In re T.S.

Filed 4/11/07 In re T.S. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Kristina S. (Mother) appeals from the juvenile courts order terminating parental rights as to her twin children, daughter T.S. and son Lorenzo S. (the minors), and establishing adoption as their permanent plan. (Welf. & Inst. Code,  366.26.)[1] She argues that she was denied due process at the section 366.26 hearing and that the trial court erred in finding that the parental bond exception to termination did not apply. We will affirm the order.

II. FACTUAL AND PROCEDURAL BACKGROUND

Mother was arrested and taken into custody by Hayward police on July 2, 2003. It was arranged that her three older children would be cared for by their fathers. She entrusted care of the minors, who were approximately 17 months old, to Monika A. via a Caregivers Authorization Affidavit. The minors father had never seen them or acknowledged them as his.

On July 19, 2003, T.S. was admitted to a Kaiser hospital with a subdural hematoma and multiple bruises. Monika and her boyfriend reported that T.S. stumbled and fell on her face. Kaiser reported suspected physical abuse. Testing was inconclusive as to whether the injuries were non-accidental. Kaiser kept T.S. in the hospital for observation and assessment to determine whether her injuries were consistent with shaken baby syndrome. A Child Protective Services (CPS) hold was placed on T.S. and Lorenzo was placed in protective custody.

On July 22, 2003, T.S. was having seizures and had to be placed on a ventilator and supported by an IV. She was comatose due to her injury and medication. She was transferred from Kaiser to Childrens Hospital that day.

Mother explained that some of the bruising on T.S.s head was the result of a fall while she was playing with an older sibling the month before. The twins have three older siblings, Samuel, Briana, and Jose, known as Anthony, who are all in the care of their respective biological fathers. Mother reported that the three older children had been molested by her father, and that she had been very protective of her children. She also indicated that Monika had watched the minors since they were three or four months old.

On July 22, 2003, Alameda County Social Services (the Agency) filed a section 300 petition on behalf of both minors, with subdivision (a), (b), (g), and (j) allegations based on Mothers incarceration, the fathers unknown whereabouts, the physical abuse of T.S. by the caretakers, and T.S.s physical injuries that required emergency hospitalization. Upon investigation, the Child Welfare Worker (CWW) found the allegation of physical abuse sustained.

The detention report stated that Lorenzo was doing well in a foster home and T.S. was still hospitalized. At the detention hearing on July 23, 2003, an attorney was appointed for Mother and the children were ordered detained. The Agency was given discretion to release them to a suitable adult relative or fictive kin.

The Jurisdiction/Disposition Report was filed on August 4, 2003. T.S. continued to be hospitalized at Childrens Hospital and Lorenzo remained in emergency foster care. The Agency recommended dependency and out of home placement, to which Mother agreed.

Dr. Crawford, a physician at Childrens Hospital, confirmed with certainty that T.S. had suffered from violent physical abuse, citing her various injuries which left her in a coma for two days. The Hayward police investigated the case and also found the allegations of abuse to be substantiated. Monika A. and her boyfriend were facing possible criminal charges.

The report also described Mothers familys history of contacts with CPS. There were previous referrals in 1997 for sexual molestation of the minors sibling, Samuel, who was eight years old at the time, by his grandfather, and for sexual molestation by Samuel of the other two siblings. There was also a referral in 1998 for physical abuse of Briana by a relative.

Mothers criminal history in Alameda County dates back to 1995, when she was convicted for vandalism and battery. She was also arrested for aggravated trespass and assault with a deadly weapon. In 1997, she was arrested for domestic violence. In 2001, she was convicted for access card grand theft. She was also arrested for burglary, counterfeit of an access card, and theft of an animal for sale or commercial use. On March 30, 2003, she was arrested on two counts of domestic violence. On April 8, 2003, she was arrested for outstanding charges of violation of parole. On June 29, 2003, she was arrested for robbery.

Mother remained incarcerated, awaiting sentencing for felony convictions. The CWW arranged for Mother to visit the minors at the hospital, and Mother was temporarily released from July 25 to 30, 2003. The CWW reported that the minors appeared happy to see one another and that Mother behaved appropriately with the minors. She was concerned about the minors being placed with strangers and was confident that placing them with her friend, Jamie R., would be in the minors best interest. Mother stated that she had always been the minors primary caregiver and that the father was not involved in their care. The whereabouts of the alleged father, Edgardo B., were unknown. On July 28, 2003, Mother reported that they had never been married.

