Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK71964, Stephen Marpet, Juvenile Court Referee.
Andre F. F.Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Senior Associate County Counsel, for Plaintiff and Respondent.
PERLUSS, P. J.
Stephanie G., the mother of Luis C., Jacob C., Savannah C. and Gene C., appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26, arguing the court committed prejudicial error in limiting her testimony and denying her request for a brief continuance to permit an additional witness to attend the hearing. Stephanie G. also contends the juvenile court erred in finding compliance with the notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). We conditionally affirm the termination of parental rights but remand for compliance with ICWA.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On March 11, 2008 the Los Angeles County Department of Children and Family Services (Department) detained seven-year-old Luis, six-year-old Jacob, three-year-old Savannah and one-year-old Gene after receiving a referral alleging Stephanie G. had left the children with their paternal grandmother for more than two months without providing for their support. The Department’s investigation revealed the father of the children, Luis C., who then lived with the grandmother, had similarly failed to provide any care or support for the children. Both parents suffered from unresolved substance abuse and domestic violence issues and were unable to provide financial support for the children.
At the detention hearing on March 14, 2008 the court found a prima facie case for detaining the children under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), and ordered the children placed with the paternal grandmother. When asked about potential American Indian ancestry, Stephanie G. advised the court her maternal great-grandmother, who lived near her in Los Angeles, was “in a tribe” although she did not know which one. The court ordered the Department to “do a full investigation and [provide] notice [to] the Bureau of Indian Affairs and any other appropriate tribes.” The court also approved monitored visitation for Stephanie G. at the home of the paternal grandmother and monitored visitation for Luis C. at a neutral location.
At the June 12, 2008 jurisdiction and disposition hearing, which was uncontested, the juvenile court sustained the allegations of the petition under section 300, subdivision (b), as amended, finding the parents had a history of domestic violence and substance abuse. The court ordered Stephanie G., who had herself been a dependent child of the juvenile court from 1997 to 2000, to attend a parenting class and a 52-week domestic violence counseling program and to undergo weekly drug tests. She was also ordered to enroll in individual counseling and conjoint counseling with the children.
In an interim review report dated September 4, 2008, the Department stated Stephanie G. had failed to enroll in any counseling programs but had recently begun parenting, domestic violence and anger management classes. She had failed to appear for three drug tests but had tested negative on five other occasions. She had also had weekly monitored visits with the children at the home of the paternal grandmother. The social worker for the Department also reported Stephanie G. had claimed Indian ancestry on her father’s side but could give no details about specific tribal affiliation. Without reporting whether notice had been given to the Bureau of Indian Affairs, the Department requested the court find ICWA was inapplicable to the children.
In a report prepared for the six-month review hearing on November 13, 2008 (see § 366.21, subd. (e)), the Department renewed its request the court find ICWA inapplicable, even though no notices had ever been sent to the Bureau of Indian Affairs. The report also stated the children were doing well with the paternal grandmother, who was ensuring the children received the services made available to them by the Department. Although Luis, the oldest, stated he missed his parents, he was happy to be with his grandmother. The younger children also seemed to be well-bonded with their paternal grandmother.
Stephanie G., however, was not doing so well. She had been evicted from her apartment because of a fight with Luis C. and had also had an altercation with the paternal grandmother, which caused her to stop visiting the children. Although she claimed she was still attending classes, the social worker was unable to confirm her attendance with the school. Having failed again to appear for half her weekly drug tests, the Department required her to enroll in a substance abuse program, as specified in the disposition case plan. Stephanie G. attributed her inability to comply with her case plan to her financial struggles. The social worker arranged for visits with the children to be monitored by the maternal grandmother to support reunification. Nonetheless, the Department also implemented concurrent planning for the children to be placed with the paternal grandmother, who was in full compliance with the case plan for the children.
At the November 13, 2008 hearing the court ordered the continuation of reunification services and set a 12-month review hearing for March 18, 2009 (§ 366.21, subd. (f)). The court also made the finding requested by the Department that ICWA was not applicable to the case.
