Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK39731, Marilyn K. Martinez, Commissioner, (pursuant to Cal. Const., art I, § 21).
Leslie A. Barry, under appointment by the Court of Appeal, for Objector and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Fred Klink, Senior Deputy County Counsel for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
R.C. (mother), mother of three-year-old P.C., appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26. Mother contends that the juvenile court erred when it denied her a contested selection and implementation hearing, arguing that she made a sufficient offer of proof as to the application of the parental visitation exception to adoption (§ 366.26, subd. (c)(1)(B)(i) (§ 366.26(c)(1)(B)(i)), and that the juvenile court improperly required an offer of proof from mother on the issue of P.C.’s adoptability. We hold that the juvenile court did not err in denying mother a contested hearing on the parental visitation exception because mother’s offer of proof did not warrant a contested hearing. We also hold that the juvenile court erred when it required an offer of proof from mother on the issue of P.C.’s adoptability because the Department of Children and Family Services (Department) has the burden of proof on adoptability, but that the error was harmless beyond a reasonable doubt.
All statutory citations are to the Welfare and Institutions Code unless otherwise noted.
Because this appeal concerns the propriety of an offer of proof that the juvenile court required at the selection and implementation hearing, this section will focus on that hearing while providing some limited factual and procedural background for context.
On August 21, 2006, the Department filed a petition pursuant to section 300 on P.C.’s behalf. As relevant, the petition alleged the following: in January 2006, mother and R.W., P.C.’s father (father), engaged in a violent altercation in which father physically assaulted mother; father had been incarcerated for battery since January 2006; mother had a history of domestic violence with her male companions; mother had a history of mental and emotional problems, including depression and suicidal ideation, that periodically rendered her incapable of providing P.C. with regular care and supervision; father had a history of substance abuse; P.C.’s siblings, R.C. and J.L., were prior dependents of the juvenile court due to mother’s mental and emotional problems and her domestic violence with her male companion, R.L.; and mother failed to comply with the juvenile court’s orders and failed to reunify with R.C. and J.L. who had received permanent placement services.
The juvenile court found a prima facie case that P.C. was a person described by section 300 and ordered P.C. to be detained. The juvenile court ordered the Department to provide mother with family reunification services and referrals for drug counseling, drug testing, parenting classes, and domestic violence counseling. The juvenile court also ordered mother to undergo a psychological evaluation. The juvenile court granted mother weekly monitored visits of three hours.
The juvenile court placed P.C. with U.C. P.C. has ongoing medical and developmental needs. P.C. has a chromosome defect that has rendered him medically fragile and has experienced issues with reflux, lack of urination, and asthma-like symptoms. He went to the hospital several times to have his kidneys examined. P.C. receives Regional Center services, including occupational therapy, physical therapy, and speech therapy. Through the Regional Center, he was to be evaluated to determine the presence of mental retardation. At age two, P.C. reportedly was functioning at the level of a four-month-old. He needs 24-hour supervision. U.C. reportedly provided excellent care and supervision for P.C, providing P.C. with a safe and stable home and ensuring that P.C.’s emotional and medical needs were met on a consistent basis. P.C. appeared to be happy and thriving in his placement with U.C. After caring for P.C., learning about his chromosome defect, and deciding that she could handle caring for P.C., U.C. wanted to adopt P.C.
The record is unclear when P.C. was placed with U.C. The placement appears to have occurred either on August 16, 2006, or May 24, 2007.
On November 8, 2006, the juvenile court sustained the section 300 petition. On October 6, 2008, after mother had received “extensive” family reunification services for over two years, the juvenile court terminated mother’s family reunification services. The juvenile court set the matter for a selection and implementation hearing on February 2, 2009.
At the February 2, 2009, selection and implementation hearing, mother requested that the juvenile court set the case for a contest. The juvenile court asked mother’s counsel for an offer of proof. Counsel responded, “Your Honor, the mother has two issues. She would be testifying as to some concerns that she has observed regarding the care of the child with the prospective adoptive mother and she would also be testifying and it’s our—it would be our argument that she had a bond with the child and it would be detrimental to terminate parental rights. She’s been visiting regularly and she would be testifying as to the quality of those visits.”
The juvenile court asked counsel to explain what she meant when she stated that mother visited regularly. Counsel stated that mother had visited P.C. once a week from the inception of the case with few missed visits.
The juvenile court asked counsel to set forth mother’s concern about the care P.C. was receiving. Counsel responded that P.C.’s caretaker had yelled at mother and been “threatening toward” her in front of P.C. Mother had expressed these concerns to the social worker “many times.”