On August 5, 2003, Mother filed her waiver of rights, pleading no contest. Jurisdiction was sustained on the petition. The minors were removed from Mothers custody and Mother was granted services.

Following a home assessment, the minors were ordered released for placement with Jamie R. effective September 17, 2003.

On October 7, 2003, the Agency filed a petition under section 387 on behalf of the minors to have them removed from Jamie R.s home. The petition stated that Mother and Jamie R. had had a disagreement, and that both agreed that the minors would be better served in foster care. When the minors were removed by the CWW, Mother and the minors had an opportunity to exchange hugs and kisses. Mother provided the minors with clothing, medications, and toys. The court detained the children on October 8, 2003.

The report for the jurisdictional and dispositional hearing on the supplemental petition stated that the minors had been placed in an emergency foster home. T.S. was still undergoing therapy. Mother remained detained by the Santa Rita Correctional Facility and was to report back there on November 14, 2003. She visited the minors weekly.

On October 21, 2003, Mother submitted on the petition on the basis of the child welfare workers (CWW) report and other documentation. Jurisdiction was sustained and Mother was granted services.

The six-month review hearing took place on January 13, 2004. The status review report filed on December 26, 2003, indicated that the minors remained in foster care and Mother remained incarcerated at Santa Rita with an expected release date in June 2004. Mother had been attending the MOMS (Maximizing Opportunities for Mothers to Succeed) and DEUCE (a substance abuse program) programs and counseling to comply with her reunification plan. She was not allowed to have visits with the minors due to her security classification at Santa Rita, but told the CWW that, when she was allowed to start the TALK program, she would then be allowed visitation. The alleged fathers whereabouts remained unknown. The minors were adjusting well in foster care. Lorenzo was diagnosed with possible delays in speech and behavior. T.S. was speaking in two-word sentences. The foster mother said she was very attached to the minors and was interested in long-term placement. The Agency conducted an adoption assessment and found the children adoptable, but grounds to free them for adoption did not exist. At the hearing, the court continued the children as dependents and extended six more months of services to Mother.

In the status review report filed on June 16, 2004, for the 12-month review hearing, the Agency recommended that reunification services be terminated and a section 366.26 hearing be scheduled. The minors had moved to a new foster home and were now in the care of Debra and Clarence P. The Agency had located the alleged father in January 2004, and a paternity test showed a probability of over 99.99 percent that he was the father. In May 2004, he asked to visit the minors, but canceled the visit and did not request another one. He has no relationship with the minors and has never met them.

Mother remained incarcerated with a possible release date in June 2004, but had pending automobile theft charges in Washington, and was to be taken there for a hearing. Mother was in partial compliance with her case plan. She had very few visits due to her maximum security status. Her status changed to minimum security for a time, and she was eligible for the TALK program which allowed her to have contact visits. Visits scheduled for March 14 and 27 did not take place due to illness. A visit was held on April 10. Mother said she enjoyed the visit and was amazed at how calm Lorenzo had become. She said she could tell from the minors behavior that they were well cared for by the foster mother. On April 18, as a result of an altercation with another inmate, Mother was moved back to maximum security status and lost her contact visitation privilege.

The minors half siblings started one-hour visits with the minors once a month on March 21, 2004, supervised by the foster mother. The minors did not recognize the half siblings at the first visit. On May 12, 2004, the foster mother told the Agency worker that, at the supervised visit on May 2, 2004, she had observed 14-year-old Samuel playing with T.S., saying, Lets go nite-nite and consistently trying to get T.S. off by herself and away from the other children and adults. The foster mother asked Samuels father if his children had ever been molested, and he answered that they had. He also told her that Anthony had tried to get on top of his sister in the past. Mother did not see anything wrong with Samuels behavior. She explained that Samuel and T.S. are close. Mother and Brianas father assured the CWW that Samuel had been through therapy for having been molested, and that he had been released from therapy because it was no longer needed. The Agency suggested that Samuel may need more therapy. It denied Mother and Brianas fathers requests that the minors have more than one visit per month with their half-siblings because the foster mother did not have the time and because of her concerns.

The CWW visited the minors four times from December 6, 2003 through May 12, 2004, and observed them to be happy, playful and curious in their foster home. They went to the foster mother for help and guidance. They were always neat and clean, well fed and appeared well rested. The foster mother was observed to have excellent skills in redirecting the children. She reported that other members of the family are very fond of the children and spoil them with toys and attention, and that she and her husband love the twins and are willing to adopt. T.S. had strongly bonded with the foster family. She followed her foster mother all around the house. She listened well and had no behavior problems. Lorenzo was happy and well-adjusted in the foster home. He displayed appropriate affection towards the foster mother.

