheduled visits with C.J.
name="_ftnref11" title="">[11] As for the siblings, while they appeared happy
to visit with C.J., they did not engage with C.J. as they were usually busy playing
with one another playing games.
Because of
the parents’ continuing failure to comply with court orders, DCFS recommended
termination of reunification services for both parents and setting a section
366.26 hearing.
On January 23, 2013, the court terminated
family reunification services for mother and father after finding mother in
partial compliance and father not in compliance with the court’s orders. The court scheduled a section 366.26
selection and implementation hearing, and ordered monitored visitation for
mother.
On March 1, 2013, C.J. was placed with her
new foster parents, Donald and Susan L.
The section
366.26 report prepared for the April 30,
2013 hearing stated: “During
this period of review there has been little [change] in the [status] of the
case. The mother and father continue to
be out of compliance with Court orders.
The mother and father have failed to demonstrate that the concerns that
brought this case to the attention of DCFS have been remedied.†The report additionally noted that, “while
the mother continues to visit the child . . . , her visits
are not always consistent and the father has not visited with the child during
this period of supervision.â€
On April 30, 2013, mother and father
requested a contested section 366.26 hearing. The court asked for an offer of proof. Father’s counsel replied: “[W]e’re going to submit evidence that shows
that terminating parental rights would be detrimental to [C.J.] because she
would benefit from the continued contact.†Father’s counsel continued: “[C.J.] is very young, but she does recognize
my client as her father. She enjoys the
visits and also does have other siblings that see her regularly, and I believe
that termination of parental rights would interfere with sibling contact. [I]t would be very important to her and for
her to know her entire family, Your Honor.â€
Like father,
mother’s offer of proof was based on “visitation not only for [mother], but
also with the sibling.â€
Finding the
offers of proof insufficient, the court determined it was reasonably unlikely
the court would be persuaded that termination of parental rights would be
detrimental to the child. The court
stated:
“The argument is that [C.J.]
recognizes her father. [C.J.] enjoys her
visits with her mother and her father and her siblings. [¶] Visitation
in and of itself is insufficient to persuade the court that it would be
detrimental to terminate parental rights. . . . [¶] . . . [¶] The child is not even two years old. The . . . offer of proof does
not advise me that the relationship between the child and mother through
visitation benefits the child so significantly to outweigh the strong
preference for adoption. This child may
have an enjoyable time during the visits.
That’s not sufficient to deprive the child permanency provided through adoption.
“There is no evidence
offered that this child has a significant, positive, emotional attachment to
either of her parents. There is no
evidence that either parent occupies a parental role. There is no evidence that if I terminate
parental rights, this child would be greatly harmed.
“[W]hile this child
may recognize her father at visits and may even recognize her mother at visits,
they have not occupied a parental role. [A]
friendly relationship may be beneficial, but it is not sufficient in and of
itself to deprive this child of the permanency provided through adoption.â€
As for C.J.’s
siblings, the court stated: “[T]here’s
no evidence presented that [C.J.] has any significant, emotional attachment to
her siblings.â€
Finding by
clear and convincing evidence that C.J. would likely be adopted, the court terminated
parental rights and placed C.J. in DCFS’s care, custody and control for the
purposes of adoption planning and placement.
Both mother and father argue the court violated their
due process rights when it denied their request to present relevant evidence of
the beneficial parent-child relationship and sibling relationship exceptions
pursuant to section 366.26, subdivision (c)(1)(B)(i) and (v). Section 366.26, subdivision (c)(1) states, in
pertinent part: “If the court determines . . . ,
by a clear and convincing standard, that it is likely the child will be
adopted, the court shall terminate parental rights and order the child placed
for adoption . . . unless . . . : [¶] . . . [¶] (B)
. . . [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship [or] [¶] . . . [¶]
(v) There would be substantial
interference with a child’s sibling relationship . . . .†Mother and father contend they would have been
able to prove the applicable exceptions had the court granted a contested
hearing. Both parents claim the juvenile
court’s denial of their request for a contested hearing was prejudicial and requires
reversal. We disagree.
“[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.’ [Citations.]â€
(In re Jeanette V. (1998)
68 Cal.App.4th 811, 816-817.) However,
“due process is not synonymous with full-fledged cross-examination
rights.†(Id. at p. 817.) It “‘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.’†(In re
Earl L. (2004) 121 Cal.App.4th 1050, 1053.)