The report prepared for the March 18, 2009 hearing disclosed Stephanie G. had fallen into a serious depression, which had caused her to lose her job. Because she had lost her job, Stephanie G. was unable to maintain the payments on her car, which was repossessed. That, in turn, further damaged Stephanie G.’s relationship with the paternal grandmother, who had co-signed the loan for the car. Moreover, rather than improve her record of compliance with the court’s orders, Stephanie G. had missed numerous drug tests and had failed to participate actively in her classes. She had also stopped visiting the children, not wanting them to see her in such a depressed state. In addition, in January 2008 she engaged in another episode of physical violence with Luis C. Concerned with this pattern, the social worker convened a team decisionmaking meeting, at which Stephanie G. admitted, “I am not ready to have my children right now.”
Meanwhile, the paternal grandmother, who had been evicted because of the number of children in the household, moved into a new apartment closer to her work and managed to comply fully with the case plan for the children. She also advised the Department she was ready to adopt the children and provide them with a permanent home. The juvenile court set the case for a contested hearing to determine whether reunification services should be terminated.
In preparation for the contested section 366.22, subdivision (f), hearing, Stephanie G. complied with the outstanding court order to seek individual counseling. The psychologist reported her concern Stephanie G. was severely depressed, which could pose a risk to the children were she to become responsible for them. The Department’s report acknowledged Stephanie G.’s improving participation in her court-ordered classes but found she was still only in partial compliance with the court-ordered drug testing regimen. She had resumed visits with the children but still lacked the housing and income that would enable her to provide for them. The report concluded, “The Department does not foresee mother being able to accomplish these outcomes in the time allotted by the Court.”
The day before the contested hearing, scheduled for April 9, 2009, the Department learned Stephanie G., along with her boyfriend and a number of other people, had been arrested for possession of drugs for sale. Stephanie G. had been released after the boyfriend and others took responsibility for the drugs. Nonetheless, the Department advised the court the arrest demonstrated Stephanie G., who had been staying with her boyfriend at the location where the drugs were found, had failed to understand the importance of living in a drug-free environment. Accordingly, the Department recommended reunification services be terminated and a date set for the section 366.26 selection and implementation hearing. The court adopted the Department’s recommendation, concluding that there remained a substantial risk to the children if they were returned to Stephanie G. and that Stephanie G. was unlikely to be able to reunite with her children in the next six months. In addition to the arrest, the court based its decision on Stephanie G.’s failure to fully comply with court-ordered drug testing, her inability to move beyond monitored visits with the children, the irregularity of those visits and her resort to violence against Luis C. more than six months into her scheduled classes.
In the months preceding the section 366.26 hearing, the Department attempted to coordinate monitored visits between Stephanie G. and the children. The Department was forced to limit those visits after it received a complaint from Luis, then eight-years-old, his paternal grandmother had hit him. After investigating, the Department concluded the allegation was unfounded, particularly in light of Luis’s admission his mother had told him he could return to living with her if he complained about his grandmother. The Department found that Stephanie G. was abusing the rules of the monitored visits to speak privately with Luis and solicit him to assist her in disparaging the paternal grandmother. Moreover, although Stephanie G. had regained her job, she still was unable to provide financially for the children. In its report for the section 366.26 hearing the Department reiterated its recommendation the parents’ rights be terminated and a permanent plan of adoption be selected by the court.
Luis, unlike the younger children, missed his mother badly and stated on several occasions he wanted to live with her. Nonetheless, the Department reported he was doing well with the paternal grandmother.
The contested section 366.26 hearing proceeded on September 14, 2009. At the beginning of the hearing, Stephanie G.’s counsel requested a continuance, claiming the paternal grandmother would testify she wanted legal guardianship rather than adoption of the children. The court denied the continuance. Stephanie G. was then sworn as a witness and testified in support of her claim to the parent-child exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) In response to multiple questions from the court, Stephanie G. gave conflicting answers about her work schedule and her visits with the children. The court also inquired about her attendance at the children’s school functions and her knowledge about their teachers and doctors. Stephanie G. had never been to a school function and did not know the names of the children’s teachers or doctors.
