Opinion
A160416
06-28-2021
In re C.J., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.J., Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JD14-3238, JD14-3238A
BROWN, J.
At a post-permanency review hearing under Welfare and Institutions Code section 366.3 in dependency proceedings for C.J. and J.J. (Minors), the juvenile court denied the request of C.J. (Father) to conduct a contested hearing on his allegations that the San Francisco Human Services Agency (agency) had failed to create an adequate permanent plan for the minors and to consider returning the children to him. Father appeals, contending the court's ruling denied him his statutory right to participate in the hearing and his constitutional right to due process. Without deciding whether Father had a statutory or constitutional right to a contested hearing, we conclude that Father has failed to demonstrate any prejudice from the denial of the contested hearing. We shall therefore affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
We recite the facts only as necessary to resolve the issues on appeal. The full factual background of this case may be found in our opinions in several prior appeals arising from this case. (See, e.g., In re C.J. (Aug. 27, 2020, A158786) [nonpub. opn.]; In re J.J. (June 1, 2020, A158072) [nonpub. opn.]; In re C.J. (Dec. 30, 2019, A156975) [nonpub. opn.].)
In October 2014, the juvenile court assumed jurisdiction over Minors based on the agency's allegations that the children were at risk of harm from, inter alia, Father's mental health issues, lack of judgment, and violation of court orders prohibiting the Minors' mother, Z.W. (Mother), from having contact with them. Minors were placed with Father and the court ordered, as some of the conditions of dismissing the case, that father undergo a neuro-psychological evaluation, participate in therapy, and comply with restraining orders.
The court detained the children a few months later after the agency filed a supplemental petition and report describing an incident in which Father arrived at Minors' school to pick them up, appearing confused and disoriented, admitted to paramedics he had used methamphetamine, and had a positive test for methamphetamine. Pursuant to a settlement agreement, the petition was amended to allege that father had difficulty controlling the children and had increased his anxiety medication without his doctor's approval, which had led to an adverse reaction and the positive drug test. The court sustained the amended petition. Father then agreed to placement of the children with Minors' relatives and the court ordered that he receive reunification services, which included drug testing. Minors were ultimately placed with their maternal great aunt and uncle.
At the 12-month review hearing, Father requested a contested hearing regarding the agency's recommendation that he complete two new services, substance abuse treatment and a psychiatric evaluation. The juvenile court denied Father's request for a contested hearing and ordered him to complete the services. This court affirmed because Father failed to show the denial of a contested hearing caused him prejudice. (In re C.J. (Feb. 2, 2017, A148255) [nonpub. opn.].)
At the 18-month review hearing in October 2016, the juvenile court found that return of Minors would create a substantial risk of detriment, terminated reunification services, and set the matter for a permanency hearing pursuant to section 366.26. We denied Father's writ petition because the record showed, among other things, that Father had tested positive for drugs at least 10 times between May 2015 and September 2016. (C.J. v. Superior Court (Feb. 2, 2017, A149965) [nonpub. opn.].)
In January 2017, the juvenile court granted a petition under section 388 to transfer the educational and medical consent rights from Father to Minors' maternal great aunt and uncle. Minors' counsel had requested the change because both children were receiving independent educational plans and mental health services and Father had been unwilling to sign consent forms. Counsel also noted that the plan for Minors was to remain in the care of their maternal great aunt and uncle for the long term and it was in Minors' interest that their caregivers be able to give the necessary consent.
At the section 366.26 hearing in February 2017, the juvenile court found the children were not proper subjects for adoption and no one was willing to accept legal guardianship. The juvenile court therefore selected a permanent plan of placement with a fit and willing relative (Minors' maternal great aunt and uncle) and ordered that Father's visitation with the children continue.
The juvenile court proceeded to conduct six-month reviews of Minors' placement, and each time it ordered that Minors' permanent plan was placement with their maternal great aunt and uncle with the goal of legal guardianship.
At the review hearing in October 2019, father requested a contested hearing to address issues related to drug testing earlier in the case. The juvenile court denied the request, and this court affirmed because Father failed to demonstrate the denial of a contested hearing caused him prejudice. (In re C.J., supra, A158786.)
At the review hearing held in June 2020, Father requested a contested six-month review hearing under section 366.3 because he believed the agency had not made reasonable efforts to move Minors towards a permanent plan of guardianship, adoption, or return home to Father. Father asserted that the agency had not met or talked to him during the review period. After continuing the hearing so the court could consider written briefing on the issue, the court denied Father's request.