The juvenile court stated, “I don’t think I’m inclined to set the matter for contest and I’ll tell you why so you can argue that further and so you may be able to persuade me otherwise. The social worker makes regular contact with this child. This child, of course, has special needs and the social worker has concerns. Opines that this child is very well cared for by the caretaker. So whatever the concerns of the mother are, they are not noted by the person who is professionally responsible to insure the child’s well-being; and, second of all, the issue is not whether or not the mother has a bond with the child.”
Counsel responded that mother would argue that P.C. has a bond with mother and that the caretaker does not have an emotional attachment to P.C. Counsel acknowledged that “all the reports” in the case indicated that P.C. was well cared for by the caretaker, but stated that although mother believed that the caretaker met P.C.’s basic medical needs, mother believed that the caretaker’s incentive was financial. Counsel stated that mother believed that she could provide “examples that she has witnessed of those concerns” if permitted to testify.
The juvenile court stated that mother should have informed the social worker and her counsel of such concerns. Counsel responded, “She has, your Honor, and we have brought this up at previous court dates.” Counsel for the Department stated, “And they have been addressed.”
The juvenile court stated to mother’s counsel that “visitation in and of itself is insufficient to persuade the court that it will be detrimental to terminate parental rights or that a relationship exists,” and requested that mother’s counsel expand on her offer of proof concerning the nature of the relationship between P.C. and mother and the detriment that P.C. would suffer if parental rights were terminated. After conferring with mother, mother’s counsel stated that P.C. “has cried when he’s left. Taken out of room when she is there and has cried and she doesn’t believe that the worker has reported the bond that he has with her in the reports.”
The juvenile court found that mother had “on some regular basis advised the social worker of a variety of concerns. Even a DCFS nurse was asked to be involved and [mother’s] concern has not been substantiated.”
The juvenile court stated that sufficient evidence had not been presented to persuade it that P.C. had a relationship with mother such that it would be detrimental to terminate parental rights. The juvenile court found, by clear and convincing evidence, that it was likely that P.C. would be adopted.
As the juvenile court was about to recess the case briefly to try to obtain P.C.’s birth certificate, mother’s counsel stated that mother did not believe that the social worker had been honest in the reports and that the social worker had treated mother unfairly. The juvenile court responded that every time it considered family reunification, it found that reasonable efforts towards family reunification had been provided. If it had not made such findings, the juvenile court stated, it continued reunification services until it could make the necessary findings. The juvenile court continued the matter to March 11, 2009, for receipt of P.C.’s birth certificate.
On March 11, 2009, the juvenile court stated that it previously made findings as to the termination of parental rights and was inclined to make the findings again and the orders terminating parental rights. Mother’s counsel stated that mother objected, that the reasons for the objection were stated at the previous hearing that included mother’s concerns about the caretaker and her feelings for P.C.
The juvenile court stated that the social worker had provided mother with a number of dates to have a “kind of an exit-type visit or last visit” and that mother had not accepted any of the dates, stating that she would hire her own agency to monitor a visit. Mother had not provided the social worker with information concerning such a monitor. The social worker continued to make herself available to monitor a visit, but mother had not been agreeable.
The juvenile court then found, again, that it was likely that P.C. would be adopted. The juvenile court found that P.C. had special needs, was a Regional Center client, had been residing with his caretaker for a substantial period of time, the caretaker was aware of all of P.C. needs and had been meeting all of those needs, P.C. was doing well with his caretaker, P.C.’s special needs did not pose “any barrier whatsoever to him becoming adopted,” and U.C.’s home study had been approved. The juvenile court also found that it did not have evidence that it would be detrimental to terminate parental rights.
DISCUSSION
I. The Parental Visitation Exception To The Termination Of Parental Rights
Mother contends that the juvenile court erred when it denied her request for a contested hearing on the application of the parental visitation exception to the termination of parental rights under section 366.26(c)(1)(B)(i). The juvenile court did not err.
A. Standard of Review
There is no clear authority on the standard of review for the denial of a hearing based on an offer of proof in connection with the termination of parental rights. Because a hearing must be granted if the offer of proof sets forth a prima facie case, arguably the standard of review is de novo. Yet there are elements of discretion involved. Without deciding the appropriate standard of review, we hold there is no error under any standard of review.
