In re Adrian R.

Filed 10/16/06 In re Adrian R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 an order of the Los Angeles County Superior Court, D. Zeke Zeidler, Judge. Affirmed.

Aida Aslanian, under appointment by the Court of Appeal, for Objector and Appellant H.E.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Tracey Dodds, Senior Deputy County Counsel, For Petitioner and Respondent.

INTRODUCTION

Appellant H.E. (mother) lost custody of her two-year old son, Adrian R. (Adrian), due to her substance abuse and emotional problems. Because Adrian’s maternal grandmother, Esther A. (Esther), was willing to adopt Adrian if mother failed to reunify with him, the juvenile court placed him with Esther on the understanding that she would not change her mind later in the proceedings. When mother failed to reunify, the juvenile court terminated her reunification services and parental rights, freeing Adrian for adoption by Esther.

Mother appeals the order terminating her parental rights. She contends that the juvenile court erred when it found that mother had failed to establish the parental relationship exception in Welfare and Institutions Code section 366.26, subdivision, (c)(1)(A).[1] She also contends, for the first time on appeal, that because the juvenile court had a “preconceived“ preference for adoption as a permanent plan for Adrian, she was prevented from asserting the section 366.26, subdivision (c)(1)(D), exception and, therefore, denied procedural due process.

We hold that because there was substantial evidence to support the juvenile court’s finding that mother failed to establish the parental relationship exception, the juvenile court did not err in terminating mother’s parental rights. We also hold that mother has forfeited her right to raise issues based on the section 366.26, subdivision (c)(1)(D), exception and procedural due process because she failed to raise those issues with the juvenile court. We therefore affirm the order of the juvenile court terminating mother’s parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Dependency Petition, Adjudication, and Disposition

On March 19, 2005, a children’s social worker (CSW) removed then two-year-old Adrian[2] from mother and placed him in a foster home because of mother’s substance abuse problems, history of depression, and failure to seek treatment. The CSW also reported that mother had subjected Adrian to an environment where there were constant verbal altercations between mother and Adrian’s maternal grandmother, Esther. On March 23, 2005, the Department of Children and Family Services (DCFS) filed a petition pursuant to section 300, alleging that mother’s substance abuse and emotional problems endangered Adrian’s “physical and emotional health, safety and well-being“ and placed Adrian “at risk.”

On March 23, 2005, the juvenile court held an arraignment/detention hearing. Mother appeared and was provided counsel. Esther also appeared, along with Adrian’s maternal uncle. The juvenile court detained Adrian, finding that a substantial danger existed as to his physical and emotional health, and that there were “no reasonable means to protect [him] without removal.” The juvenile court vested temporary placement and custody with DCFS pending disposition. DCFS was ordered to provide reunification services to mother and to prepare pretrial release investigation reports for Esther and Adrian’s maternal uncle as possible placements. Mother was allowed monitored visits with Adrian “at least two times weekly,” and DCFS was given discretion to liberalize the juvenile court’s limitations on visitation. At the close of the hearing, the juvenile court asked Esther and Adrian’s maternal uncle, “[I]f the mother does not get her act together, are you going to be able to adopt, if it comes down to that?” When both Esther and Adrian’s uncle responded affirmatively, the juvenile court admonished them, “I am holding you to that. [If] at some point you say we just want guardianship, we don’t want adoption, [then] we’re going to deal with the child being removed.”

The April 5, 2005, interim review report stated that Esther’s home appeared appropriate, but that DCFS had a concern about placing Adrian there because of Esther’s “problems and fights“ with mother who was living in a transient situation, but was likely to return home. DCFS recommended that Adrian not be placed with Esther until the home assessment was completed and it was deemed safe for Adrian to reside with Esther. DCFS further recommended that Adrian not be released to his maternal uncle.

On April 5, 2005, the juvenile court held a preliminary release investigation hearing. Mother appeared represented by counsel. Esther was also present. Notwithstanding DCFS’s recommendation, the juvenile court placed Adrian with Esther on the condition that mother was not to visit Esther’s home, and Esther was not to monitor mother’s visits with Adrian. Both mother and Esther were admonished that if they violated those conditions, Adrian would be returned to a foster home willing to adopt him. During the hearing, the juvenile court asked Esther, “If your daughter does not get her act together and get Adrian back, are you willing to adopt?” When Esther answered “yes,” the juvenile court further inquired, “And are you ever going to change your mind on me, [and] say no I only want guardianship?” Esther affirmed that she would not change her mind regarding adoption.