The adoption assessment that was completed on June 10, 2004, found the minors adoptable and likely to be adopted.

On August 11, 2004, the court terminated services to Mother and set a section 366.26 hearing for December 8, 2004.

On October 19, 2004, Mother filed a section 388 petition seeking to modify the order terminating services and setting the section 366.26 hearing. She asked for six more months of reunification services, alleging that she had been released from jail and had resolved all outstanding criminal matters. She claimed she had obtained appropriate housing and employment, completed all available services while incarcerated, substantially complied with her case plan, and was likely to be ready to have the children returned to her in the next six months.

In her declaration, she stated that she had been released from custody in Alameda County on June 16, 2004, and went to Washington state to address pending charges. She was released from custody in Washington state on June 21, 2004. She completed 80 hours of community service to fulfill an obligation to the Washington court. She started visiting with the twins on June 22, 2004, and started unsupervised visits on July 14, 2004. The visits increased to twice a week on July 20, 2004. By September 25, she was having full day unsupervised visits in her home. She had never missed a scheduled visit. Through Second Chance, Inc., she was attending an Abstinence Support Group, Dual Diagnosis class, Relapse Prevention, and parenting classes. In August 2004, she started living with half siblings Anthony and Briana in a four bedroom apartment that she obtained through the MOMS program. She also started working in August. She stated that her other three children love and miss the twins. She praised the people and programs that had helped her to make changes in her life. She also indicated that she intended to continue with Chabot Colleges Early Childhood Education course once the twins are placed in her home.

A hearing on the section 388 petition was set for November 3, 2004. The Agency submitted an updated case plan, which required Mother to ensure that Samuel attend therapy on sex-abuse issues, to ensure that there be no contact between Samuel and the minors, and to sign a consent for release of information from the therapist to the CWW. It also required that Mother comply with all orders of the court, not break the law, maintain visitation, and not permit others to sexually abuse the minors. Mother was to attend and participate in individual and family therapy. At the hearing, Mothers section 388 petition was granted. She was granted six more months of services. The court ordered that Samuel must not have unsupervised contact with the minors and that he attend individual therapy to address the sex abuse issues.

The Agencys next status review report was filed on April 11, 2005, in advance of the 18-month review hearing on April 18. The report related that Mother was in substantial compliance with her case plan. She had maintained full-time employment in a restaurant and lived at a MOMS program transitional housing apartment. She attended individual therapy, visited the minors regularly and had stayed in touch with the CWW.

Samuels first therapy session was on December 23, 2004. The therapist told the Agency that Samuel was unclear as to why his privilege of visiting his siblings had been taken away and how he could get it back. He was taking public transportation to the sessions and was having trouble getting there on time. The therapist reported that Mother and Samuel have communication problems and that the parents are very caring but not very available to him. The first family therapy session was scheduled for March 29, 2005. Samuel came, but Mother called to cancel at the beginning of the appointment, saying she had been called in to work. Mother also said she would not be able to attend family therapy because of her work schedule and the location of the therapists office. The therapist referred Mother to another facility. The therapist reported to the CWW that Mother still was not communicating with Samuel as to why he is to attend therapy. Samuel attended eight therapy sessions and then chose not to attend therapy anymore.

Mothers visitation with the children continued to be regular. The weekly unsupervised visits that had started on September 25, 2004, took place every Saturday from 10:00 a.m. until 3:00 p.m. The minors started having one overnight visit per week with Mother on October 9, 2004. The CWW encouraged Mother to have as many visits per week as she could. Mother said that, due to her work schedule, she was unable to fit in more visits. The minors spent the Christmas holiday with Mother from December 23 until 26, 2004.

The foster mother told the CWW on October 11, 2004, that when she dropped Lorenzo off at Mothers he appeared clingy and did not want to let go of the foster mother. She also observed Lorenzo with his hand in his diaper playing with his penis.

Mother reported to the CWW that the visits were going well although she noticed that Lorenzo was being more fussy and defiant at times. Mother continued to be angry at the Agency and the court for mandating that Samuel attend therapy for sex abuse issues. She denied that there was any potential for Samuel to sexually abuse the minors or anyone else, and had no plan to keep the minors safe from sexual abuse when Samuel was present.

