In re Savannah A.

Filed 10/12/06 In re Savannah A. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County, Valerie L. Skeba, Referee. Affirmed.

Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

* * * * * *

Connie A. appeals from the juvenile court’s findings and order terminating parental rights over Savannah A. Connie contends the court deprived her of due process by not allowing her to call Savannah and the foster mother to testify regarding the parental relationship exception to termination of parental rights.^[1] Since these contentions lack merit, we affirm the court’s findings and order.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

Connie is the adoptive mother and biological aunt of Savannah, now age seven. Savannah was prenatally exposed to drugs and placed with Connie when Savannah was three days old. In early September 2004, one month after Connie’s adoption of Savannah became final, Connie brought Savannah and her two younger brothers (Brandon and Cameron) to the Department of Children and Family Services (Department) stating she could no longer care for them.

The Department initiated dependency proceedings for Savannah in September 2004 and later placed all three children with their former daycare providers, Mildred and Frank C.^[2]

The initial petition alleged that Savannah was at risk because Connie was unwilling and unable to continue caring for her. An amended petition filed in October 2004 further alleged that Connie had a history of substance abuse and demonstrated mental and emotional problems. In November 2004, the juvenile court sustained the amended petition and appointed a psychiatric expert to evaluate Connie. The expert reported that Connie was suffering from bipolar disorder. Her report stated that Connie was delusional; she lacked insight into her current mental state or the need for urgent psychiatric treatment; her behavior was “erratic, irrational and disorganized“; and she would benefit from psychotropic medication and therapy.

In January 2005, the juvenile court found Savannah to be a dependent of the court. The court granted Connie reunification services and ordered her to undergo drug counseling, random drug testing and psychiatric counseling.^[3]

Connie denied she had drug or psychiatric problems and refused the Department’s referrals for counseling and drug testing.

In December 2005, the Department recommended termination of reunification services. Connie requested an evidentiary hearing. At the request of Savannah’s counsel, the court ordered that Connie’s visits take place at the Department’s office and be monitored by a social worker.

By this time, Connie had received services over a period of 15 months. Other than regularly visiting Savannah, Connie had done virtually nothing to comply with the court ordered case plan. Connie refused to acknowledge any psychiatric or mental illness. She was residing in a rescue mission and had made no efforts to place herself in a position to care for Savannah or her siblings. Instead, she had used her time in trying to disrupt the children’s placement by making false allegations that Savannah was being sexually abused in the foster parents’ home.

At the evidentiary hearing later in December 2005, the juvenile court terminated reunification services. The court expressly found that Connie’s allegations of Savannah being sexually abused were “baseless” and that the resulting investigation had been traumatic for the child. The court determined that Connie had made spurious allegations to retaliate against the court, the caretakers and the Department and to disrupt the placement of Savannah and her siblings. The court found that Connie’s visitation was detrimental to Savannah. The matter was set for a permanency planning hearing.

For the permanency plan hearing, the Department reported that the foster parents, Mildred and Frank, were in the process of adopting Savannah and her two siblings. Mildred and Frank were well known to the children and had closely bonded with them. The Department recommended that the juvenile court terminate parental rights.

Connie’s counsel requested a contested hearing to allow Connie to establish the parental relationship exception. She asked the court to order that Savannah, then age six, be present at the contested hearing and that the social worker be available. The court stated, “Given Savannah’s age, I’m not sure that it would be appropriate to call her.” The court further stated that it would have Savannah transported should it become necessary to take her testimony. Savannah’s attorney supported the court’s decision not to have Savannah present at the permanency planning hearing.

Before the contested hearing, Connie filed a section 388 petition for modification, requesting reinstatement of reunification services and weekly visits. The petition also asked that the juvenile court rescind the court’s prior order for random drug testing and psychiatric counseling. The court summarily denied the petition, finding the petition did not state new evidence or a change of circumstances or show that the requested relief would be in Savannah’s best interest.

For the contested permanency planning hearing, the Department reported that Savannah had adjusted well to living with Mildred and Frank and her brothers. The foster parents were interested in providing long term care to Savannah and had started the adoption process for Savannah and her siblings. They had been caregivers for Savannah since she was about 17 or 18 months old. The social worker reported that Savannah had stated that she enjoyed living with Mildred and Frank and, although she thought about being with Connie, she understood she could not be with Connie “right now.” The social worker stated that Savannah had expressed an agreement to be adopted by telling the worker that she “will be able to live here [at Mildred and Frank’s home] for a long time.”

The permanency planning hearing took place on March 9, 2006. At the outset, Connie’s counsel informed the court she had intended to call Savannah as a witness regarding whether the parental relationship exception applied. She objected to Savannah not being present. The court indicated it denied the request because the termination of Connie’s visitation in December 2005 would make it difficult to show the exception applied. Also, in the case of a “very young child,” the court noted, the law provided the child’s attorney is allowed to present the child’s position and “I don’t think we’ll get, with a six year old, further information through cross-examination than what [the child’s counsel] can provide.”

