In re Mia H.
Filed 4/26/13 In re Mia 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NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
>
In re MIA H., A Person Coming Under the Juvenile Court Law. | |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. FREDDIE H. et al., Defendants and Appellants. | B241638 (Los Angeles County Super. Ct. No. CK87862) |
APPEAL from an
order of the Superior Court of Los Angeles County, Marilyn Martinez, Juvenile Court
Commissioner. Affirmed.
Rich Pfeiffer,
under appointment by the Court of Appeal, for Defendant and Appellant Freddie
H.
Kimberly A.
Knill, under appointment by the Court of Appeal, for Defendant and Appellant
Yvonne L.
John F.
Krattli, Office of the County Counsel,
James M. Owens, Assistant County Counsel, Aileen Wong, Deputy County Counsel,
for Plaintiff and Respondent.
Yvonne L.
(Mother) and Freddie H. (Father) appeal the order terminating parental rights
under Welfare and Institutions Code section 366.26.
rights were violated when the juvenile court refused to hold a contested
hearing. Finding no error, we affirm.
The family
came to the attention of the Department of
Children and Family Services (DCFS) in January 2011, when Mother, Father,
their daughter Mia, born in July 2009, and Mother’s three older children
fathered by Shaun K. were living in a motel room. All the children had head lice and the older
children had missed two weeks of school.
There were also reports of Mother spitting on Father and the children.
had been involved in dependency proceedings in Orange County and that the three older children
had lived with their paternal grandmother (Shaun’s mother) until two years
earlier, when Mother regained custody.
three older children had been terminated in an
histories and use of drugs. Father had
completed a drug program and reported being clean for more than three years. But Mother acknowledged using methamphetamine
and marijuana recently, in January 2011 and December 2010 respectively. Voluntary family maintenance services were
initiated. Mother agreed to voluntary
placement of the three older children with their paternal grandmother. Mother and Father agreed to drug test and
Mother agreed to enroll in a drug program and to obtain a mental health
evaluation. Mother subsequently failed
to appear for drug tests in April and failed to participate in a drug
program. In May 2011, DCFS filed a
petition under section 300. Because
Father had appeared for drug tests and had consistently tested negative, at
DCFS’s recommendation the court placed Mia with Father. Mother was permitted monitored visitation
only.
In July 2011,
Mother and Father pled no contest to allegations that Mother had an unresolved
history of drug abuse, including use of cocaine and methamphetamine, and that
Father knew of Mother’s drug abuse and failed to protect Mia.
parenting program, substance abuse counseling with random drug tests, and
mental health counseling including a psychiatric evaluation. She was granted monitored visitation, but
Father was not to be the monitor. The
court ordered Father to drug test on demand one time, to attend a parenting
class if DCFS could find an affordable one that fit into his schedule, and to
attend conjoint counseling with Mother if DCFS set it up and found a counselor
who would not charge Father and meet in accordance with his schedule.
for Father, Mia and Mother.
In August
2011, the caseworker learned that Mother had been staying with Father and
babysitting Mia when Father was working.
DCFS filed a supplemental petition under section 387 contending Father
permitted Mother to have unmonitored access to Mia and failed to comply with
court orders. Mia was detained from
Father and placed with Shaun’s mother, with whom her half-siblings had earlier
been placed. Mother and Father pled no contest
to the supplemental petition. The court
ordered Father to attend a parenting class and permitted him to have
unmonitored visits with Mia but kept in place the order that he not be the
monitor for Mother’s visits.
In October
2011, the caseworker reported that the parents had had no contact with her but
had visited the children three times in the paternal grandmother’s home in
September and October. In addition,
Mother called nightly to speak to the children.
Mia had begun to adjust to the new home and bond with her
caregiver. She showed no signs of
distress when her parents left after their visits.
In the
February 2012 status report, the caseworker again reported she had not spoken
with the parents. She had visited a
motel where they reportedly lived, but no one opened the door for her even
though someone appeared to be inside.