At this point the court stated, “I have heard enough. The contact between this mother and these children just doesn’t rise to the level of Autumn H. [(1994) 27 Cal.App.4th 567], and she has never taken a parental role.” Stephanie G.’s counsel attempted to intervene, stating she had not yet finished questioning her client. Over the interruptions of counsel and Stephanie G., the court continued, “There is just nothing here other than what you talked about. She has nothing but monitored visits. She doesn’t attend the kids’ school, doesn’t know their doctors, doesn’t know what school they go to.... She hasn’t done anything to rise to that level.... At this point, I see no further need for any further testimony.” After a short discussion of exhibits, Stephanie G.’s counsel posed an objection to the court’s interruption of her questioning of her client. The court responded, “The court has indicated the reason why I terminated the examination of mother, because everything in her statements is either not true necessarily or never, in any sense, arises to the level appropriate under [section 366.26, subdivision] (c)(1)(B)(i), and we just can’t continue on with testimony that doesn’t rise to the level.” Counsel again interjected, “I have a different view of that, your Honor. From what she testified what she did, she acted like a parent. She was left alone with the children. She took care of them. She bathed them. She fed them, prepared their food. She talked to them about school, did any number of things during [the visits]. She had rather extensive contact with them. She was even allowed to stay overnight.” The court acknowledged her objection and then, finding by clear and convincing evidence the children were likely to be adopted, it terminated the rights of the parents.
DISCUSSION
1.The Juvenile Court Did Not Abuse Its Discretion in Denying a Continuance of the Hearing or in Terminating Testimony
i The purpose of a section 366.26 hearing
Section 366.26 directs the juvenile court in selecting and implementing a permanent placement plan for a dependent child. The express purpose of a section 366.26 hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) If the court has decided to end parent-child reunification services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 [“if the child is adoptable... adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child”]; see In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found unsuccessful, the state has a “compelling” interest in “providing stable, permanent homes for children who have been removed from parental custody” and the court then must “concentrate its efforts... on the child’s placement and well-being, rather than on a parent’s challenge to a custody order”].) When the court finds by clear and convincing evidence that the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate that one of six enumerated exceptions applies. (§ 366.26, subd. (c)(1)(B); see In re Matthew C. (1993) 6 Cal.4th 386, 392 [when child adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is relatively automatic].)
To satisfy the subdivision (c)(1)(B)(i) exception to termination, the exception invoked by Stephanie G., a parent must prove he or she 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); see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden to show that the statutory exception applies”].) The “benefit” prong of the exception requires the parent to prove his or her relationship with the child “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 re Autumn H., supra, 27 Cal.App.4th at p. 575 [“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”].) No matter how loving and frequent the contact, and notwithstanding the existence of an “emotional bond” with the child, “the parents must show they occupy ‘a parental role’ in the child’s life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The relationship that gives rise to this exception to the statutory preference for adoption “characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
ii The court did not abuse its discretion in refusing to continue the hearing
The juvenile court may continue a dependency hearing upon a showing of good cause, provided the continuance is not contrary to the interest of the minor. (See § 352, subd. (a) [“[N]o continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.”]; In re A.M. (2008) 164 Cal.App.4th 914, 925.) The court’s ruling denying a continuance is reviewed for abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
Stephanie G. sought a continuance for the purpose of securing testimony from the paternal grandmother, who, according to Stephanie G., would testify she wanted legal guardianship of the children only and did not want to adopt them. This proposed testimony, however, was contradicted by the extensive reports of the Department, including the adoptions social worker, who advised the court the paternal grandmother was committed to adopting the children and did not believe either her son or Stephanie G. was prepared to parent the children. Moreover, Stephanie G. sought to submit this testimony for the purpose of delaying termination of her rights. Thus, she failed to show the continuance would be in the best interests of the children. There was no abuse of discretion by the juvenile court in proceeding with the section 366.26 hearing.
Stephanie G. also claimed the continuance was necessary because the adoption home study had not yet been completed. The question at the section 366.26 hearing, however, is not final placement but the likelihood of adoption. (§ 366.26, subd. (c)(1) [“If the court determines... it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.”].)
iii. The court did not abuse its discretion in terminating Stephanie G.’s testimony
Like the decision whether to grant a continuance of a hearing, the juvenile court’s decision to limit testimony is reviewed for an abuse of discretion. (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 759.) Stephanie G. contends the court violated her right to due process when it prohibited her from completing her testimony at the section 366.26 hearing, an act she claims prevented her from establishing her entitlement to the subdivision (c)(1)(B)(i) exception.