On April 5, 2005, the foster mother reported that the minors had been acting differently after the last three visits with Mother. Lorenzo had begun to kiss T.S. on the lips too often. He was also getting on top of T.S. and engaging in a humping motion. Sometimes T.S. would do the same to him. Lorenzo had also tried to get on top of a one-year-old foster sibling. T.S. had taken her doll and rubbed it between her legs and tried to hump it. The foster mother had taught the minors to stop and had informed Mother of the behavior.

The minors attorney also reported having observed sexual acting out by Lorenzo on April 6, 2005. Lorenzo and T.S. at first were dancing to childrens music. But when the music stopped, Lorenzo was gyrating and thrusting his hips back and forth. The attorney reported that Lorenzo looked at her in a strange way, with a very serious look, and said to her, Oh, yeah, baby, oh, yeah! The Agency and the attorney were concerned that the minors could be victims of molestation by their older siblings during visits with Mother.

In the report, the CWW recommended that dependency be continued and the children be placed in Mothers home with family maintenance services, including play therapy and family therapy with Mother. The Agency also stated that Mother and Samuel must actively participate in family therapy and that Samuel must continue with individual therapy until the therapists recommend discontinuing therapy. Mother also would have to put a safety plan in place.

On April 18, 2005, the court reviewed the reports and continued the children as dependents in out-of-home placement. The hearing was continued at the Agencys request so that it could further investigate why the minors were exhibiting inappropriate behavior and sexually acting out.

The Agency filed an addendum report on April 29, 2005. The CWW visited the foster home but observed no inappropriate behavior. The foster mother reported that during a visit to the foster family agency, Lorenzo told an 11-year-old girl that Ant touched his pee-pee and his butt. The CWW and the foster family agency worker took the minors to Calico on April 12, 2005, for an investigation and interview. Lorenzo repeated Ant touch my pee pee, Ant touch my butt, but he could not say who Ant was or where Ant lived. T.S. was also interviewed but could not say who Ant was.

On April 18, 2005, the CWW spoke with Mother, who asked that Lorenzo be seen by a doctor for a possible urinary tract infection. Mother believed this might be causing Lorenzos inappropriate humping behavior. The CWW asked Mother who the minors have contact with during visits and what names the minors use to identify them. Among the individuals Mother identified was Anthony, whom everyone called Ant. The CWW then contacted the foster mother, who reported no signs that Lorenzo had a urinary tract infection or other medical issue.

On April 26, 2005, the CWW spoke with Mother about keeping the minors safe. Mother agreed that she would be solely responsible, from then on, for supervising the minors, including when they were in the bathroom and taking a bath.

In the report, the CWW concluded that the Calico interviews were inconclusive to substantiate allegations of possible sexual molestation and/or inappropriate touching, and there was no identifiable perpetrator. She concluded that the Agency had no factual basis to recommend placement other than in Mothers home. The Agency remained concerned about Lorenzos behavior and recommended play therapy.

On May 2, 2005, the court continued the children as dependents and set an 18-month review hearing for June 2, 2005.

On June 2, 2005, the court found that Mother had made substantial progress on her case plan and ordered a 30-day trial visit between the minors and Mother to commence on June 13. The court imposed several conditions, including that Anthony was not to remain with Mother or have any contact with the minors. Therapy was ordered for the minors and Mother to start as soon as possible. The case was ordered referred to the Family Preservation Unit. The Agency was granted discretion to make unannounced visits.

The minors went home with Mother on June 13, 2005. Protective custody warrants were issued for the minors on July 13, 2005, on application of the Agency, on the grounds that Mother had taken the minors out of the state without authorization and had allowed Samuel and Anthony to have contact with them. A bench warrant was issued for Mother on July 13. On July 20, 2005, the court held a status review and noted that the Agency had been unable to locate the children. The warrants were continued.

Mothers counsel reported Mothers whereabouts to the CWW on August 9, 2005. Mother had been arrested in Arizona and was incarcerated in Santa Rita facing criminal charges for the abduction of the minors. The whereabouts of the minors remained unknown.

Mother was brought to court on August 11, 2005. She was examined as to the whereabouts of the minors, but asserted her privilege against self-incrimination after several questions. She was granted immunity except for the dependency proceeding and for perjury, false swearing, and contempt. The court concluded Mother had made only partial progress on her case plan. Her reunification services were ordered terminated. There was to be no visitation between the minors and the parents. The court ordered the section 366.26 hearing set for December 9, 2005.

