In re Mia H. CA2/4 ( 2013 )


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  • Filed 4/26/13 In re Mia H. CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    In re MIA H., A Person Coming Under
    the Juvenile Court Law.
    LOS ANGELES COUNTY                                                   B241638
    DEPARTMENT OF CHILDREN AND                                           (Los Angeles County
    FAMILY SERVICES,                                                     Super. Ct. No. CK87862)
    Plaintiff and Respondent,
    v.
    FREDDIE H. et al.,
    Defendants and Appellants.
    APPEAL from an order of the Superior Court of Los Angeles County,
    Marilyn Martinez, Juvenile Court Commissioner. Affirmed.
    Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
    Appellant Freddie H.
    Kimberly A. Knill, under appointment by the Court of Appeal, for
    Defendant and Appellant Yvonne L.
    John F. Krattli, Office of the County Counsel, James M. Owens, Assistant
    County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and
    Respondent.
    Yvonne L. (Mother) and Freddie H. (Father) appeal the order terminating
    parental rights under Welfare and Institutions Code section 366.26.1 Appellants
    contend that their due process rights were violated when the juvenile court refused
    to hold a contested hearing. Finding no error, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    The family came to the attention of the Department of Children and Family
    Services (DCFS) in January 2011, when Mother, Father, their daughter Mia, born
    in July 2009, and Mother‟s three older children fathered by Shaun K. were living
    in a motel room. All the children had head lice and the older children had missed
    two weeks of school. There were also reports of Mother spitting on Father and the
    children.2 Further investigation revealed that Mother had been involved in
    dependency proceedings in Orange County and that the three older children had
    lived with their paternal grandmother (Shaun‟s mother) until two years earlier,
    when Mother regained custody.3 In addition, Father‟s parental rights over three
    older children had been terminated in an Orange County proceeding in 2002. Both
    Mother and Father acknowledged criminal histories and use of drugs. Father had
    completed a drug program and reported being clean for more than three years. But
    Mother acknowledged using methamphetamine and marijuana recently, in January
    2011 and December 2010 respectively. Voluntary family maintenance services
    were initiated. Mother agreed to voluntary placement of the three older children
    with their paternal grandmother. Mother and Father agreed to drug test and
    Mother agreed to enroll in a drug program and to obtain a mental health evaluation.
    1
    Undesignated statutory references are to the Welfare and Institutions Code.
    2
    This was of particular note because Mother reportedly suffered from hepatitis.
    3
    Mother had three additional older children, two of whom had been the subject of
    child protective services proceedings in Texas, who were no longer in her care.
    2
    Mother subsequently failed to appear for drug tests in April and failed to
    participate in a drug program. In May 2011, DCFS filed a petition under section
    300. Because Father had appeared for drug tests and had consistently tested
    negative, at DCFS‟s recommendation the court placed Mia with Father. Mother
    was permitted monitored visitation only.
    In July 2011, Mother and Father pled no contest to allegations that Mother
    had an unresolved history of drug abuse, including use of cocaine and
    methamphetamine, and that Father knew of Mother‟s drug abuse and failed to
    protect Mia.4 The court ordered Mother to participate in a parenting program,
    substance abuse counseling with random drug tests, and mental health counseling
    including a psychiatric evaluation. She was granted monitored visitation, but
    Father was not to be the monitor. The court ordered Father to drug test on demand
    one time, to attend a parenting class if DCFS could find an affordable one that fit
    into his schedule, and to attend conjoint counseling with Mother if DCFS set it up
    and found a counselor who would not charge Father and meet in accordance with
    his schedule.5 It also ordered family maintenance services for Father, Mia and
    Mother.
    In August 2011, the caseworker learned that Mother had been staying with
    Father and babysitting Mia when Father was working. DCFS filed a supplemental
    petition under section 387 contending Father permitted Mother to have
    unmonitored access to Mia and failed to comply with court orders. Mia was
    4
    Allegations pertaining to Shaun and the older children -- that Mother and Shaun
    had a history of domestic violence and engaged in physical altercations in the presence of
    the children, that Shaun had a history of illicit drug abuse and had failed to provide the
    children the necessities of life -- were found true at a later date. Shaun‟s children were
    not the subject of the order from which appeal was taken and he is not a party to this
    appeal.
    5
    There is no evidence that DCFS was able to set up conjoint counseling for the
    parents.
    3
    detained from Father and placed with Shaun‟s mother, with whom her half-siblings
    had earlier been placed. Mother and Father pled no contest to the supplemental
    petition. The court ordered Father to attend a parenting class and permitted him to
    have unmonitored visits with Mia but kept in place the order that he not be the
    monitor for Mother‟s visits.
    In October 2011, the caseworker reported that the parents had had no contact
    with her but had visited the children three times in the paternal grandmother‟s
