Opinion
A152643
05-29-2018
In re DAMIEN M., A Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TONYA C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD153144)
In this dependency appeal, Tonya C. (mother) seeks relief from the juvenile court order terminating her parental rights with respect to her son Damien M. (born October 2006) at a permanency planning hearing held pursuant to section 366.26 of the Welfare and Institutions Code. Appellant contends that termination of her parental rights was improper under the "beneficial relationship" exception to adoption. In addition, she argues that her due process rights were violated when she failed to receive visitation with the minor for six months prior to the permanency planning hearing and that the juvenile court failed to properly consider Damien's wishes before terminating her parental rights. Seeing no error requiring reversal of the juvenile court's termination order, we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. BACKGROUND
Given the narrow scope of this appeal and the fact that Damien's father (father) has not challenged the termination of his parental rights, we focus our factual summary on matters relevant to the strength and quality of mother's relationship with Damien.
On May 6, 2015, the San Francisco Human Services Agency (Agency) detained eight-year-old Damien M. after receiving a referral which raised concerns about the minor's safety due to his parents' ongoing substance abuse. Specifically, it was reported that: both parents were poly-substance users; mother used black tar heroin and methamphetamines; mother injected heroin in front of Damien; the parents cooked heroin in Damien's room; there was "heavy traffic" in the residence because the parents used and sold drugs; used needles and drugs were lying about the home, easily accessible to the minor; Damien had not attended school for three months, but was instead left to care for his one-year-old nephew all day; the only food in the residence was junk food and soda; the parents fought in front of the minor; and father bragged about having guns in the home. When police and Agency personnel responded to the residence, an unidentified male told Damien not to speak to anyone without his mother. Nevertheless, Damien reported to an Agency social worker that his life had been " 'rough' " because they had moved five times and his parents repeatedly broke up and got back together; they were currently in the process of moving again; his mother would buy food for him at the corner store if he was hungry; he had stayed in a room all weekend taking care of his nephew; and a lot of his father's "friends" came and went from the residence. Damien confirmed that he had not been in school for three months, but denied that there were drugs in the home. He stated that he felt safe with both parents. Police searched the almost empty residence, finding no drugs or drug paraphernalia.
Father was eventually incarcerated in state prison on charges relating to firearm possession and possession of a controlled substance.
As for mother, she was arrested that evening on an outstanding warrant after responding officers learned she had initially lied to them about her name. Photographs received by the Agency, which showed mother actively heating and injecting heroin, were attached to the Agency's detention report. Despite the fact that he had been living with mother for 14 years, when father was shown these pictures, he stated he was "shocked and had no idea [mother] was doing this in the home." On May 8, 2015, the Agency filed a dependency petition in this matter pursuant to subdivision (b) of section 300, alleging, among other things, that mother was unable to care for Damien due to her issues with substance abuse. Damien was formally detained with his paternal aunt on May 11, 2015.
In advance of the jurisdictional and dispositional hearing in this matter, the Agency filed a report which stated that mother generally refused to speak with the Agency social worker regarding the petition allegations. However, mother did confirm that she had been convicted of felony commercial burglary in May 2014 and that the pictures attached to the detention report were of her using drugs. The report further noted that Damien had missed approximately 100 out of the 180 days of instruction in the third grade and would need to repeat grade three in the fall. According to the paternal aunt, Damien was adjusting well to his placement with her. Damien stated that he was comfortable in the home and enjoyed spending time with his cousins.
Initially, no visitation had been arranged for mother, pending her release from custody. However, at a settlement conference on June 11, 2015, the juvenile court ordered weekly visitation for mother if possible while she remained incarcerated. She was ordered to have "standing order supervised visits" after her release. Mother was subsequently released on June 28, 2015, and began visiting the minor under the supervision of paternal relatives. She indicated a willingness to comply with reunification requirements recommended by the Agency.