Further hearings were held on August 18, September 1, and September 29, 2005. The protective warrants for the minors remained outstanding, despite diligent efforts by the Agency to locate the minors. In a report filed on September 29, 2005, Samuels father stated that the twins were with one Alex, reported to be some guy mother met in Reno. As of November 3, 2005, the minors whereabouts remained unknown.

On December 2, 2005, the Agency filed its report for the section 366.26 hearing. The minors had finally been found and placed back with Debra and Clarence P. on November 21, 2005. Mother had taken them to Mexico. It is unknown how their needs were met or how they were treated while in Mexico. The minors appeared very excited and willing to go to the CWW when the CWW arrived to pick them up to return them to the foster home. T.S. appeared comfortable with the foster parents immediately. Lorenzo appeared uncomfortable and clung to the CWW at first. Eventually, he became comfortable in the familiar environment. Since their return to the foster home, the minors appeared to be content and comfortable. The foster parents remained committed to adopting the minors.

On December 9, 2005, counsel for the minors reported that she had visited the minors at the foster home. The minors had returned speaking Spanish. Lorenzo had returned with some injuries to the bottoms of his feet, and a lot of cuts and bruising of undetermined cause. The section 366.26 hearing was continued to March 16, 2006, for publication of notice to the father.

On December 19, 2005, educational rights over the minors were granted to the foster mother.

The addendum report filed on March 13, 2006, indicated that the fathers whereabouts remained unknown. Mother remained incarcerated. The Agency recommended non-relative adoption as the permanent plan for the minors.

At the section 366.26 hearing on March 16, Mother appeared in court with counsel and stated her opposition to the Agencys recommendations. The reports dated December 9, 2005, and March 16, 2006, and several notice documents were admitted into evidence without objection. Counsel for Mother called one witness, CW supervisor Pat Cripe. Mother did not testify.

At the close of the evidence, counsel for Mother argued that as a result of the relationship she maintained with the minors, there was a significant bond and it would be in the childrens best interest for the permanent plan to be guardianship. The Agencys counsel agreed that at one time Mother and the children had a relationship, but that in the preceding five months the minors had not had any contact with Mother and she had not participated in their lives as a parental figure. Counsel for the minors agreed with the Agencys recommendation of adoption, arguing that the children were adoptable and that there was no parent-child relationship that would be reason enough not to proceed with adoption. The court took judicial notice of the prior findings, orders and judgment and adopted the recommendations of the Agency. The parental rights of both parents were ordered terminated as to T.S. and Lorenzo.

Mother filed her notices of appeal on March 28, 2006.

III. DISCUSSION

A. Disentitlement Doctrine

Respondent argues that this appeal should be dismissed under the disentitlement doctrine because of Mothers absconding with the minors. It is well settled that this court has the inherent power to dismiss an appeal by any party who has refused to comply with the orders of the trial court. [Citations.] (TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379.) The disentitlement doctrine has been applied to deprive a party of the right to present a defense as a result of the litigants violation of the processes of the court, withholding of evidence, defaulting on court-imposed obligations, disobeying court orders, or other actions justifying a judgment of default. [Citation.] (Adoption of Jacob C. (1994) 25 Cal.App.4th 617, 624 (Jacob C.)

A formal judgment of contempt, however, is not a prerequisite to exercising the power to dismiss. Willful disobedience or obstructive tactics have also supported the dismissal of an appeal. (In re Claudia S. (2005) 131 Cal.App.4th 236, 244, citing Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1683.)

In MacPherson v. MacPherson (1939) 13 Cal.2d 271, the father refused to return the minor children to their mother, his former wife, after a visit, and removed them to Mexico, in violation of the divorce decree. The former wife obtained a judgment ordering the father to return the children and to pay for attorneys fees and costs she incurred in trying to locate the children. The father appealed from the latter portion of the judgment. The Supreme Court dismissed the appeal, stating that [i]n secluding the children in a foreign country and alienating them, appellant violated not only his agreement with [the mother] and the provisions of the interlocutory and final decrees of divorce, but he has also willfully and purposely evaded legal processes and contumaciously defied and nullified every attempt to enforce the judgments and orders of the California courts, including the very order from which he seeks relief by this appeal. Such flagrant disobedience and contempt effectually bar him from receiving the assistance of an appellate tribunal. A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. (Id. at p. 277.)