The April 28, 2005, jurisdiction/disposition report confirmed that Adrian was placed with Esther. It also reported that DCFS had not yet located Adrian’s alleged father, and that mother had informed DCFS that the alleged father was not part of Adrian’s life because he was “on the run from the law.” Mother indicated that she would like to regain custody of Adrian as soon as possible, and that she was willing to attend any program that the juvenile court ordered her to complete. DCFS’s assessment, however, was that mother was not capable of providing a safe home for Adrian, and that it appeared mother was continuing to use illegal drugs and abuse alcohol. Accordingly, DCFS recommended that placement and care of Adrian be vested with DCFS, and that Adrian be declared a dependent child of the juvenile court. It further recommended that mother receive family reunification services, and that she submit to random drug and alcohol testing, successfully complete drug and alcohol abuse programs, a parenting program, and anger management and counseling programs.

At the April 28, 2005, jurisdiction/disposition hearing, mother entered a voluntary waiver of her right to trial and pleaded no contest to the jurisdictional issues. The juvenile court found true the allegations that mother had substance abuse problems and a history of emotional problems, including depression. It also found true the allegation that mother’s problems endangered Adrian’s physical and emotional health, safety and well-being, and placed Adrian at risk. The dispositional hearing was continued to allow completion of a due diligence on Adrian’s alleged father.

At the continued May 20, 2005, dispositional hearing, the juvenile court found that the due diligence for Adrian’s alleged father had been completed. The juvenile court also found that Adrian should be detained, and ordered reunification services for mother, but not the alleged father. Based on DCFS’s recommendations, mother was ordered to complete drug and alcohol programs with weekly testing, a parental education program, and individual counseling for anger management. The juvenile court further ordered that Adrian was to continue his specific placement with Esther. Mother’s monitored visitation rights were continued in force and effect.

B. The Six-Month Review Hearing

The November 14, 2005, status review report indicated that mother had enrolled in an out-patient drug and alcohol treatment facility, but was discharged on August 12, 2005, for “‘[e]xcessive [a]bsences.’” On September 27, 2005, mother was accepted at an in-patient drug and alcohol treatment facility, but she left that program 10 days later on October 7, 2005. Although mother tested negative in certain court ordered drug and alcohol tests, she missed others. The status review report also described an incident in August 2005, during which mother came to Esther’s house one evening, refused to leave, screamed obscenities at Esther, and threatened her with a knife. Esther called the police, but Adrian’s maternal uncle was able to convince mother to leave before they arrived. During the six month period covered by the report, mother’s monitored visits with Adrian were sporadic, but appeared to go well. The DCFS-approved monitor reported that Adrian appeared to have a good time during the visits and mother had been “appropriate in [Adrian’s] care.” The monitor further reported that Adrian was happy when he saw mother and they had a good time together. DCFS recommended that Adrian be provided with permanent placement services, that family reunification services for mother be terminated, that Adrian’s visits with mother continue to be monitored, and that the matter be set for a section 366.26 permanency planning hearing.

At the November 14, 2005, six month review hearing, mother disagreed with the DCFS recommendations concerning termination of reunification services and requested the juvenile court to set the matter for an evidentiary hearing. At the December 9, 2005, continued review hearing, mother did not appear, but her attorney did and argued that mother’s reunification services should be continued because DCFS failed to provide her with necessary referrals for court-ordered services.[3] The juvenile court found that reasonable services had been provided to mother, and that she had failed to participate or make substantial progress in the court-ordered treatment plan. The juvenile court further found that there was no likelihood that Adrian could be returned to mother in the next six months and, therefore, terminated reunification services. DCFS was ordered to initiate immediately an adoptive home study on Esther, who was present in court and confirmed her willingness to adopt Adrian. The matter was set for a section 366.26 permanency planning hearing on April 12, 2006.

C. The Section 366.26 Proceedings

The April 12, 2006, 12-month review report indicated that Adrian was “very attached” to Esther, she was taking good care of him, the home study had been completed, and there were no concerns about Esther adopting Adrian. DCFS recommended that adoption by Esther was the best permanent plan for Adrian. The April 12, 2006, permanency planning report stated that mother’s visits with Adrian were sporadic, but that he seemed happy when she did visit him. It also recommended that adoption was the best permanent plan for Adrian, and that parental rights should be terminated.