Unfortunately, the parents failed to appear for a second settlement conference, their whereabouts became unknown to the Agency, and they were not participating in services. The parents were, however, "sporadically" visiting the minor under the supervision of the paternal grandmother. At the continued jurisdictional and dispositional hearing on September 2, 2015, both parents submitted on an amended petition—stating that Damien was at risk due to their untreated substance abuse—and the court found Damien to be a child described by subdivision (b) of section 300. The court then declared dependency, formally removed Damien from the physical custody of both parents, and ordered reunification services. Specifically, mother was ordered to complete a substance abuse assessment and follow its recommendations for treatment in either an outpatient or residential treatment program; participate in individual therapy; complete a parenting education program; comply with the terms of her probation; disclose her whereabouts to, and cooperate with, the social worker; and refrain from substance abuse. Mother was also ordered to engage regularly in supervised visitation with the minor, with the structure of visits permitted to be less restrictive if mother continued to drug test.
Mother made little progress during the first six months of services. Although she completed a substance abuse assessment, her self-reporting was questionable leading to dubious results. When mother was present at her twice weekly supervised visits with the minor, she was "very appropriate." However, staff at the visitation center expressed concern regarding mother cancelling visits, arriving excessively late, and leaving for excessive periods during visits with questionable explanations. Moreover, when visitation transitioned from one center to another, a number of visits were cancelled due to mother's unresponsiveness and failure to meet with staff and complete necessary paperwork. The social worker opined that mother's "struggles with inconsistency" were likely due to her unaddressed substance abuse issues. As for Damien, his school reported that he was "extremely bright" and doing "tremendously better" since being placed with the paternal aunt. Damien was meeting with a therapist regularly for additional support and was described as having a "positive outlook." He was reported to have a "strong relationship" with his parents and an equally positive bond with his current caretaker and her family.
Although the parents willfully failed to appear at the six-month review hearing and minor's counsel filed a section 388 petition seeking to terminate reunification services early given the parents' lack of compliance, the trial court eventually denied the petition on March 14, 2016, and ordered services continued to the 12-month hearing. Orders for reasonable supervised visitation continued. Mother's reunification plan was modified to require completion of a residential treatment program.
The Agency report for the 12-month review indicated that mother had entered residential treatment on April 13, 2016, pursuant to an order of the criminal court and was required to remain until October 2016 in lieu of serving time in jail. Initially in the reporting period, it was noted that the parents were consistently late to their twice weekly visits with the minor, causing Damien to be anxious and upset. Mother then did not visit from March 16, 2016, until May 2016, when she was located in residential treatment. Thereafter, she and Damien were scheduled for twice weekly supervised visits. Damien reportedly loved visiting his mother and wanted to see her more. He remained in weekly therapy, was bonded with his paternal aunt and cousins, and was integrated into the family. The paternal aunt was willing to provide permanence for Damien if necessary. At the 12-month review hearing on July 5, 2016, father's reunification services were terminated, but mother's were continued to the 18-month mark given her participation in residential treatment.
In its 18-month review report, the Agency initially recommended continuing mother's services to 24 months, as she would just be completing residential treatment and the Agency needed some time to assess her engagement in services outside of the program. Mother was continuing to make progress in treatment, and there were no reported concerns with respect to mother's twice weekly monitored visitation with Damien. The minor was still doing well in school and was playing baseball and football. He remained in therapy, as he continued to exhibit signs of anxiety and depression. Damien had a strong connection to his aunt and her family, but also reported wanting to spend more time with his mother and to live with her. According to the Agency, mother and Damien were bonded. However, the matter was continued and, ultimately, the Agency changed its recommendation to termination of reunification services. After graduating from residential treatment, mother failed to follow up with any agreed-upon aftercare, including drug testing and confirmation of attendance at Narcotics Anonymous meetings. She did continue to visit with Damien on Saturdays, which was reported to strengthen their relationship and bond. At the continued hearing on March 8, 2017, mother's reunification services were terminated, and the juvenile court set a permanency planning hearing for Damien. Visitation between mother and Damien was to be supervised by the paternal grandmother and as previously ordered.
