In re C.J.CA2/8 ( 2014 )

Filed 1/9/14 In re C.J.CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re C.J., a Person Coming Under the B249199
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK 78011)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
KATHLEEN J. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County, Marilyn K.
Martinez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant Kathleen J.
Grace Clark, under appointment by the Court of Appeal, for Defendant and
Appellant David J.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Stephen D. Watson, Associate County Counsel, for Plaintiff and Respondent.
Kathleen J. (mother) and David J. (father) appeal the juvenile court’s order
denying parents’ request for a contested Welfare and Institutions Code section 366.26
hearing.1 Appellants contend their due process rights were violated when the court
denied their request to present evidence of the “beneficial parent-child relationship” and
“sibling relationship” exceptions to the termination of parental rights after hearing their
offers of proof. (See § 366.26, subd. (c)(1)(B)(i) & (v).) We reject this challenge, and
affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
C.J. was born in July 2011. A toxicology test result showed C.J. tested positive
for marijuana. Although mother initially denied current substance abuse, she admitted
she smoked a little marijuana but “did nothing to put her baby’s health into jeopardy.”
Father, who tested negative for drugs, stated he was unaware of mother’s use of
marijuana during her pregnancy.
On August 1, 2011, the Los Angeles County Department of Children and Family
Services (DCFS) filed a petition on C.J.’s behalf.2 The petition, as sustained, alleged the
child came within the juvenile court’s jurisdiction under section 300, subdivision (b),
because mother’s use of illicit drugs caused C.J. to be prenatally exposed to marijuana,
rendered her incapable of providing care for C.J., and endangered the child’s physical
health and safety. The petition further alleged father knew of mother’s illicit drug use,
failed to protect C.J., and placed her at risk of physical harm and danger.3
C.J. was detained and placed in foster care. For mother, the court ordered
monitored visitation of a minimum of three visits per week, three hours per visit. Father
was permitted to have monitored visits except at the location of C.J.’s placement where
1 Undesignated statutory citations are to the Welfare and Institutions Code.
2 Appellants have three minor sons, two of whom were included in the petition. The
three sons are not a part of this appeal.
3 The petition additionally alleged the unsanitary home environment established by
the parents endangered the child’s health and safety and created a detrimental home
environment. However, this allegation was not sustained.
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his visits could be unmonitored. C.J.’s three older siblings were ordered to have
monitored visits with C.J.
During August and September 2011, eight visits were scheduled for C.J. and her
parents at the Inner Circle Foster Family Agency.4 Mother and the siblings were present
for all of the scheduled visits. Father was not present for three of the eight visits.
According to the monitors, the visits generally went well and there was no need for the
monitors to intervene. On a couple of occasions, the monitor noted mother’s maternal
instincts were evident as she was able to tell what C.J. wanted or needed. Father,
however, looked uninterested in C.J. or fell asleep during several of the visits. The
siblings usually engaged with C.J. and took turns holding her.
On November 1, 2011, DCFS recommended and the court declared C.J. a
dependent of the court. The court permitted parents to have unmonitored day visits with
C.J. after November 28, 2011, provided they complied with all court orders, which
included (1) father’s participation in weekly Narconon5 meetings and maintenance of an
attendance card, (2) mother’s attendance in a drug rehabilitation program and submission
to weekly random drugs tests, and (3) mother’s participation with C.J. in a family therapy
program.
In an interim review report filed by DCFS, father was reportedly attending weekly
Narconon meetings but failed to provide an attendance card. Mother submitted to six
random drug tests between October and November 2011, all of which returned negative
results. Although mother stated she was enrolled in a drug treatment program, she could
not provide proof of her enrollment and/or attendance. In addition, while the court
ordered a minimum visitation of three times a week, mother visited C.J. twice weekly,
4 The scheduled visits occurred on August 11, 2011; August 17, 2011; August 18,
2011; August 24, 2011; August 25, 2011; September 1, 2011; September 2, 2011; and
September 9, 2011.
5 “Narconon is a non-profit drug rehabilitation program dedicated to eliminating
drug abuse and drug addiction through drug rehab, drug information and drug education.”
( (as of Jan. 6, 2014).)