At the April 12, 2006, permanency planning hearing, mother was present represented by counsel. Adrian’s alleged father, who was incarcerated, was appointed counsel. The matter was continued to May 9, 2006, so the alleged father could consult with his counsel.

The continued permanency planning hearing pursuant to section 366.26 took place on May 9, 2006. The juvenile court considered the entire case file, including the CSW’s April 12, 2006, report and the interim report dated May 9, 2006. Both Esther and mother testified.

Esther testified that, until a month prior to the hearing, mother had visited Adrian twice a week, for approximately two hours each visit. During the month prior to the hearing, however, mother had only visited Adrian twice. Esther confirmed that, prior to his removal, Adrian had lived with mother for the first two years of his life. Esther also confirmed that she was willing to adopt Adrian, and that his best interests would be served by being with her. While Esther was testifying, Adrian tried to attract her attention. The juvenile court noted at that juncture that Adrian kept saying “mama.” When the juvenile court asked Adrian if he wanted to go to “mama,” Adrian went to Esther on the witness stand.^[4]

Mother testified that she had visited Adrian twice a week, two hours per visit, since Adrian had been removed from her. During the visits, she would take him to the park or go shopping, play games with him, watch television with him, or just listen to him. On occasion, she also fed him snacks and changed his diapers. When she first started visiting him, Adrian would call her mom, but recently he called her by her first name. She admitted that she no longer had day-to-day responsibility to care for him, and that during the visits she just spent time with him and had fun. She described her bond with him as strong, noting that she attended his first and last days of school, he cried when he had to leave her, and he had asked Esther if he could talk to mother on the telephone. In addition, whenever Adrian saw her, he would smile and run to her. Mother’s first choice for a permanent plan was guardianship, so Adrian could still have her in his life.

During argument, mother’s counsel contended that the parental relationship exception under section 366.26, subdivision, (c)(1)(A)[5] [regular visitation and contact and child would benefit from continuing relationship] applied, such that a guardianship with Esther should have been preferred over adoption. According to her counsel, mother had established that she maintained regular visitation with Adrian and that he would benefit from a continuing relationship with her. At the conclusion of argument, the juvenile court found that mother had maintained a relationship with Adrian. The issue, according to the juvenile court, was whether mother had also shown that she had maintained a parental role in Adrian’s life and whether the benefits of maintaining that relationship outweighed the benefits of permanent adoption. The juvenile court concluded that mother “plays with the child, feeds him, sometimes snacks, meals, and changes diapers, but there’s a lot more than seeing a child twice a week for a couple of hours. There’s a lot more than that to appear as a parental role in a child’s life. In addition, the benefits of adoption by the person who he views as his mother--and who has the maternal role in his life definitely outweigh the lack of permanence of a less restrictive plan.” The juvenile court then found by clear and convincing evidence that Adrian was adoptable and that notice to the parents was proper. The juvenile court therefore terminated parental rights.

DISCUSSION

A. Standards of Review

Mother challenges the termination of her parental rights based on the parental relationship exception set forth in section 366.26, subdivision (c)(1)(A).[6] Generally, challenges to a juvenile court’s determination under that section are governed by a substantial evidence standard of review. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)[7] Under a substantial evidence standard of review “‘”the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ [Citation.]” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as stated in Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219, fn. 3.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

Mother’s challenge to the termination of her parental rights under section 366.26, subdivision (c)(1)(D), and procedural due process raises a forfeiture issue based on her failure to assert those arguments in the juvenile court. An “appellate court has discretion to excuse a party’s failure to properly raise an issue in a timely fashion [citation] [but] in dependency proceedings, where the well-being of the child and stability of placement [are] of paramount importance, that discretion ‘should be exercised rarely and only in cases presenting an important legal issue.’” (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)

B. The Record Contains Substantial Evidence In Support of the Juvenile Court’s Ruling That the Section 366.26, Subdivision (c)(1)(A), Parental Relationship Exception Did Not Apply

1. Applicable Principles

The exception in section 366.26, subdivision (c)(1)(A), provides that parental rights will not be terminated if the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The relationship must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The exception does not apply when a parent fails to occupy a “parental role” in his or her child’s life. (In re Jasmine D., supra 78 Cal.App.4th at p. 1350; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51 [parents who have essentially never had custody of children nor advanced beyond supervised visitation will have a difficult time establishing the section 366.26, subdivision (c)(1)(A), exception].) “[T]o establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) A relationship sufficient to support the exception “aris[es] from day-to-day interaction, companionship and shared experiences.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Whether the exception applies is determined “on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effects of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Parents bear the burden of establishing that an exception to termination of parental rights applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) A parent must show that he or she has maintained regular visitation and contact with the child, and that a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)