However, after the March 8 hearing, the paternal grandmother declined to continue supervising visitation between the minor and mother. Moreover, although the Agency had thereafter arranged for visitation through the YMCA, the paternal aunt no longer wanted Damien to visit with mother and, instead, orchestrated a goodbye visit between the two on March 11, 2017. According to the social worker, the paternal aunt stated that, if continued visitation was mandated, her home would no longer be a suitable placement for the minor. She indicated that she was seeking to adopt the minor so that she could give him a good life, break the cycle of substance abuse, and make sure Damien became a functioning member of society. Damien stated that, although he was sad to no longer see his parents, he would rather live with his aunt than have visitation with his parents. He reported being very close to the paternal grandmother, who also lived in the aunt's home. In addition, Damien was thriving academically and was at the top of his class. He participated in sports and after-school science and had recently received a merit award. The paternal uncle coached his little league teams and was reported to have a strong relationship with the minor. Opining that the paternal aunt was providing Damien with a loving and safe home, the Agency recommended termination of parental rights and adoption by the paternal aunt.
While the permanency planning hearing was pending, the juvenile court ordered the Agency to make sure that visitation between mother and Damien happened at a hearing on June 27, 2017. At the continued hearing on August 8, 2017, visitation between the minor and his mother had reportedly still not occurred. According to the Agency, it had attempted to follow the visitation order—reaching out to mother several times in an attempt to set up visits—but mother had not responded. Moreover, although the paternal aunt had previously "not been excited" about visitation, she was reportedly now willing to work on visitation with mother and was even willing to consider a post-adoption visitation plan. The court ordered visitation to be "in place ASAP" and set the matter for a contested hearing on September 27, 2017.
In fact, in decrying the lack of visitation, the juvenile court stated: "[T]his smacks of some of the ongoing challenges the [Agency] has had with assigning workers and enabling parties to know who was in charge of a case. And this is not okay. Consider yourselves admonished."
No evidence was presented at the contested hearing, although mother's attorney made a statement on her behalf. Reportedly, mother acknowledged failing to follow up with her substance abuse treatment, but was now in a more stable place in a methadone maintenance program and wanted to have contact with her son. She understood that the paternal aunt might have concerns about her stability and sobriety and was willing to provide evidence regarding her participation in aftercare. Although a visit had been set up recently, mother was out of town and did not get the message and so the visit did not occur. Mother requested that the court consider her beneficial relationship with Damien and order guardianship rather than adoption. Damien did not wish to be present in court, but was reported to be in agreement with the recommendation of adoption. His attorney stated that he had been "terribly disappointed" that the recent visit did not occur and suggested mother send a letter to the minor through the paternal aunt explaining what had happened. Both minor's counsel and the aunt agreed that Damien should know his parents "as long as they present a healthy relationship for him." Minor's counsel then argued that Damien should have the permanency and stability of adoption and stated that the minor recognized this.
After argument, the juvenile court found no evidence of a beneficial relationship with mother that would outweigh the permanency the paternal aunt could provide for Damien. It therefore terminated parental rights and designated the paternal aunt and uncle as prospective adoptive parents. Mother's timely notice of appeal now brings the matter before this court.
