In re Brian H.

Filed 8/21/07 In re Brian H. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Stephen Marpet, Commissioner (pursuant to Cal. Const., art. VI, 21). Affirmed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Darlene B. (mother), mother of three-year-old Brian H., appeals from the juvenile courts order terminating her parental rights to Brian under Welfare and Institutions Code section 366.26.[1] Mother contends the juvenile court denied her due process when it erroneously denied her request for a contested hearing on the visitation exception to the termination of her parental rights under section 366.26, subdivision (c)(1)(A) (section 366.26(c)(1)(A)). Mother also contends that even in the absence of such a hearing, the evidence demonstrates that she satisfied the section 366.26(c)(1)(A) exception. We affirm.

BACKGROUND

Brian was born in June, 2004, shortly after mothers 15th birthday. The Los Angeles Department of Children and Family Services (Department) first became involved with mother in December 2004, when her family, with whom she and Brian lived, reported that mother was putting Brian at substantial risk of harm. Mothers mother (grandmother) reported to a social worker that mother had been consistently violent for the prior two years. When the social worker visited the home, she observed damage mother had caused to the home, including a broken door, a three-foot hole in a bedroom wall, and paneling ripped from a wall. The social worker observed scratches on grandmothers arms that mother had inflicted. At the time, mother was on probation due to truancy.

On December 30, 2004, mother signed a voluntary reunification agreement pursuant to which she agreed for Brian to be placed with the maternal grandparents, for mother to continue to live in the family home, and for mother to receive family preservation services. On February 3, 2005, mother began receiving family preservation services, including in-home counseling, parenting, and a mental health referral. A March 16, 2005, detention report states that mother was not present for the in-home counseling sessions, and that the in-home counselor was only able to meet with her for a couple of sessions. The detention report states that these services were ineffective in preventing mother from engaging in further violent episodes.

On March 4, 2005, mother entered her parents home at 9:00 p.m. after being gone all day. According to grandmother, mother appeared to be under the influence of drugs. Mother ran into grandmothers room and yelled, Where is my fucking baby? The baby was on the bed with grandmother, but mother did not see him. Mother then ran into her sisters bedroom and yelled at them. When grandmother entered the hall, mother physically attacked her, scratching and kicking her. Mothers 14-year-old sister tried to pull mother off grandmother and was scratched by her. Mothers 17-year-old brother held Brian in another room. Sheriffs Department deputies went to grandmothers house, and grandmother stated that she wanted to press charges. The deputies did not detain mother and told grandmother she should handle her kid. The next day, mother left the family home to stay with neighbors.

On March 7, 2005, grandmother and mothers siblings left the house to run errands. Grandmother locked the house. When they returned, one of mothers brothers saw mother throwing her sisters clothes out a window. Mothers 13-year-old brother chased down mother to try to get his sisters belongings back. Mother scratched her brothers face, leaving a deep, three-inch cut on his left cheek. Due to mothers continuing violence in the home, the Department failed mothers Voluntary Family Reunification Agreement, detained Brian with his maternal grandparents, and detained mother in an emergency shelter.

On March 16, 2005, the Department filed a petition pursuant to section 300 alleging that Brian came within the jurisdiction of the juvenile court because of mothers violence in the home in Brians presence and because mother failed to comply with her voluntary family reunification services contract. That same day, the juvenile court held an arraignment and detention hearing. The juvenile court found the Department had established a prima facie case for detaining Brian and that reasonable efforts had been made to prevent or eliminate the need for Brians removal from the home. The juvenile court found Antonio H. (father) to be Brians presumed father. The juvenile court ordered Brian detained with his maternal grandparents. Mother and father were granted monitored visits.

On April 25, 2005, the juvenile court held the jurisdictional hearing. The Department reported that mother was living with her aunt Kathy S. (great aunt). Mother signed a mediation agreement pursuant to which the juvenile court sustained an amended petition alleging that Brian had been exposed to domestic violence in which mother assaulted other family members. The juvenile court declared Brian to be a dependent of the court, removed him from his parents custody, and placed him in the Departments care for suitable placement. The juvenile court ordered the Department to provide mother reunification services, including individual counseling, parenting classes, and anger management. Mother was also granted monitored visitation three times a week. Great aunt was permitted to be the monitor. The juvenile court granted the Department discretion to liberalize mothers visitation and to permit overnight visits in great aunts home.

In an interim review report for a hearing on July 25, 2005, the Department reported that mother had been making good progress while living in great aunts home. Mothers behavior had improved tremendously, mother had attended school regularly, and she had visited Brian regularly. Mother had worked her way up from three-hour, twice weekly visits to overnight weekend visits. Mothers interactions with Brian had been loving and appropriate. The Department reported that grandmother often had made visitation difficult by not having Brian available or ready for visits. Mother responded to these incidents maturely. Because mothers visits in great aunts home had gone well and mother had remained calm and compliant, the Department stated that it would be placing Brian in great aunts care on July 25, 2005, with mother allowed to reside in the home with monitored contact.

