Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Diego County Super. Ct. No. SJ11520B
AARON, J.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Carol Isackson, Judge. Petition denied.
A.V. seeks review of juvenile court orders denying his request for a contested 12-month review hearing under Welfare and Institutions Code section 366.21, subdivisions (f) and (g) and setting a hearing under section 366.26 to select and implement a permanency plan for his daughter, Faith V.
Unless specified, statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Faith V. was born in 1997 to A.V. (A.) and Ruby G. On March 27, 2006, the San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b). The Agency alleged that Faith was at risk of serious physical harm or illness due to her mother's mental illness and inability to provide regular care. Ruby was homeless. She could not support or care for Faith and Faith's older half-sibling, F.G. Faith and F.G. (children) had not been in school for a year. Ruby asked the Agency to place the children in foster care while she sought treatment to stabilize her mental health condition.
Ruby is not a party to this writ proceeding.
F.G. is not a subject of this writ proceeding.
The Agency located A. in a detention facility in San Diego County. He informed the Agency that he was to serve a sentence of approximately two years in state prison. A. appeared in court on March 28, 2006, and the court appointed counsel for him at his request. On May 11 the court sustained the allegations of the petition and set a contested disposition hearing.
The appellate record does not contain information about the crime for which A. was convicted and the actual length of the sentence that was imposed on A. (See § 361.5, subd. (e)(1).) In June 2007 A.'s trial attorney informed the court that A. was not scheduled to be released from prison until late 2009.
A. told the social worker that he had not been able to have much contact with Faith because he had not known her whereabouts. He thought Faith might not remember him. A. requested visitation. He asked the Agency to consider placing Faith with his mother or with other family members. Faith told the social worker that she did not know A. or other paternal relatives, and she did not want to visit them.
The Agency evaluated the home of the children's former stepfather (stepfather) and placed the children with him on July 27, 2006. At the disposition hearing on August 17 the court removed Faith from parental custody and continued her placement with her stepfather. Based on the anticipated length of A.'s incarceration and his lack of a parent-child relationship with Faith, the court ordered no reunification services for A. (no-services order) pursuant to section 361.5, subdivision (e)(1).
At the six-month review hearing on November 14, 2006, the court ordered the Agency to provide Ruby with six additional months of reunification services.
In May 2007 the Agency recommended that the court terminate Ruby's court-ordered reunification services and set a hearing under section 366.26. The Agency's permanency planning assessment team had determined that adoption or guardianship were appropriate permanency plans for Faith and F.G. Their stepfather expressed a willingness to provide a permanent home for both children through adoption or legal guardianship. He provided appropriate care for Faith and F.G., and the children were comfortable and settled in his home. Faith refused to communicate with or visit A., but she did have some contact with her paternal relatives.
At the June 25, 2007 review hearing A. asserted that it was not in Faith's best interest to proceed to a section 366.26 hearing and requested a contested hearing on that issue. The court initially granted A.'s request for a contested hearing. County counsel objected to the contested hearing on the ground that A. did not have standing because he had been denied reunification services.
The court determined that it had previously denied services to A. and therefore the sole issue at the 12-month review hearing was whether Ruby's reunification services should be terminated. A. did not have standing to object to or litigate this issue. The court advised A. that he would have the opportunity to contest the Agency's permanency plan recommendation at the section 366.26 hearing, and denied A.'s request for a contested 12-month review hearing. The court reviewed the reports that had been admitted in evidence and determined that there was no substantial probability that Faith would be returned to the physical custody of her parents by the 18-month review date. The court set a section 366.26 hearing and terminated Ruby's reunification services.
Ruby's whereabouts had been unknown for eight months. On her behalf, her attorney did not contest or submit on the Agency's recommendations.
A. petitions for review of the court's orders under California Rules of Court, rule 8.452, and requests that this court stay all juvenile court proceedings pending this court's
Further rule references are to the California Rules of Court.
decision on the issues he raises in his petition. A. further requests that this court vacate the order setting the section 366.26 hearing, and seeks a writ of mandate directing the juvenile court to hold a new 12-month review hearing. This court issued an order to show cause, the Agency responded, and the parties waived oral argument.