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and father once weekly, during the two weeks prior to the report’s date. DCFS noted its
concern regarding the parents’ continued failure to fully comply with the court’s orders
despite knowing that full compliance was necessary to gain liberal visitation with C.J.
On December 20, 2011, DCFS recommended and the court ordered C.J.’s removal
from mother and father’s custody and placed her in DCFS’s care for suitable placement.
The court ordered family reunification services and monitored visitation for the parents.
On May 3, 2012, DCFS filed a section 342 petition after father and mother
engaged in a physical altercation during a domestic dispute. The petition was dismissed
as to C.J. C.J.’s permanency plan hearing was continued to June 12, 2012.
In reports prepared for the June 12 hearing, DCFS reported C.J. bonded with her
foster mother and appeared to be responsive to mother and her siblings. Mother visited
C.J. through the foster mother once or twice a week and called about three times per
week. According to the foster mother, the quality of the visits was good. C.J.’s siblings
accompanied mother on her visits at least once a week. Mother stated father visited C.J.
through her foster mother on May 13, 2012. The social worker attempted to contact
father on at least six separate occasions, but was unsuccessful. Father did not contact
DCFS to schedule a monitored visit with C.J.
As for mother’s weekly drug tests, DCFS reported mother tested positive for
marijuana on four out of eight tests.6
C.J.’s June 12, 2012 permanency plan hearing was continued to July 25, 2012. At
the July 25 hearing, the court determined C.J.’s return to the physical custody of either
parent would create a substantial risk of physical or emotional harm. The court set the
matter for judicial review on January 23, 2013.
A status review report prepared for the January 2013 hearing discussed mother and
father’s continuing failure to comply with the court’s orders. Mother failed to appear at
6 The positive test results occurred on May 4, 2012; June 11, 2012; June 29, 2012;
and, July 6, 2012. Mother tested negative for drugs on May 22, 2012; June 13, 2012; and
July 16, 2012, and an invalid test resulted on June 26, 2012.
4
12 of the 24 scheduled drug tests,7 tested positive for marijuana on three separate
occasions,8 and tested positive for alcohol on one occasion.9 Mother failed to enroll in a
drug rehabilitation program and did not participate in conjoint therapy with C.J. Father
failed to contact DCFS to provide information as to his enrollment and progress in the
court ordered programs.
DCFS further reported both parents and the siblings had sporadic visits with C.J.
between October 2012 and January 2013. Father did not appear for six of the 10
scheduled visits with C.J. and made no attempts to reschedule those visits.10 Mother did
not appear for nine of 13 scheduled visits with C.J.11 As for the siblings, while they
appeared happy to visit with C.J., they did not engage with C.J. as they were usually busy
playing with one another playing games.
Because of the parents’ continuing failure to comply with court orders, DCFS
recommended termination of reunification services for both parents and setting a section
366.26 hearing.
On January 23, 2013, the court terminated family reunification services for mother
and father after finding mother in partial compliance and father not in compliance with
the court’s orders. The court scheduled a section 366.26 selection and implementation
hearing, and ordered monitored visitation for mother.
7 Mother did not appear for her drug tests on July 18, 2012; August 23, 2012;
September 7, 2012; September 12, 2012; September 26, 2012; November 16, 2012;
November 21, 2012; November 29, 2012; December 7, 2012; December 13, 2012;
December 26, 2012; and January 4, 2013.
8 The dates of the positive test results are August 16, 2012; September 21, 2012; and
October 4, 2012.
9 The date of the positive test result is September 21, 2012.
10 Father visited C.J. on October 11, 2012; October 18, 2012; November 8, 2012; and
December 6, 2012.
11 Mother contacted the foster mother directly on two separate occasions to visit with
C.J. Mother visited with C.J. on October 6, 2012; October 11, 2012; October 25, 2012;
November 3, 2012; December 6, 2012; and January 3, 2013.
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On March 1, 2013, C.J. was placed with her new foster parents, Donald and
Susan L.
The section 366.26 report prepared for the April 30, 2013 hearing stated: “During
this period of review there has been little [change] in the [status] of the case. The mother
and father continue to be out of compliance with Court orders. The mother and father
have failed to demonstrate that the concerns that brought this case to the attention of
DCFS have been remedied.” The report additionally noted that, “while the mother
continues to visit the child . . . , her visits are not always consistent and the father has not
visited with the child during this period of supervision.”