DISCUSSION
Section 366.3, subdivision (d) provides that when a child is placed in a placement other than the home of a legal guardian and the juvenile court retains jurisdiction, the child's status must be reviewed at least every six months. (§ 366.3, subd. (d).) When the court conducts this review, it “shall determine whether or not reasonable efforts to make and finalize a permanent placement for the child have been made.” (Ibid.) The court also “shall inquire about the progress being made to provide a permanent home for the child, shall consider the safety of the child, and shall” make various findings. (§ 366.3, subd. (e).) These findings concern issues such as the continuing necessity for and appropriateness of the placement and the permanent plan for the child (§ 366.3, subd. (e)(1)), the agency's efforts either to return the child to the safe home of the parent or to complete whatever steps are necessary to finalize the permanent placement of the child (§ 366.3, subd. (e)(4)), whether to limit the parent's right to make educational or developmental services decisions for the child (§ 366.3, subd. (e)(5)), and the progress the parents have made toward alleviating or mitigating the causes necessitating placement in foster care (§ 366.3, subd. (e)(7)). In cases like this one where the child is under 16 years old and not an Indian child, the juvenile court must also specify the “likely date by which the child may be returned to, and safely maintained in, the home, placed for adoption, legal guardianship, [or] placed with a fit and willing relative....” (§ 366.3, subd. (e)(8).)
Section 366.3, subdivision (f) states in relevant part, “Unless their parental rights have been permanently terminated, the parent or parents of the child are entitled to receive notice of, and participate in, those hearings. It shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order that further reunification services to return the child to a safe home environment be provided to the parent or parents up to a period of six months, and family maintenance services, as needed for an additional six months in order to return the child to a safe home environment.”
Father contends the juvenile court's denial of his request for a contested hearing violated his statutory right under section 366.3, subdivision (f) to participate in the review hearing. He further contends that section 366.3, subdivision (f) exists to protect parents' due process rights, so the juvenile court's denial of his request for a contested hearing also violated his constitutionally protected fundamental interest in the companionship, care, custody, and management of his children. The agency responds that the juvenile court properly required Father to make an offer of proof before obtaining a requested hearing, but even if it did not, Father failed to prove any prejudice from the denial of the hearing.
Father disagrees that the juvenile court denied his motion for lack of an offer of proof. According to father, the juvenile court ruled that Father was not entitled to a hearing at all under section 366.3 and his only avenue for relief would be to proceed under section 388. Father misconstrues the record. Father argued specifically that he was entitled to a hearing without the need for an offer of proof. The agency countered that Father should not be granted a contested hearing absent an offer of proof. The juvenile court adopted the agency's reasoning in its order.
We need not examine in detail the scope of Father's right to a contested hearing. As we have ruled twice before when considering Father's arguments that the juvenile court failed to provide him contested hearings at other stages of this dependency matter, we may not reverse the juvenile court's orders unless we determine that the error, if any, resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; In re C.J., supra, A158786; In re C.J., supra, A148255.) For the alleged violation of section 366.3, subdivision (f), we would have to decide whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) If the juvenile court's action violated due process, we would need to determine whether the error was harmless beyond a reasonable doubt. (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1182 (M.T.).)
Father's briefing in this court eschews any analysis of prejudice to him resulting from the denial of the hearing. Instead, he argues the denial of the hearing was itself a miscarriage of justice. For this point he cites In re Kelly D. (2000) 82 Cal.App.4th 433, 439-440 and In re James Q. (2000) 81 Cal.App.4th 255, 268, two decisions issued by the same court a little more than a month apart. In each case, the courts held in a single sentence that the denial of a contested hearing was a miscarriage of justice. (Kelly D., at pp. 439-440; James Q., at p. 268.) These ipse dixit holdings, devoid of reasoning or explanation, are not persuasive, especially in view of contrary authority. (M.T., supra, 178 Cal.App.4th at p. 1182 [applying harmless error analysis to the denial of a contested hearing under section 366.3]; In re A.D. (2011) 196 Cal.App.4th 1319, 1325-1327 [noting that the California Supreme Court had cautioned against finding errors in dependency cases to be reversible per se; applying harmless error analysis to denial of notice to parent of hearing during reunification period at which parent's rights were terminated].) More importantly, Father's reliance on these cases is unavailing here because we have already held twice in this matter that Father had to establish prejudice to obtain a reversal based on the denial of a request for a contested hearing, once involving a hearing during the reunification period and once concerning a review hearing under section 366.3. (In re C.J., supra, A158786; In re C.J., supra, A148255.) The need for a showing of prejudice is now law of the case in this matter. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 [“ ‘The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case' ”].)