B. Relevant Legal Principles
1. Offer of Proof
“[A] parent has a right to ‘due process’ at the hearing under section 366.26 which results in the actual termination of parental rights. This requires, in particular circumstances, a ‘meaningful opportunity to cross-examine and controvert the contents of the report.’ (In re Malinda S. (1990) 51 Cal.3d 368, 379 [272 Cal.Rptr. 787, 795 P.2d 1244]; see In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413 [15 Cal.Rptr.2d 613].) But due process is not synonymous with full-fledged cross-examination rights. (In re Sade C. (1996) 13 Cal.4th 952, 992 [55 Cal.Rptr.2d 771, 920 P.2d 716].) Due process is a flexible concept which depends upon the circumstances and a balancing of various factors. (Id. at pp. 986-991.) The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. (People v. Marshall (1996) 13 Cal.4th 799, 836 [55 Cal.Rptr.2d 347, 919 P.2d 1280]; Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1147 [78 Cal.Rptr.2d 488].)” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.)
“Because due process is, as we noted in In re Jeanette V., supra, 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 parent’s representation is sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses.” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.)
A juvenile court does not violate a parent’s right to due process by requiring the parent to make an offer of proof before the juvenile court holds a contested hearing on the applicability of the parental visitation exception to the termination of parental rights under section 366.26(c)(1)(B)(i). (In re Tamika T., supra, 97 Cal.App.4th at p. 1116.) “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.” (Id. at p. 1124.)
2. The Parental Visitation Exception
Once a juvenile court finds that a child is likely to be adopted after removing the child from parental custody and has terminated reunification services, parental rights may be terminated unless the court finds a compelling reason for determining that doing so would be detrimental to the child under certain exceptions set forth in section 366.26, subsection (c)(1). (In re Celine R. (2003) 31 Cal.4th 45, 52-54.) “The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (Id. at p. 53; In re Jasmine D (2000) 78 Cal.App.4th 1339, 1350 [“Because 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”].)
The parental visitation exception in section 366.26(c)(1)(B)(i) provides that parental rights will not be terminated and a child freed for adoption if the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Italics added.) Application of the parental visitation exception consists of a two-prong analysis. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450.) The first is whether there has been regular visitation and contact between the parent and child. (Id. at p. 450.) The second is whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination. (Ibid.) The parent/child relationship must promote “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 other words, 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994)27 Cal.App.4th 567, 575; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
The visitation exception does not apply when a parent fails to occupy a parental role in his or her child’s life. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [parents who have essentially never had custody of children or advanced beyond supervised visitation will have a difficult time establishing the former section 366.26(c)(1)(A) exception].) “[T]o establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate ‘frequent and loving contact’ [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the visitation exception “aris[es] from day-to-day interaction, companionship and shared experiences.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Whether the exception applies is determined “on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Parents bear the burden of establishing that the visitation exception to termination of parental rights applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) A parent must show that he or she has maintained regular visitation and contact with the child and that a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)
C. Application of Relevant Legal Principles
Mother contends that her offer of proof was sufficient to require a contested hearing on the parental visitation exception because it identified two contested issues of fact relevant to that exception: (1) the regularity of mother’s visits with P.C., and (2) the nature of mother’s relationship with P.C. Mother’s offer of proof did not warrant a contested hearing.
As to the regularity of mother’s visits with P.C., mother contends that the Department’s section 366.26 report does not accurately reflect her visitation with P.C. The Department’s section 366.26 report states that the social worker was “not aware of any further visit since the last reporting period” by mother. In her offer of proof, mother’s counsel stated that mother had visited P.C. once a week from the inception of the case with few missed visits.
The juvenile court’s ruling on mother’s request for a contested hearing makes clear that the juvenile court did not deny mother a contested hearing based on a finding that mother failed to maintain regular contact with P.C. Instead, the juvenile court denied mother a contested hearing because it found that mother had not offered evidence that would establish that P.C. had a relationship with mother such that it would be detrimental to terminate parental rights. The juvenile court did not mention the regularity of mother’s visits in its ruling.
As to the nature of mother’s relationship with P.C., mother states that in her offer of proof, she represented that she would testify about the bond she and P.C. shared. Mother states that her offer of proof also “indicated” the need to cross examine the social worker “because the reports were devoid of information that Mother believed should have been included.”