In a status review report dated October 24, 2005, the Department reported that great aunt provided Brian with a safe and nurturing home. Brian was reported to be a happy, healthy baby who smiled frequently and who was thriving in great aunts care. The social worker had observed mother to be loving towards Brian. Great aunt had been primarily responsible for Brian and had been trying to teach mother how to parent Brian. Mother reportedly was not receptive to great aunts help and often treated great aunt disrespectfully. In early September, great aunt called the social worker and stated she was considering having mother removed from her home. The Department referred mother and great aunt to family preservation services to preserve mothers placement in great aunts home.

The report stated that mother had completed a parenting class and had been attending weekly individual therapy consistently for the prior six months. The Department reported that mother had struggled to balance her desire to be a carefree teenager and her desire to be a mother to Brian. The juvenile court ordered the Department to provide family reunification services. The court found mother was in partial to substantial compliance with her case plan and that there was a likelihood that that she and Brian would reunify within six months.

In connection with the 12-month hearing on April 24, 2006, the Department reported that mother had completed a parenting class and had attended individual counseling. Mother was then participating in a Rites of Passage program that provided services for foster youth, including weekly case management, educational and vocational services, and mentorship. Mothers participation in an anger management class was terminated after a series of no-shows in December 2005 and January 2006. During that period of time, mother had left great aunts house to live with her parents. Mother returned to great aunts house in January 2006.

The Department reported that Brian had a warm relationship with mother and great aunt. However, mother recently had become disrespectful and would take Brian into her room and slam the door on great aunt. Mother did not help with chores around the house. Great aunt told the social worker that she did not feel safe leaving Brian alone with mother because mother becomes preoccupied talking to adult male neighbors. If great aunt needed to leave the house, she took Brian with her instead of leaving him with mother. The court ordered the Department to continue to provide mother with family reunification services and counseling so that she could reunite with Brian.

In a report for the 18-month review hearing set for September 14, 2006, the Department reported that great aunt continued to provide Brian with a safe and nurturing home. Mother was reported to have been AWOL from the home on May 22, 2006, and had since been suitably placed in foster care on July 20, 2006. Mother had a history of being AWOL. The social worker reported that Brian showed comfort in mothers presence. Great aunt stated that she was willing to care for Brian only until the September 14, 2006, hearing. The maternal grandparents reportedly were willing and interested in caring for Brian and were willing to pursue adoption.

After mother was placed in foster care, she had three visits with Brian each week, monitored by grandmother. The report stated that mother was not in full compliance with court-ordered services. Great aunt informed the social worker that mother did not consistently help with the responsibilities of caring for Brian. Mother was preoccupied with talking to her friends and the neighbors. According to grandmother, during monitored visits, mother was more interested in talking on the telephone and being on the computer. The report stated that mother had not made substantial progress in completing the case plan goals, despite having had ample time to reunify with Brian. The Department recommended termination of family reunification services, that Brian received permanent placement services, and that a section 366.26 hearing be scheduled within 120 days.

The September 14, 2006, hearing was continued to September 29, 2006. In an addendum report prepared for the hearing, the Department reported that the maternal grandparents could not be approved to care for or adopt Brian due to their own pending case with mother in which a petition had been sustained. At the hearing on September 29, 2006, the juvenile court terminated the parents family reunification services and set a hearing pursuant to section 366.26. A further hearing was set for October 27, 2006. The Departments report for the October 27, 2006, hearing reported that an adoptive home study was being prepared for great aunt. At the hearing, the juvenile court noted great aunts desire to adopt Brian.

In the Departments report for the January 26, 2007, section 366.26 selection and implementation hearing, the Department states that the identified permanent plan for Brian was adoption with great aunt. The report states that mother visited sporadically during the week, but due to visitation problems with the grandparents and the child, mother and petitioner are not on speaking terms. As a result, mother decreased her visitation significantly. Mother only visited Brian on the weekends with the assistance of the Department to monitor the visitation. Brian appeared to have a good relationship with mother, although he knew that great aunt provided for his needs. Brian continued to thrive in great aunts care, and great aunt stated that she wanted to adopt Brian. Great aunts home study was complete as of January 18, 2006.

At the section 366.26 selection and implementation hearing on January 26, 2006, fathers attorney requested to set the matter for contest. The juvenile court inquired of the issue for the contest. Mothers attorney stated, Terminating parental rights today. The juvenile court asked for the legal exception to the termination of parental rights. Fathers attorney stated that father had had contact with Brian one to two times a month. The juvenile court stated that that did not rise to the level of a (c)(1)(A) exception. Mothers attorney stated that mother had been attempting to visit Brian, but mother felt that great aunt had thwarted her visits only allowing her to visit once a week and with her parents. Mothers attorney stated that she believed that the section 366.26(c)(1)(A) exception would apply if mother had received the visitation the juvenile court ordered. The juvenile court denied mothers request, stating that mothers once-a-week monitored visits clearly dont rise to the level of (c)(1)(A) exception. Over mothers and fathers objection, the juvenile court then terminated mothers and fathers parental rights.