II. DISCUSSION
A. Wishes of the Child
Pursuant to subdivision (h)(1) of section 366.26, at all permanency planning hearings "the court shall consider the wishes of the child and shall act in the best interests of the child." For purposes of this statute, evidence of the child's wishes need not be in the form of direct testimony, but may be found in court reports prepared for the hearing. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820 (Amanda D.); see also §§ 366.21, subd. (i)(1)(E), 366.22, subd. (c)(1)(E) [requiring permanency planning report to include "a statement from the child concerning placement and the adoption" unless the child is unable to give a "meaningful response"].) Additionally, evidence of a dependent minor's wishes can often be ascertained from minor's counsel. (§ 317, subd. (e)(2) [for children four and older, mandating that minor's counsel "interview the child to determine the child's wishes and assess the child's well-being" and "advise the court of the child's wishes"]; see In re Jesse B. (1992) 8 Cal.App.4th 845, 853 [holding that, absent contrary evidence, a minor's wish to be adopted could be inferred from his attorney's argument supporting termination of parental rights, since counsel was statutorily obligated to interview and ascertain the wishes of his minor client].) Here, mother contends that the juvenile court's order terminating her parental rights is fatally flawed because both the Agency and the court failed to adequately explore what the minor "really wanted and what he understood about adoption and termination of parental rights."
There is some disagreement among appellate courts as to whether evidence of a child's wishes in the context of permanency planning must reflect his or her awareness that termination of parental rights is at issue. Our First District has previously interpreted the mandate contained in subdivision (h)(1) as requiring that the juvenile court "receive direct evidence of the children's wishes regarding termination and adoption" and that the children be "aware that the proceeding involves the termination of parental rights." (In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.) Numerous subsequent decisions, however, have rejected this strict reading of the statute. (See, e.g., In re Julian L. (1998) 67 Cal.App.4th 204, 208-209 [Second District]; Amanda D., supra, 55 Cal.App.4th at p. 820 [Fourth District]; In re Leo M. (1993) 19 Cal.App.4th 1583, 1591-1593 (Leo M.) [Fifth District].) Under these later precedents, all that is required is that the juvenile court strive, where possible, "to explore the minor's feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements . . . so that the court will have before it some evidence of the minor's feelings from which it can then infer his/her wishes regarding the issue confronting the court." (Leo M., supra, 19 Cal.App.4th at p. 1592; see also Amanda D., supra, 55 Cal.App.4th at p. 820.)
While we find Leo M. and its progeny persuasive, we need not resolve this continuing conflict because there is abundant direct evidence in this case that Damien supported termination of parental rights and adoption. In the social worker's permanency planning report, it states that Damien is "sad that he no longer is able to see his parents but that he is happy to be getting a 'fresh start' in his Paternal Aunt's home." Further, although the paternal aunt had specified that her home would "no longer be a suitable placement for the minor" if continuing contact with his parents was required, Damien indicated that he would "prefer to continue living with his paternal aunt and no longer have visitation with his parents." Damien also told the social worker that he is "very close" to his paternal grandmother—who lives in the aunt's home—and that "he is able to talk to her about his feelings." Next, Damien's attorney stated twice that the minor was in favor of termination of parental rights. At the beginning of the permanency planning hearing, minor's counsel indicated that Damien did not want to be present, but that she was in agreement with the recommendation to terminate parental rights, "as [was] Damien." Later, Damien's attorney elaborated on the minor's position, stating: "I think [Damien] needs the permanency and stability of adoption, and he recognizes that. He's a really smart boy, and he would state that." (Italics added.) Finally, the juvenile court, itself, was clear that it understood and had considered Damien's wishes, opining with respect to Damien: "He is smart. He is capable. He understands the situation . . . [¶] And while he wants to know his biological parents, he also wants a fresh start. . . . [¶] . . . [¶] I cannot deny him the right to have the best life possible. And he's only ten years old. And he deserves to have the amazing prospective adoptive parents that are sitting here in court today." (Italics added.) We see no error on this record.
B. Beneficial Relationship Exception
Mother next contends that—rather than terminating her parental rights—the juvenile court should have applied the "beneficial relationship" exception to block Damien's adoption. At a permanency planning hearing, the juvenile court is charged with determining the most appropriate permanent plan of out-of-home care for a dependent child that has been unable to reunify. (In re Casey D. (1999) 70 Cal.App.4th 38, 50 (Casey D.).) As the most permanent of the available options, adoption is the plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Thus, if a court finds that a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds a "compelling reason for determining that termination would be detrimental to the child" due to one or more of the " 'exceptional circumstances' " specified by statute. (§ 366.26, subd. (c)(1)(B); In re A.A. (2008) 167 Cal.App.4th 1292, 1320.)