In order to establish the second prong of the parental visitation exception, mother had to show that the termination of her parental rights would have deprived P.C. of “a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H., supra, 132 Cal.App.4th at p. 229.) Mother’s offer of proof that she would testify about the bond she shares with P.C. did not identify any evidence that she would present at a contested hearing that would tend to support a finding of great harm under In re Autumn H. and In re Dakota H. Evidence in support of mother’s apparent claim that P.C. cried when he and mother were separated might have established an emotional bond between mother and P.C. Such a bond, however, without more, is insufficient to establish the parental visitation exception. (In re Andrea R., supra, 75 Cal.App.4th at p. 1108.) Accordingly, mother’s offer of proof on the bond between mother and P.C. was insufficient to warrant a contested hearing. (In re Tamika T., supra, 97 Cal.App.4th at p. 1124.)
Mother’s claim that the social worker’s reports were deficient and that she needed to cross-examine the social worker appears to refer to her counsel’s statement to the juvenile court that P.C. “cried when he’s left. Taken out of room when she is there and has cried and she doesn’t believe that the worker has reported the bond that he has with her in the reports.” Mother’s claim that the social worker’s reports did not report mother’s bond with P.C. failed to establish a basis for a contested hearing because it failed to identify any omitted evidence of a relationship between mother and P.C. the termination of which would have greatly harmed P.C. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H., supra, 132 Cal.App.4th at p. 229; In re Tamika T., supra, 97 Cal.App.4th at p. 1124.)
II. Adoptability
Mother contends that the juvenile court erred when it required an offer of proof from mother on the issue of P.C.’s adoptability as a condition to granting a contested hearing on adoptability. We hold that the juvenile court erred, but that the error was harmless beyond a reasonable doubt.
Although mother did not object in the juvenile court that she could not be required to present an offer of proof (People v. Champion (1995) 9 Cal.4th 879, 918 [failure to object in the trial court on due process grounds forfeits the issue on appeal]), the Department has not claimed in its respondent’s brief that mother has forfeited the issue (see Moore v. Shaw (2004) 116 Cal.App.4th 182, 200, fn. 10 [“Ordinarily, an appellant’s failure to raise an issue in its opening brief waives the issue on appeal”]; Garlington v. O’Leary (7th Cir. 1989) 879 F.2d 277, 282 [“a defense of waiver can itself be waived by not being raised”].)
Adoption is the preferred permanent plan for a dependent child at a section 366.26 hearing. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) To select adoption as the permanent plan and terminate parental rights, the juvenile court must find by clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Carl R. (2005) 128 Cal.App.4th 1051, 1060.) To satisfy the clear and convincing standard, the evidence must be so clear as to leave no substantial doubt and must be strong enough to command the unhesitating assent of every reasonable mind. (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536.) The Department bears the burden of proving adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561; In re Thomas R. (2006) 145 Cal.App.4th 726, 731.)
The question of adoptability focuses on whether the child’s age, physical condition and emotional state make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) A “child’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability.” (In re Gregory A., supra, 126 Cal.App.4th at p. 1562.) On the other hand, factors that might make it difficult to find a person willing to adopt a child include “membership in a sibling group,” “diagnosed medical, physical, or mental handicap[s],” a child’s age of “seven years or more” (§ 366.26, subd. (c)(3)), or developmental or emotional problems. (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1063-1065.) The fact that a prospective adoptive parent has expressed interest in adopting a dependent child is evidence that the child’s attributes are not likely to deter individuals from adopting the child. (In re Sarah M., supra, 22 Cal.App.4th at p. at pp. 1649-1650.)
If the child is considered “generally adoptable,” the juvenile court will not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) On the other hand, if the child is deemed “specifically adoptable,” that is, adoptable solely because a prospective adoptive parent is willing to adopt him or her, the analysis shifts from evaluating the child’s characteristics to whether there is a legal impediment to adoption by that prospective adoptive parent (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Brandon T., supra, 164 Cal.App.4th at p. 1409) and whether the prospective adoptive parent is able to meet the child’s needs (In re Helen W. (2007) 150 Cal.App.4th 71, 80; In re Carl. R., supra, 128 Cal.App.4th at p. 1061). The parties agree that P.C. is adoptable only because U.C. is willing to adopt him—i.e., specifically adoptable.
The legal impediments to adoption are found in Family Code sections 8601, 8602, and 8603. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; see In re Carl R., supra, 128 Cal.App.4th at p. 1061.) Family Code sections 8601, 8602, and 8603 provide, respectively, that a prospective adoptive parent must be at least 10 years older than the child unless certain exceptions apply; a child over the age of 12 must consent to adoption; and a married person, not lawfully separated, may not adopt a child without consent of that person’s spouse.
