Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK61276. Stephen Marpet, Juvenile Court Referee. Affirmed.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
CHAVEZ, J.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
Sonia A. (mother) appeals from an order of the juvenile court terminating her parental rights over her son, Diego R., pursuant to Welfare and Institutions Code section 366.26. Mother’s sole contention is that the juvenile court violated her due process rights by declining to continue the section 366.26 hearing for a contest pursuant to section 366.26, subdivision (c)(1)(A). We affirm the order of the trial court.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Diego R. was born in August 2000. He and his half-sister, A.T. (born in September 2005), were taken into custody by the Los Angeles County Department of Children and Family Services (DCFS) on October 24, 2005.
A. is not a subject of this appeal.
1. The Initial Detention Hearing
DCFS filed its initial section 300 petition on behalf of both children on October 27, 2005. The petition stated that on October 24, 2005, an examination revealed that then one-month-old A. had bleeding in multiple areas of her brain which the doctor believed was the result of nonaccidental trauma. A.’s brain appeared to be swollen and it was possible she would suffer from long lasting complications due to a decrease in brain activity.
According to mother, she had noticed that A. was twitching on the right side of her body. Then the baby had a seizure and mother took her to the hospital, where A. had another seizure in the doctor’s presence. Mother admitted that she and A.’s father, Jesus T., were the sole caretakers of A., but denied that either of them had hurt the baby. Mother also denied any domestic violence between her and Jesus T., despite evidence that she had previously obtained a restraining order against him. When confronted about the restraining order, she stated that she obtained it after leaving Jesus because he hit Diego. However, when Jesus promised he would not do it anymore, she returned to him.
Jesus T. is not the father of Diego R. Diego’s alleged father is Juan Carlos N.
Then five-year-old Diego told a social worker that he did not like Jesus because Jesus hit him in the head when he was four years old and locked him in his room. Diego also said that Jesus had hit mother and that he thought he heard him hit A. Mother admitted that she made a mistake in trusting Jesus. Diego was placed in foster care and A. remained in the hospital.
The petition alleged that Diego and A. were subject to juvenile court jurisdiction under section 300, subdivisions (a), (b), (e), (g), (i), and (j) because mother provided false and misleading information about the nature and cause of A.’s intra-cranial bleeds, infracts and brain edema. Further, mother failed to protect the children from Jesus’s physical abuse, mother and Jesus engaged in acts of domestic violence, Jesus’s history of alcohol abuse placed his child, A., at risk of harm, and Diego’s father failed to provide the child with the basic necessities of life.
Diego’s father was referred to in the initial section 300 petition as Omar R., but at the detention hearing mother clarified that Diego’s father was Juan Carlos N.
At the initial hearing on October 27, 2005, the juvenile court found that DCFS presented a prima facie case for detaining the children.
2. The Initial Adjudication/Disposition Report
DCFS filed a jurisdiction/disposition report on December 7, 2005. A. had been placed at the time, in a special medical placement foster home. Diego also remained in foster care.
A review of the prior child welfare history revealed that DCFS had received a hotline referral on September 20, 2004. Diego’s ears were swollen with a torn area behind each ear. Diego told the person reporting the abuse that Jesus had become angry and picked Diego up off the floor by his ears. Jesus admitted to pulling Diego’s ears because he had refused to put on his pajamas.
Diego’s foster mother said that Diego had begun to disclose more abuse. Diego reported that Jesus had said that he hated Diego and A. Diego further disclosed that Jesus would hit him and the baby. Diego had not told mother of this abuse because Jesus threatened him and told him not to say anything. During a telephone call with mother, Diego told mother that Jesus had hit A. When mother tried to dissuade him from making this statement, Diego remained firm.
Mother indicated that Jesus had admitted to her that he pulled Diego’s ear. Mother also recounted an incident when Diego vomited and later told her that Jesus had hit him on the head. Mother admitted that she and Jesus engaged in acts of domestic violence while Diego was present. Sometimes, he would push her so hard she would fall on a chair or the bed. She felt bad that Diego had witnessed this. She had enrolled in a women’s support group and had a case manager, but remained in the family home.
Jesus admitted that he pushed mother when provoked, about once a month. He would grab mother and drag her into the bedroom, and mother would have bruises on her arm from his fingertips. He had been convicted for driving under the influence of alcohol in 2003. He admitted that he drank approximately six beers on a Saturday, but claimed he did not hold A. when drinking.