Here, the
issue before the juvenile court was whether the parents’ offer of proof was
sufficient to set the matter for a contested 366.26 hearing. Mother and father argued the beneficial
parent-child relationship and sibling relationship exceptions applied. (See § 366.26, subd. (c)(1)(B)(i), (v).) However, rather than presenting a “specific†offer
of proof, which “set[] forth the actual evidence to be produced,†mother and
father “merely [identified] the facts or issues to be addressed and
argued.†(In re Tamika T. (2002) 97 Cal.App.4th 1114, 1124.) Father argued C.J. recognized him as her
father, enjoyed her visits with him, and regularly visited with her siblings. Mother simply joined father’s argument,
adding only that her offer was “based on visitation not only for herself, but
also with the sibling.â€
However,
“[a] proper offer of proof gives the trial court an opportunity to determine
if, in fact, there really is a contested issue of fact.†(In re
Tamika T., supra, 97 Cal.App.4th at p. 1124.) With the exception of
father’s statement that his visits were “consistent . . . in the
last few months,â€
name="_ftnref12" title="">[12] neither mother
nor father contested the evidence contained in the social worker’s reports. The reports demonstrated mother’s continued
use of marijuana since C.J.’s detainment in 2011; the parents’ inconsistent
visits with C.J. between August 1,
2011, and April 30,
2013; and the parents’ failure to comply with court orders. Neither parent sought an examination of any
witnesses or presented a summary of the issues relevant to the examination of
any witnesses. In light of these
uncontested facts, there does not appear to be a miscarriage of justice in the
court’s conclusion that the parents’ offer of proof was insufficient to set a
contested section 366.26 hearing. (
p. 1124.)
Even if a contested
hearing were granted, a different result would not have been obtained. Neither mother nor father would have been able
to show the parent-child relationship involved “more than ‘frequent and loving
contact,’†or that they were “more to the child than a mere ‘friendly visitor
or friendly nonparent relative.’†(
Cal.App.4th 71, 81.) Here, the parents
argued they visited C.J. once a week and C.J. enjoyed her visits with her
parents and siblings. However, neither
parent showed that he or she occupies “‘“a parental role†in the child’s life.’â€
(In
re K.P. (2012) 203 Cal.App.4th 614, 621.) “‘[B]ecause a section 366.26 hearing occurs
only after the court has repeatedly found the 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.’ [Citation.]â€
(Ibid.)
The parents’
contention that they visited C.J. once a week in the months before the section
366.26 hearing does not give rise to the kind of parent-child relationship
required under the benefit exception.
Such a relationship “‘characteristically aris[es] from day-to-day
interaction, companionship and shared experiences.’ . . . [Citation.]â€
(In re K.P., supra, 203
Cal.App.4th at p. 621.) C.J. was removed from her parents’ custody
when she was less than a month old and spent the majority of her young life in
a foster home. The parents’ visitation,
which was inconsistent throughout the entire period of review, never progressed
beyond monitored visitation with only the narrow exception that father was
initially allowed to visit C.J. in her placement without a monitor. Mother’s interaction with C.J. lessened over time. Father appeared uninterested in C.J. or fell
asleep during his visits with the child. Based upon the totality of the record, there
is no evidence to controvert the court’s finding that the parents’ “friendly
relationship†is “not sufficient in and of itself to deprive this child of the
permanency provided through adoption.â€
Similarly,
the record supports the court’s finding that the sibling relationship exception
did not apply. Under section 366.26,
subdivision (c)(1)(B)(v), the court must balance whether “[t]here would be
substantial interference with a child’s sibling relationship, taking into
consideration the nature and extent of the relationship, including, but not
limited to, whether the child was raised with a sibling in the same home,
whether the child shared significant common experiences or has existing close
and strong bonds with a sibling, and whether ongoing contact is in the child’s
best interest . . . .â€
As their
offer of proof, the parents merely argued the “other siblings . . .
see [C.J.] regularly, . . . termination of parental rights would
interfere with sibling contact,†and “it would be very important to [C.J.] to
know her entire family.†As the court
properly recognized, “there’s no evidence presented that [C.J.] has any
significant, emotional attachment to her siblings.†The record shows that C.J. was not raised with
her siblings in the same family home because she was removed from the home very
early on. The siblings’ interaction with
C.J. was limited as they were busy playing games during the
monitored visits. In addition, neither
father nor mother attempted to contest the record by specifically showing that C.J.
shared a close relationship with her siblings or that maintaining C.J.’s
relationship with her siblings was in her best interest. Thus, there was sufficient evidence to support
the court’s finding that the sibling relationship exception did not apply.
Based upon
this record, we conclude that a contrary result would not have been obtained if
mother and father’s request for a contested hearing were granted. “[E]ven 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 [any] error must be seen as harmless beyond a
reasonable doubt.†(Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1387.)
The order is affirmed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J. RUBIN, J.
name="_ftn1" title="">[1] Undesignated
statutory citations are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Appellants have three
minor sons, two of whom were included in the petition. The three sons are not a part of this appeal.