DISCUSSION

Mother contends the juvenile court denied her due process when it erroneously denied her request for a contested hearing on the visitation exception under section 366.26(c)(1)(A). Mother also contends that, notwithstanding the juvenile courts denial of a contested hearing, the evidence demonstrates that she satisfied the visitation exception set forth in section 366.26(c)(1)(A).

I. Standard of Review

Generally, challenges to a juvenile courts determination under section 366.26(c)(1)(A) are governed by a substantial evidence standard of review. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)[2]Under a substantial evidence standard of review the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court. [Citation.] (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as stated in Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219, fn. 3.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) 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. Mother contends that abuse of discretion is the appropriate standard. Without deciding the appropriate standard of review, we hold there is no error under any standard of review.

II. Section 366.26(c)(1)(A)

Once 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 one of the five exceptions set forth in section 366.26, section (c)(1). (In re Celine R. (2003) 31 Cal.4th 45, 52-54.) 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.)

The visitation exception in section 366.26(c)(1)(A) provides that parental rights will not be terminated and a child freed for adoption if the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The 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 parents rights are not terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The visitation exception does not apply when a parent fails to occupy a parental role in his or her childs 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., supra, 70 Cal.App.4th at p. 51 [parents who have essentially never had custody of children or advanced beyond supervised visitation will have a difficult time establishing the section 366.26(c)(1)(A) exception].) [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.] (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the visitation exception aris[es] from day-to-day interaction, companionship and shared experiences. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) 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 childs life spent in the parents custody, the positive or negative effects of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

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 parent must show she has maintained regular visitation and contact with the child and a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)
[A] parent has a right to due process at the hearing under section 366.26 which results in the actual termination of parental rights. . . . Due process is a flexible concept which depends upon the circumstances and a balancing of various factors. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.) The juvenile court must balance the due process right of a parent to present evidence against the states interest in prompt and efficient trials. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) The juvenile court may condition a contested hearing on the visitation exception under section 366.22(c)(1)(A) on an offer of proof that mother had evidence of significant probative value. (Id. at pp. 1121-1122; In re Earl L. (2004) 121 Cal.App.4th 1050, 1052-1053 [juvenile court may condition contested hearing on the sibling exception under section 366.26, subdivision (c)(1)(E) on an offer of proof]; see In re Thomas R. (2006) 145 Cal.App.4th 726, 732 [consistent with due process, a juvenile court may require an offer of proof on a matter on which the parent has the burden of proof].)

A. The Juvenile Court Did Not Err in Ruling that Mothers Offer of Proof Was

Insufficient

At the section 366.26 hearing, mother appears to have joined fathers request for a contested hearing on the applicability of the section 366.26(c)(1)(A) exception to the termination of her parental rights.[3] Mothers attorneys apparent offer of proof for such a hearing is as follows, Your Honor, my client has been attempting to visit her son, Brian, but she feels that her visits have been thwarted by the maternal aunt, who only allows her to visit once a week and with her parents, and I feel that the (c)(1)(A) exception would apply to mother if she was getting visitation that the court had ordered. The juvenile court responded, But she doesnt have any contact other than what you have indicated and just her claim that she has been thwarted, and we dont have any evidence. But the fact remains that her visits have been limited to once a week, and they are monitored, and those clearly dont rise to the level of (c)(1)(A) exception. [] So, based on those recommendations, [sic] any request to set this matter for contest appears to be unwarranted, and Im going to deny the request.

Mother contends that when the juvenile court denied her request for a contested selection and implementation hearing, it conducted the hearing in summary fashion without allowing her to present evidence or argument on the issues of great aunts alleged impediments to mothers visitation and the applicability of the section 366.26(c)(1)(A) exception. Mother contends that the juvenile courts actions were an abuse of discretion and deprived her of due process.

The juvenile court did not err in ruling that mothers offer of proof was insufficient. Mothers offer of proof did not identify any purported evidence that would show that mother had a substantial, positive, emotional attachment with Brian, that the benefit of continuing that relationship would outweigh the benefit Brian would gain from a permanent home with his great aunt his prospective adoptive parent, or that terminating mothers relationship with Brian would cause Brian great harm. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The offer of proof also did not identify any evidence from which the juvenile court could have found that mother occupied a parental role in Brians life. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51.) Rather, the offer of proof went towards reasons why more visitation did not take place. Accordingly, under any standard of review, the juvenile court did not err in not holding a hearing based on the offer of proof.

