Opinion
A133628
01-17-2012
J.B., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 0J101408)
J.B., mother of T.B., born in September 2005, petitions under California Rules of Court, rule 8.452 to vacate an order setting a selection and implementation hearing for T.B. pursuant Welfare and Institutions Code section 366.26 (hereafter .26). J.B. (Mother) contends that the court erred in denying her a contested hearing on the setting of the .26 hearing, and in refusing to hear expert testimony she wished to present. We find no merit to these arguments and uphold the order.
Further statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
T.B. was detained on January 8, 2010, when police responded to a report of a child crying, and found her home alone at 4:00 a.m. Neither Mother nor a biological relative could be located and T.B. was taken into foster care. Mother's whereabouts were still unknown when the jurisdiction and disposition hearing was held on January 27, 2010.
Page 2 The agency's report for the hearing stated that Mother had an extensive history of drug use, had abandoned her two older children, and those children were permanently placed in foster care. The court adjudged T.B. a dependent child, found that Mother was not entitled to reunification services, ordered a permanent plan of guardianship with a cousin, continued T.B. in foster care pending an assessment of the prospective guardian, and set a .26 hearing for May 25.
T.B. was turned out of her initial foster placement because of "risky behaviors, including lighting plastic objects on fire . . . ." She was referred to the SEED (Services to Enhance Early Development) program for "intensive . . . mental health services" "due to the severity of trauma [she] experienced prior to her detention and the complexity of her emerging mental health symptoms in foster care." T.B.'s problems included "indiscriminate behaviors with strangers, dissociative symptoms, hearing voices, excessive and compulsive masturbation, and compulsivity." The problems were "consistent with a history of neglect and exposure to domestic violence," and made caring for her "a special challenge."
Mother contacted the agency in February and participated in a March team meeting about T.B.'s placement. On March 19, T.B. was placed in the foster home of L.B., a prospective adoptive parent. On May 25, the court continued the .26 hearing to September 27, 2010.
Mother petitioned the court under section 388 for reunification services and moved for visitation with T.B. Mother supported her application with reports from psychologists Pari Anvar and Patricia Weiss recommending, based on their assessments of Mother, that she be allowed to have contact with T.B. The agency filed a report from T.B.'s SEED therapist Stephanie Gomez who concluded that contact with Mother would be detrimental to T.B., and an evaluation of T.B. from psychologist Tricia Fong stating that any contact between Mother and T.B. had to be "thoughtfully and carefully" considered "given the extent and severity of [T.B.'s] posttraumatic stress symptoms, and [T.B.'s] emotional and behavioral dysregulation around trauma reminders."
The agency report for a July status review hearing stated that L.B. was "unable or unwilling to adopt because of special circumstances but [was] willing to provide [T.B.] with a stable and permanent environment." On July 21, the court ordered a permanent plan "of placement with a planned permanent living arrangement and a specific goal of termination of parental rights and adoption."
At a hearing on September 15, the court declined to offer reunification services to Mother, or allow her visitation with T.B. Visitation was withheld in view of T.B.'s "extremely fragile mental health," and the fact that Mother "ha[d] just begun treatment and therapy for her own mental health and substance abuse issues." The .26 hearing set for September 27 was vacated, and a review hearing was scheduled for February 24, 2011.
The agency report for the February hearing advised that L.B. "ha[d] made it increasingly clear" that she could not provide permanency for T.B., and that the agency was looking for her new permanent home. The agency reported no contact between T.B. and Mother since the September hearing, and filed a report from therapist Gomez recommending that phone calls between them be deferred until a permanent plan was finalized. The agency attached documents showing that Mother had made progress in substance abuse and mental health treatment, and secured part-time employment. Mother requested visitation with T.B., and filed documents showing that she had avoided drug and alcohol use, and obtained permanent housing.