    home in September and October. In addition, Mother called nightly to speak to the
    children. Mia had begun to adjust to the new home and bond with her caregiver.
    She showed no signs of distress when her parents left after their visits.
    In the February 2012 status report, the caseworker again reported she had
    not spoken with the parents. She had visited a motel where they reportedly lived,
    but no one opened the door for her even though someone appeared to be inside.
    Father had been arrested for petty theft. The parents did not appear to be
    complying with the reunification plan. The parents had been visiting the children
    once or twice a month until mid-December. The visits went well. They had not
    visited in January or February. Mother had stopped calling the children nightly,
    and had called only three times in the preceding two weeks. Mia appeared to be
    happy in her new home, was very bonded with her half-siblings, and was
    beginning to seek out her caregiver for comfort. DCFS recommended termination
    of reunification services “[b]ased on the fact that both mother and father have long
    histories of substance abuse and neither parent has complied with court orders over
    the past 6 months, have not remained in contact with DCFS, have not visited minor
    in over two months, and due to minor being under the age of 3.” At the review
    hearing on February 23, Father‟s attorney said he had been struggling financially
    and wait-listed for an inpatient drug program. Mother‟s attorney said she, too, was
    4
    on a waiting list for services. The court terminated reunification services and set a
    section 366.26 hearing for May 24, 2012 to consider termination of parental rights.
    The caseworker‟s section 366.26 report was filed on May 24, 2012. The
    information concerning parental visitation was taken from the February 2012 status
    report. The caseworker had visited Mia in the home of the paternal grandmother
    and observed that she had formed a secure attachment to the grandmother and her
    husband, who were willing to adopt. Because the adoption home study had not
    been completed, however, DCFS recommended that the court continue the matter
    for 120 days to accomplish that task. At the hearing, the parents‟ attorneys asked
    that the matter be continued so it could be set for a contest. The court inquired
    whether parental rights could be terminated before the home study was completed.
    The attorney for DCFS stated that although DCFS was requesting a continuance of
    the section 366.26 hearing, DCFS did not disagree that termination was in Mia‟s
    best interest. The attorney for Mia indicated it was her “preference” to wait to
    terminate parental rights until the home study was completed.
    The court asked parents‟ counsel for an offer of proof. Father‟s counsel
    stated: “[M]y client has been visiting with his child and he bonds with his child,
    which is the exception for the .26 hearing. So he believes that would apply. [¶]
    And furthermore, . . . he is now enrolled in a full drug program through the
    criminal court in Orange County, and he has begun to participate in the program.
    [¶] Before that, he did have the financial issues, and he did not have the stability;
    however, he has not given up. He does love his child very much, and he is doing
    everything he can to still continue to comply with all court orders.” Mother‟s
    counsel stated: “[M]y client has had contact with her child, and she maintains that
    she does have a bond with Mia. Although she‟s not in a program, this is something
    that she‟s seeking to do.” The court inquired whether it was true that the parents
    had not visited since December. Counsel said it was not true and that the parents
    5
    had visited eight or nine times in the five months since then. The court stated there
    was no reason to set the matter for a contest because the offer of proof did not
    indicate the existence of evidence of a strong emotional attachment and potential
    harm to Mia from termination of the relationship. Specifically, the court found that
    “each parent‟s offer of proof . . . is insufficient to persuade me that if the matter
    were set for a contested hearing, there‟s any reasonable likelihood that they would
    persuade me that they meet [the] exception [of § 366.26(c)(1)(B)(1)] and that it
    would be detrimental to terminate . . . [¶] . . . visitation . . . . [¶] I‟ve not heard any
    offer of proof as to the emotional attachment, to the harm if the court terminated
    parental rights, the harm to the child.”
    With respect to visitation, the court stated, “assuming [Father‟s] statement
    [concerning more recent visitation] is taken as true, . . . visitation in and of itself is
    insufficient.” Counsel for Mother stated that Mother disputed the report‟s
    statement that the last visitation had taken place in December and represented that
    Mother had visited seven or eight times in 2012. Calculating that this averaged
    one or two visits a month, the court stated: “I stand by my findings as to the
    visitation, and that‟s all the offer of proof is.” The court went on to find by clear
    and convincing evidence that Mia was adoptable and terminated parental rights.
    This appeal followed.
    DISCUSSION
    Mother and Father contend the court denied them due process when it
    refused to continue the section 366.26 hearing and set a contested hearing on the
    issue of termination. For the reasons discussed, we disagree.
    At a section 366.26 hearing, the burden is on the parents to demonstrate that
    termination of parental rights would be detrimental to the child under one of the
    exceptions listed in section 366.26, subdivision (c)(1). (In re T.S. (2009) 175
    