Father had been arrested for petty theft. The parents did not appear to be complying
with the reunification plan. The parents
had been visiting the children once or twice a month until mid-December. The visits went well. They had not visited in January or
February. Mother had stopped calling the
children nightly, and had called only three times in the preceding two
weeks. Mia appeared to be happy in her
new home, was very bonded with her half-siblings, and was beginning to seek out
her caregiver for comfort. DCFS
recommended termination of reunification services “[b]ased on the fact that
both mother and father have long histories of substance abuse and neither
parent has complied with court orders over the past 6 months, have not remained
in contact with DCFS, have not visited minor in over two months, and due to
minor being under the age of 3.†At the
review hearing on February 23, Father’s attorney said he had been struggling
financially and wait-listed for an inpatient drug program. Mother’s attorney said she, too, was on a
waiting list for services. The court
terminated reunification services and set a section 366.26 hearing for May
24, 2012 to
consider termination of parental rights.
The
caseworker’s section 366.26 report was filed on May 24, 2012.
The information concerning parental visitation was taken from the
February 2012 status report. The
caseworker had visited Mia in the home of the paternal grandmother and observed
that she had formed a secure attachment to the grandmother and her husband, who
were willing to adopt. Because the
adoption home study had not been completed, however, DCFS recommended that the
court continue the matter for 120 days to accomplish that task. At the hearing, the parents’ attorneys asked
that the matter be continued so it could be set for a contest. The court inquired whether parental rights
could be terminated before the home study was completed. The attorney for DCFS stated that although
DCFS was requesting a continuance of the section 366.26 hearing, DCFS did not
disagree that termination was in Mia’s best interest. The attorney for Mia indicated it was her
“preference†to wait to terminate parental rights until the home study was
completed.
The court
asked parents’ counsel for an offer of proof.
Father’s counsel stated: “[M]y
client has been visiting with his child and he bonds with his child, which is
the exception for the .26 hearing. So he
believes that would apply. [¶] And
furthermore, . . . he is now enrolled in a full drug program through the
criminal court in Orange County, and he has begun to participate in
the program. [¶] Before that, he did
have the financial issues, and he did not have the stability; however, he has
not given up. He does love his child
very much, and he is doing everything he can to still continue to comply with
all court orders.†Mother’s counsel
stated: “[M]y client has had contact
with her child, and she maintains that she does have a bond with Mia. Although she’s not in a program, this is
something that she’s seeking to do.†The
court inquired whether it was true that the parents had not visited since
December. Counsel said it was not true
and that the parents had visited eight or nine times in the five months since
then. The court stated there was no
reason to set the matter for a contest because the offer of proof did not
indicate the existence of evidence of a strong emotional attachment and
potential harm to Mia from termination of the relationship. Specifically, the court found that “each parent’s
offer of proof . . . is insufficient to persuade me that if the matter were set
for a contested hearing, there’s any reasonable likelihood that they would
persuade me that they meet [the] exception [of § 366.26(c)(1)(B)(1)] and that
it would be detrimental to terminate . . . [¶] . . . visitation
. . . . [¶] I’ve not
heard any offer of proof as to the emotional attachment, to the harm if the
court terminated parental rights, the harm to the child.â€
With respect
to visitation, the court stated, “assuming [Father’s] statement [concerning
more recent visitation] is taken as true, . . . visitation in and of itself is
insufficient.†Counsel for Mother stated
that Mother disputed the report’s statement that the last visitation had taken
place in December and represented that Mother had visited seven or eight times
in 2012. Calculating that this averaged
one or two visits a month, the court stated:
“I stand by my findings as to the visitation, and that’s all the offer
of proof is.†The court went on to find
by clear and convincing evidence that Mia was adoptable and terminated parental
rights. This appeal followed.
Mother and
Father contend the court denied them due process when it refused to continue
the section 366.26 hearing and set a contested hearing on the issue of
termination. For the reasons discussed,
we disagree.
At a section
366.26 hearing, the burden is on the parents to demonstrate that termination of
parental rights would be detrimental to the child under one of the exceptions
listed in section 366.26, subdivision (c)(1).