The disentitlement doctrine applies to child dependency proceedings, and has been applied in situations involving child abduction. In In re Kamelia S. (2000) 82 Cal.App.4th 1224, 1226, a father appealed from an order placing his minor child in foster care. During the pendency of the appeal, he absconded with the child. The court dismissed the appeal under the disentitlement doctrine, finding that his abduction of the child violated juvenile court orders and frustrated the objective of the dependency law, i.e., ensuring the safety, protection, and physical and emotional well-being of children who come within the law. (Id. at pp. 1226-1227.) In Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1299, the grandparents appealed from the courts denial of their guardianship petition. Before returning the minor child to her father, and against court order, the grandparents caused the minor to be taken out of the country and purported to give their consent as guardians to her marriage. The court held that, because the grandparents obstructive tactics undermined the trial courts judgment confirming custody in the father, the grandparents forfeited their right to appeal that judgment. (Id. at p. 1299; see also Jacob C., supra, 25 Cal.App.4th at pp. 623-624 [disentitlement doctrine barred mother who absconded with one of her two minor children from contesting petition by stepmother to terminate mothers parental rights to the child who remained in fathers custody].)

Although Mother violated orders of the court of which she was aware, and frustrated the ability of the court to protect and ensure the safety and well-being of the children, we decline to apply the disentitlement doctrine to dismiss the appeal. Unlike the cases discussed above, in which the appellants violated court orders during the pendency of their appeals therefrom, Mother is not seeking review of orders she violated. Mothers unlawful absence and concealment of the children under circumstances she refuses to reveal are the bases for the Agencys recommendation of adoption as the permanent plan and the courts order terminating parental rights, as opposed to a situation in which a court issues an adverse order and the appellant violates the order during the pendency of the appeal. This also is not a situation in which the appellants arguments on appeal are intertwined with or based on the past contempt. Accordingly, we will proceed to the merits.

B. Due ProcessRight to Cross-Examine the Social Worker

Mother argues that her due process rights were violated at the section 366.26 hearing because she was not allowed to cross examine the social worker who prepared the reports for that hearing.

The section 366.26 report, filed December 2, 2005, and the addendum report, filed March 13, 2006, were signed on behalf of the Agency by Kari Houangvilay as the assigned CWW and by child welfare supervisor Pat Cripe. Ms. Cripe was present at the section 366.26 hearing; Ms. Houangvilay was not. Mothers attorney cross-examined Ms. Cripe regarding the frequency of Mothers visits with the minors. Ms. Cripe reviewed the file in order to answer counsels questions. Apparently impatient, counsel asked Ms. Cripe if she were familiar enough with the file to answer his questions, at which point the court asked counsel to explain the relevance of the line of questioning. Counsel replied that he intended to show that Mother had regular visits and that there was a significant bond between Mother and the minors. The court indicated its understanding that there was no dispute regarding the adequacy of visitation up to the time that Mother absconded with the children, and that the issue presented was what happened commencing in July. Counsel then asked Ms. Cripe when Ms. Houangvilay, the worker currently assigned to the case, would be available. The Agency objected on relevancy grounds; Ms. Houangvilay had not been subpoenaed or requested to be present. Mothers counsel argued that Mother had a right to cross-examine the worker who prepared the reports and that the Agency had the burden of producing the worker. The court sustained the objection. Mothers counsel then questioned Ms. Cripe regarding whether legal guardianship had been considered, why adoption had been selected as the recommended permanent plan, and whether the witness knew the projected date of Mothers release from prison.

An express constitutional right of confrontation is limited to criminal prosecutions. (U.S. Const. 6th Amend.; Cal. Const., art. I, 15.) This right has been extended, however, to civil matters and by statute to juvenile dependency hearings, although not all of the formalities necessary in a criminal trial are applicable or required. ([Welf. & Inst. Code,]  311; In re Kerry O. (1989) 210 Cal.App.3d 326, 333-334.) Unlike criminal trials, the primary purpose of dependency hearings is to protect the child, not prosecute the parents. (In re Kerry O., supra, 210 Cal.App.3d at p. 333; In re Mary S. (1986) 186 Cal.App.3d 414, 418.) (In re Corey A. (1991) 227 Cal.App.3d 339, 346.) (In re Elizabeth T. (1992) 9 Cal.App.4th 636, 640.)

Different levels of due process protection apply at different stages of dependency proceedings. (See David B. v. Superior Court [(2006)] 140 Cal.App.4th [772,] 777-780 [(David B.)]; Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 758-759.) After reunification services are terminated and a section 366.26 hearing is set the focus shifts from the parents interest in reunification to the childs need for permanency and stability. (David B., supra, [140 Cal.App.4th] at p. 778.) (In re Thomas R. (2006) 145 Cal.App.4th 726, 733.)

