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In re D.D.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Feb 8, 2012
No. B233966 (Cal. Ct. App. Feb. 8, 2012)

Opinion

B233966

02-08-2012

In re D.D., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. P.D., Defendant and Appellant.

Grace E. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. CK58948)

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn Martinez, Juvenile Court Referee. Affirmed.

Grace E. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

This is an appeal from a judgment terminating parental rights made at a permanent placement hearing under section 366.26 of the Welfare and Institutions Code. As hereafter set forth, we affirm the decision.

All further references will be to the Welfare and Institutions Code unless otherwise noted.

PROCEDURAL AND FACTUAL SYNOPSIS

Daniel D. was born in 2007 and tested positive for cocaine and marijuana. Daisy G. (Mother) and Pedro D. (Father) also had a two-year-old child that they failed to reunify with. The two-year-old child resided with his paternal relatives.

Mother admitted to narcotics use during her pregnancy and also admitted to being in an outpatient drug program, but in her words had "messed up." Mother also admitted that she received pre-natal care during her pregnancy.

Father admitted having a drug abuse history but contended that he had not used drugs in a long time. Father further admitted that he was on probation for selling drugs and was required under the terms of his probation to participate in random drug tests on a weekly basis and that using drugs would be a violation of his probationary terms.

Daniel was placed on a hospital hold by the social worker. Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition on May 4, 2007, alleging that Daniel was a child described by Welfare and Institutions Code section 300, subdivisions (b) and (j) and at the hearing on that date the court found a prima facie case and ordered Daniel detained.

Father lived in a one bedroom apartment behind the home of the maternal grandparents. Mother lived between the two homes. The social worker observed a baby's crib and baby clothes in the home of the maternal grandparents.

Father claimed that he did not know that Mother used drugs during her pregnancy and further claimed that he had not used drugs with Mother in over two years. Father was of the opinion that Mother had simply made a bad choice and he wanted to put forth his best efforts to regain custody of his child. Mother confirmed that Father did not know she used drugs during her pregnancy.

Father came to the United States from Cuba when he was two years old and was 41 years old at the time of these proceedings. Father's parents were deceased, and his two siblings resided in Southern California. Father's description of his childhood was one of being great and which had led to a high school education and graduation, but that he was currently unemployed.

The social worker spoke with Father's probation officer on May 10, 2007, and was told that Father's last arrest was 15 months earlier for selling cocaine. Consequently Father served six months in jail and was sentenced to formal probation. As part of his formal probation Father was required to be tested on a random basis for narcotics twice per month. Father attended weekly visits with his son, Daniel.

The court sustained the section 300, subdivision (b) petition on May 22, 2007. On June 7, 2007, Daniel was ordered placed with his maternal grandmother, with Father ordered to participate in individual counseling, random drug testing, parenting and drug counseling.

Subsequently, Mother and Father separated. Father moved to a location close by while Mother continued to live in the home adjacent to her maternal grandparents. Daniel continued to remain placed with his maternal grandparents.

Father did commence a drug program, but in October 2007, he was terminated for non-compliance. Father did however complete a parenting education program and was compliant with his visitation with no problems arising during his visitation. Father did participate in drug testing but missed many of the tests.

On December 18, 2007, the court conducted a review hearing and placed Daniel with Mother and provided her with family maintenance services and also continued to order reunification services for Father.

After Daniel's return to Mother she progressed well and Daniel was developing normally and appeared to be emotionally bonding with Mother. Father failed to provide his new address to the social worker and failed to provide proof of reenrollment in court ordered programs. The probation officer for Father told the social worker that Father had been terminated from probation-ordered drug programs for consecutive dirty testing.

On March 20, 2008, the court issued family law orders which granted sole custody both legal and physical to Mother but giving Father monitored visits. The court then terminated dependency jurisdiction.