A single statutory exception is implicated in the present case—where termination of parental rights 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)(B)(i).) The parent bears the burden of proof on both of these prongs: (1) that visitation was consistent and regular; and (2) that the child would benefit from continuing the relationship. (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81 (Helen W.).) In Autumn H., supra, 27 Cal.App.4th 567, the court articulated a test for determining whether a child would benefit from continuing a parental relationship. To succeed under this test, the parent must establish that "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 evaluating this issue, the court must balance "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." (Id. at p. 575.) The beneficial relationship exception must be examined on a case-by-case basis, taking into account the many variables which affect the parent/child bond. Some of the factors to be considered include: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between parent and child, and (4) the child's particular needs. (Id. at pp. 575-576; see also In re Angel B. (2002) 97 Cal.App.4th 454, 467; see also In re Grace P. (2017) 8 Cal.App.5th 605, 613 ["The application of the beneficial parent relationship exception requires a robust individualized inquiry given that '[p]arent-child relationships do not necessarily conform to a particular pattern,' and no single factor . . . is dispositive"].)
Moreover, for purposes of the beneficial relationship exception, even "frequent and loving contact" may be insufficient to establish the type of beneficial relationship "contemplated by the statute." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 (Beatrice M.).) "Interaction between natural parent and child will always confer some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The basis of a beneficial relationship, however, is that the parents have "occupied a parental role." (Beatrice M., supra, 29 Cal.App.4th at p. 1419.) " 'While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.' " (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)
Here, prior to terminating mother's parental rights, the juvenile court found: "[T]here is no evidence of a beneficial parental relationship at this time. And there's nothing that outweighs the permanency and quality of parenting that the aunt and uncle have to offer [Damien] as caregivers. As parents." Given the above-described analytical framework, we cannot say that the juvenile court erred by refusing to find a beneficial relationship in this case. Specifically, we conclude that, on these facts, mother has not met her burden of proving that Damien would benefit enough from continuing a relationship with her to justify foregoing the permanency offered by adoption.
Case law is divided as to the correct standard of review for an order determining the applicability of a statutory exception to termination of parental rights. (See, e.g., In re G.B. (2014) 227 Cal.App.4th 1147, 1166 [applying the substantial evidence standard]; In re K.P. (2012) 203 Cal.App.4th 614, 621-622 [applying substantial evidence standard to whether the beneficial parent-child relationship exists; applying abuse of discretion standard to whether that relationship provides a compelling reason to apply the exception]; Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying the abuse of discretion standard].) However, the "practical differences" among these standards of review are not significant (see Jasmine D., supra, 78 Cal.App.4th at p. 1351), and, on this record, our conclusion would be the same under any of these standards.
Mother argues on appeal that she maintained regular visitation and contact with Damien, the first prong of the beneficial relationship analysis. (See Helen W., supra, 150 Cal.App.4th at pp. 80-81.) However, because we conclude that mother failed to establish the second prong of the exception—that Damien would benefit from continuing the relationship—we need not reach this issue.