A. was progressing well. There was a concern that she would have hearing or sight impairments, but the extent of her injuries would not be known until she was older. She was a client of the Regional Center and took Phenobarbital to prevent seizures. Diego was developmentally on target and emotionally stable. Mother visited Diego once per week for one hour in a neutral setting.
DCFS recommended monitored visits in a neutral setting between mother and the children. It held its recommendation regarding reunification services pending completion of its investigation. On mother’s request for additional visitation time, the court ordered visits to be conducted for two hours, twice per week. It continued the jurisdiction/ disposition hearing to permit DCFS further time to complete its investigation.
3. Subsequent Review Reports
DCFS filed a supplemental report on December 20, 2005. The report stated that Diego continued to disclose additional details of Jesus’s treatment of him. Jesus had forced him to take baths in cold water, had pushed him and stepped on his stomach, had hit him on the head and the stomach, and had hit him in the nose and made his nose bleed. He had also hit A. and pushed mother.
DCFS recommended that family reunification services be ordered for mother. It further recommended that no reunification services be ordered for Jesus or Juan Carlos N. DCFS asked that mother be required to attend and complete domestic violence classes for victims as well as joint counseling with Diego and a course in parent education for infants and young children.
Through her counsel, mother requested an extended holiday visit. The adjudication hearing was again continued, at the request of mother and Jesus, to January 31, 2006.
DCFS filed an additional report on January 31, 2006. It reported that while mother claimed that Jesus had left the family home, his things were still there and mother admitted that he returned to the home to take showers. In addition, Jesus provided mother with financial assistance and mother did not believe that Jesus had abused her children. A.’s foster mother stated that mother and Jesus came together to visit A. and behaved as if they were still in a relationship. However, mother informed her therapist that she had no intention of reuniting with Jesus and her support group leader felt that she had made good progress. Diego stated that he wanted to return to mother’s care. Mother was visiting him regularly and the visits went well.
The hearing was again continued. On March 14, 2006, DCFS reported that mother had stopped bringing Jesus to the visits with Diego and the visits were appropriate. By May 2, 2006, mother had completed a nonviolent parenting class and 24 sessions of individual counseling. She continued to attend a women’s support group.
On May 19, 2006, the juvenile court ordered an Evidence Code section 730 evaluation of mother and Jesus. On June 22, 2006, DCFS reported that the evaluator, Dr. De Armas, stated that mother did not yet understand the “circle of violence” inherent in abusive relationships such as her relationship with Jesus. She still loved Jesus and naively believed that if he said he would change, he would. She also appeared to be dependent on Jesus. Dr. De Armas noted that although mother insisted that she was living apart from Jesus, they arrived together for the psychological evaluation. Mother was not sure whether Jesus had harmed A. She admitted to the domestic violence and admitted that Jesus had hit Diego. However, when Dr. De Armas spoke with Jesus, he denied responsibility for any of the abuse.
Evidence Code section 730 provides for the appointment of an expert by the court.
In addition, mother’s case manager at Hathaway Family Services did not believe mother had the ability to protect her children. Mother was passive and had not separated from Jesus. In a group counseling session, she had defended Jesus, saying he was doing everything he was supposed to do.
On July 24, 2006, DCFS filed an amended section 300 petition indicating that mother had been criminally charged with a violation of Penal Code section 273a. She had failed a polygraph test regarding the injuries to A. and the police obtained a taped confession that she had shaken the baby. She had lied about her involvement because she did not want to go to jail. She was arrested and incarcerated on July 14, 2006.
Penal Code section 273a is captioned “Willful harm or injury to child; endangering person or health; punishment; conditions of probation.”
On August 22, 2006, DCFS reported that, in a subsequent conversation, mother claimed she had lied about abusing A. in order to protect Jesus. Mother also reported numerous instances of abuse at Jesus’s hands. She stated that Jesus did not love Diego.
DCFS also spoke with Jesus, who admitted to shaking A. when he was tired and frustrated. He also admitted that he hit Diego but justified this by saying mother babied the boy. Jesus had been incarcerated for physically abusing A. Jesus also had two unrelated misdemeanor warrants and he had left a message at police headquarters threatening to kill the policeman involved in the investigation.