While Stephanie G. correctly asserts a parent has a right to present evidence and contest the evidence against her at a section 366.26 hearing, she was not deprived of an opportunity to testify and fails to address the repeated contradictions in her testimony that led the court to conclude it had heard enough from her. For instance, Stephanie G. asserted she took care of the children until March 2008 when they were detained. The evidence in the record, however, established she had left them at the home of the paternal grandmother in January 2008 without explanation or funds for their support. Attempting to establish an ongoing relationship with the children, she claimed she saw them consistently three to four days every week, including some overnight visits. Again, these assertions were directly contradicted by evidence in the record. Stephanie G.’s visits were always monitored and, at best, inconsistent throughout the course of the dependency proceedings. She frequently went weeks without seeing the children, information that was corroborated by the children, the social workers and the paternal grandmother. Frustrated by the evident contradictions in her testimony, the court inquired about her children’s schools, teachers and doctors, probing Stephanie G.’s asserted parental caretaking. Stephanie G. was unable to identify the schools the children attended or their teachers and doctors and had never attended any school functions. In an effort to convince the court her visits with the children had been more extensive in recent months, she claimed she had been visiting the children for 10 hours each Friday, Saturday and Sunday. On Fridays, she testified, she came to the children as soon as they came home from school. She then acknowledged, however, she was working a 3:00 p.m. to 11:00 p.m. shift throughout this same time, including Fridays, Saturdays and Sundays.
“It is axiomatic that due process guarantees apply to dependency proceedings. [Citations.] Parties to such proceedings have a due process right to confront and cross-examine witnesses, at least at the jurisdictional phase. [Citations.] The essence of due process is fairness in the procedure employed; a meaningful hearing, one including the right to confront and cross-examine witnesses, is an essential aspect of that procedure. [Citation.] But due process also is a flexible concept, whose application depends on the circumstances and the balancing of various factors.” (Ingrid E. v. Superior Court, supra, 75 Cal.App.4th at pp. 756-757.)
In terminating her testimony, the court made an express finding Stephanie G. had not been credible. Moreover, the court noted she had never progressed beyond monitored visits and had failed to take a parental role with the children. These findings are supported by substantial evidence in the record. Although Stephanie G. may have loved her children to the best of her ability, she was unable to maintain a parental role with them, the predicate finding for application of the subdivision (c)(1)(B)(i) exception. “Courts have required more than just ‘frequent and loving contact’ to establish the requisite benefit for this exception.” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) As the juvenile court stated here, it had heard sufficient testimony to conclude that the requisite level of attachment did not exist between Stephanie G. and her children and that the children were entitled to the benefit of a stable and permanent home, a home their grandmother was prepared to provide them. Stephanie G. was not deprived of her opportunity to present a defense; her defense was curtailed because of her own untruthfulness. The juvenile court did not abuse its discretion, therefore, in terminating the hearing.
In this proceeding Stephanie G. has failed to identify additional evidence she would have adduced to establish the applicability of the subdivision (c)(1)(B)(i) exception. Having already testified to her perception of the merits of her visits with the children, any error by the court in circumscribing her testimony was necessarily harmless. (See In re Celine R., supra, 31 Cal.4th at pp. 59-60 [harmless error doctrine applies in dependency cases; dependency court order should not be set aside unless it is reasonably probable the result would have been more favorable to the appealing party but for the error].)
As the Court of Appeal observed in In re Autumn H., supra, 27 Cal.App.4th at p. 575, the decision relied upon by the juvenile court here, “[i]nteraction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.]... The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.”
2.The Parties Agree Remand Is Necessary To Provide Proper ICWA Notice
The Department concedes the statutory notification mandated by ICWA (25 U.S.C. § 1912(a)) had not been provided when it requested the court to find ICWA inapplicable to this case. The Department further acknowledges this court should remand the matter and direct the juvenile court to fully comply with the notice requirements of ICWA if it has not already done so. To accomplish this limited remand, it is not necessary to reverse or vacate the juvenile court’s disposition order. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385-386; accord, Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268; In re Veronica G. (2007) 157 Cal.App.4th 179, 188; but see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 785 .) After proper notice under ICWA, if it is determined that the children are Indian children and ICWA applies to these proceedings, Stephanie G. will be entitled to petition the juvenile court to invalidate any orders that violated ICWA. (See 25 U.S.C. § 1914; In re Veronica G., at p. 188.)
DISPOSITION
The orders of the juvenile court under section 366.26 are conditionally affirmed. The matter is remanded to the juvenile court for compliance with the notice provisions of ICWA and for further proceedings not inconsistent with this opinion.
We concur: WOODS, J.ZELON, J.