Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County Nos. DP004826 & DP004827, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
BEDSWORTH, ACTING P. J.
Margarita D. appeals from an order denying her request for a contested postpermanency review hearing. (Welf. & Inst. Code, § 366.3.) We find the juvenile court properly denied her request and affirm the order.
FACTS
This appeal involves Margarita’s two youngest children, M. and Luis, who are now 12 and 11 years old, respectively. The children were declared dependents of the juvenile court in 2001, after it was discovered that their father, Luis, Sr., had been sexually abusing their stepsisters. Although Margarita failed to protect the stepsisters from Luis, Sr., and physically abused the children herself, the juvenile court placed the children in her care under a family maintenance plan. However, Margarita soon violated the terms of the plan by allowing Luis, Sr., back into the house. The court then placed the children in foster care and authorized a reunification plan for Margarita. Margarita failed in that plan, as well, and in 2003, the court terminated her reunification services and made long-term foster care the permanent placement plan for the children.
The stepsisters have since reached the age of 18 and are no longer involved in the case.
For nearly the entire time since then, M. and Luis have been with the same foster family. They have become bonded to their foster parents and are currently doing well in their care. However, they both have Attention Deficit and Hyperactivity Disorder and can be difficult to care for. In fact, sometimes they can be quite aggressive and intemperate, which is one of the reasons their foster parents have been reluctant to adopt them or seek legal guardianship. The fact they are part of a sibling group is another reason they have been difficult to place.
Over the years, Margarita has visited them once or twice a week on a fairly consistent basis. The visits have been monitored from the beginning, and throughout most of the case, it was social workers or the foster mother who were doing the monitoring. They described the visits as chaotic and have generally been critical of Margarita’s parenting skills. The primary problem, as they see it, is that Margarita has failed to exert sufficient and consistent control over M. and Luis when she is with them. Consequently, the children have tended to act unruly and pay her little mind.
For her part, Margarita has always felt that the social workers and foster mother were biased against her and that they failed to report the positive aspects of her visits with the children. In late 2007, Margarita obtained the court’s permission to hire a professional monitor to oversee the visits. On March 2, 2008, the professional monitor accompanied Margarita and the children for the first time, on a visit to Chuck E. Cheese. Although the visit went okay for the most part, the professional monitor had to intervene occasionally to get the children to cooperate. The social worker viewed this as further evidence of “mother’s inability to control the children during monitored visits.”
On July 16, 2008, Margarita’s attorney requested a contested review hearing. Counsel argued the social worker was biased against Margarita and failed to present an accurate picture of visitation in his reports. Counsel insisted the visits involving the professional monitor were going very well, and he wanted a chance to prove Margarita was deserving of unmonitored visitation. Besides that, counsel argued Margarita had improved her life to the point where she was ready to have the children returned to her care “on a full-time basis.” He said Margarita “feels that she’s not been fairly treated in this case [relative] to everything she’s done, and she’d like the chance to present evidence related to return and visitation.”
The court trailed the matter until July 24, 2008, and on that day, the social worker filed an addendum report on the issue of visitation. In his report, the social worker provided a summary of the professional monitor’s notes on the six visits she had monitored. As to each visit, the social worker listed three or four criticisms about Margarita’s behavior. For example, he said that sometimes Margarita allowed unauthorized relatives to attend the visits, and sometimes she left the children unattended while they were fighting. Summing up his take on the visits, the social worker concluded, “The mother has not evidenced her ability to multi-task.” She “remains chronically unable to manage the children... while attending to simple, daily life activities.”
When the matter came before the court on July 24, Margarita’s attorney submitted the professional monitor’s actual visitation notes to the court. It was his position that the social worker’s summary of those notes did not accurately reflect Margarita’s interaction with the children. He said “what’s problematical is the positive interaction is not being noted (by the social worker), and the interaction where mother is appropriate, where she’ll redirect the children, or play appropriate games, and is cooperating with the monitor, all this is being ignored. The court’s not getting the full picture.”
Counsel then renewed his request for a contested hearing on the issues of visitation and return, but the court determined he did not make a sufficient offer of proof in this regard. After reading the professional monitor’s actual notes, the court said that for purposes of argument, it was willing to accept that they accurately reflected Margarita’s interactions with the children. However, the court felt they did not show that a change in the case plan would be in the children’s best interest. Therefore, the court affirmed the existing case plan and set the matter for further review.
On August 10, 2008, Margarita was granted an extra day of visitation to attend a birthday party for Luis. No problems or issues were reported regarding the visit. The following month, the social worker spoke with the professional monitor, and she said “Margarita’s doing fine; we don’t need to reprimand her.”