On August 9, 2006, Diego was placed in the home of his maternal uncle Carlos and his wife Erika. Diego was very happy there. He related well with two male cousins and Carlos and Erika reported no problems. A.’s caretakers, with whom she had lived since her detention, expressed great interest in adopting her. But Uncle Carlos and his wife said they were interested in adopting both Diego and A. Carlos said he cared about his sister, mother, but he cared more about her children and wanted to protect them.
4. The Adjudication/Disposition Hearing
The continued adjudication/disposition hearing was held on September 18, 2006. Mother and Jesus submitted the matter based on the social workers’ reports and, after explaining to mother and Jesus that they were giving up the right to a trial, the court found that they made a knowing and intelligent waiver of their constitutional rights and accepted their submission.
The court sustained the first amended petition under section 300, subdivision (a) (on the grounds that Jesus admitted he shook A.; mother gave false and misleading information about the child’s injuries, including admitting to shaking the child and then recanting; and that there had been violent altercations between the parents in Diego’s presence); subdivision (b) (on the grounds that appellant had failed to protect Diego from physical abuse by Jesus; the violent altercations endangered the children; Jesus had a history of alcohol abuse; and Diego’s father failed to provide for him); subdivision (e) (on the ground that the sustained abuse qualified as severe physical abuse of a child under the age of five); subdivision (g) (on the ground that Diego’s father’s whereabouts were unknown); and subdivision (i) (on the ground that the sustained abuse qualified as acts of cruelty).
The court found by clear and convincing evidence that there was a substantial danger to the physical health of the children and there was no reasonable way to protect them except by removing them from the parents’ care. The court did not provide the parents reunification services pursuant to section 361.5, subdivision (b)(6), because there had been severe physical injury. The court set the matter for a hearing under section 366.26.
5. The Section 366.26 Hearing
The permanency planning hearing under section 366.26 took place on two dates: January 12, 2007, and March 26, 2007. On January 12, 2007, DCFS reported that Diego thrived in the home of his maternal uncle and aunt. He referred to them as his mother, father, and brothers. He felt loved and said that it was good not being hit. If he could not return to mother, he wanted to stay with his Uncle Carlos, Aunt Erika and their sons and he was glad they wanted to adopt him. He was aware that mother was in prison and indicated he would like to visit her there however such a visit was never effectuated. Erika said she loved Diego like he was her own child, and Diego had already become a part of this new family.
Diego was also doing well in school. His teacher commented that he was a good, focused and attentive student who read at grade level and listened attentively to understand math concepts.
A. had visited the home of Carlos and Erika weekly, and was thereafter placed in their home. She had adjusted very well to this new placement.
The court stated that the plan was for adoption for both children. Mother’s attorney informed the court that she was opposed to adoption. After indicating its understanding of mother’s position, the court set a contested hearing.
On March 26, 2007, DCFS reported that maternal aunt and uncle had an approved home-study for both children. While Diego stated that he missed mother, he did not want to see Jesus. Diego had not seen mother, who was incarcerated until February 9, 2007. Diego’s caregiver reported that mother had information which would enable her to contact them but that mother had not done so. Carlos and Erika were eager to provide a stable home for Diego; they felt Diego was already a part of their family. The cousins called Diego “brother.” Diego said he was happy and wanted to stay with Carlos and Erika.
The court indicated that it had read and considered DCFS’s report which recommended termination of parental rights. Through her counsel, mother informed the court that she opposed termination of her parental rights over Diego and that she had participated in programs during the time she was incarcerated. She offered certificates as proof of her participation in domestic violence, child abuse, and intervention programs. The juvenile court declined to see them, stating that those were not issues before it.
Mother’s counsel then asked the court to continue the section 366.26 hearing so that mother could contest the termination pursuant to section 366.26, subdivision (c)(1)(A). Under questioning from the court, mother’s counsel admitted that mother had not been able to visit Diego recently, but indicated that mother believed that she was not allowed to visit him. The court responded to mother’s request that she be allowed to visit Diego by stating, “[M]other was always allowed to visit Diego.” The court further explained, “[The] basis [of section 366.26, subdivision (c)(1)(A)] is that mother had sufficient contact to have a parental role in this child’s life and that has not happened.” The court found that mother’s counsel had not presented any information which suggested that a contested hearing on the section 366.26, subdivision (c)(1)(A) exception was necessary. It therefore terminated mother’s parental rights over Diego, ordered the matter into adoptions, and continued A.’s selection and implementation hearing. Mother continued to have the opportunity for reasonable, monitored visits with Diego.