[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. (In re Malinda S. (1990) 51 Cal.3d 368, 379, superseded by statute as stated in In re Lucero L. (2000) 22 Cal.4th 1227; see In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413.) But due process is not synonymous with full-fledged cross-examination rights. (In re Sade C. (1996) 13 Cal.4th 952, 992.) Due process is a flexible concept which depends upon the circumstances and a balancing of various factors. (Id. at pp. 986-991.) The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. (People v. Marshall (1996) 13 Cal.4th 799, 836; Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1147.) Even where cross-examination is involved, the trial court may properly request an offer of proof if an entire line of cross-examination appears to the court to be irrelevant to the issue before the court. (People v. Allen (1986) 42 Cal.3d 1222, 1270 & fn. 31; Maricela C. v. Superior Court, supra, 66 Cal.App.4th 1138; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 1997) 8:3429, p. 8G-28.) In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.)

Here, the issue before the court was whether Mother had maintained regular visitation and contact with the minors and the minors would benefit from continuing the relationship, a statutory exception to the presumption in favor of adoption and the termination of parental rights. ( 366.26, subd. (c)(1)(A).) Counsels question to Ms. Cripe regarding the availability of Ms. Houangvilay was clearly not relevant to this issue. The preceding series of questions had all focused on Mothers visitation with the minors leading up to the 30-day trial visit in June 2005, a matter not in dispute. The trial court acted well within its discretion to limit the introduction of irrelevant evidence.

On appeal, Mother suggests areas of questioning that could have been pursued at the hearing had Ms. Houangvilay been present, such as the childrens actual level of comfort with the foster parents when returned and updated information about the children, including any information that might have been revealed about their bond with their mother. An objection to proceeding in the absence of Ms. Houangvilay on these grounds was not raised in the juvenile court. Accordingly, the argument is forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293 & fn. 2.)

Moreover, there is no support in the record for Mothers claim on appeal that she was not allowed to cross-examine the preparer of the section 366.26 reports. The implication is that the court somehow prevented or precluded Mother from cross-examining Ms. Houangvilay. To the contrary, the court held a full hearing, at which Mother did not object to the admission into evidence of various documents, including the social workers reports. The Agency produced a witness competent to testify regarding the contents of the reports. The court placed no restrictions on Mothers ability to call witnesses or argue her position. Rather, it appears that Mother did not request that Ms. Houangvilay attend the hearing, despite her right to do so. (In re Thomas R., supra, 145 Cal.App.4th at pp. 733-734; In re Matthew P. (1999) 71 Cal.App.4th 841, 849 & fn. 3.) We discern no due process violation.

However, even assuming that the juvenile court erred in conducting the hearing without Ms. Houangvilay present, any such error was not prejudicial. The standard of review to be applied where a parents due process rights were violated is whether the error was harmless beyond a reasonable doubt. (In re Thomas R., supra, 145 Cal.App.4th at p. 734; In re Dolly D. (1995) 41 Cal.App.4th 440, 446.)

As a result of Mothers actions, Ms. Houangvilay was in no position to testify regarding the frequency and quality of Mothers visitation and contact with the minors during the relevant period, from the beginning of the 30-day trial visit on June 13, 2005, through March 16, 2006, the date of the section 366.26 hearing. Only Mother knows what took place during the time the childrens whereabouts were unknown, and Mother has chosen not to disclose this information.

Further, even if reporting periods prior to June 13, 2005, were relevant, the frequency of visits was not in dispute, and was well-documented in the record. As for the quality of the visits, Ms. Houangvilay would have been in no better position to testify than Ms. Cripe. The record is clear that Shaunte Booth was the assigned CWW on the case from the initial section 300 detention and jurisdiction through detention and jurisdiction on the section 388 petition. Thereafter, Cindy Evans was the assigned CWW until at least July 13, 2005, when the protective warrants were issued. Ms. Cripe then had the case in September 2005. Ms. Houangvilay was not assigned to the case until sometime after October 18, 2005, long after Mothers visitation was suspended by order of the court on August 11, 2005. Any error was, thus, harmless beyond a reasonable doubt.

