Opinion
H025768.
11-11-2003
In re JOSE G., A Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. AUGUSTINA G., et al., Defendants and Appellants.
The juvenile court terminated the parental rights of appellants Augustina G. and Froylan G. to their son Jose G. after a permanency planning hearing at which the court found that Jose was adoptable. Augustina and Froylan appeal and claim that they were denied their right to a contested permanency planning hearing because the court required their trial counsel to make an offer of proof before it would set a contested hearing. They also maintain that the courts finding that Jose is adoptable is not supported by substantial evidence. We reject their contentions and affirm the juvenile courts order.
I. Background
In July 2001, Joses then 12-year-old sister Florina was detained after she alleged that she had been physically abused by her parents and sexually abused by a member of their household. Her parents had failed to protect her from the sexual abuser and instead blamed her for the abuse. Ten-month-old Jose was not initially detained, but the Monterey County Department of Social Services (the Department) did file a petition in July 2001 alleging that Jose came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivision (j) (abuse of sibling).
In August 2001, Jose was detained after a social worker, during a home visit, found Froylan to be "very inebriated," and Augustina denied that he had been drinking. An amended petition was filed as to Jose adding allegations under Welfare and Institutions Code section 300, subdivision (b) (failure to protect).
Initially, Froylan and Augustina had weekly supervised one-hour visits with Jose and Florina. They maintained regular visitation, but they demonstrated a lack of communication and interaction with the children during their visits. During an August 2001 visit, Froylan behaved inappropriately with Florina by rubbing her thighs, grabbing her forcefully and trying to make her kiss him on the mouth.
Court-ordered psychological evaluations of Froylan and Augustina disclosed that they both suffered from mental disabilities that precluded them from utilizing reunification services to regain custody of Jose within the available reunification period.
Jose was an attractive "chubby" infant who ate and slept well. He had some development delays in gross motor development and communication skills. He was a happy boy who "smiles and coos" in response to attention. Jose had a history of upper respiratory problems and asthma for which he was being treated.
At the February 2002 jurisdictional and dispositional hearing, the court found the petitions true and took jurisdiction over both Florina and Jose. Reunification services were denied under Welfare and Institutions Code section 361.5, subdivision (b)(2) due to the parents mental disabilities that rendered them unable to utilize reunification services. A permanency planning hearing was scheduled for June 2002.
This appeal does not involve the courts orders regarding Florina.
At the June 2002 permanency planning hearing, the Department recommended that long term foster care be selected as the permanent plan for Jose "with adoption the goal" because the Department needed 180 days to obtain additional medical information about Jose that would help in identifying prospective adoptive homes. A neurologist who had examined Jose wanted to perform tests to rule out fetal alcohol syndrome, a chromosome deformity and autism. A follow-up appointment had been scheduled for December 2002. The Department noted that Jose "is an age that is easily placed for adoption," but identification of a prospective adoptive home was delayed due to the lack of information about Joses medical condition. The court told the Department "I dont do adoption goals" and insisted that it "be one or the other." The Department conceded that long term foster care was the only currently viable option "until we find out what his [medical] problems are."
Jose remained a happy, stocky child with developmental delays. He was walking but was not speaking. Jose ate and slept well, and he enjoyed playing with other children and with toys. Jose was due to be assessed by the San Andreas Regional Center within two months to identify possible resources that could assist him. Joses current foster parents had considered adopting him, but they did not feel able to meet Joses special needs.
The court agreed with the Departments recommendation. "We dont have enough information yet as to whether or not hes even adoptable given the medical problems." "And we need time to sort all that out." It selected long term foster care as the permanent plan for both Jose and Florina. The court found that Jose "is not likely to be adopted at this time." It set an "interim oral review" for Jose for August 2002 and "defer[red] the issue of whether to consider terminating parental rights until that time." It also set a post-permanency planning review hearing for December 2002. No changes were made at the August 2002 interim review hearing.
Florina was unwilling to be adopted.