It is true that Damien was eight years old when he was removed from mother's care and thus had spent a significant amount of time in a parent-child relationship with her. As the juvenile court observed: "[Damien] knows who his biological parents are." Moreover, we acknowledge there is evidence, highlighted by mother on appeal, that mother and Damien shared a significant bond and that Damien looked forward to spending time with her. However, at the time of the permanency planning hearing, Damien had not been cared for by mother for 30 months. Moreover, while not dispositive, it is telling that mother's visits during this period never increased beyond twice weekly and remained supervised, likely because mother was never able to establish any period of extended stability outside of the structure of her residential program. While day-to-day contact is not essential to successfully invoke the beneficial relationship exception, this type of sporadic interaction is strong evidence that mother was not acting in a parental role with the minor and had not done so for a number of years. (See Casey D., supra, 70 Cal.App.4th at p. 51.) In addition, there is, of course, evidence from which it can be inferred that mother's parenting of the minor during the first eight years of his life was hampered by her issues with substance abuse and criminality. At the time of his detention, Damien, himself, described his life as " 'rough,' " he was acting as a caretaker for his one-year-old nephew, his educational needs were not being met, and he was living in a heavily trafficked drug house. In contrast, since his removal, Damien had been placed with his paternal aunt's family, to whom he was clearly bonded. This placement—which included his paternal grandmother with whom he was very close—appeared to be excelling at meeting all of the minor's needs and was available to him as an adoptive placement.
We disagree with mother that legal guardianship would have allowed Damien to maintain his placement while preserving his relationship with his mother. On this record, it is far from clear that the paternal aunt would have agreed to keep Damien under circumstances where she was not allowed to decide whether contact between the minor and his mother would be healthy for him. Indeed, as stated above, she told the social worker (after mother had failed to participate in agreed-upon aftercare upon her discharge from her residential program) that, if continued visitation was mandated, her home would no longer be a suitable placement for the minor. Moreover, a guardianship, obviously, lacks the stability and permanence of adoption.
It is clear from this record that mother cares deeply for Damien and that, at the time of the permanency planning hearing, she was again attempting to maintain a clean and sober lifestyle. But it was early days yet and therefore far from certain that mother would be able to "present a healthy relationship" for Damian on an ongoing basis, thereby justifying continuing contact. Thus, despite the evidence of the bond between mother and Damien—when measured against the benefits of his nurturing adoptive placement with relatives—there was really no showing here that terminating Damien's relationship with mother would be so detrimental to the minor that he should forego the permanency and stability of adoption. Indeed, as described above, Damien, himself, expressly recognized this—stating that he would choose living with his aunt over continuing contact with mother and endorsing the Agency's adoption recommendation. Under these circumstances, mother has simply not shown that the juvenile court erred in terminating her parental rights.
C. Due Process Concerns: Visitation
Pursuant to section 366.22, subdivision (a)(3), after reunification services are terminated at an 18-month hearing and the minor is referred for permanency planning, "[t]he court shall continue to permit the parent . . . to visit the child unless it finds that visitation would be detrimental to the child." In this case, the court did not make a detriment finding, instead ordering reasonable visitation supervised by the paternal grandmother. Unfortunately, due to numerous factors—including the paternal grandmother's unwillingness to continue supervising visits once reunification services were terminated, the paternal aunt's strong belief (for a period of time after mother failed to engage in aftercare) that visitation should no longer occur, mother's unavailability when attempts to set up visitation were made by the Agency, and Agency turnover—no visitation took place. Mother finally argues on appeal that her due process rights were violated because she did not receive the court-ordered visitation with the minor to which she was entitled between the termination of her reunification services and the permanency planning hearing in this matter, a period of approximately six months. Specifically, she asserts that her lack of visitation during this timeframe unfairly prevented her from qualifying for the beneficial relationship exception to adoption, essentially ensuring the termination of her parental rights. While we—like the juvenile court—are troubled by the confluence of events in this case which resulted in a six-month moratorium on mother's visitation with the minor, we find no violation of due process.