At the February 24 hearing, the court identified adoption as the goal of T.B.'s permanent plan, set a progress report hearing for May 19, and a review hearing for July 25. The court did not grant Mother visitation.
On May 19, prior orders were continued in effect, and the parties were directed to submit petitions based on changed circumstances under section 388 if they wanted the current orders changed.
The agency reported for the July 25 hearing that T.B. had been placed in June with a paternal aunt, G.C., who wanted to adopt her. The report recommended that Mother and T.B. have no contact, and that a .26 hearing be set for a permanent plan of T.B.'s adoption by G.C.
At the July 25 hearing, Mother advised that she had retained an expert, would be contesting the agency's recommendations, and seeking visitation. Prior orders were continued, and a contested hearing was set for September 26. The parties filed a "joint contested hearing statement" listing the "recommendation to set 366.26 hearing" as a contested issue.
On September 6, Mother filed a petition seeking modification to secure visitation and attached a report from psychologist Weiss, who concluded that visitation with Mother would be in T.B.'s best interest. Weiss believed there was "no substitute for the intense, biological bond between a parent and child." Weiss had "no doubt that [T.B.] experienced physical abuse and neglect by [Mother] during periods of time while growing up," but opined that "continuing to deprive [T.B.] of any contact with her mother is harmful to [T.B.] at present and will create multiple difficulties for her on an emotional and a psychological plane in the future."
At the outset of the September 26 hearing, the agency and T.B. requested that a .26 hearing be set. The agency acknowledged that the setting of a .26 hearing was listed as a disputed issue on the parties' contested hearing statement, but argued that under section 366.3, subdivision (h), there were no grounds for any such contest. The agency and T.B. also argued that no changed circumstances had been shown that would justify contact between T.B. and Mother, and that the court should decline to hold a section 388 hearing on that issue. The court allowed Mother to testify, and deferred deciding whether it would permit testimony from Weiss.
This statute provides that, at a post-permanency review hearing for a dependent child in foster care, "[t]he court shall order that a hearing be held pursuant to Section 366.26, unless it determines by clear and convincing evidence that there is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interest of the child because the child is being returned to the home of the parent, the child is not a proper subject for adoption, or no one is willing to accept legal guardianship."
Mother testified that she had lived at the same address for a year, taken parenting classes, graduated from a drug treatment program, and submitted to successful drug testing. She was working part-time in retail sales, and participating regularly in psychotherapy. She had a "nervous breakdown" before her last court appearance and spent 72 hours in a "psych ward," but was taking medications for her bipolar disorder and manic depression.
After Mother testified, the court asked her for an offer of proof as to Weiss's testimony. Mother said that Weiss would opine that she "is psychologically fit and poses no danger from a psychological point of view in being able to visit with her daughter." Weiss would also opine that lack of contact with Mother was detrimental to T.B. The agency and T.B. argued that Weiss's opinion as to T.B.'s best interests had little probative value because Weiss had not examined T.B., and Mother stated that the court had declined to permit such an examination. The court said it had read Weiss's report, found the statements about a bond between Mother and T.B. "conclusory," and precluded Weiss from testifying.
The court then indicated that it was "going to set a .26 hearing," and that it was not permitting a contest "on just the setting of the hearing." Mother stated "for the record" that she wanted to present evidence as to why the setting of a .26 hearing "might not be appropriate." The court found that Mother's testimony had established no changed circumstances allowing contact with T.B., but said that it would entertain further testimony on visitation. Mother then called therapist Gomez as a witness. Gomez testified that she had been seeing T.B. since February 2010, and that contact with Mother would not be in T.B.'s best interest.
The court continued the hearing on visitation for argument on October 14, and set a .26 hearing on termination of parental rights and a permanent plan of adoption for January 6, 2012. We have stayed the .26 hearing pending a determination of Mother's petition. The agency and T.B. oppose the petition.
II. DISCUSSION
Mother contends that the court should have allowed her to contest the setting of a .26 hearing and permitted Weiss to testify at the hearing on September 26.