At the December 2002 post-permanency planning hearing, the Department asked the court to schedule a new permanency planning hearing for Jose because long term foster care was no longer appropriate since Jose was adoptable. Jose, now two years old, had been living in a prospective adoptive home for four months where he was "thriving" and in good health. Further testing by the neurologist had ruled out fetal alcohol syndrome, a chromosome deformity and autism. The source of Joses developmental delays had not been identified. Jose had qualified for Regional Center services, and he was receiving services that were helping him to progress in his development. Jose still had "coordination" problems, but he was "a very loving little boy" who had become "a delightful member" of the prospective adoptive family. He was happy and enjoyed being with the other children in the prospective adoptive family. Jose "sees himself as a member of the family," and the prospective adoptive family "has accepted him, also, as a member of their family." Joses prospective adoptive family had "an approved Adoption Home Study." The prospective adoptive family was interested in having Florina come to their home for "extended visits" with Jose. The court found that long term foster care was "no longer []appropriate" for Jose and set a new permanency planning hearing for Jose for March 14, 2003.
The Department notified the parents in advance of the scheduled March 2003 hearing that it was recommending termination of parental rights and selection of a permanent plan of adoption for Jose. The March 2003 social workers report repeated this recommendation. Jose was continuing to live in the prospective adoptive home, and he was receiving speech and educational therapy and services for his developmental delays from the Regional Center. He continued to have "coordination" problems and had limited means of communication, which caused him some frustration. He could copy sounds but "basically speaks in screams to communicate." "Jose is developing his skill base." Jose "eats rather slowly and does not appear to process information and stimuli as it is provided." However, he was progressing and would be starting pre-school in the fall. Jose remained a happy, active and engaging child who had "a great deal of resilience." He had bonded to the prospective adoptive family, and they "love[d] him dearly" and were willing and able to meet his special needs. The prospective adoptive family had passed both a criminal history clearance and a "CWS" history clearance.
By this time, Florina had been placed in a residential treatment facility.
The prospective adoptive mother had been arrested in 1989 for receiving stolen property, but this incident did not pose a hindrance to the adoption.
On March 14, 2003, the scheduled permanency planning hearing was continued to March 21 to "set contested hrg." The appellate record does not contain a reporters transcript of the March 14 hearing. At the outset of the March 21 hearing, the court stated that the matter "is before the Court for possible setting of a contested permanency planning hearing." It then asked "[w]here are we with setting of contested hearing?" Trial counsel for the parents responded: "Well, what I would like to do, Your Honor, is Ive had a conference with the G[.]s, and they would both like to make a brief statement. Ive already told county counsel. So with your permission, Id like to have Mr. G[.] stand up and say exactly what hed like. Tell the judge what you want and why."
Froylan and Augustina then made statements to the court with some prompting from their trial counsel. Froylan said he wanted "more court dates so that the child can return to his father." He stated that he loved Jose, insisted that he was "a good dad" and noted that he was "working to support my children." Froylan also admonished that he did not want his children to be with "other people." Augustina said that she would "be a better mother" and wanted her children to be returned to her. She also stated that she was opposed to her children being placed with or adopted by any other family.
After hearing these statements, the juvenile court asked the Departments trial counsel "[w]hats your position on whether this showing is sufficient to schedule a contested hearing." She responded "I dont think theyve met their burden of proof. . . . [A]s far as Jose goes, he is an adoptable child, and theres been no showing that any of the exceptions kick in that would make termination of the parental rights detrimental." The parents trial counsel simply said "Ill submit it."
The court found by clear and convincing evidence that Jose was adoptable and terminated parental rights. Augustina and Froylan filed a timely notice of appeal.
II. Discussion
A. Contested Hearing
Froylan and Augustina claim that they were denied their right to a contested permanency planning hearing because the juvenile court required them to make an offer of proof before setting a contested hearing.
They rely on In re James Q. (2000) 81 Cal.App.4th 255 in which the Third District held that a juvenile court "may not, consistent with the requirements of statute and principles of due process, deny a party the right to a contested review hearing based on an allegedly inadequate or even a nonexistent offer of proof." (James Q. at p. 258, emphasis added.) The juvenile court in James Q. denied a request by the mothers attorney for a contested six-month review hearing where the issue was whether reunification services should be extended. (James Q. at p. 259.) The mothers attorney stated that he wished to present the mothers testimony and cross-examine the social worker. (James Q. at p. 259.) The Third District held that the juvenile courts denial of a hearing violated the mothers right to due process. "As a matter of statutory construction and constitutional due process, we conclude the juvenile court cannot require a party to a review hearing to tender an offer of proof as a condition to obtaining a contested hearing. A party must be able to make its best case, untrammeled by evidentiary obstacles arbitrarily imposed by the courts without legislative sanction." (James Q. at p. 266, citations omitted.) The Third District explicitly distinguished cases in which reunification services had already been terminated. (James Q. at p. 267.)