Upon Connie’s counsel asking for an offer of proof of what the child would say if called to testify, Savannah’s counsel stated: “Savannah loves [Connie] very much and does wish to maintain a relationship with her.” She added, “that’s Savannah’s position. She loves her mother, and she also loves [Mildred] and is very comfortable in [Mildred’s] home.” In response to a question by the court, Savannah’s counsel stated that Savannah wished to be adopted by Mildred.

Connie then testified in a disjointed fashion regarding the parent relationship exception. She stated she did not ask the Department to remove Savannah from her custody. Rather, Connie took Savannah to the Department because she thought the food was being poisoned in the home in which she lived with Savannah in 2004. From September 2004 through the end of 2005, she visited Savannah weekly, usually for one to two hours a visit, and twice a week if there was a birthday.

At that point in Connie’s testimony, her counsel asked that Mildred be instructed to leave the courtroom because counsel planned to call Mildred as a witness. The court asked for an offer of proof. Counsel responded that Mildred monitored Connie’s visits and would testify that Savannah enjoyed the visits, she was affectionate towards Connie, she looked forward to the visits and the visits were important to the child. The court denied the request for Mildred to leave the courtroom, explaining the parental relationship exception required the parent to show she had been acting in a parental role and Connie would be the witness who could testify to that fact. The court also found Mildred’s testimony would be cumulative as it would not add anything to Connie’s testimony.

Connie continued her testimony and testified that during her visits she would bring Savannah clothes and gifts. She did art projects with Savannah and interacted with the child. Connie felt that Savannah enjoyed the visits. She testified that Savannah was excited when she visited and would ask how she was doing. Savannah called her “Mommy” and “Ms. Connie.” When it was time to leave, Savannah would say, “I’ll see you next week.” They treated each other affectionately. Connie missed only one visit in the first six months of 2005, when her car was in the shop. She consistently maintained weekly visits with Savannah during the second half of the year. Connie felt that she and Savannah were bonded and that Savannah would suffer emotionally if she were no longer allowed contact with Connie.

After Connie testified, Savannah’s counsel clarified for the court that Savannah had not explicitly stated she wished to be adopted, noting that “I’m not sure that she is capable of understanding what it means to be adopted.” However, it was counsel’s belief it would be in Savannah’s best interests to be adopted along with her siblings. Based on Connie’s demeanor in court and the evidence of Connie’s mental illness and refusal to deal with her illness over the 18-month period, Savannah’s counsel joined in the Department’s recommendation that parental rights be terminated.

The juvenile court found by clear and convincing evidence that Savannah was adoptable. Although the court determined there was regular visitation and contact between parent and child until the court terminated visitation, it concluded the benefits Savannah would receive from being adopted outweighed the benefits she would receive from continuing the parental relationship. The court found that Connie at times had tried to be a good parent but much of Connie’s conduct had been “very inappropriate” and it could not find that “the mother’s relationship with this child has been a very positive influence on Savannah’s life.” The court terminated parental rights and freed Savannah for adoption.

Connie timely appealed from the findings and order terminating parental rights.

DISCUSSION

There Was No Deprivation of Due Process or a Fundamentally Fair Hearing

Connie contends that she was deprived of due process and a fundamentally fair permanency planning hearing when the juvenile court refused to permit her to examine Savannah and the foster mother, Mildred. We disagree.

A. Denial of Examination of Minor

Connie asserts the linchpin of her defense at the permanency planning hearing was the argument that Savannah would benefit from a continuing relationship, and the juvenile court’s refusal to allow her to call Savannah as a witness was a denial of due process.

When Connie’s counsel requested an offer of proof if the child were to be called, the juvenile court invited Savannah’s counsel to state her client’s position for the record. Savannah’s counsel stated that Savannah’s position was that “Savannah loves [Connie] very much and does wish to maintain a relationship with her.”

We find no violation of Connie’s due process rights in the juvenile’s court’s proceeding in such fashion. A parent in a dependency proceeding has the right to call and examine witnesses. (In re Malinda S. (1990) 51 Cal.3d 368, 383.) Due process is not synonymous with full-fledged cross-examination rights; the court may properly request an offer of proof if an entire line of cross-examination appears irrelevant to the issue before the court. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1120 (Tamika T.).) The right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. (Ibid.) Due process is a flexible concept dependent on the circumstances. (Id. at p. 1122.)

At a permanency planning hearing, the juvenile court is obliged to consider the wishes of the child. (§ 366.26, subd. (h)(1).) Consistent with due process, a court may explore a young child’s wishes from sources other than a child’s oral testimony. (In re Jesse B. (1992) 8 Cal.App.4th 845, 852-853 (Jesse B.) [§ 366.26 does not require that child’s preference regarding termination be presented only by his or her oral testimony at termination hearing].) The court may receive direct evidence of the child’s wishes regarding termination and adoption at the permanency planning hearing by means including reports of social workers prepared for the hearing or statements of the child’s counsel. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1480-1481 [statements of children’s attorneys and reports of social workers based on interviews with the children]; see also In re Amanda D. (1997) 55 Cal.App.4th 813, 820 [reports prepared for hearing]; Jesse B., supra, 8 Cal.App.4th at p. 853 [statement of child’s counsel].) “[T]he court may find a child too young to have the capacity to testify. [Citation.] Also, a child witness can be found ‘unavailable’ to testify if it is determined that the testimonial process would cause substantial emotional trauma to the child. [Citation.]” (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1085 (Jennifer J.).) Although parents’ “ ‘fundamental rights’ “ are implicated in a dependency proceeding, “[w]here . . . the child’s desires and wishes can be directly presented without live testimony, where the issues to be resolved would not be materially affected by the child’s testimony, and where it is shown that the child would be psychologically damaged by being required to testify, . . . the juvenile court judge has the power to exclude such testimony.” (Id. at p. 1089.)