In M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1178-1181 (M.T.), we held that a parent does not have an absolute right at a post-permanency review under section 366.3 to a contested hearing on whether the court should schedule a .26 hearing. We noted that a court is required under section 366.3, subdivision (h) to set a .26 hearing absent clear and convincing evidence that: (1) the child is being returned to the home of the parent; (2) the child is not a proper subject for adoption; or (3) no one is willing to accept legal guardianship. (Id. at p. 1178; ante, fn. 2.) Section 366.3 "ensures that efforts are continuously made to find a more permanent placement for a child in long-term foster care." (Id. at p. 1178.) Because the parent bears the burden of proving by clear and convincing evidence that a .26 hearing should not be set for one of the three reasons identified in section 366.3, subdivision (h), the court is justified in requiring the parent to make an offer of proof that the evidence will address one of those reasons before granting a contested hearing. (Id. at p. 1181.)
A case from the Fourth Appellate District has disagreed with our decision in M.T. (In re J.F. (2011) 196 Cal.App.4th 321, 327, 333), but that case did not involve the setting of a .26 hearing and does not cause us to reconsider our analysis in M.T.
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Here, Mother made an offer of proof regarding the anticipated testimony of Weiss. That anticipated evidence related to Mother's visitation with T.B., a matter irrelevant to the setting of the .26 hearing. Indeed, the record does not support a conclusion that any of the reasons that would support deferring a .26 hearing was in issue. Mother concedes that she has not been seeking T.B.'s "immediate return" to her home, and the existence of a prospective adoptive parent precludes any finding that no one is willing to accept legal guardianship.
Neither is there disputed evidence over whether T.B. is a proper subject for adoption. Mother stated early in the September 26 hearing that she wanted to present evidence on that issue, but made no further reference to the issue, or evidence relevant to it, as the hearing unfolded. Nor does the petition identify any relevant evidence that Mother was precluded from presenting on the issue. Mother chronicles the evidence she intended to present. She wanted to "call witnesses . . . and school records to support her claim that as [T.B.'s] parent she has provided for and can continue to provide for her daughter's educational needs." She wished to "cross examine both the social worker and [T.B.'s] therapist on their persistent failure to document the mother's four-year history of providing positive parenting for her daughter—including her education, not sexually abusing her, and having carried out all of the treatment plan conditions ordered by the court on September 15, 2010 to commence visitation." She also wanted to "call [T.B.'s] therapist Stephanie Gomez and question her persistent claim of the fragile mental health of [T.B.] in light of Dr. Weiss' contrary opinion and Ms. Gomez's failure to obtain a complete and accurate history of [T.B.'s] upbringing before [T.B.'s] removal from the family home." None of this evidence would have been relevant to whether T.B. was a proper subject for adoption.
Thus, while Mother specified the setting of a .26 hearing as a contested issue at the review hearing, and concedes that the issue presented in her petition "is solely whether the court erred in denying [her] the right to a hearing on the [].26 setting," she has not identified any evidence, much less clear and convincing evidence, that would have permitted the court to decline to set the .26 hearing. The court properly denied Mother a contested hearing on the .26 setting issue pursuant to our decision in M.T., supra, 178 Cal.App.3d at p. 1181. Moreover, because Mother did not intend to present evidence relevant to the setting of a .26 hearing, any error in failing to grant such a hearing was harmless under any standard. Weiss's proposed testimony was irrelevant to the setting issue, and the court did not err in excluding Weiss's testimony for that purpose. Mother was not prejudiced by the ruling.
III. DISPOSITION
The order to show cause is discharged, the stay of the .26 hearing is dissolved, and the petition for extraordinary writ is denied on the merits. (See § 366.26, subd. (l); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i) & 8.490(b).)
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Siggins, J.
We concur:
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Pollak, Acting P.J.
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Jenkins, J.