(In re T.S. (2009) 175
Cal.App.4th 1031, 1039.) Mother and
Father sought to establish the exception contained in section 366.26,
subdivision (c)(1)(B)(i), which provides an exception to termination of parental
rights where “[t]he parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship.†To establish this exception, “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.] Rather, the parents must show that they
occupy ‘a parental role’ in the child’s life.â€
(In re Andrea R. (1999) 75
Cal.App.4th 1093, 1108-1109, quoting In
re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The court must find that the parent-child
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,†and that severing the relationship “would deprive the child
of a substantial, positive emotional attachment such that the child would be
greatly harmed . . . .†(
567, 575.) “‘Because 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.’†(
re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
In general,
parents have a due process right to present evidence and cross-examine
witnesses at a section 366.26 hearing.
(See, e.g., In re Josiah S. (2002)
102 Cal.App.4th 403, 417-418; In re Kelly
D. (2000) 82 Cal.App.4th 433, 439-440.)
However, the “right to ‘due process’ at the hearing under section
366.26†is “a flexible concept which depends upon the circumstances and a
balancing of various factors.†(
811, 817.) “The due process right to
present evidence is limited to relevant evidence of significant probative value
to the issue before the court.†(
efficient trials permits the nonarbitrary exclusion of evidence [citation],
such as when the presentation of the evidence will ‘necessitate undue
consumption of time.’†(
Cal.App.4th 1138, 1146-1147, quoting Evid. Code, § 352.) Even where a parent’s representations are
“true†and “could have been substantiated at an evidentiary hearing,†if they
are insufficient to meet the parent’s burden, the court does not err in
refusing to expend time and resources on a full hearing. (Maricela
C. v. Superior Court, supra, at
p. 1147.) “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 proper offer of proof gives the trial
court an opportunity to determine if, in fact, there really is a contested
issue of fact.†(Id. at p. 1124.) “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.†(Ibid.)
Applying these
standards, we conclude the court did not abuse its discretion in denying a
contested hearing. Given the opportunity
to make an offer of proof, neither Mother nor Father offered to produce
evidence demonstrating that either of them occupied “a parental role†in Mia’s
life -- much less that the well-being and stability of a permanent home could
be outweighed by the currently existing parent-child relationship. Nor did either parent offer to produce
evidence demonstrating that Mia would suffer significant harm were she to be
adopted. It was undisputed that Mia had
been removed from the parents’ custody at the age of two and had resided since
then with her half-siblings with whom she was closely bonded. DCFS reports indicated the parents had
visited Mia approximately twice a month through 2011, and the parents’ offer of
proof represented they had continued to visit at approximately the same
frequency for the first five months of 2012.
Assuming, as the court did, that the representations of additional
visitation were true, this would not have established the exception. Nor would the fact that some bond existed
between Mother, Freddie and Mia. (See
621 [“loving and frequent†contact and “existence of an ‘emotional bond’ with
the child†insufficient to establish exception]; In re Andrea R., supra,
75 Cal.App.4th at p. 1108 [evidence that “parents and child find their visits
pleasant†insufficient to establish exception].)
Significantly,
Mother had never been granted unmonitored visitation, and it does not appear
from the record or offer of proof that Father had ever taken advantage of the
unmonitored visitation permitted by the court.
While proof of day-to-day contact is not an absolute requirement of the section
366.26, subdivision (c)(1)(B)(i) exception, the type of relationship necessary
to support it is one “characteristically arising from day-to-day interaction,
companionship and shared experiences.†(
51.) Consequently, a parent’s failure to
visit in an unmonitored setting is a significant factor militating against a
finding that the exception applies, particularly where, as here, the child was
very young when detained. (
75 Cal.App.4th at p. 1109.) In short,
neither Mother’s nor Father’s offer of proof set forth evidence which, if
credited, demonstrated that the continuation of the parent-child relationship
would promote Mia’s well being to such a degree as to outweigh the well-being
she would gain in a permanent home, or that severance of the bond would cause
actual harm to her. Thus, the court did
not err in finding the offer of proof insufficient to warrant a hearing.
The order
terminating parental rights is affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
Undesignated statutory
references are to the Welfare and Institutions Code.
This was of particular note
because Mother reportedly suffered from hepatitis.