On April 30, 2013, mother and father requested a contested section 366.26
hearing. The court asked for an offer of proof. Father’s counsel replied: “[W]e’re going
to submit evidence that shows that terminating parental rights would be detrimental to
[C.J.] because she would benefit from the continued contact.” Father’s counsel
continued: “[C.J.] is very young, but she does recognize my client as her father. She
enjoys the visits and also does have other siblings that see her regularly, and I believe that
termination of parental rights would interfere with sibling contact. [I]t would be very
important to her and for her to know her entire family, Your Honor.”
Like father, mother’s offer of proof was based on “visitation not only for [mother],
but also with the sibling.”
Finding the offers of proof insufficient, the court determined it was reasonably
unlikely the court would be persuaded that termination of parental rights would be
detrimental to the child. The court stated:
“The argument is that [C.J.] recognizes her father. [C.J.] enjoys her
visits with her mother and her father and her siblings. [¶] Visitation in and
of itself is insufficient to persuade the court that it would be detrimental to
terminate parental rights. . . . [¶] . . . [¶] The child is not even two years
old. The . . . offer of proof does not advise me that the relationship between
the child and mother through visitation benefits the child so significantly to
outweigh the strong preference for adoption. This child may have an
enjoyable time during the visits. That’s not sufficient to deprive the child
permanency provided through adoption.
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“There is no evidence offered that this child has a significant,
positive, emotional attachment to either of her parents. There is no
evidence that either parent occupies a parental role. There is no evidence
that if I terminate parental rights, this child would be greatly harmed.
“[W]hile this child may recognize her father at visits and may even
recognize her mother at visits, they have not occupied a parental role. [A]
friendly relationship may be beneficial, but it is not sufficient in and of
itself to deprive this child of the permanency provided through adoption.”
As for C.J.’s siblings, the court stated: “[T]here’s no evidence presented that
[C.J.] has any significant, emotional attachment to her siblings.”
Finding by clear and convincing evidence that C.J. would likely be adopted, the
court terminated parental rights and placed C.J. in DCFS’s care, custody and control for
the purposes of adoption planning and placement.
DISCUSSION
Both mother and father argue the court violated their due process rights when it
denied their request to present relevant evidence of the beneficial parent-child
relationship and sibling relationship exceptions pursuant to section 366.26, subdivision
(c)(1)(B)(i) and (v). Section 366.26, subdivision (c)(1) states, in pertinent part: “If the
court determines . . . , by a clear and convincing standard, that it is likely the child will be
adopted, the court shall terminate parental rights and order the child placed for
adoption . . . unless . . . : [¶] . . . [¶] (B) . . . [¶] (i) The parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship [or] [¶] . . . [¶] (v) There would be substantial interference with a
child’s sibling relationship . . . .” Mother and father contend they would have been able
to prove the applicable exceptions had the court granted a contested hearing. Both
parents claim the juvenile court’s denial of their request for a contested hearing was
prejudicial and requires reversal. We disagree.
“[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.’ [Citations.]” (In re Jeanette V. (1998) 68 Cal. App. 4th 811, 816-817.)
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However, “due process is not synonymous with full-fledged cross-examination rights.”
(Id. at p. 817.) It “‘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.’” (In re Earl L. (2004) 121 Cal. App. 4th 1050, 1053.)
Here, the issue before the juvenile court was whether the parents’ offer of proof
was sufficient to set the matter for a contested 366.26 hearing. Mother and father argued
the beneficial parent-child relationship and sibling relationship exceptions applied. (See
§ 366.26, subd. (c)(1)(B)(i), (v).) However, rather than presenting a “specific” offer of
proof, which “set[] forth the actual evidence to be produced,” mother and father “merely
[identified] the facts or issues to be addressed and argued.” (In re Tamika T. (2002) 97
Cal. App. 4th 1114, 1124.) Father argued C.J. recognized him as her father, enjoyed her
visits with him, and regularly visited with her siblings. Mother simply joined father’s
argument, adding only that her offer was “based on visitation not only for herself, but
also with the sibling.”
