Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK64115, Stephen Marpet, Juvenile Court Referee.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Karla C. (Mother) appeals from an order terminating her parental rights over her son, Justin C. We reverse with directions to provide Mother with a contested hearing.
FACTUAL AND PROCEDURAL BACKGROUND
On May 23, 2006, Mother left Justin, who was then two years old, with his maternal great aunt, Dora C. When Mother did not return for him after a month, Dora notified the Department of Children and Family Services (DCFS). Dora and the maternal great grandmother told DCFS that Mother was homeless and used drugs and alcohol. Dora said that she was willing to care for Justin. A children’s social worker (CSW) who visited the family observed that Justin appeared happy and healthy; he was well cared for and bonded to Dora and other maternal relatives with whom he lived.
DCFS filed a petition under Welfare and Institutions Code section 300, subdivisions (b) and (g), alleging Mother was unable to protect and care for Justin due to her drug and alcohol abuse; and Mother left Justin with Dora with no provision for his care and without telling anyone of her whereabouts or whether she planned to return and resume caring for him. On June 27, 2006, the juvenile court found a prima facie case for detention and ordered Justin detained in Dora’s home. It ordered reunification services and visitation for Mother if she contacted DCFS.
All further section references are to the Welfare and Institutions Code.
Justin’s father was unknown.
In the jurisdiction/disposition report, DCFS reported that Mother had not been in contact with her family. Dora and the maternal great grandmother believed that Mother was living on the streets somewhere in Los Angeles. Justin was doing well in Dora’s home and did not appear to be overly upset by Mother’s absence.
The hearing was continued several times to allow DCFS to conduct a due diligence search for Mother. On October 20, 2006, DCFS filed a declaration of due diligence, documenting its attempts to locate Mother. At the hearing on the same date, the court found notice had been given as required by law. It sustained the petition and declared Justin a dependent child of the court. It further noted that Mother’s whereabouts were unknown. It ordered that no reunification services be provided to Mother, but if she contacted DCFS before the next hearing, DCFS was to provide her with reunification services including drug counseling and testing, individual counseling and parenting. The court set a section 366.21 six-month review hearing for December 21.
DCFS reported for the hearing that Mother had not made contact in the review period. Justin was doing well, and Dora was willing to adopt him, although she would prefer that Mother reunify with him. The juvenile court terminated Mother’s reunification services and ordered DCFS to look into Dora’s adoption of Justin. It set a section 366.26 permanent plan hearing for April 20, 2007.
Mother appeared at the April 20, 2007 hearing, and the court appointed counsel for her. The court indicated that it was inclined to go forward with termination of parental rights. Mother’s counsel stated, “Actually, I would like to set it for contest if that is the recommendation.” Counsel for DCFS stated that DCFS was not recommending termination as of yet, because Dora’s home study was still pending. The court responded, “So, over the Department’s recommendation, the court is going to go forward and terminate parental rights.”
Mother’s counsel again requested that the hearing be set for contest, “or at least let my client testify on the stand under oath as to what has been going on with her and with the social workers, her effort to visit, her effort to contact[] the social worker, the social worker’s lack of effort on providing the mother with services, her being told well over six months ago that she couldn’t visit or call” Dora. Counsel added, “There is just a lot of evidence I need to make a record for the court if the court is willing to go forward with trying to terminate my client’s rights. I interviewed her shortly today. It was my first day on the case. I don’t want to be ineffective by not giving her good representation and making a good enough record so if the court does terminate her parental rights, she has a good enough record for appeal.”
The court asked Mother whether she had tried to contact the social worker since the section 300 petition was filed. Mother explained that she had tried to, but she could not leave a message for the social worker because she had no telephone on which the social worker could call her back. In response to the court’s questions, Mother said that she did not know about the previous court hearings. She knew Justin had been detained, “[b]ut my aunt told me she had a restraining order on me, that I couldn’t get close to [Justin] or call or anything, and then the social worker told me earlier that I couldn’t get close because it was a court order for me not to get close to him.”
Mother then stated that the social worker had told her “[a]fter New Year’s, the 9th of January,” that she could not get close to or call Justin. She added that she had seen Justin on New Year’s Eve, at the home of another aunt. At the January 9 meeting, the social worker served Mother with a document indicating she was to appear in court on April 20.
The court asked whether she asked the social worker about visitation. Mother explained, “I asked her if I could get visiting or something, for me to talk to him or see him or anything, and she said she was going to talk to her supervisor, to call her in two days. I called her on Monday, the follow[ing] week, and she told me I couldn’t get close because there was a court order for me not to get close to him.” Mother emphasized that she wanted to visit Justin but was told she could not because there was a court order preventing her from doing so.
The court ruled that it was going to deny counsel’s request for a contested hearing. The court stated that “I think we have sufficient testimony and statement from Mother—even though it was not under oath, I’ll assume that they are under oath, and she is telling the truth—that it does not come and rise to the level of a [section 366.26, subdivision] (c)(1)[(B)(i)] exception to warrant a hearing. [¶] And she has had one contact with this child since the inception of this dependency case in June, and she was served in January and, since then, has had no contact with her child.”
