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In re Anthony P.

California Court of Appeals, Second District, Eighth Division
Feb 7, 2011
No. B224053 (Cal. Ct. App. Feb. 7, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. CK 56241, Marilyn M. Mordetzky, Judge.

Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.


FLIER, J.

Mother appeals from the dependency court’s order terminating parental rights contending the court erred in denying her a contested Welfare and Institutions Code section 366.26 hearing. We affirm.

All further statutory references are to the Welfare and Institutions Code.

FACTS AND PROCEDURAL HISTORY

This proceeding has a long and tangled history in which mother received and lost numerous opportunities to rehabilitate herself.

1. Detention

The minor, then two years old, was placed in the custody of the Los Angeles Department of Children and Family Services (DCFS) and detained from mother’s home almost six years ago, in March 2005. DCFS had become aware of the unsafe condition of the minor’s home when mother was arrested for receiving known stolen property. A petition filed by DCFS alleged the minor and a sibling had been harmed or was at risk of harm due to domestic violence between mother and the maternal grandmother and because of drugs, drug use, weapons and gang activity in the home.

The minor’s father had been deported and is not a party to these proceedings or this appeal.

A month after his detention, in April 2005, the minor was placed in the paternal grandparents and prospective adoptive parents’ home, where he has remained throughout the pendency of these proceedings.

At the detention hearing held in March 2005, the dependency court ordered reunification services for mother. She was required to undergo an on-demand drug test on the day of the hearing before being allowed monitored visits with the minor. After the child’s detention, mother visited the child only sporadically, frequently cancelling scheduled visits.

2. Jurisdictional and Dispositional Hearing

At the jurisdictional and dispositional hearing in April 2005, pursuant to a mediated agreement, the dependency court sustained an amended petition under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).

3. Family Reunification Services

Mother received family reunification services and was ordered to submit to an on-demand drug test and complete four random, consecutive drug tests, with a missed drug test to be counted as a positive test. In the event mother missed a drug test or tested positive, mother was ordered to enroll in a drug rehabilitation program with random drug testing. Mother was also to participate in individual counseling to address “protection, dangers of gang involvement, illicit drug and alcohol abuse and domestic violence.” The dependency court granted mother reasonable monitored visitation and allowed her unmonitored day visits once she passed four drug tests and complied with her case plan. The court also granted DCFS discretion to liberalize visits to overnight weekends.

The dependency court counseled mother that, because her child was under the age of three, time was of the essence and that the court could terminate reunification services if she continued to use drugs, became involved in a gang or engaged in criminal activities.

By May 2005, mother had achieved unmonitored visitation and was seeing the minor two to three times a week. Because mother had not yet begun her individual counseling or completed parenting classes, however, DCFS did not recommend overnight visits with the minor.

4. Mother’s Partial Compliance

As of October 2005, mother was only partially compliant with her plan. She had moved into a home of her own and had two overnight visits with the minor; she also had completed a parenting course and was attending domestic violence classes. But, mother had yet to enroll in a substance abuse program. She missed visits with the minor over two weekends, saying she was going to Las Vegas to help a relative recover from surgery.

Mother then failed to contact the social worker or the foster parents. Of eight drug tests scheduled from May to September 2005, mother tested negative four times, failed to appear for three tests, and had no available results for the last test. Mother indicated she had not realized she needed to call in every night to drug test and sometimes was unable to get to the drug testing site. Mother’s visits had regressed back to day visits.

5. Mother’s Incarceration

In November 2005, mother was convicted of possession of a controlled substance and receiving known stolen property. She was sentenced to 16 months in state prison. DCFS filed a section 388 petition to modify mother’s visitation to monitored visits until she was released from incarceration and had submitted to four consecutive negative random drug tests. The court ordered mother’s visits again to be monitored and directed her to enroll in a substance abuse program and to provide four consecutive, random, clean drug tests before her visits could be liberalized.

6. Grandparents’ Care of Minor

Meanwhile, the minor was flourishing under his paternal grandparents’ care. When he first went to live with them he was afraid of the sound of police cars and ambulances and would run and hide under tables and beds when he heard sirens. He did the same when the social worker came to visit. After he acclimated to the social worker, he told her he liked living with his grandmother. He said he spoke with his father in El Salvador by telephone about once a month but had not spoken on the telephone with his mother.

