In re Demitrius L.

Filed 8/21/06 In re Demitrius L. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. D. Zeke Zeidler, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.

Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Liana Serobian, Senior Associate County Counsel, for Plaintiff and Respondent.

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Andrea L. appeals from an order terminating her parental rights to her son Demetrius. We affirm, as we explain.

Demetrius was born in July 2002. A Welfare and Institutions[1] Code section 300 petition was filed several days later, with allegations concerning Andrea's history of drug use, including use during her pregnancy, and the fact that her three older children were in foster care. Within days, Andrea entered into a residential drug treatment program. In August, she submitted on the DCFS reports and the petition was sustained. Reunification services were ordered.

During the next six months, Andrea finished her residential program, entered a second program, tested clean, and visited with Demetrius. For the March 20, 2003 section 366.21, subdivision (e) hearing, DCFS recommended that Demetrius and his sixteen year old sister Shantae be placed with their mother, and the court made that order. However, on April 11, 2003, DCFS filed a section 342 petition alleging that Andrea had physically abused Shantae by striking, choking, and scratching her in an effort to restrain her, conduct which endangered both Shantae and Demetrius. Demetrius was removed from his mother's home and placed with his former caregiver. In May, Andrea pled no contest to the petition. The court ordered individual counseling to include anger management, and drug tests.

Andrea then completed her anger management classes, entered and stayed in counseling, consistently visited Demetrius, progressing to overnight visits, and tested clean. In March 2004, Demetrius was again placed with his mother.

Everything went well for about a year. Andrea continued to test clean. Demetrius did well in her care. In August, Andrea gave birth to a son, Ben.

However, in March 2005, Andrea had a positive drug test which indicated that she had used cocaine. DCFS removed Demetrius from the home and filed a section 387 petition seeking a more restrictive placement. Then, on April 19, Andrea was arrested for drug possession.

The section 387 petition was heard on May 23, 2005. Andrea, who had been released from prison on May 5, was not present at the hearing. The court sustained the petition and denied reunification services.

The next significant hearing was on September 6, 2005. DCFS reported that Andrea had not visited Demetrius and had told the social worker that she was not ready to enter a drug treatment program. She had a mailing address at an aunt's house, but did not live at the address, and seemed to be living a transient lifestyle. Demetrius was receiving play therapy to address separation issues. DCFS recommended adoption as his permanent plan.

DCFS also filed an adoption assessment which described Demetrius as mentally and physically healthy and well-adjusted, with no special medical or developmental needs. He was affectionate, friendly, and played well with other children. DCFS believed that he was adoptable.

In September, DCFS reported that Demetrius's current caretaker was not willing to adopt him, because she had already adopted two children, but by January, DCFS was reporting that she was the prospective adoptive parent.

Andrea was arrested again on October 5, and released on October 21. She was present at the January 3, 2006 section 366.26 hearing. For that hearing, DCFS reported that Andrea had not visited Demetrius since he was again taken from her care.

Andrea asked for a hearing on the application of the section 366.26 subd. (c)(1)(A) "visits exception" to adoption. In response to the court's request for an offer of proof (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1121), she cited her time as Demetrius's caretaker, and her visits prior to that time, and also cited the fact that no adoption home study had been completed. The court denied the request for a contested hearing, finding that although Demetrius lived with Andrea for a time, she had not made an offer that she could show that she had maintained regular and consistent visitation and contact in the last nine months. The court then found that Demetrius was adoptable and terminated parental rights.

On this appeal, Andrea contends that the denial of a contested hearing on the beneficial relationship exception to adoption denied her due process and constituted reversible error. She argues that she should have been permitted to present evidence on the strength of the bond between herself and Demetrius and the possible harm to Demetrius if the bond was terminated, and cites December 2003 and May 2005 representations by Demitrius's counsel to the effect the he was bonded to her, and DCFS's report, in the adoption assessment, that she and Demetrius had a close and nurturing relationship during the year he was in her care. She suggests that the error was analogous to denial of notice of a section 366.26 hearing, and thus was structural, and that the error is reviewable under the harmless beyond a reasonable doubt standard (Chapman v. California (1967) 386 U.S. 18), and in the alternative cites People v. Watson (1956) 46 Cal..2d 818 and argues that there is a reasonable probability that the outcome of the hearing was affected by the error.

At the section 366.26 hearing, parental rights may be terminated only if the court finds by clear and convincing evidence that the child is likely to be adopted. DCFS has the burden of showing adoptability. The parent then has the burden to show that termination would be detrimental to the minor under one of four specified exceptions, including the one Andrea sought to assert, that "The 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).) In the absence of evidence that termination would be detrimental to the minor under one of these exceptions, the court "shall terminate parental rights . . . ."

(§ 366.26, subd. (c)(1), italics added.) (In re Urayna L. (1999) 75 Cal.App.4th 883, 886, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

No right to due process is violated by requiring an offer of proof from a parent before a contested section 366.26 hearing is held. (In re Tamika T., supra, 97 Cal.App.4th at p. 1121.), Nor, given the evidence, do we see a denial of due process, or indeed any error, in denial of the hearing here.

The evidence was that for a time, Andrea and Demetrius were bonded. Indeed, he received therapy to help him with his separation from her. However, there was also evidence that despite her efforts Andrea was unable to continue to live drug-free and to care for her son. He lived with her for a brief period when he was about a year and half old, and lived with her for a substantial period a year later, but he was not yet four years old when he was again removed from her care, and she had no contact with him after that. The trial court's finding was essentially that such an extended period of no contact with this young child was dispositive, and that further evidence of the bond they had once had was not relevant. We cannot see error in that finding, or that, given the evidence and Andrea's proffer, the result could have been different if a contested hearing was held.

Andrea also argues that there was no clear or convincing evidence that Demetrius was adoptable. She cites the evidence that DCFS never identified another potential adoptive family, that the home study was not completed, and that DCFS did not comply with the court order to provide detailed medical and academic information about Demetrius for the January hearing.[2] She also cites the evidence that Demetrius's caretaker at one point said that she would not adopt, and the fact that DCFS did not provide an explanation of her change in position, and concludes that the identification of her as a prospective adoptive parent is not credible.

Our review is limited to whether the court's findings were supported by substantial evidence. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.) We find that they were.

Demetrius was a happy, healthy, affectionate child, with no special medical or developmental needs. That is evidence that he is adoptable, as is the social worker's conclusion that he was adoptable. (In re Jennilee T.. supra, 3 Cal.App.4th at p. 224.)

Moreover, "the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)

We cannot conclude, as Andrea suggests, that the report that Demetrius's foster mother wanted to adopt lacked credibility. The record reflects that the foster mother changed her mind about adoption, something which is hardly unusual. We might wish for more information, but the lack of additional information does not render the report lacking in credibility. Instead, the report is substantial evidence that Demetrius is adoptable.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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[1] All further statutory references are to that code.

[2] She also cites evidence of an unfounded allegation of abuse of another child in the foster mother's home -- which proves nothing. Unfounded is unfounded.