In In re Kelly D. (2000) 82 Cal.App.4th 433, the Third District extended James Q.s holding to post-permanency planning review hearings noting that reunification was still an option at the post-permanency planning review hearing because the child had been placed in long term foster care. (Kelly D. at pp. 438-439.)
In April 2002, Division Four of the Second District held in In re Tamika T. (2002) 97 Cal.App.4th 1114 that "a trial court does not deny due process if it requires a parent to make an offer of proof before it conducts a contested [permanency planning] hearing on the issue of whether a parent can discharge his or her burden of establishing a statutory exception to termination of parental rights." (Tamika T. at p. 1116.) The mother in Tamika T. claimed that she was entitled to a contested permanency planning hearing regardless of her offer of proof. (Tamika T. at p. 1121.) The Second District disagreed.
"Because due process is . . . a flexible concept dependent on the circumstances, the court can require an offer of proof to insure that before limited judicial and attorney resources are committed to a hearing on the issue, mother had evidence of significant probative value. If due process does not permit a parent to introduce irrelevant evidence, due process does not require a court to hold a contested hearing if it is not convinced the parent will present relevant evidence on the issue he or she seeks to contest. The trial court can therefore exercise its power to request an offer of proof to clearly identify the contested issue(s) so it can determine whether a parents representation is sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses." (Tamika T. at p. 1122.)
The Second District distinguished James Q. and Kelly D. and disagreed with the reasoning of James Q. (Tamika T. at pp. 1122-1123.) "A proper offer of proof gives the trial court an opportunity to determine if, in fact, there really is a contested issue of fact. The offer of proof must be specific, setting forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued. If the trial court finds the offer of proof insufficient and declines to hold a contested hearing, the issue is preserved for appeal so that a reviewing court can determine error and assess prejudice. [Citation.] This procedure adequately protects a parents rights." (Tamika T. at p. 1124.)
Five months after publishing Tamika T., Division Four of the Second District published In re Josiah S. (2002) 102 Cal.App.4th 403 in which it agreed with both Kelly D. and James Q. in a case, like Kelly D., involving a post-permanency planning review hearing. Josiah S. oddly made no mention of Tamika T.
We generally agree with the reasoning of Tamika T. A juvenile court does not violate a parents right to due process by requiring the parent to specify the issue the parent wishes to contest at the permanency planning hearing and the evidence that they desire to present in order to determine whether there is any genuine issue of fact. Of course a juvenile court may not use this mechanism to preclude a parent from obtaining a contested hearing on a genuine factual issue. The court may not refuse to hold a contested hearing if the parent is able to suggest the existence of any viable issue upon which he or she wishes to present evidence or cross-examine the social worker.
In this case, neither the parents nor their attorney made the slightest suggestion of a genuine factual issue or of any evidence that they wished to present at a contested hearing. The only issues that could have been raised at such a hearing were adoptability and the parental relationship exception to adoption, but the parents and their attorney did not even intimate that they wished to challenge adoptability or attempt to demonstrate the existence of a beneficial parental relationship. Indeed, the parents trial counsel submitted the case without comment. Consequently, the juvenile court did not err or violate due process in declining to schedule an unnecessary contested permanency planning hearing.
Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated "unless 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: [¶] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Welf. & Inst. Code, § 366.26, subd. (c)(1).) "[T]he burden is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence." (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) Where there is a significant beneficial parental relationship, the court must balance the benefit of that relationship against the benefit to the child of a permanent adoptive home. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951.) Other than the parents statements that they loved Jose, they did not indicate that they had any evidence that their relationship with him was more important to him than the benefit of a permanent adoptive home. During the nine months preceding the March hearing, the parents contact with Jose had been limited to monthly two-hour visits.