The juvenile court must consider the child’s wishes at a section 366.26 hearing. (§ 366.26, subd. (h).) A child’s wishes may be ascertained through “‘direct formal testimony in court; informal direct communication with the court in chambers, on or off the record; reports prepared for the hearing; letters; telephone calls to the court; or electronic recordings.’ [Footnote.] [Citation.]” (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.)

2. Mother Did Not Satisfy the Requirements of Section 366.26, Subdivision (c)(1)(A)

Mother contends that she presented substantial evidence to support a finding that the section 366.26, subdivision (c)(1)(A), exception applied. As the juvenile court noted, mother satisfied the first prong of the exception by showing that she had regular visits and contact with Adrian. But the juvenile court found that mother had failed to satisfy the second prong of the exception that requires a showing that the benefit to the child from the parent/child relationship outweighs the benefit from a permanent home with new adoptive parents. Contrary to mother’s assertion, there was substantial evidence to support that finding.

There is evidence in the record that shows that Adrian was only two years old when he was detained, and that he and mother had lived with Esther from the time he was born. He lived with Esther continuously from the time he was released to her custody, and was “very attached” to her. She assumed all responsibility for his day-to-day care. Although mother visited him regularly, she made no progress towards reunifying with him, and never advanced beyond the monitored visits stage.[8] Mother admitted that she did not have any of the day-to-day responsibility for his care, and that during her visits they played and had fun together, but nothing more. Adrian considered Esther his mother, as evidenced by the fact that he called her “mama” and wanted to go to her while she was testifying at the section 366.26 hearing. By contrast, Adrian called mother by her first name, and made no effort to attract her attention or go to her while she was testifying.

At best, mother established the type of “frequent and loving” relationship that has been held insufficient to support the application of the parental relationship exception. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) She did not show that she occupied a “parental role” in Adrian’s life sufficient to satisfy the “benefit” prong of the exception. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Thus, the juvenile court’s finding that mother had failed to establish the parental relationship exception was supported by substantial evidence.

It follows that our conclusion would be the same under an abuse of discretion standard of review. The juvenile court concluded that mother had failed to show that she played a “parental role” in Adrian’s life, and that any benefit to Adrian from the parent/child relationship did not outweigh the well-being that a new adoptive home would confer. Based on the record, including mother’s admission that she had no responsibility for Adrian’s day-to-day care, her failure to seek an increase in visitation so that she could resume that role, and Adrian’s recognition of Esther as his mother, the juvenile court’s conclusions were not arbitrary, capricious, or patently absurd.

C. Mother Has Forfeited Her Claims Based on the Section 366.26, Subdivision (c)(1)(D), Exception And Procedural Due Process

Mother argues that the juvenile court had a preconceived notion from the outset of the case that adoption was the only acceptable permanent plan for Adrian, if mother failed to reunify with him.[9] According to mother, the juvenile court’s expression of opinion about its preference for adoption somehow deterred her and Esther from arguing in that court that the section 366.26, subdivision (c)(1)(D), exception applied.[10] But mother never made that argument in the juvenile court, thereby depriving that court of the opportunity to address it in the first instance.

A party who fails to raise an issue at the trial court level generally forfeits that issue on appeal. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.) Appellate courts have applied this doctrine in dependency proceedings in a wide variety of contexts. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) “Many dependency cases have held that a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the trial court so they may be corrected. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “[A]ny other rule would permit a party to . . . deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” (In re Lorenzo, supra, 54 Cal.App.4th at pp. 1338-1339.)

The record shows that mother was represented by the same attorney throughout the proceedings below. Nevertheless, at no time did mother attempt to argue that the section 366.26, subdivision (c)(1)(D), exception applied, or that the juvenile court’s statements concerning its preference for adoption violated her due process rights.

According to mother, because the juvenile court at the initial hearing in this matter threatened to place Adrian with someone else willing to adopt, if Esther did not agree to adopt him, it would have been futile for either Esther or mother to argue that the section 366.26, subdivision (c)(1)(D), exception applied, or that the trial court’s view on the adoption issue violated her procedural due process rights. In support of this assertion, she cites to Evidence Code section 354, subdivision (b),[11] and People v. Welch (1993) 5 Cal.4th 228, 237, and argues that the juvenile court’s comments concerning adoption were the equivalent of an order or directive excluding evidence in support of any permanent plan other than adoption.