However, “[a] proper offer of proof gives the trial court an opportunity to
determine if, in fact, there really is a contested issue of fact.” (In re Tamika T., supra, 97
Cal.App.4th at p. 1124.) With the exception of father’s statement that his visits were
“consistent . . . in the last few months,”12 neither mother nor father contested the
evidence contained in the social worker’s reports. The reports demonstrated mother’s
continued use of marijuana since C.J.’s detainment in 2011; the parents’ inconsistent
visits with C.J. between August 1, 2011, and April 30, 2013; and the parents’ failure to
comply with court orders. Neither parent sought an examination of any witnesses or
presented a summary of the issues relevant to the examination of any witnesses. In light
of these uncontested facts, there does not appear to be a miscarriage of justice in the
court’s conclusion that the parents’ offer of proof was insufficient to set a contested
section 366.26 hearing. (In re Tamika T., supra, at p. 1124.)
12 Father stated he visited C.J. once a week in the last few months before the section
366.26 hearing.
8
Even if a contested hearing were granted, a different result would not have been
obtained. Neither mother nor father would have been able to show the parent-child
relationship involved “more than ‘frequent and loving contact,’” or that they were “more
to the child than a mere ‘friendly visitor or friendly nonparent relative.’” (In re Helen W.
(2007) 150 Cal. App. 4th 71, 81.) Here, the parents argued they visited C.J. once a week
and C.J. enjoyed her visits with her parents and siblings. However, neither parent
showed that he or she occupies “‘“a parental role” in the child’s life.’” (In re K.P. (2012)
203 Cal. App. 4th 614, 621.) “‘[B]ecause 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.’ [Citation.]” (Ibid.)
The parents’ contention that they visited C.J. once a week in the months before the
section 366.26 hearing does not give rise to the kind of parent-child relationship required
under the benefit exception. Such a relationship “‘characteristically aris[es] from day-to-
day interaction, companionship and shared experiences.’ . . . [Citation.]” (In re K.P.,
supra, 203 Cal.App.4th at p. 621.) C.J. was removed from her parents’ custody when she
was less than a month old and spent the majority of her young life in a foster home. The
parents’ visitation, which was inconsistent throughout the entire period of review, never
progressed beyond monitored visitation with only the narrow exception that father was
initially allowed to visit C.J. in her placement without a monitor. Mother’s interaction
with C.J. lessened over time. Father appeared uninterested in C.J. or fell asleep during
his visits with the child. Based upon the totality of the record, there is no evidence to
controvert the court’s finding that the parents’ “friendly relationship” is “not sufficient in
and of itself to deprive this child of the permanency provided through adoption.”
Similarly, the record supports the court’s finding that the sibling relationship
exception did not apply. Under section 366.26, subdivision (c)(1)(B)(v), the court must
balance whether “[t]here would be substantial interference with a child’s sibling
relationship, taking into consideration the nature and extent of the relationship, including,
but not limited to, whether the child was raised with a sibling in the same home, whether
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the child shared significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child’s best interest . . . .”
As their offer of proof, the parents merely argued the “other siblings . . . see [C.J.]
regularly, . . . termination of parental rights would interfere with sibling contact,” and “it
would be very important to [C.J.] to know her entire family.” As the court properly
recognized, “there’s no evidence presented that [C.J.] has any significant, emotional
attachment to her siblings.” The record shows that C.J. was not raised with her siblings
in the same family home because she was removed from the home very early on. The
siblings’ interaction with C.J. was limited as they were busy playing games during the
monitored visits. In addition, neither father nor mother attempted to contest the record by
specifically showing that C.J. shared a close relationship with her siblings or that
maintaining C.J.’s relationship with her siblings was in her best interest. Thus, there was
sufficient evidence to support the court’s finding that the sibling relationship exception
did not apply.
Based upon this record, we conclude that a contrary result would not have been
obtained if mother and father’s request for a contested hearing were granted. “[E]ven
under the most stringent test of prejudice applicable to a denial of due process, remand
for a contested hearing would constitute an idle act and [any] error must be seen as
harmless beyond a reasonable doubt.” (Andrea L. v. Superior Court (1998) 64
Cal. App. 4th 1377, 1387.)
DISPOSITION
The order is affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J. RUBIN, J.
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