Father's avoidance of any discussion of prejudice is perhaps not surprising, because our review of the record reveals no evidence from which we could find prejudice even under the more liberal standard of harmlessness beyond a reasonable doubt. Father indicated to the juvenile court he wanted a contested hearing to oppose a finding that the agency made reasonable efforts to make and finalize a permanent placement for the children. Father raised three factual points in support of his request. First, he accused the agency of failing to make reasonable efforts to finalize a permanent plan for Minors or to identify barriers to achieving permanency under section 366.3, subdivisions (e)(4) and (h)(1). Second, he complained that the agency had not made reasonable efforts to return Minors to him under section 366.3, subdivision (e)(4) and had not evaluated him under section 366.3, subdivision (e)(7) to assess his progress towards mitigating concerns about his mental health and sobriety. Third, Father asked the court to reinstate his educational rights under section 366.3, subdivision (e)(5), since the children had suffered no ill effects from his frequent in-person and phone visits, including his attendance at many of Minors' sports practices and events. Father also argued he was not required to make an offer of proof or file a petition under section 388 to obtain a contested hearing.
It is questionable whether most of these reasons had any legal relevance to the issues before the juvenile court. Two of the four authorities Father cited concerned children permanently placed in long-term foster care. (§ 366.3, subds. (e)(7) [requiring assessment of parents' progress “toward alleviating or mitigating the causes necessitating placement in foster care”], (h) [requiring court to identify barriers to permanency and consider all permanency planning options at review hearings “held... for a child in foster care”], italics added.) But Minors were placed with a fit and willing relative, which is a different and more favored plan than foster care. (§ 366.26, subd. (b)(6)-(7) [listing permanent plans in order of preference, with placement in long-term foster care listed after placement with fit and willing relatives]; In re J.F. (2011) 196 Cal.App.4th 321, 334 [long-term foster care is least favored permanent plan].) A juvenile court has less stringent obligations at a review hearing for a child permanently placed with fit and willing relatives than for a child placed in foster care. (Cf. § 366.3, subd. (e) [listing findings generally required at hearings for children placed somewhere other than in the home of a legal guardian] with subd. (h) [listing additional findings for children placed in foster care].)
We need not delve into the legal intricacies of section 366.3, however, because Father has not identified any facts that would have given him even a reasonable probability of changing the outcome at the hearing. When evaluating Father's showing for potential prejudice, we are mindful that section 366.3, subdivision (f) imposed a statutory presumption in favor of continued care for Minors and placed on Father the burden of proving that further efforts at reunification were the best alternative for the children. (§ 366.3, subd. (f) [“It shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child”].)
Although Father faulted the agency for failing to finalize a permanent plan for Minors or to identify barriers to achieving permanency, the only alternative placement for the children he identified that would offer more permanency than their current placement with their maternal great aunt and uncle was a return to his own home. Even if the agency was obligated under section 366.3, subdivisions (e)(4) or (7) to consider the return of Minors to Father's care as a permanent plan or to evaluate Father's progress in resolving the causes of the dependency, as Father contended, the only facts he cited to show the possibility of Minors' return were his history of regular visits with Minors and his residence at the same home and use of the same phone number for the last five years. Such evidence of continuity of visitation and stability is insufficient on its own to indicate Father could show he had addressed the prior concerns about his substance abuse and mental health. Father claimed at the first date of the hearing that he was “no longer the same person he was six years ago, and he has been engaged in his own services.” But Father offered no specifics regarding services he had been engaged in or progress he had made in such services, nor did he proffer the testimony of any service provider, expert, or other person who could evaluate and confirm his self-serving conclusions. Father also acknowledged that Minors were thriving in their current placement, with no behavioral, emotional, or mental health problems.
To support his request for the restoration of his educational rights, Father again relied on his history of regular visitation with the children, including visits at school events and sports practices. But the court originally transferred the right to make Minors' educational decisions to their maternal great aunt and uncle because the caregivers were responsible for handling the children's education and mental health services and Father had in the past refused to sign consent forms. Father's history of successful visits, even if such visits took place at Minors' school events, does not demonstrate that it was no longer necessary for Minors' caregivers to be able to handle Minors' educational affairs or that Father was now willing to cooperate in making decisions for Minors.
In sum, we need not and do not decide whether Father was obligated to make a detailed, formal offer of proof to obtain a contested hearing, because there is no basis from which we could conclude that Father had any likelihood of carrying his burden to persuade the juvenile court to enter a different order after a contested hearing. Such a showing could consist of information that Father had obtained a mental health evaluation, had engaged in counseling or substance abuse treatment, was presently able to offer Minors a safe home environment, or had taken some other equivalent steps to make reunification with Minors a realistic possibility. Absent any such indication, we cannot conclude the denial of a contested hearing was prejudicial to Father.
DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: POLLAK, P. J., TUCHER, J.