Mother contends, and the Department concedes, that a juvenile court cannot require an offer of proof from a parent on an issue on which the Department has the burden of proof. (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 779; In re Thomas R., supra, 145 Cal.App.4th at p. 732.) Mother thus contends, and the Department concedes, that the juvenile court erred in requiring an offer of proof from mother on the issue of adoptability. We agree.
At the time mother requested a hearing, there had not been any determination that the Department’s submissions satisfied its burden to establish adoptability. Mother had not had any opportunity to cross examine or examine any witnesses. The trial court could not, as a condition for a hearing, ask for an offer of proof and force mother to set forth a prima facie case against adoptability or even to state what she would do at a hearing. She retains her due process rights of cross examination and to introduce evidence. Mother, of course, could waive the rights to cross examine witnesses or submit evidence or waive the hearing entirely, but no such waivers took place here.
Having determined that the juvenile court erred in requiring an offer of proof from mother on the issue of adoptability, we determine whether the error was prejudicial. Because a parent has a due process right to test a social service agency’s evidence in support of its determination that a child is adoptable, the standard of review for the juvenile court’s error is whether the error was harmless beyond a reasonable doubt. (In re Thomas R., supra, 145 Cal.App.4th at p. 734.)
Although mother was not required to respond to the juvenile court’s request for an offer of proof, mother did provide such an offer, which we consider in determining prejudice. In mother’s offer of proof, mother’s counsel stated that at a contested hearing mother would testify “as to some concerns that she has observed regarding the care of the child with the prospective adoptive mother.” Asked by the juvenile court to set forth mother’s concern about the care P.C. was receiving, mother’s counsel responded that U.C. had yelled at mother and been “threatening toward” her in front of P.C. Later, mother’s counsel acknowledged that “all the reports” in the case indicated that P.C. was well cared for by U.C. and that mother believed that U.C. was meeting P.C.’s basic medical needs.
Because P.C. is adoptable only because U.C. is willing to adopt him—i.e., specifically adoptable—the juvenile court’s determination of P.C.’s adoptability depended on whether there is a legal impediment to adoption by U.C. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Brandon T., supra, 164 Cal.App.4th at p. 1409) and whether U.C. is able to meet P.C.’s needs (In re Helen W., supra, 150 Cal.App.4th at p. 80; In re Carl. R., supra, 128 Cal.App.4th at p. 1061). Mother’s offer of proof did not purport to address a legal impediment to P.C.’s adoption by U.C. or any inability of U.C. to meet P.C.’s need. Indeed, as to P.C.’s needs, mother’s counsel acknowledged that “all the reports” in the case indicated that P.C. was well cared for by U.C. and that mother believed that U.C. was meeting P.C.’s basic medical needs. Moreover, U.C. wanted to adopt P.C., a home study for U.C. had been approved, and there is no indication of any evidence that could have been adduced that would bear on the issue of adoptability. Accordingly, the juvenile court’s error was harmless beyond a reasonable doubt.
DISPOSITION
The order is affirmed.
I concur: ARMSTRONG, J.
I concur in the judgment. Given the subjects the mother desired to raise in her testimony, any error was harmless beyond a reasonable doubt. The following is what occurred in connection with the offer of proof: “The Court: [C]ounsel, do you want to be heard? [¶] Ms. Crane: Yes, Your Honor. [¶] My client is requesting to set the case for a contest. [¶] The Court: Are there any other objections to terminating parental rights? [¶] An offer of proof, Ms. Crane? [¶] Ms. Crane: Your Honor, the mother has two issues. She would be testifying as to some concerns that she has observed regarding the care of the child with the prospective adoptive mother and she would also be testifying and it’s our – it would be our argument that she had a bond with the child and it would be detrimental to terminate parental rights. She’s been visiting regularly and she would be testifying as to the quality of those visits. [¶] The Court: Would you please expand on what you mean by regular visits? When has she visited? [¶] Ms. Crane: Once a week she’s – she’s been having once a week visits. [¶] The Court: For the last – what period of time? How long? [¶] Ms. Crane: She indicates from the duration of the case. [¶] The Court: Without any misses or substantially no misses? [¶] Ms. Crane: Substantially. There [have] been some instances where they were canceled because of medical appointments of the child and illnesses. [¶] The Court: And what were the concerns for the care? [¶] Ms. Crane: Your Honor, my client -- [¶] The Court: And when were they noted? [¶] Ms. Crane: Your Honor, my client has stated this to the social worker many times about some of [her] concerns and she believes that the social worker actually observed. Some of the things she has witnessed. Such as the caretaker yelling at the mother and being threatening toward the mother in front of the child.”