Mother makes a related argument, contending that the juvenile court's failure to enforce its own visitation order amounted to an impermissible delegation of its authority over visitation to the paternal aunt and/or the Agency. (See In re E.T. (2013) 217 Cal.App.4th 426, 439 ["A court may not abdicate its discretion to determine whether visitation will occur to a third party"]; In re S.H. (2003) 111 Cal.App.4th 310, 317 (S.H.) ["the power to decide whether any visitation occurs belongs to the court alone"]; see also In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 (Hunter S.) ["A visitation order which fails to protect a parent's right to visit is illusory"].) We do not see an improper delegation in this case. The juvenile court ordered continuing supervised visitation at the 18-month hearing and at two subsequent hearings prior to the permanency planning hearing, admonishing the Agency at the last hearing when visitation still had not occurred. Meanwhile, the Agency provided for alternate supervision when the paternal grandmother refused to continue supervising visits; spoke with the paternal aunt, convincing her to change her mind and allow visitation; and made some attempts to set up visits once the aunt agreed. Clearly, the Agency was attempting to follow the court's visitation order, albeit ineffectually. While "[i]t is the juvenile court's responsibility to ensure regular parent-child visitation occurs," the court must also provide "for flexibility in response to the changing needs of the child and to dynamic family circumstances." (S.H., supra, 111 Cal.App.4th at p. 317.) Stronger measures mandating that the paternal aunt allow visitation with which she was uncomfortable might very well have jeopardized the minor's otherwise extremely successful placement. It does not appear that the juvenile court abdicated its role in this case.
Undeniably, due process guarantees apply in dependency proceedings. (In re Dakota H. (2005) 132 Cal.App.4th 212, 222 (Dakota H.).) When determining what process is due, "the court evaluates three elements: the private interests at stake, the government's interest, and the risk the procedures used will lead to an erroneous decision." (Id. at pp. 222-223.) In Dakota H., the court identified the various interests here at issue as follows: "The private interest at stake in a dependency proceeding is enormous. A parent's interest in the companionship, care, custody and management of his or her children is a fundamental civil right. [Citation.] Children, too, have a compelling independent interest in belonging to their natural family. [Citation.] In addition, each child has a compelling interest to live free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver. [Citation.] The governmental interest in a child's welfare is significant. '[T]he welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect.' " (Id. at p. 223.)
However, once reunification services have been terminated, the state interest requires the court to focus on the child's placement and well-being. (Dakota H., supra, 132 Cal.App.4th at p. 223; see also In re Richard C. (1998) 68 Cal.App.4th 1191, 1196 (Richard C.) ["The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.] This interest is a compelling one"].) Thus, "[b]y the time a permanency hearing has been set, the child's private interest in a safe, permanent placement outweighs the parent's interest in preserving a tenuous relationship with the child." (Dakota H., supra, 132 Cal.App.4th at p. 223; see also In re D.B. (2013) 217 Cal.App.4th 1080, 1090 [parental visitation during the postreunification period—in contrast to such visitation during reunification—"is governed by different statutes, which focus on permanency and stability for the child"].) Thus, at the time of the permanency planning hearing in this case, the interests of both the minor and the state in permanency outweighed mother's interest in maintaining her relationship with Damien.
Given these circumstances, we consider whether the third element of the due process analysis—the risk of erroneously terminating parental rights—nevertheless requires us to find a due process violation on this record. (Dakota H., supra, 132 Cal.App.4th at p. 224.) We conclude that it does not. Under the juvenile court law, a finding at a review hearing " 'that the court has continued to remove the child from the custody of the parent . . . and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights' " (Ibid.; see also § 366.36, subd. (c)(1).) Our high court has held that section 366.26 comports with due process "because the 'precise and demanding substantive and procedural requirements the petitioning agency must have satisfied before it can propose termination are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents.' " (Dakota H., supra, 132 Cal.App.4th at p. 224.) Here, mother had the benefit of all of these substantive and procedural protections for almost 30 months prior to the termination of her reunification services. (See Richard C., supra, 68 Cal.App.4th at p. 1196 ["The kind of parent-child bond the court may rely on to avoid termination of parental rights under the [beneficial relationship exception] does not arise in the short period between the termination of services and the section 366.26 hearing. . . . 'At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent' "].)