C. Applicability of the Beneficial Relationship Exception

Mother contends the courts finding that the beneficial relationship exception to termination of parental rights did not apply was not supported by substantial evidence. She argues that, other than her lapse in judgment in taking the children out of California, she occupied a parental role in the lives of the minors, that they had a significant positive relationship with her, and that terminating parental rights would be detrimental to the minors.

Adoption is the permanent plan preferred by the Legislature. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Section 366.26, subdivision (c)(1), requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless it finds a compelling reason for determining that termination would be detrimental to the child under one of five enumerated statutory exceptions. The exception at issue here is whether termination would be detrimental because [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).) The parent bears the burden of demonstrating that the exception applies. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Appellate courts are split as to the appropriate standard of review to apply where a juvenile court has concluded that a statutory exception to termination does not exist. (Compare In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576 [applying substantial evidence test] with In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying abuse of discretion standard].) Mother urges us to apply the substantial evidence standard, while the Agency favors abuse of discretion. As noted in In re Jasmine D., both standards of review give broad deference to the juvenile court. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either standard, we would affirm the juvenile courts termination order.

Regular visitation and contact is the first prong of the exception. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450.) Mother did not testify at the hearing and proffered no evidence on this issue. Our review of the record reveals that from the time the children were detained in July 2003 until June 2004, Mothers visits with the children were infrequent, at best, due to her incarceration. After her release, she visited the minors consistently for a period of about one year, from June 2004 until June 2005. [2] The court then granted a 30-day trial visit to commence on June 13, 2005. From that date through the date of the hearing on March 16, 2006, the only evidence before the court regarding Mothers contact with the minors was that she apparently had taken them to Mexico and left them with someone named Alex. By August 9, 2005, Mother had been arrested in Arizona and was incarcerated at Santa Rita, facing criminal charges for abducting the minors. The minors were found and returned to the foster parents on November 21, 2005. This record demonstrates that visitation was progressing during the year from June 2004 through June 2005, to the point that Mother was close to reunifying with the minors. After that time, however, Mothers actions completely derailed reunification, and all visitation ceased. Based on the complete lack of visitation during the seven months preceding the hearing, the juvenile court could not have found this requirement satisfied.

Mother has also failed to demonstrate the second prong, that her bond with the children was sufficiently strong that they would suffer detriment from its termination. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.) It is not enough to show that the child would derive some incidental benefit from maintaining the relationship. Rather, courts have interpreted the benefit from continuing the [parent/child] relationship exception to mean the 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. 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 AutumnH., supra, 27 Cal.App.4th at p. 575 [parental role results from adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation]; see also, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 [more than a friendly or familiar relationship is required]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 [frequent and loving contact, without parental role, is not enough].)

The determination is made on a case-by-case basis, after considering the many factors that impact a parent/child relationship, including the age of the child, the portion of the childs life spent in the parents custody, the effect of interaction with the parent, and the childs particular needs. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576; see also In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)

Here, the minors were four years old at the time of the section 366.26 hearing. From birth until they were approximately 17 months old, the minors were in Mothers care. They were then placed in foster care for two years, and then were with Mother again for some portion of time between June 13 and August 9, 2005. In all, they were in Mothers care for roughly one third of their young lives, the majority as infants.

There is no dispute that Mother had a significant relationship with the children at the time of the 30-day trial visit. However, the balancing required by Autumn H. cannot be based on the state of affairs at some much earlier date in the history of the proceedings. There is no more recent evidence in the record regarding the nature and quality of the bond between Mother and the minors. The trial court was aware of its obligation and implicitly balanced the potential benefit to the minors of remaining in a stable, supportive home with foster parents who want to adopt them against the risk that returning the minors to Mother would result in more disruption and trauma in their lives. Under the circumstances, there was no basis upon which the juvenile court could have found that the beneficial relationship exception applied.

IV. DISPOSITION

The order terminating parental rights is affirmed.

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Haerle, J.

We concur:

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Kline, P.J.

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Lambden, J.

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[1] All further unspecified statutory references are to the Welfare and Institutions Code.

[2] Evidence in the record suggests, however, that during unsupervised visits, Mother may not always have been present. Full day, unsupervised visits began in September 2004. By the middle of October 2004, Lorenzo was exhibiting sexual behavior. By April 2005, numerous instances of sexual acting out by both children had been reported. Also that month, Lorenzo disclosed that he had been sexually molested by Ant, a name used for the older sibling Anthony. Mother agreed on April 26, 2005, that she would, from then on, be solely responsible for supervising the minors. As the Agency points out, this raises a question regarding her presence during the visits.