For the first time on appeal, the mother objects to the juvenile court’s offer of proof request and the decision not to allow live testimony at the Welfare and Institutions Code section 366.26 proceedings. Putting aside the fact this issue is forfeited, I agree with all of the decisions which hold there is no due process violation at the parental termination rights stage when the juvenile court requests an offer of proof concerning an issue upon which the parent bears the burden of proof. No doubt, there are decisions which hold that prior to the termination of reunification services, a parent has a due process right to a contested review hearing, which cannot be conditioned on an offer of proof. (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 779; Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1513; In re James Q. (2000) 81 Cal.App.4th 255, 266-267.) And even at the section 366.26 hearing stage, where the proposed questioning is relevant to the adoptability question, one Court of Appeal decision holds: at the permanency planning stage, the child protective services agency has the burden of proving the child is adoptable; a parent has a due process right to test the strength of the department’s adoptability evidence by cross-examining the department’s witnesses; and this right cannot be conditioned on requiring the parent to make an offer of proof. (In re Thomas R. (2006) 145 Cal.App.4th 726, 731-734.) But at a Welfare and Institutions Code section 366.26 hearing, which occurs after the reunification period has ended, all of the decisions which have addressed the issue hold that the juvenile court may require an offer of proof before granting a contested hearing as to issues on which the parent bears the burden of proof. (Sheri T. v. Superior Court (2008) 166 Cal.App.4th 334, 341 [burden to show new permanent plan is not in the child’s best interest]; In re Earl L. (2004) 121 Cal.App.4th 1050, 1052-1053 [sibling exception]; In re Tamika T. (2002) 97 Cal.App.4th 1114, 1116, 1119-1124 [regular visitation requirement]; In re Jeanette V. (1998) 68 Cal.App.4th 811, 815-817 [same].) Given this analysis, it is unnecessary to even discuss whether the Fourteenth Amendment due process clause, as distinguished from state statutory and constitutional requirements, provides a right to cross-examination or presentation of testimony at the permanency plan hearing without a request for an offer of proof. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27-32 [no Fourteenth Amendment due process right under the circumstances to appointment of counsel at a parental termination rights proceeding]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 [no right to Anders v. California (1967) 386 U.S. 738, 744 and People v. Wende (1979) 25 Cal.3d 436, 440 review in Lanterman-Petris-Short Act conservatorship appeal]; In re Sade C. (1996) 13 Cal.4th 952, 959 [same as to dependency appeals by an aggrieved parent]; In re Bryce C. (1995) 12 Cal.4th 226, 234 [although there is no absolute constitutional right to counsel on appeal, an attorney should be appointed to represent a parent when the appellate court is contemplating termination of parental rights].)
There is no merit to the mother’s assertion, made for the first time on appeal, that in the juvenile court she had a federal due process right to challenge the suitability of the prospective adoptive parents. The suitability of specific adoptive placement is not an issue that may be litigated at a Welfare and Institutions Code section 366.266 hearing. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061-1062; In re T.S. (2003) 113 Cal.App.4th 1323, 1329; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) And there is no Fourteenth Amendment due process right in a criminal case to present irrelevant or marginally relevant evidence. (People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Rubin (2008) 168 Cal.App.4th 1144, 1148.) Before the juvenile court, the mother’s counsel only expressed a desire to challenge the suitability of the prospective adoptive mother. As can be noted, the mother’s counsel never sought to litigate the broader issue of the child’s adoptability. The first time the issue of the broader question of adoptability was raised is on appeal.
The respondent’s brief does not dispute the mother’s constitutional contention. However, I decline, with respect, to accept what may be viewed as a concession of error by the Los Angeles County Counsel’s Office. In appropriate cases, it is judicious to decline to accept a concession of error such as occurred here. (People v. Bell (1989) 49 Cal.3d 502, 546, fn. 23; People v. Cowger (1988) 202 Cal.App.3d 1066, 1074.) The Los Angeles County Counsel has taken a position that would require full blown trials in virtually every permanency planning hearing. To impose this requirement on the judicial branch is not in the public interest where as matters now stand, judges by reason of vacations, holidays and furloughs do not preside over judicial proceedings 47 days every year plus weekends, except in emergency matters. I wish to emphasize that if the Fourteenth Amendment due process clause requires such trials, then the judicial branch will fulfill its constitutionally imposed obligations and cheerfully so. I raise the point only to explain why I, with respect, decline to accept the concession of the Los Angeles County Counsel’s Office made on behalf of the department which differs from all reported decisions considering the precise issue before us.
TURNER, P. J.