7. Termination of Reunification Services

The dependency court held a combined section 388 and review hearing in January 2006, during which it found mother not in compliance with her plan. However, the court extended her reunification services at DCFS’s recommendation. The court instructed DCFS to notify mother it would consider terminating reunification services to her at the next hearing.

At the continued hearing held in April 2006, the court granted DCFS’s section 388 petition for modification in part and directed that mother’s visits with the minor be monitored, giving DCFS discretion to liberalize her visits. The court denied DCFS’s request to allow mother to have unmonitored visits once she had four consecutive clean random drug tests.

The court found mother was only partially compliant with her case plan. Therefore, it terminated reunification services and set the matter for a permanency planning hearing.

8. Permanency Planning

In May 2006, mother returned from prison. She went to live at her grandmother’s home and worked full time at a market. While in prison, mother had maintained monthly contact with the minor and the foster parents. After her release from prison, mother had monitored visits with the minor, but she was not fully compliant with her plan.

The minor indicated he liked visiting with mother at the park because it was “fun.” Mother wanted to continue visiting the minor and his siblings and to eventually regain custody of them. Her goal was to obtain a home of her own, continue working and complete individual counseling and a drug rehabilitation program.

By this time, the minor had been living with his grandparents for well over a year. He called his paternal grandmother “Mom” and his paternal grandfather “Papi” (Daddy). They wished to have permanent custody of the minor in a legal guardianship. The minor stated he loved his “Mom” and “Papi” and would not want to leave his home with them. The grandmother indicated her willingness to have the child continue his monitored visits with mother if he would benefit from them. Mother was participating in a substance abuse program with individual counseling and random drug testing. She was working part time and hoped to obtain her GED (General Educational Development).

9. Permanent Guardianship

At the permanency planning hearing in November 2006, after hearing testimony from the paternal grandmother, the dependency court found the best interests of the minor would be served by permanent guardianship and appointed the grandmother the child’s guardian. The court terminated its jurisdiction and then stayed its order pending receipt of signed letters of legal guardianship. The guardianship letters were signed and received in December 2006.

A postpermanency planning hearing took place in May 2007. Mother had briefly moved out of her grandmother’s home and had part-time employment at a fast food restaurant. She had left school due to an irregular work schedule and was seeking a new job to increase her earnings. Mother had done well in her drug abuse program until January 2007, after which her attendance became erratic and her overall performance faltered. She was eventually suspended from the drug abuse program for nonpayment of fees. From February 2007 to May 2007, mother for the most part had weekly visits with the minor. She hoped to rent a place to live but lacked the means to do so. At the May 2007 hearing, the dependency court again found the permanent plan of legal guardianship for the minor to be appropriate, and it set the matter for a review hearing in November 2007.

10. Mother’s Petition for Modification and Liberalization of Visitation

Mother moved into her own secured apartment in October 2007 and at that time had a full-time job at a market. She also completed her drug rehabilitation program and planned to continue with Alcoholics Anonymous (AA) meetings. She continued to drug test with mixed results. Of nine scheduled tests from June 2007 to October 2007, mother had four negative tests and five “no shows.” From May 2007 to November 2007, mother had 14 visits with the minor but cancelled an additional 12 visits. The minor’s grandmother reported a “big change” in mother’s conduct and manner toward her children. Even so, the minor continued to do well with his grandparents. He entered kindergarten and was very excited about attending school. The dependency court upgraded mother’s visitation to unmonitored.

In January 2008, mother filed a section 388 petition for modification seeking to have overnight visits with all three of her children. Mother stated she was enrolled in a parenting class and was in compliance with her AA meetings and drug testing.

In March 2008, DCFS applied ex parte for an order granting it discretion to liberalize overnight weekend visits for the minor. Mother was continuing to do well on her visits, and the minor was happy to see her and enjoyed her visits. Mother already had weekend overnight visits with the minor’s younger sibling and DCFS believed both children would benefit from having overnight visits together. The dependency court granted DCFS discretion to liberalize visits with the minor to weekend overnight visits.