Mother’s counsel argued that Mother was trying to qualify for the section 366.26, subdivision (c)(1)(B)(i), exception to termination of parental rights, but she was thwarted by DCFS’s failure to provide her with visitation. The court noted that reunification services had been terminated in December because Mother failed to contact DCFS. It stated that “the fact that Mother tried doesn’t even come close to the efforts needed to have the (c)(1)(B)(i) exception. Even to be involved, she just has, unfortunately, not had any contact with this child.” That Mother may have been misled about her ability to visit Justin or had made reasonable efforts to obtain visitation after January 9, 2007, the court noted, did not matter at this point in time. Justin deserved permanency. The court terminated Mother’s parental rights and freed Justin for adoption.
DISCUSSION
A. Visitation and the Parental Relationship Exception to Termination of Parental Rights
Section 366.26 provides for the termination of parental rights or the establishment of a guardianship or other permanent plan for dependent children of the juvenile court who have not been reunified with their parents within the statutory time period. In determining which of these alternatives to choose, the court must adhere to the procedures set forth in subdivision (c). (§ 366.26, subds. (b), (c).)
Subdivision (c)(1) of section 366.26 provides in pertinent part that “[i]f the court determines, . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
Through section 366.26, the Legislature has expressed a preference for adoption as a permanent plan if it is likely the minor will be adopted. (In re Jason E. (1997) 53 Cal.App.4th 1540, 1548.) It has provided certain exceptions to this preferred permanent plan, however. Among them is the exception noted above, where the parent has maintained regular visitation and contact with the child, and the child will benefit from continuing the relationship. (Ibid.)
There is always “some incidental benefit” to a child from the “existence of interaction between natural parent and child.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) For the exception to apply, the benefit to the child from maintaining the relationship must “‘“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.” [Citation.]’ (In re Beatrice M., supra, . . . at p. 1418.)” (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155.)
The “[c]ourts have long recognized that, in the context of dependency proceedings, a lack of visitation may ‘virtually assure[] the erosion (and termination) of any meaningful relationship’ between mother and child. [Citation.] Even after family reunification services are terminated, visitation must continue unless the court finds it would be detrimental to the child. (§ 366.21, subd. (h).)
“The Supreme Court has held the statutory procedures used for termination of parental rights satisfy due process requirements only because of the demanding requirements and multiple safeguards built into the dependency scheme at the early stages of the process. [Citations.] If a parent is denied those safeguards through no fault of her own, her due process rights are compromised. Meaningful visitation is pivotal to the parent-child relationship, even after reunification services are terminated. [Citation.] Under section 366.26, subdivision (c)(1)[(B)(i)], the Legislature has provided a means by which even a parent to whose custody a child cannot currently be returned has a final chance to avoid termination of parental rights if she can show she has maintained regular contact and visitation with her child, and the child would benefit from continuing the relationship. Obviously, the only way a parent has any hope of satisfying this statutory exception is if she maintains regular contact with her child.” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505.)
B. Right to a Contested Hearing
In light of the importance of the rights and interests at stake at the permanent plan hearing, a parent is entitled to a contested hearing. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1386; In re Johnny M. (1991) 229 Cal.App.3d 181, 191.) The denial of a contested hearing requires reversal of the order terminating parental rights unless “remand for a contested hearing would constitute an idle act and the juvenile court’s error must be seen as harmless beyond a reasonable doubt.” (Andrea L., supra, at p. 1387.)
Mother’s claim below was that having her right to visitation thwarted precluded her from establishing the subdivision (c)(1)(B)(i) exception to termination of parental rights under section 366.26, resulting in a denial of her due process rights. (In re Hunter S., supra, 142 Cal.App.4th at pp. 1504-1505.) As discussed above, Mother had the right to visitation, even after the termination of reunification services. (§ 366.21, subd. (h); In re Hunter S., supra, at p. 1504.)
The juvenile court simply found that Mother had not established the section 366.26, subdivision (c)(1)(B)(i), exception to termination of parental rights. It was not Mother’s claim that she could establish the exception, however. It was her claim that she had been prevented from establishing the exception because she had been prevented from visiting with Justin. “The juvenile court applied the incorrect test. It focused on the absence of contact or current bond between [Mother] and her son. But, it was unfair to apply this standard when [Mother’s claim was that she] had been denied any chance to satisfy the contact requirement.” (In re Hunter S., supra, 142 Cal.App.4th at p. 1507.) She should have been given a contested hearing at which she could prove her claim and the juvenile court could, if necessary, remedy any denial of her visitation rights to give her the opportunity to establish the section 366.26, subdivision (c)(1)(B)(i), exception prior to terminating her parental rights.
DISPOSITION
The order terminating parental rights is reversed. The trial court is directed to hold a contested hearing to address Mother’s claim that she was denied her right to visitation with Justin.
We concur: MALLANO, Acting P. J., VOGEL, J.