On November 17, 2008, a new social worker was assigned to the case. On the eve of the January 13, 2009 hearing, she filed a report stating the children were doing well in foster care and had developed a strong bond with their foster parents. However, Luis had been acting very resistive and defiant toward his foster mother, and in the fall of 2008, he had to be placed in respite care for two weeks before being allowed back in the home. By that time, neither he nor M. were interested in keeping up their visits with Margarita. Upon learning this, Margarita accused the foster mother of misusing Luis’ psychotropic medication, but the claim was investigated and determined to be baseless. All things considered, the social worker believed the children were in the best placement available to them. The social worker did not think Margarita was ready to have the children returned to her care or to have liberalized visitation. And because the foster parents were unwilling to make a more permanent commitment to the children, the social worker recommended they remain in long-term foster care.
At the review hearing, Margarita’s attorney again requested a contested hearing to litigate the issues of visitation and placement. He argued, “Margarita feels there’s numerous factual inaccuracies that are attributed to her [in the social worker’s] report, such as the one... where she is allegedly accusing the foster mother of misusing the child’s psychotropic medications, serious factual allegations that she feels are being attributed to her, which is also causing a breakdown of her relationship with her children.” Counsel further claimed that Margarita was having “positive visits” with the children and that she had completed her previous case plan, which included parenting classes and therapy. Counsel argued that if a contested hearing were held, the evidence would show Margarita is “an appropriate parent” who deserves to have the children returned to her, or at least, be granted liberalized visitation with them.
In ruling on Margarita’s request, the court noted her allegations of unfair treatment were nothing new, in that she had been making them throughout the case. The court was willing to assume that any statements in the social worker’s report that Margarita disputed were not in fact true. In other words, the court was willing to disregard any statements in the report that Margarita took exception to. However, the court found that, based on the balance of the report, continued supervision of the children was necessary. Therefore, it denied Margarita’s request for a contested hearing and continued the case plan as is.
DISCUSSION
Margarita contends that pursuant to the Welfare and Institutions Code, and as a matter of due process, she was entitled to a contested hearing on the issues of visitation and return without the need to make an offer of proof. Alternatively, she contends that even if an offer of proof was required, hers was sufficient to justify a contested hearing under the circumstances presented. We disagree with both of her contentions and affirm the trial court’s ruling.
All further statutory references are to this code.
Postpermanency review hearings are governed by section 366.3, which provides, “If the child is in a placement other than the home of a legal guardian and jurisdiction has not been dismissed, the status of the child shall be reviewed at least every six months.” (§ 366.3, subd. (d).) At the review hearing, the court “shall inquire about the progress being made to provide a permanent home for the child” and consider such issues as “[t]he continuing necessity for, and appropriateness of, the placement.” (§ 366.3, subd. (e)(1).) The court is required to consider all permanency planning options for the child, including whether the child should be returned to the home of the parent. (§ 366.3, subd. (h).) However, “[i]t 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.” (§ 366, subd. (f).) Moreover, reunification may only be pursued if “there is a significant likelihood of the child’s return to a safe home due to changed circumstances of the parent....” (§ 366.3, subd. (e)(4).)
With respect to review hearings, section 366 further provides, “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.” (§ 366, subd. (f).) In In re Kelly D. (2000) 82 Cal.App.4th 433, the Third District Court of Appeal ruled that “to ‘participate’ in the hearing connotes involvement as a party to the proceeding, one essential aspect of which is the reasonable expectation that parents could challenge departmental proposals and proposed court modifications.” (Id. at p. 438.) However, the court did not address the issue presently before us, namely what offer of proof, if any, a parent must make in order to obtain a contested hearing.
The Kelly D. court did drop a footnote saying that “[i]n a recent opinion, this court... concluded the juvenile court may not deny a party the right to a contested review hearing, even if no offer of proof was tendered. (In re James Q. (2000) 81 Cal.App.4th 255 [].)” (In re Kelly D., supra, 82 Cal.App.4th at p. 439, fn. 4, italics added; see also In re Josiah S. (2002) 102 Cal.App.4th 403, 417 [relying on James Q. in section 366.3 appeal].) But in James Q., the issue was whether the parent was entitled to a contested hearing at a six-month prepermanency review hearing under section 366.21, not a postpermanency review hearing under section 366.3. (In re James Q., supra, 81 Cal.App.4th at p. 258.)
This is significant because “‘[u]p until the time the [permanency] hearing is set, the parent’s interest in reunification is given precedence over the child’s need for stability and permanency.’ [Citation.] However, ‘[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.]” (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 778.) While reunification is still a possibility in the postpermanency context, it is presumed that continued care is in the best interests of the child, unless the parents can prove otherwise. (§ 366.3, subds. (e), (f).)
In David B. v. Superior Court, supra, 140 Cal.App.4th, this court considered whether a father had the right to a contested hearing at his 18-month prepermanency review hearing. Noting that the government bears the burden of proof at such hearings, we observed “[i]t would be anomalous indeed to require the opponent of proffered evidence to make an offer of proof as to anticipated weakness or errors in their adversary’s evidence.” (Id. at p. 779.) Therefore, we decided the father was not required to make an offer of proof to obtain a contested hearing in that case. (Id. at pp. 777-780.)