11. Mother’s Backsliding

Mother thus appeared on track to getting her life in order. However, on March 24, 2008, mother was arrested for possession of methamphetamine, driving with a license revoked or suspended for negligent or reckless driving, and driving unlawfully without a license. A few days later, she failed to drug test though she was tested on demand a few days after that and the results came back negative. When questioned about the criminal charges, mother said she owed about $4,000 to $5,000 in tickets for driving under a suspended license, having no insurance and passing red lights. She told a social worker she had cleared her bench warrants and was working on getting a restricted driver’s license. Mother claimed the methamphetamines the police found in a jacket in her car belonged to a friend to whom mother had given a ride. Mother further claimed the charges against her had been dismissed as there was no proof the drugs were in her possession. However, mother apparently was continuing to drive with a suspended or revoked license.

12. Mother’s Second Petition for Modification

On March 28, 2008, mother filed a section 388 petition seeking to terminate the minor’s legal guardianship, return the minor to her legal custody and “start overnight visits soon.” Mother stated the child would be “better with [his] natural loving[, ] caring mother.” DCFS reported to the dependency court that from November 2007 to April 2008, mother had eight negative tests; however, she had two no shows and one of the negative samples was diluted. DCFS had exercised its discretion to start overnight weekend visits for the minor beginning in early April 2008. The minor and mother were affectionate with each other at visits. Mother declared her goal was to be a “good parent, ” saying, “I am a good mom, a good parent, [and] we all make mistakes....” On May 21, 2008, the dependency court denied mother’s section 388 petition on the grounds the request did not state new evidence or a change in circumstances and mother did not show it would be in the best interest of the child to change the prior order.

13. Adoption as Permanent Plan

In a review of the permanent plan hearing in October 2008, the dependency court directed DCFS to explore the feasibility of the child’s adoption by his grandmother. At DCFS’s recommendation, the court then set the matter for a termination of parental rights hearing.

14. Mother’s Third Petition for Modification

In January 2009, mother submitted another section 388 petition for modification. She asked the dependency court to change the order terminating her reunification services and the order setting the matter for a termination of parental rights hearing. Mother declared she was in compliance with her plan and had completed rehabilitation and changed her lifestyle. She stated she was attending AA and NA (Narcotics Anonymous) meetings, and had tested negative 15 out of 19 times from November 2007 to August 2008. She also asserted she had stable housing and was employed as a cashier at a home improvement store. In addition to taking the termination hearing off calendar, mother requested that DCFS assess her home for placement and, if appropriate, that the court terminate the guardianship and release her children to her care. Mother stated, “It would be better for the family to be reunified under one roof.” The petition indicated mother was visiting the minor twice a week.

Finding the best interest of the minor might be promoted by mother’s request, the dependency court set mother’s petition for modification for a hearing in January 2009, on the same day as the scheduled termination of parental rights and permanency planning hearing.

DCFS opposed mother’s modification petition. Mother reportedly had not drug tested since August 2008. Although she had 15 negative drug tests from November 2007 to August 2008, she also had three with a diluted or possibly diluted sample and three no shows. DCFS reported the March 2008 charges against mother for possession of methamphetamines were dismissed but noted mother did not appear to have changed her lifestyle. She could not provide the name of the company at which she allegedly was employed nor the address of her residence. During visitations, she had no money to buy her children food.

At the contested January 2009 hearing, the dependency court heard testimony from mother and denied her petition for modification. The court found the best interests of the child would not be promoted by the proposed change of order.

The court found mother’s situation to be merely “changing, ” not changed. Although it acknowledged mother’s difficulty in affording testing once reunification services had been terminated, the court found it “most compelling” that mother had not attended her 12-step meetings since July 2008 or her AA meetings “for some time.”

15. Request for Contested Termination and Permanency Planning Hearing

In May 2009, DCFS filed a section 366.26 report recommending that the minor be adopted by his paternal grandparents. However, DCFS had some difficulty in completing the grandparents’ adoption home study. The dependency court had to continue the section 366.26 hearing seven times from May 2009 to April 2010 until the study could be completed. DCFS recommended that parental rights be terminated and asked the dependency court to find the minor was likely to be adopted.