On August 19, 2010, the DCFS received a child abuse report indicating that Mother was using drugs and was not adequately caring for Daniel. Upon visiting the Mother's home, the social worker observed the home to be cluttered, but not in a way to endanger Daniel. Mother indicated that she and Daniel lived with the maternal grandparents and she was helping to care for them because they were frail and elderly. However, Mother had tested positive for cocaine on September 2, 2010, which led to a team decision meeting during which DCFS decided Mother would enter an in-patient drug program for mothers and their children.

During this period of time Father was in prison serving a 16-month prison sentence for burglary. Father had not been involved in Daniel's life except for occasional visits and had been separated from Mother since 2007. A second dependency petition was filed by DCFS on September 15, 2010, on behalf of Daniel alleging that he was described by section 300, subdivisions (b) and (g). On that day the court released Daniel to Mother and detained him from release to Father on the condition that Mother remain in a drug program and continue to test clean.

On October 27, 2010, at the hearing, the court found that Father had not been noticed and notice had not been provided to the jail system enabling Father to be transported to court and accordingly continued the hearing. Father completed a waiver of court appearance form, waiving his right to appear at the October 27, 2010, hearing.

Mother, however, left her drug program on November 3, 2010. The program was willing to take her back but was of the opinion that she must return by herself unaccompanied by Daniel. Mother subsequently found another drug program where she was able to stay with Daniel and moved in there. Unfortunately on December 19, 2010, Mother had a positive drug test for opiates and was terminated from the program. DCFS subsequently detained Daniel.

At the detention hearing on December 27, 2010, Daniel was ordered placed with the maternal grandmother and the court ordered Mother not to live in the home.

On January 14, 2011, the court sustained the section 300, subdivisions (b) and (g) petition and did not order reunification services for Father. The matter was then continued to further address whether reunification services would be ordered to Mother.

Father contacted the social worker on February 14, 2011, to provide an address where he could be located which was with his girlfriend and her mother. Father indicated he was Daniel's father and had been visiting him before his recent incarceration twice per week on Tuesdays from 12 noon to 3:00 p.m. and Saturdays from 11:00 a.m. to 1:00 p.m. and stated that he believed that he had a good relationship with Daniel. Father indicated that he had called Mother upon his release from prison to resume visiting but Mother told him that she had lost custody.

Father indicated he had been incarcerated from June 1, 2010, to January 30, 2011, and that he wanted to receive reunification services, but was unable to care for Daniel right away because of insufficient means.

At the contested hearing on February 24, 2011, Father was present, but Mother did not appear. The court denied reunification services to Mother and scheduled a section 366.26 hearing with the Father ordered to return.

Daniel was placed with his adult sister and maternal grandmother. Mother stopped visiting Daniel in February of 2011, and Daniel became attached to his foster parent. Father did visit with Daniel once a week for two to four hours and according to the foster parent the visits went well but Daniel seemed not to respond to Father as a parental figure. However, Daniel and Father engaged naturally and Father appeared sincere in his desire to visit Daniel. Father's visits were two in February, three in March, three in April and two in May of 2011.

Father did attend a parenting orientation on March 2, 2011, and thereafter completed a 10-week parenting class.

Father was present at the May 31, 2011, section 366.26 hearing during which the court terminated parental rights. Father filed a timely notice of appeal.

APPELLANT CONTENTIONS

Father contends on appeal that his due process rights were violated when the court denied his request for a contested section 366.26 hearing. Respondent DCFS maintains that Father's due process rights were not violated for the reason that the juvenile court permitted Father to make an offer of proof concerning his relationship with his son, if true, would establish the exception to adoption found in section 366.26, subdivision (c)(1)(B)(i). Respondent further contends that Father is incorrect in that his offer of proof was insufficient to justify a continuance for an evidentiary hearing.

DISCUSSION

The juvenile court held the section 366.26 hearing on May 31, 2011. Father appeared at the hearing as did Mother. Father's counsel appeared and asked for a contested hearing on the basis that since Father had been released from prison he was working hard to stabilize his life, specifically to get back into the business as a commercial driver. Counsel also pointed out that Father had completed a parenting class and that Father had a strong bond with Daniel.