We do not construe the juvenile court’s comments concerning its preference for adoption, and the threatened removal of Adrian from Esther if she refused to agree to adopt, as the equivalent of an order precluding evidence or argument about any other alternative permanent plan, such as guardianship. Although the comments in issue demonstrated that the juvenile court had definite opinions about the preference for adoption if mother failed to reunify with Adrian, that preference is consistent with controlling law. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 [adoption is the permanent plan preferred by the Legislature, the juvenile court must select adoption unless one of the five exceptions applies].) Thus, if there was evidence that the trial court’s preference for adoption was wrong because circumstances existed that required the application of an exception, it was incumbent upon mother to present those exceptional circumstances to the juvenile court. But mother never suggested to the juvenile court that there were exceptional circumstances that would have prevented Esther from adopting, or that the juvenile court’s statements were deterring her from presenting evidence of such circumstances or were otherwise improper.

Similarly, there is nothing in the record to suggest that either mother or Esther were aware of any circumstances, exceptional or otherwise, that would have prevented Esther from adopting. To the contrary, Esther, without any reservation or qualification, testified at the section 366.26 hearing that she was able and willing to adopt Adrian, a fact that contradicts any speculation that there may have been exceptional circumstances under section 366.26, subdivision (c)(1)(D). Mother argues that Esther was, in effect, coerced into stating she would adopt Adrian. But there is nothing to suggest that Esther had reservations or that the juvenile court’s comments did in fact coerce Esther.

Moreover, the record shows that the trial court’s statements at the prior hearings did not deter mother from raising guardianship as an alternative permanent plan under the parental relationship exception set forth in section 366.26, subdivision (c)(1)(A). Her willingness and ability to raise and argue that exception undercuts her current contention that she was deterred from raising guardianship as an alternative permanent plan under section 366.26, subdivision (c)(1)(D). Because she has not demonstrated that it would have been futile to raise with the juvenile court the section 366.26, subdivision (c)(1)(D), exception, her failure to raise the issue is unexcused, and precludes review of it on appeal.

DISPOSITION

The order of the juvenile court terminating mother’s parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] Adrian was born in February, 2003.

[3] Mother’s attorney did not complain about mother’s visitation rights or request an increase in either the length or frequency of her visits with Adrian.

[4] Mother’s counsel argued that Adrian was attracted to and wanted to play with the witness microphone, not Esther.

[5] Mother’s counsel did not state or imply at the section 366.26 hearing that the section 366.26, subdivision (c)(1)(D), exception might also be applicable, nor did she attempt to introduce any evidence that would have arguably supported that exception.

[6] Mother suggests there is substantial evidence to support her position. This is not the proper standard of review. The question is whether there was substantial evidence supporting the juvenile court’s finding that section 366.26, subdivision (c)(1)(A), did not apply.

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

[8] There is nothing in the record to suggest that mother made any effort to have DCFS or the juvenile court increase the length or frequency of the visits she could have with Adrian weekly. The record suggests she was satisfied with visiting him twice a week for two hours per visit.

[9] Mother’s argument ignores the fact that, at the initial hearing, the juvenile court clearly informed her that if she failed to reunify, Adrian “could go to a permanent plan of long term foster care, legal guardianship or adoption.”

[10] Section 366.26, subdivision (c)(1)(D), provides: “The child is living with a relative . . . who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative . . . would be detrimental to the emotional well-being of the child. . . .”

[11] Evidence Code section 354, subdivision (b), excuses a party from making an offer of proof if there is some indication in the record that it would have been futile to have attempted to introduce the evidence in issue. “The provisions of Section 354 that require an offer of proof or other disclosure of the evidence improperly excluded reflect existing law. See Witkin, California Evidence § 713 (1958). The exceptions to this requirement that are stated in Section 354 also reflect existing law. Thus, an offer of proof is unnecessary where the judge has limited the issues so that an offer to prove matters related to excluded issues would be futile. Lawless v. Calaway, 24 Cal.2d 81, 91, 147 P.2d 604, 609 (1944).” (Cal. Law Review Com. com. 29B West’s Ann. Evid. Code (1995 ed.) foll. § 354, p. 332.)