The risk of erroneous termination of parental rights was further reduced in this case because mother had two different opportunities to be heard in the juvenile court prior to the termination of her parental rights regarding any impact the temporary suspension of her visitation with Damien had on her ability to establish the beneficial relationship exception to adoption. Although mother could have made this argument directly at the September 2017 contested permanency planning hearing, she chose not to do so. Additionally, "[a] parent's ability to file a section 388 petition provides an 'escape mechanism' that lessens the risk of an erroneous deprivation of the parent-child relationship in the event of a legitimate change in circumstance." (Dakota H., supra, 132 Cal.App.4th at p. 224.) Here, mother could have filed such a petition, seeking a continuance of the permanency planning hearing so that additional visitation could occur prior to the court's termination decision, but, again, she chose not to do so. (Cf. Hunter S., supra, 142 Cal.App.4th 1497 [where section 388 petition was filed arguing lack of court-ordered visitation in analogous circumstances].) Weighing all of these factors, we conclude that mother received in this case the process to which she was due.
Indeed, although not raised by the parties, we could conclude on this basis that mother has forfeited her due process claim. (Dakota H., supra, 132 Cal.App.4th at p. 222 [acknowledging the applicability of the forfeiture doctrine to a similar due process argument].)
Moreover, although heavily relied upon by mother, we do not believe that Hunter S., supra, 142 Cal.App.4th 1497, mandates a different result. In that case, the mother was denied virtually all court-ordered visitation for approximately 30 months between the termination of her reunification services and the permanency planning hearing at which her parental rights were terminated, without any finding that visitation would be detrimental. Rather, the lack of visitation during this extended period was based solely on the minor's steadfast refusal to visit. (Id. at pp. 1500-1505.) Although the mother consistently raised the visitation issue in the juvenile court for over two years, the court appeared to believe that, under the circumstances, it did not have the "power or duty to ensure visits actually took place." (Id. at p. 1505.) Mother then filed a section 388 petition, seeking to continue the permanency planning hearing so that she could be given a "bona fide opportunity to attempt to restore the bond she and her son had shared for a substantial portion of his life." (Id. at p. 1506.) The court denied her request and terminated her parental rights. (Id. at pp. 1503-1504.)
At the initial permanency planning hearing, the mother had consented to the minor being placed in a legal guardianship with his paternal grandmother. (Hunter S., supra, 142 Cal.App.4th at p. 1501.)
On appeal, the court found erroneous the juvenile court's failure to either change or enforce it visitation order, concluding that the juvenile court had essentially abdicated its responsibility regarding visitation to the child. (Hunter S., supra, 142 Cal.App.4th at p. 1505.) In this regard, it noted that "[m]eaningful visitation is pivotal to the parent-child relationship, even after reunification services are terminated." (Id. at p. 1504.) With respect to the mother's due process argument, the court opined: "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." (Ibid.) However, the court thereafter expressly declined to reach the due process issue in Hunter S. because it concluded that the juvenile court had erred by failing to properly consider mother's modification petition—the final chance for the juvenile court to ponder and potentially rectify "three years of error and judicial inattention" with respect to visitation, thereby making termination of her parental rights "a forgone conclusion." (Id. at pp. 1507-1508.) The case was remanded for a new hearing on the mother's modification petition, at which it was suggested that the juvenile court consider "if, under the circumstances and in light of current information, visits would be detrimental to Hunter." (Id. at p. 1508.)
Obviously, Hunter S. is factually distinguishable from this case in a number of respects. In this instance, we find no improper delegation of the juvenile court's responsibilities regarding post-termination visitation, the timeframe during which visits were suspended was significantly shorter, it has never been argued that mother and Damien did not continue to share a significant bond, and mother did not avail herself of the procedural protections available to her in the juvenile court. More importantly, however, mother was not here denied the "multiple safeguards built into the dependency scheme at the early stages of the process" through no fault of her own and thus, even under the standard articulated by Hunter S., mother's due process rights have not been violated. (Hunter S., supra, 142 Cal.App.4th at p. 1504.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SMITH, J.* *Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.