By the time of the combined review of the permanent plan and section 366.26 hearing in late April 2010, mother had not visited the child for over a month. Nevertheless, mother’s counsel requested that the court set the matter for a contested hearing and made an offer of proof that mother had visited the child the prior Saturday and every other week. The dependency court indicated that even if it gave credence to mother’s offer of proof, she had not established the existence of a beneficial parent-child relationship or that the detriment in terminating such a relationship outweighed the benefit the minor would gain in a permanent adoptive home. The court concluded the child was adoptable and it would be detrimental to the child to be returned to his parents. The court, therefore, ordered a permanent plan of adoption.

When the social worker inquired about mother’s visiting, the minor said he had not seen her, “but I feel good.”

Mother filed a timely notice of appeal from the court’s refusal to allow a contested permanency planning hearing.

STANDARD OF REVIEW

Constitutional issues, such as the due process challenge mother asserts here, are reviewed de novo. (Herbst v. Swan (2002) 102 Cal.App.4th 813, 816; State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 67; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 8:110.1, p. 8-68 (rev. #1 2010) [standards of appellate review].) When, as here, a parent’s reunification services have been ordered terminated, the court sets the matter for a section 366.26 permanency planning hearing to select and implement a permanent plan for the child. (In re Celine R. (2003) 31 Cal.4th 45, 52.) Termination of reunification services is a sufficient basis for the termination of parental rights, unless the court finds a “compelling reason” for determining termination would be detrimental to the child due to one or more specified circumstances. (See § 366.26, subd. (c)(1)(B); Celine R., supra, at p. 53; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349 (Jasmine D.).)

As discussed below, due process does not mandate a contested permanency planning hearing. Rather, the dependency court may require an offer of proof of sufficient evidence to establish the existence of one of the statutory exceptions to termination of parental rights. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122 (Tamika T.).) Whether an offer of proof is sufficient turns upon whether the offer, if believed, would constitute sufficient evidence to support a finding of detriment to the child. (Id. at p. 1124.) Whether a parent has established a statutory exception under section 366.26 is judged by appellate courts under either a substantial evidence standard (In re Derek W. (1999) 73 Cal.App.4th 823, 827) or the abuse of discretion standard (Jasmine D., supra, 78 Cal.App.4th at p. 1351). As applied in the present context, there is no practical distinction between the two standards of review, as we hold mother’s offer of proof was inadequate to present a contested issue of fact under either standard. In either case, broad deference must be shown the trial judge. (Ibid.)

DISCUSSION

Mother asserts the dependency court should have granted her request for a contested section 366.26 hearing so she could present evidence to prove the beneficial parental relationship exception applied to preclude termination of parental rights. We disagree.

At the section 366.26 hearing, the dependency court must make a permanent plan for the minor. (§ 366.26, subd. (b)(1)-(5).) “Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) If the court finds the child is adoptable, it must terminate parental rights absent the exceptional circumstances the Legislature has laid out in section 366.26, subdivision (c)(1)(B)(i)-(vi). Once the court finds the child is likely to be adopted, the parent has the burden to show one of these exceptional circumstances, such as the beneficial parent-child relationship, precluding termination of parental rights. (Autumn H., supra, at p. 574.)

The beneficial parental relationship exception requires that the parent show he or she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship” such that termination of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i).)

Mother acknowledges that she had the burden of proving a statutory exception applies and that the trial court properly required her to make an offer of proof of sufficient facts to warrant a full hearing. (See Tamika T., supra, 97 Cal.App.4th at p. 1122; see also In re Earl L. (2004) 121 Cal.App.4th 1050, 1051.) However, mother contends the trial court denied her due process rights by not considering the totality of the facts of the case, her ongoing relationship with the minor, and her offer of proof that the social workers’ section 366.26 reports did not accurately reflect the contact she continued to have with her son. We disagree.

As Division Four of this District has noted, due process in a dependency proceeding is a “flexible concept.” (Tamika T., supra, 97 Cal.App.4th at pp. 1120, 1123.) “[D]ue process does not preclude the trial court from requiring an offer of proof before a parent offers evidence on a contested issue....” (Id. at p. 1124.) In fact, due process is not synonymous with full-fledged rights of cross-examination; it depends upon the circumstances and a balancing of various factors. (Id. at p. 1120.) The due process right to present evidence is restricted to relevant evidence of significant probative value to the issue before the court. (Ibid.)