Mother filed this appeal on March 29, 2007.
DISCUSSION
I. The Juvenile Court Did Not Err in Refusing to Continue the Section 366.26 Hearing for a Contest Under Section 366.26, Subdivision (c)(1)(A)
Mother argues that she was deprived of a “meaningful opportunity to cross-examine and controvert the content of the reports” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816 (Jeanette V.) because the trial court failed to grant her request for a contested hearing on the exception to termination of parental rights found in section 366.26, subdivision (c)(1)(A).
However, the record shows that mother was not denied a contested hearing on termination of her parental rights. On January 12, 2007, mother’s counsel told the court that mother was “opposed to the adoption.” Mother’s counsel explained, “She anticipates she will be getting out of custody. She has been participating in a variety of programs at her site of incarceration.” After suggesting that counsel file a petition alleging a change of circumstances under section 388, the court “set it for . . . a contested hearing on any issues” including the section 388 petition that the court anticipated mother would file.
Mother was given notice of the March 26, 2007 hearing and had ample opportunity to prepare to meet her burden under any of the exceptions to termination of parental rights under section 366.26, subdivision (c)(1)(A) – (D). However, at the March 26, 2007 hearing, mother’s counsel asked for a new hearing date for a contest on the question of whether the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A) applied. Under that exception, the court may decide not to terminate parental rights if termination would be detrimental to the child because the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).)
The court stated its position that mother had not had sufficient contact with the child to satisfy the requirements of the exception. In response, mother’s counsel alluded to a time period prior to the time that the child was removed from her custody. The court found that this was insufficient justification to provide mother with a continuance.
Under the circumstances, the court’s denial of mother’s request for more time was not a denial of due process. In Jeanette V., the Court of Appeal held that it is not error for a juvenile court to request an offer of proof prior to granting a parent’s request for a contested hearing pursuant to section 366.26, subdivision (c)(1)(A). That is what the juvenile court did here. At that point, mother’s due process right to present evidence was “limited to relevant evidence of significant probative value to the issue before the court.” (Jeanette V., supra, 68 Cal.App.4th at p. 817.)
The juvenile court did not err in concluding that mother’s offer of proof was insufficient to justify granting her additional time. Under section 366.26, subdivision (c)(1)(A), mother was required to show that termination would be detrimental to Diego because (1) she had maintained regular visitation and contact with the child, and (2) the child would benefit from continuing the relationship. In support of her request for a continued hearing to address this exception, mother’s counsel admitted that mother had not seen Diego since she was incarcerated. However, mother contended that her evidence would show that such regular visitation and contact occurred “prior to the child being removed from her custody, which was the majority of his life.”
Even assuming that this would be sufficient to show the first requirement of section 366.26, subdivision (c)(1)(A), we find that her offer of proof was insufficient because it failed to address a critical element of the exception: detriment to the child. Overwhelming evidence suggested that the termination of mother’s rights would not be detrimental to Diego. At this stage of the proceedings, the scale has tipped “away from the parent’s interest in maintaining family ties and towards the child’s interest in permanence and stability. [Citation.]” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344.) DCFS had presented substantial evidence that Diego’s interest in permanence and stability was more than adequately fulfilled in his present circumstances. He was happy living with maternal relatives, Erika and Carlos, whom he already called “mother” and “father.” He was part of the family and his cousins had already accepted him as a brother. The family also plans to adopt A.
In contrast, during much of the five-year period that he lived with mother, Diego was physically abused by Jesus. According to the court’s evaluator, mother maintained contact with Jesus and never fully understood her part in perpetuating the abuse.
Finally, Diego is being adopted by mother’s brother. Mother still has monitored visits with the child and the court ordered the parties to look into a post-adoption contract regarding visits. Therefore, even after the adoption, mother will probably continue to have contact with Diego and he will continue to receive whatever benefit may come from the maintenance of that relationship. Evidence that contact with a parent will continue can support a finding that severing parental rights will not be detrimental to the minor. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1801.)
In sum, mother failed to present a sufficient offer of proof regarding the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A). The juvenile court was not required to continue the hearing to allow her to present further evidence on the subject.