B. Mother Did Not Satisfy the Requirements of Section 366.26, Subdivision

(c)(1)(A)

Mother argues that, notwithstanding the juvenile courts error in denying her a contested section 366.26 hearing, the juvenile courts finding, implicit or otherwise, that the visitation exception in section 366.26(c)(1)(A) did not apply was not supported by substantial evidence. Mother contends that she shared a loving and close parent-child relationship with Brian and that nothing in the record shows the same degree of bonding between Brian and great aunt.

Mother did not assert in the juvenile court that the visitation exception in section 366.26(c)(1)(A) applied to block the termination of her parental rights. Mothers attorney requested a hearing to show that the exception would have applied if mother had received her court-ordered visitation. The juvenile court had no sua sponte duty to review the record to determine if an exception applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Accordingly, mothers argument that juvenile courts finding on the inapplicability of the section 366.26(c)(1)(A) exception was not supported by substantial evidence is unavailing.

Even if mothers comments at the section 366.26 hearing are construed as an argument that the section 366.26(c)(1)(A) exception applied to block the termination of her parental rights, and the juvenile court is deemed to have implicitly ruled that the visitation exception did not apply, substantial evidence would support such a ruling. The record does not show that mother had the type of relationship with Brian that would support the section 366.26(c)(1)(A) exception. Although the record describes a positive relationship between mother and Brianusing terms such as loving and appropriate, loving, and warm to describe the relationshipnothing in the record supports the conclusion that mothers relationship with Brian promotes Brians well-being to such a degree that it would outweigh the well-being Brian would gain from a permanent home with his great aunt.[4] (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Moreover, the record does not show that severing mothers relationship with Brian would deprive Brian of a substantial, positive, emotional attachment such that Brian would suffer great harm. (Ibid.) Just prior to the section 366.26 hearing, mothers visitation had decreased significantly and she only visited him on weekends. Mothers apparent claim that she should not be held accountable for this diminution in visitation because great aunt made visitation difficult is unavailing. As mother asserts, the juvenile court had ordered more frequent visitation. If mother was not receiving the visitation to which she was entitled, it was incumbent on her to go to court and raise the issue with the juvenile court as early as possible and not wait until the selection and implementation hearing to raise the issue.

The record also does not show that mother occupied a parental role in Brians life. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51.) Mother contends she had such a role because she cared for Brian for the majority of his life. The record does not support her contention. The October 2005 status review report states that great aunt had been primarily responsible for Brian and that great aunt had tried to teach mother how to parent Brian, but that mother was not receptive to great aunts help. According to the report, mother was struggling to balance her desire to be a carefree teenager with her desire to be a parent. In April 2006, the Department reports great aunt did not feel safe leaving Brian alone with mother because of mothers preoccupation with talking to adult male neighbors. According to a September 2006 report, great aunt informed the social worker that mother did not consistently help with the responsibilities of caring for Brian. Grandmother is apparently reported as stating that during monitored visits mother was more interested in talking on the telephone or using the computer that in visiting with Brian. Indeed, the record shows that Brian, even at his young age, understood that his great aunt and not his mother provided for his needs. Great aunts provision of those needs, and Brians recognition of that fact likely are part of the reason that Brian thrived in great aunts care. There may have been evidence of frequent and loving contact between mother and Brian, of an emotional bond between mother and Brian, and that mother and Brian found their visits pleasant, but the existence of such evidence is not sufficient to reverse any implicit ruling of the court that mother did not occupy a parental role in Brians life. (In re Andrea R., supra, 75 Cal.App.4th at pp. 1108-1109.)

Although the record demonstrates that mother may love Brian, it contains sufficient evidence to support any implicit determination by the juvenile court that mother failed to take the steps necessary to create the type of relationship with Brian that would support the visitation exception under section 366.26(c)(1)(A). Under the appropriate standard of review, we do not reverse the juvenile courts decision.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1] All statutory citations are to the Welfare and Institutions Code unless otherwise noted.

[2] Other courts have applied an abuse of discretion standard of review. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Under an abuse of discretion standard of review, we will not disturb the juvenile courts decision unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In this case, we need not decide whether a juvenile courts ruling on the asserted exception is reviewed for abuse of discretion or substantial evidence, because, under either standard we affirm the juvenile courts decision. Moreover, mother casts her argument in terms of the substantial evidence standard of review.

[3] Although mothers attorney did not expressly request a contested hearing on the applicability of the section 366.26(c)(1)(A) exception, the record is clear that the juvenile court considered mothers attorneys colloquy with the court as such a request.

[4] There is no evidence in the record to support mothers suggestion that because there were hard feelings among great aunt, maternal grandparents, and mother at one point in time that great aunt would neither encourage nor permit Brian to see his mother or other family members.