In Tamika T., the dependency court denied the parent’s request for a contested section 366.26 hearing in that she contended only that she had developed “‘a strong bond’” before the child had been removed from her custody and maintained “‘an emotional bond’” with the child without offering any probative evidence she had regular visitation and contact with her child. (Tamika T., supra, 97 Cal.App.4th at p. 1121.) The appellate court affirmed and held the parent’s due process rights were not violated by the trial court’s requiring the parent to make an offer of proof before it would set a contested hearing. (Id. at p. 1116; see also In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.)

A beneficial parent-child relationship exists when “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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) In determining whether a parent-child relationship exception to termination applies to a particular case, “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.” (Ibid.) The preference for adoption is overcome and the natural parent’s rights are not terminated “[i]f severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (Ibid.)

In the present case, mother’s offer of proof consisted solely of evidence that would show she had visited the minor the previous Saturday and had been visiting every other week. Counsel additionally noted mother was in telephone contact with the minor and that the caretakers could be asked if mother has been visiting. The dependency court found that even if mother was visiting the child it was not enough to make the parent-child relationship exception apply. Mother’s offer of proof related only to the “regular visitation and contact” component but failed to address whether the child would benefit from continuing the relationship. Nor did the offer of proof address the issue whether termination would be detrimental to the minor.

The evidence before the dependency court established otherwise, and the offer of proof could not overcome such a showing. Specifically, the minor had been taken into care in March 2005, when he was two years old. By the time of the termination hearing in April 2010, he was almost eight years old and had been living in his grandparents’ home since April 2005, a period of five years. During that time, there were periods in which mother visited the child; just as often, however, there were periods when she either failed to visit or visited only sporadically. As of the time of termination, mother had not progressed beyond monitored visitation except for a brief period. Mother did not see the child at all when she was incarcerated. After mother’s incarceration, her visits were always monitored. Moreover, visitation took place solely in neutral settings, in parks or fast food restaurants, rather than mother’s home when she had one. In the year leading up to the termination hearing, mother cancelled about as many visits as she attended.

There is no question the minor enjoyed mother’s visits, which he considered to be “fun.” And there is little doubt he enjoyed having her as a playmate to go on swings and slides with him. He viewed mother’s visits with pleasure because they would “eat, play and talk.” Yet, the prospect of missing visits with mother made the child only a “little sad, ” whereas the possibility of not living with his grandparents, “Mom” and “Papi, ” made him a “lot sad.” There was no evidence before the court that mother acted or could act as his parent, that is, one who furnishes or is able to furnish day-to-day care or ordinary necessities for the child. It was his paternal grandparents the minor looked to as parents. Mother’s offer of proof did not propose to fill this void. Even if it were assumed mother visited every other week and had weekly telephone contact with her child, such evidence was insufficient to show a beneficial parent-child relationship, still less one the termination of which would be detrimental to the child. A parent’s status as a mere “friendly visitor” is not the type of relationship sufficient to overcome the policy in favor of termination and adoption. (Autumn H., supra, 27 Cal.App.4th at p. 573.)

When reunification services have been terminated, “the focus of the dependency proceedings shift[s] from maintaining biological ties to providing stability and permanence for the child[].” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1148.) At a postpermanency planning status review hearing, the time to focus on the parent’s interests and excuses has long since passed. (Ibid.) Mother made no offer of proof of evidence showing that returning the minor to her custody would be in his best interest. To the contrary, mother told the dependency investigator, “I think it[’]s better for my son to be adopted by [his grandmother] as long as I get to see him.”

The dependency court did not err in denying mother’s request for a contested hearing and properly terminated parental rights freeing the child for adoption.

DISPOSITION

The dependency court’s section 366.26 order is affirmed.

We concur: BIGELOW, P.J., RUBIN, J.


Summaries of

In re Anthony P.

California Court of Appeals, Second District, Eighth Division
Feb 7, 2011
No. B224053 (Cal. Ct. App. Feb. 7, 2011)
Case details for

In re Anthony P.

Case Details

Full title:In re ANTHONY P., a Person Coming Under the Juvenile Court Law. LOS…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Feb 7, 2011

Citations

No. B224053 (Cal. Ct. App. Feb. 7, 2011)