Following this argument by Father's counsel, the juvenile court indicated that it was not going to continue the hearing and asked counsel for Father to address the issue of termination of parental rights. The court further indicated that the statement by Father's counsel constituted an offer of proof seeking to set the matter for a contested hearing. The court further indicated that the substance of the offer of proof was insufficient to persuade the court of a reasonable likelihood the court would fail to find by clear and convincing evidence that Daniel was an adoptable child candidate nor that the court will be able to find the requisite detriment because of a continuing relationship with Father. The court then asked counsel for the Father if he wished to be heard further and counsel indicated that her client indicated that he had a strong bond with Daniel. The court indicated that it needed something other than the bald statement about a bond and asked what evidence supported the statement there was a bond. Counsel for Father replied that prior to Father's incarceration Father had visited with Daniel twice a week, except for the eight months he was in prison. The court then responded that proof of regular visitation was, in and of itself insufficient to prove the section 366.26, subdivision (c)(1)(B)(i) exception to adoption.

It is well established that a court may properly require a parent to make an offer of proof before setting a contested section 366.26 hearing. (In re Earl L. (2004) 121 Cal.App.4th 1050, 1052-1053; In re Tamika T. (2002) 97 Cal.App.4th 1114, 1121, 1122.) If the resulting offer of proof is inadequate, the court acts properly in denying a contested section 366.26 hearing. The proper method for the court on appeal is to determine whether the juvenile court ruled correctly in a given situation and to examine the offer of proof made by the appellant. (Evid. Code, § 354, subd. (a).)

Failure to make an adequate offer of proof precludes consideration of the alleged error on appeal. (In re Mark C. (1992) 7 Cal.App.4th 433, 444.) Respondent further argues that an offer of proof is inadequate if it fails to identify what witnesses would testify as to what facts and that the offer of proof must state the names of the witnesses who will testify to particular facts and the offer must be specific in setting forth the actual evidence to be produced and not merely be the facts or issues to be subsequently addressed. Without that information, so contends respondent, a court has no way of knowing whether testimony would be cumulative or whether witnesses even had knowledge of the offered facts. Respondent further contends that an offer of proof is ineffective if it relies on inadmissible or irrelevant testimony and the offer of proof must include the purpose and content of the proffered testimony. In sum, contends respondent, an offer of proof is not a request to hold a hearing to see what evidence develops but, instead, a statement of what the offering party's witnesses would testify to.

In focusing on Father's offer of proof, we review what evidence was identified by Father that would be presented at a future hearing date and find it wanting. In Father's offer of proof, he specified that he had been visiting Daniel twice a week on a regular basis before his incarceration and that immediately after his release eight months later he resumed visiting one time per week. Father also indicated that he was employed, had completed a parenting class, and had a strong bond with his child. In considering this offer of proof, the juvenile court indicated that despite this evidence, there is no evidence Father occupies a parental figure role and the court is left with the remaining evidence of Father's statement of a strong bond with no indicated evidence to establish this fact. It appears that Father is merely requesting a continuance to present such evidence in the future without a contemporaneous showing of the evidence for the court to consider.

We find that Father has not met his burden of proof as to the section 366.26, subdivision (C)(1)(b)(i) exception and that Father also needed to prove that Daniel would benefit from continuing a relationship with him. For the exception to apply, the parent must have maintained regular visitation with the child and the juvenile court must determine that the parent/child relationship "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 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. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

As previously indicated, Father's offer of proof was insufficient as a matter of law and no violation of his constitutional rights occurred in this case.

DISPOSITION

The order is affirmed.

WOODS , J.

We concur:

PERLUSS, P. J.

JACKSON, J.


Summaries of

In re D.D.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Feb 8, 2012
No. B233966 (Cal. Ct. App. Feb. 8, 2012)
Case details for

In re D.D.

Case Details

Full title:In re D.D., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

Date published: Feb 8, 2012

Citations

No. B233966 (Cal. Ct. App. Feb. 8, 2012)