Mother makes much of the court’s statement, “I think it was a couple of times we removed the child.” Mother insists that this lack of information concerning the totality of the circumstances limited the court’s ability to ascertain the detriment to Diego from the termination of the parental relationship. However, mother had the opportunity to correct the court’s mistake, and in fact did so by immediately informing the court that Diego lived with her for five years. The hearing was mother’s opportunity to present to the court her argument regarding the detriment to Diego, and mother failed to carry her burden of proof. (In re Thomas R. (2006) 145 Cal.App.4th 726, 732 [parent carries burden of proof on exceptions to termination].)
II. The Cases Mother Cites Are Distinguishable
The cases mother cites do not persuade us that the trial court erred. Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751 (Ingrid E.), and In re James Q. (2000) 81 Cal.App.4th 255 (James Q.), are distinguishable because they both arose at a different juncture in the dependency proceedings. In Ingrid E., the mother requested a contested hearing on the issue of whether the minors in question should be returned to her custody prior to the time of the section 366.26 hearing. (Ingrid E., supra, 75 Cal.App.4th at p. 753.) At that point, it was the burden of the Sacramento County Department of Health and Human Services to show that returning the minors to parental custody would be detrimental. Thus, “even if petitioner had little or no evidence to proffer on her own behalf,” she had a right to “cross-examine those witnesses . . . on whose reports DHHS had based its recommendations.” (Id. at p. 759.) The court concluded that under those circumstances, the juvenile court was compelled to conduct a full hearing at the mother’s request. (Id. at p. 760.)
Likewise, James Q. involved a mother’s request to formally challenge the propriety of ending her reunification services. (James Q., supra, 81 Cal.App.4th at p. 259.) The hearing at issue was to be conducted under section 366.21, which governs review hearings. The juvenile court had required the mother to present an offer of proof before setting the contested hearing. The appellate court determined that the requirement of an offer of proof was inappropriate at that juncture, given that section 366.21, subdivision (e) “confers on a parent the right to a hearing at which the parent has the right to make his or her case.” (Id. at p. 265.) The James Q. court specifically distinguished Jeanette V., supra, 68 Cal.App.4th 811, which held that the trial court may properly request an offer of proof on a parent’s claim under the exception to termination of parental rights found in section 366.26, subdivision (c)(1)(A), on the grounds that Jeanette V. involved a hearing following the expiration of the reunification period. (James Q., supra, 81 Cal.App.4th at p. 267.)
Finally, mother cites In re Kelly D. (2000) 82 Cal.App.4th 433. Kelly D. also involved a different procedural stage and a different statute. In Kelly D., the children had been given a permanent plan of long-term foster care. While the record did not contain any visitation order, father had been attending supervised visits with the children once per week. At a status review hearing, the social worker recommended a reduction in visitation to once per month. The juvenile court denied father’s request for a contested hearing pursuant to section 366.3 on the grounds that visitation was discretionary on the part of the Siskiyou County Human Services Department. (Id. at pp. 435-436.) Relying on the express language of section 366.3, the Court of Appeal reversed. It noted that section 366.3 “expressly entitles the parents of a minor in long-term foster care to notice of and participation in the six-month status review hearing.” And, “to ‘participate’ in the hearing connotes involvement as a party to the proceeding,” including “the reasonable expectation that parents could challenge departmental proposals and proposed court modifications.” (Id. at p. 438.)
In sum, none of the cases mother relies upon provides support for her argument that she had a right to a second continuance of the section 366.26 hearing to present evidence regarding one of the “four narrow exceptions” to termination of parental rights listed in section 366.26, subdivision (c)(1)(A)-(D). (Jeanette V., supra, 68 Cal.App.4th at p. 816.) Having found that Diego was adoptable, the court was authorized to terminate parental rights unless it found that one of these narrow exceptions applied. Mother’s right to present evidence was “limited to relevant evidence of significant probative value to the issue before the court.” (Id. at p. 817.) The juvenile court properly found that mother’s reference to her contact with Diego prior to the time that he was removed from custody, and her reference to the completion of programs while incarcerated, were insufficient to justify a hearing on the exception to termination of parental rights found in section 366.26, subdivision (c)(1)(A).
DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur:
BOREN, P. J., J. DOI TODD