    6 Cal.App.4th 1031
    , 1039.) Mother and Father sought to establish the exception
    contained in section 366.26, subdivision (c)(1)(B)(i), which provides an exception
    to termination of parental rights where “[t]he parents have maintained regular
    visitation and contact with the child and the child would benefit from continuing
    the relationship.” To establish this exception, “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.] Rather, the
    parents must show that they occupy „a parental role‟ in the child‟s life.” (In re
    Andrea R. (1999) 
    75 Cal.App.4th 1093
    , 1108-1109, quoting In re Beatrice M.
    (1994) 
    29 Cal.App.4th 1411
    , 1418-1419.) The court must find 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,” and that severing the relationship “would deprive the child of a
    substantial, positive emotional attachment such that the child would be greatly
    harmed . . . .” (In re Autumn H. (1994) 
    27 Cal.App.4th 567
    , 575.) “„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.‟” (In re T.S., supra, at p. 1039, quoting In re Jasmine D.
    (2000) 
    78 Cal.App.4th 1339
    , 1350.)
    In general, parents have a due process right to present evidence and cross-
    examine witnesses at a section 366.26 hearing. (See, e.g., In re Josiah S. (2002)
    
    102 Cal.App.4th 403
    , 417-418; In re Kelly D. (2000) 
    82 Cal.App.4th 433
    , 439-
    440.) However, the “right to „due process‟ at the hearing under section 366.26” is
    “a flexible concept which depends upon the circumstances and a balancing of
    various factors.” (In re Jeanette V. (1998) 
    68 Cal.App.4th 811
    , 817.) “The due
    process right to present evidence is limited to relevant evidence of significant
    7
    probative value to the issue before the court.” (Id. at p. 817.) “The state‟s strong
    interest in prompt and efficient trials permits the nonarbitrary exclusion of
    evidence [citation], such as when the presentation of the evidence will „necessitate
    undue consumption of time.‟” (Maricela C. v. Superior Court (1998) 
    66 Cal.App.4th 1138
    , 1146-1147, quoting Evid. Code, § 352.) Even where a parent‟s
    representations are “true” and “could have been substantiated at an evidentiary
    hearing,” if they are insufficient to meet the parent‟s burden, the court does not err
    in refusing to expend time and resources on a full hearing. (Maricela C. v.
    Superior Court, supra, at p. 1147.) “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 proper offer
    of proof gives the trial court an opportunity to determine if, in fact, there really is a
    contested issue of fact.” (Id. at p. 1124.) “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.” (Ibid.)
    Applying these standards, we conclude the court did not abuse its discretion
    in denying a contested hearing. Given the opportunity to make an offer of proof,
    neither Mother nor Father offered to produce evidence demonstrating that either of
    them occupied “a parental role” in Mia‟s life -- much less that the well-being and
    stability of a permanent home could be outweighed by the currently existing
    parent-child relationship. Nor did either parent offer to produce evidence
    demonstrating that Mia would suffer significant harm were she to be adopted. It
    was undisputed that Mia had been removed from the parents‟ custody at the age of
    two and had resided since then with her half-siblings with whom she was closely
    bonded. DCFS reports indicated the parents had visited Mia approximately twice a
    8
    month through 2011, and the parents‟ offer of proof represented they had
    continued to visit at approximately the same frequency for the first five months of
    2012. Assuming, as the court did, that the representations of additional visitation
    were true, this would not have established the exception. Nor would the fact that
    some bond existed between Mother, Freddie and Mia. (See In re K.P. (2012) 
    203 Cal.App.4th 614
    , 621 [“loving and frequent” contact and “existence of an
    „emotional bond‟ with the child” insufficient to establish exception]; In re Andrea
    R., supra, 75 Cal.App.4th at p. 1108 [evidence that “parents and child find their
    visits pleasant” insufficient to establish exception].)6
    Significantly, Mother had never been granted unmonitored visitation, and it
    does not appear from the record or offer of proof that Father had ever taken
    advantage of the unmonitored visitation permitted by the court. While proof of
    day-to-day contact is not an absolute requirement of the section 366.26,
    subdivision (c)(1)(B)(i) exception, the type of relationship necessary to support it
    is one “characteristically arising from day-to-day interaction, companionship and
    shared experiences.” (In re Casey D. (1999) 
    70 Cal.App.4th 38
    , 51.)
    Consequently, a parent‟s failure to visit in an unmonitored setting is a significant
    factor militating against a finding that the exception applies, particularly where, as
    here, the child was very young when detained. (Ibid.; In re Andrea R., supra, 75
    Cal.App.4th at p. 1109.) In short, neither Mother‟s nor Father‟s offer of proof set
    forth evidence which, if credited, demonstrated that the continuation of the parent-
    child relationship would promote Mia‟s well being to such a degree as to outweigh
    the well-being she would gain in a permanent home, or that severance of the bond
    6
    Father‟s counsel also stated that Father had begun to participate in a drug program.
    Attempts to become a better parent are not relevant at this stage of a dependency
    proceeding. Father points out that all the parties requested that the termination issue be
    continued to a later date, but does not suggest that the failure to grant a continuance
    prejudiced his ability to provide an adequate offer of proof.
    9
    would cause actual harm to her. Thus, the court did not err in finding the offer of
    proof insufficient to warrant a hearing.
    DISPOSITION
    The order terminating parental rights is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    MANELLA, J.
    We concur:
    EPSTEIN, P. J.
    SUZUKAWA, J.
    10
    

Document Info

Docket Number: B241638

Filed Date: 4/26/2013

Precedential Status: Non-Precedential

Modified Date: 4/18/2021