However, trial courts may demand an offer of proof from a parent when he or she has the burden of proof at the hearing in question. (In re Thomas R. (2006) 145 Cal.App.4th 726, 732, citing In re Earl L. (2004) 121 Cal.App.4th 1050 [proving “benefit exception” to termination of parental rights] and In re Tamika T. (2002) 97 Cal.App.4th 1114 [proving “sibling relationship exception” to termination of parental rights]; In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [proving change of circumstances to justify modification of case plan]; Seiser & Kumli, Cal. Juvenile Courts: Practice and Procedure (2009 ed.) § 2.110[19], p. 2-269.)
Our recent decision in Sheri T. v. Superior Court (2008) 166 Cal.App.4th 334 illustrates this point. The initial permanent placement plan there was for long-term foster care. However, when the case came up for review, social services requested a new permanency hearing on the grounds adoption was now the best plan for the child. The mother objected to the proposed hearing, but because there was evidence of adoptability, the hearing was statutorily required unless the mother could prove it was contrary to her child’s best interests. (Id. at pp. 340-341.) Since the burden was on the mother to show why a hearing should not be held, we determined it was proper for the juvenile court to require her to make an offer of proof in this regard. More specifically, we found no due process violation in requiring such an offer. (Id. at p. 341.)
As we observed, “‘Due process is a flexible concept which depends upon the circumstances and a balancing of various factors. [Citation.] The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.] Even where cross-examination is involved, the trial court may properly request an offer of proof if an entire line of cross-examination appears to the court to be irrelevant to the issue before the court. [Citations.]’ [Citation.]” (Sheri T. v. Superior Court, supra, 166 Cal.App.4th at p. 341.)
Due process, in short, does not preclude the trial court from requiring an offer of proof from a party who bears the burden of proof at the hearing in question. As we have explained, section 366.3 places the burden on the parents to show that efforts toward reunification in the form of increased visitation or a change in placement would be in the best interest of the child. (§ 366.3, subds. (e), (f).) Therefore to obtain a contested hearing under that section, the parent must allege facts showing that removing the child from her current placement and returning her to the parents’ care would serve her best interests. (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1147.) That being the case, the trial court did not err in requiring Margarita to make an offer of proof in this case.
The remaining question is whether Margarita’s offer of proof was sufficient to justify a contested hearing on the issues of visitation or return. We think not. A big part of her offer was that the social worker had been reporting false and derogatory information about her and failing to report the positive aspects of her visits with the children. However, the court read the actual notes taken by the professional monitor and based its ruling on those notes, as opposed to the social worker’s take on them. The court thus demonstrated its willingness to assess the facts in their purest form, without the filter of subjective interpretation from the social worker. The court was also willing to give Margarita the benefit of the doubt as to any negative statements attributed to her in the social workers’ reports. However, even construing the evidence in the manner most favorably to Margarita, the court was still not convinced it would be in the children’s best interest for them to have increased visits with Margarita or be returned to her care. Under those circumstances, there was no need to hold a contested hearing to resolve Margarita’s allegations of bias: She simply failed to persuade the court that those allegations were material to her case.
The other main aspect of Margarita’s offer was that she had completed her original case plan, which had called for her to undergo therapy and take parenting classes. However, this was never even disputed; no one questioned the fact Margarita eventually managed to complete her case plan over the years. But there was more to it than that. Besides showing a change of circumstances, Margarita was required to prove a change in placement or visitation was in the best interest of the children. Unfortunately for her, her proffered evidence did not rise to this level.
Margarita was critical of the social workers’ reports for being one-sided. Yet, the only offer of proof she made to counter the reports was that she interacted with the children in an appropriate manner, redirected and played games with them, and cooperated with the monitor. This was not new or particularly noteworthy information. In fact, the professional monitor’s notes made it quite clear that Margarita did these things at various times during the visits. Moreover, as the social worker reported, those very notes are replete with instances where Margarita brought unapproved relatives to the visits and needed assistance from the monitor to deal with the children. Margarita’s need to have other adults assisting her during the visits is strong evidence that, despite completing her case plan and acting appropriately with the children at times, she remains unable to independently handle the children’s needs.
At bottom, we do not believe Margarita made a sufficient offer of proof that there has been a change of circumstances that would warrant a change in the children’s placement or visitation. More particularly, she has failed to show that such a change would be in the children’s best interests. Accordingly, we have no occasion to disturb the trial court’s ruling.
DISPOSITION
The trial court’s order denying Margarita’s request for a contested hearing is affirmed.
WE CONCUR: MOORE, J., FYBEL, J.