B. Adoptability
Froylan and Augustina contest the sufficiency of the evidence to support the juvenile courts adoptability finding.
"[W]e view the record in the light most favorable to the judgment below and decide if the evidence [in support of the judgment] is reasonable, credible and of solid value—such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence." (In re Jasmon O. (1994) 8 Cal.4th 398, 423, internal quotation marks omitted.)
Adoption is the statutorily preferred permanent plan, and it must be selected as the permanent plan if the child is adoptable and the statutory exceptions to adoption are inapplicable. (Welf. & Inst. Code, § 366.26, subds. (b)(3), (b)(4).) "[T]he inquiry as to whether a child is likely to be adopted does not focus on the adoptive parents, but rather, on the child." (In re Josue G. (2003) 106 Cal.App.4th 725, 733.) "The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent `waiting in the wings. [Citations.] [¶] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, emphasis omitted.)
Under Welfare and Institutions Code section 366.26, subdivision (b), the court must select one of four options as the permanent plan, and these four options are ranked in terms of preference. The first preference is to "[t]erminate the rights of the parent or parents and order that the child be placed for adoption . . . ." (Welf. & Inst. Code, § 366.26, subd. (b)(1).) The second preference is to "mak[e] a finding under paragraph (3) of subdivision (c), identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days." (Welf. & Inst. Code, § 366.26, subd. (b)(2).) The third preference is to appoint a legal guardian, and the fourth preference is to order the child placed in long-term foster care. (Welf. & Inst. Code, § 366.26, subds. (b)(3), (b)(4).)
The juvenile courts refusal to consider the second option at the first permanency planning hearing was a statutory violation since "adoption as the permanent placement goal" (the second option) is statutorily preferred over long term foster care (the fourth option). We point this out simply to apprise the juvenile court that its policy that "I dont do adoption goals" is in conflict with the governing statute and should be altered.
While the inquiry as to a childs adoptability usually focuses on both the specific characteristics of the child and the existence of any prospective adoptive families that have expressed interest in adopting the child, more generalized "evidence of approved families willing to adopt a child of [this] age, physical condition, and emotional state can be used to evaluate the likelihood of the childs adoption." (In re Asia L. (2003) 107 Cal.App.4th 498, 510, internal quotation marks omitted.) "[And] in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)
Here, there was abundant evidence of Joses adoptability. At the age of two, Jose was a healthy, happy, active, engaging, "very loving little boy," with "a great deal of resilience," of "an age that is easily placed for adoption." While the Department had not yet identified a prospective adoptive home at the time of the first permanency planning hearing due to the need to learn the results of neurological testing, the Department was able to place Jose in a prospective adoptive home just two months later, and he had been "thriving" in that home with committed caregivers who "love[d] him dearly" for seven months by the time of the second permanency planning hearing. The neurological tests had shown no abnormalities, and Jose was receiving services from the Regional Center that were helping him to make progress on his coordination and communication delays.
Except for his coordination and communication delays, Jose was a normal toddler who walked, played with toys and enjoyed socializing with other children. He was expected to start pre-school this fall. He and his prospective adoptive family had developed a strong bond, and he was considered by them, and considered himself, a member of the family. The prospective adoptive family was interested in having Joses sister Florina come to their home for "extended visits" with Jose. Joses prospective adoptive family had achieved "an approved Adoption Home Study" in connection with their adoption of another child, and there was every indication that they could again do so.
Our review necessarily looks at this evidence in the light most favorable to the juvenile courts finding, and we find the evidence easily sufficient to support the courts finding by clear and convincing evidence that Jose was likely to be adopted. His age, good health and engaging personality strongly favored adoption. The only impediments to Joses progress were his developmental delays, and he was making progress in dealing with those delays with services tailored to assist him. The existence of a prospective adoptive family who, after seven months of caring for Jose, had bonded with him and committed to adopting him was convincing evidence that Jose would be adopted. Their suitability was buttressed by the fact that their home had previously been approved for adoption. In sum, the evidence before the juvenile court was sufficient to clearly and convincingly demonstrate the likelihood that Jose would be adopted. Hence, the juvenile courts adoptability finding must be upheld.
III. Disposition
The juvenile courts order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J. and Wunderlich, J.