In the present case, the court received evidence regarding Savannah’s wishes through the social worker’s reports and her counsel’s statement to the effect that Savannah loved Connie very much and wished to maintain a relationship with her, that she loved both Connie and Mildred, and she felt very comfortable in Mildred’s home. Savannah’s counsel also represented to the court that Savannah wished to be adopted by Mildred, and she also later clarified this statement by explaining that Savannah had not explicitly stated she wished to be adopted but counsel recommended adoption in furtherance of Savannah’s best interests. In the absence of evidence to the contrary, it will be presumed a child’s counsel has complied with a statutory duty to consult with his or her client to the extent feasible before urging the juvenile court to terminate parenthood. (Jesse B., supra, 8 Cal.App.4th at p. 853.) Savannah’s wishes therefore were adequately presented to the court. It is clear from the record that the court was concerned about the negative impact of requiring a six year old to testify regarding adoption, since it noted the inappropriateness of calling the child “[g]iven Savannah’s age.” The court had previously found Savannah had been traumatized by the investigation into Connie’s unfounded allegations of sexual abuse, and it no doubt also had that consideration in mind in refusing to subject her to further inquisition.

This case is distinguishable from In re Amy M. (1991) 232 Cal.App.3d 849. In Amy M., the court found the child’s direct testimony was necessary when there were no reports containing his statements or other substitutes offered for his testimony “which might have satisfied due process.” (Id. at p. 865.)

As in Jennifer J., the crucial factor here was not the bonding of the child to the parent or the child’s wishes in a future adoption, but the best disposition of the child’s future. (Jennifer J., supra, 8 Cal.App.4th at p. 1087.) The pivotal issue concerned a matter about which the child had no knowledge and the resolution of which would not have been aided by the child’s testimony. (Id. at p. 1088.) In focusing on the second prong of the section 366.26 analysis, the court presumed Connie had maintained visitation and contact up to the time the court terminated visitation. At issue was whether the benefits Savannah would receive from being adopted with her brothers were outweighed by the benefits she would receive from continuing the relationship with Connie. That issue depended in part on whether Connie had demonstrated sufficient emotional, mental and economic stability to sustain a parental role. As we have discussed, Connie failed in such a showing. There is nothing in the record to suggest that resolution of that issue would have been aided in any respect by Savannah’s testimony.

B. Denial of Examination of Foster Mother

Connie further contends the juvenile court deprived her of the due process right to contest the termination of parental rights using “relevant and probative” evidence that the foster mother could provide. Connie argues that the foster mother had monitored Connie’s visits with Savannah and her testimony could have “guided” the juvenile court whether termination of parental rights would prove detrimental to her. Specifically, Mildred could testify that Savannah enjoyed the visits, that she was affectionate towards Connie, that she looked forward to the visits and the visits were important to her.

As we have noted, a parent in a termination hearing has a due process right to present relevant evidence having significant probative value. (Tamika T., supra, 97 Cal.App.4th at p. 1122.) To be relevant, proffered testimony must prove or disprove a disputed fact of consequence in the proceeding and should not be cumulative. (People v. Smithey (1999) 20 Cal.4th 936, 996.) There was no material dispute that Connie behaved appropriately at her visitations with Savannah. Connie testified she acted in a caring and loving manner with Savannah during visitation and the child enjoyed her visits. The foster mother’s testimony would have been merely cumulative to Connie’s testimony. The focus of the juvenile court was on Connie’s conduct outside of visitation, particularly on her fitness to function as a parent. There was no showing the foster mother had any relevant information to contribute that would aid Connie in such regard.

DISPOSITION

The findings and order are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] The parental relationship exception to the termination of parental rights allows the juvenile court to find compelling reason for determining termination of parental rights would be detrimental to the child (1) when a parent has maintained regular visitation and contact with the child and (2) the child would benefit from continuing the relationship. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) All further section references are to the Welfare and Institutions Code.

^[2] Only Savannah is involved in the present proceeding, as her siblings were not yet adopted by Connie.

^[3] Connie appealed from the dispositional order and challenged the juvenile court’s finding that the Indian Child Welfare Act (ICWA) did not apply. On appeal, we conditionally vacated the dispositional order and remanded the matter to the juvenile court with directions to order appropriate notice under ICWA. Upon remand, the Department gave notice to the appropriate tribes and to the Bureau of Indian Affairs. The juvenile court determined the ICWA continued not to apply reinstating its dispositional order.