DISCUSSION
A
Introduction
A. contends that he has a due process right to present evidence and to cross-examine witnesses at a 12-month review hearing. He argues that the court erroneously deprived him of that right when it denied his request for a contested hearing on the issues of Faith's placement with an appropriate relative caregiver and whether Faith's placement in long-term foster care under section 366.21, subdivision (g)(3) was in her best interest. A. asserts that he was not required to make an offer of proof as a prerequisite to exercising his due process right to a contested review hearing.
The Agency argues that A. lacked standing to contest the issues as to the permanency plans that were to be determined at the 12-month review hearing. The Agency also contends that A. did not raise the issue of relative placement in the trial court and that he has therefore forfeited the issue on review. In view of the statutory framework and the circumstances of the case, the Agency asserts that the court's only option at the 12-month review hearing was to set a section 366.26 hearing pursuant to section 366.21, subdivision (g)(2).
We review questions of law de novo and apply a deferential standard of review to the court's exercise of discretion and resolution of disputed fact. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801.) A trial court's discretion is guided and controlled by fixed legal principles and exercised in conformity with the spirit of the law. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
B
If the child is not returned to parental custody and services are not extended at the 12-month review hearing, the court must either set a section 366.26 hearing or order the child placed in long-term foster care
The Legislature mandates that the status of each dependent child must be reviewed periodically as determined by the court, but not less frequently than once every six months, as calculated from the date of the original disposition hearing. (§ 366, subd. (a)(1).) At each status review hearing held prior to a section 366.26 hearing, the court is required to determine all of the following issues: The necessity for and appropriateness of the child's placement; the extent of the agency's compliance with the case plan; whether any limitations on the parent's right to make educational decisions for the child are required; the child's relationship to his or her siblings, if any; and the extent of the progress that has been made toward alleviating or mitigating the causes necessitating the child's placement in foster care. (§ 366, subd. (a)(1)(A)-(E).)
In addition to the general issues presented for the court's determination at each status review hearing, the court is required to make findings specific to the six-month, 12-month and 18-month review hearings. (§§ 366.21, subds. (e), (f), (g); 366.22.) At the 12-month review hearing, the court must determine the permanent plan for a dependent child, which includes a determination whether the child will be returned to the child's home and, if so, when. (§ 366.21, subd. (f).) The court must return the child to the physical custody of his or her parent unless the court finds, by a preponderance of the evidence, that the return of the child to the physical custody of the parent would create a substantial risk of detriment to the child. (Ibid.)
If the court does not order the return of the child to the physical custody of his or her parent under section 366.21, subdivision (f), then the court must select one of the three following options:
(1) If the court finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent and safely maintained in the home within the extended period of time, the court shall continue the case until the 18-month review date. (§ 366.21, subd. (g)(1).)
(2) If the court does not continue the case to the 18-month review date and finds that there is clear and convincing evidence that reasonable services have been provided or offered to the parents, the court may order that a hearing be held pursuant to section 366.26. (§ 366.21, subd. (g)(2).) If the court orders a section 366.26 hearing, it shall also order the termination of reunification services to the parent. (§ 366.21, subd. (h).)
(3) If the court finds by clear and convincing evidence that, based upon the evidence already presented to it, including a recommendation by a licensed county adoption agency, that setting a section 366.26 hearing is not in the child's best interest because the child is not a proper subject for adoption and has no one willing to accept legal guardianship, then the court may order that the child remain in long-term foster care. (§ 366.21, subd. (g)(3); see also § 366.22, subd. (a).)
The court does not have the authority to issue an alternative order. (§ 366.21, subd. (g); In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804 ["At the permanency hearing the court must select one of the statutorily prescribed options"].)
A. maintains that he has a due process right to litigate whether setting a section 366.26 hearing was in Faith's best interest, and that he was denied that right when the court denied his request for a contested hearing on that issue. Before we address the merits of A.'s arguments, we consider the Agency's assertions that A. did not have standing to raise an issue as to the permanency plans, and that he forfeited the issue of relative placement on review by failing to raise the issue in a timely manner at the appropriate hearing.
C
Standing
The Agency asserts that A. did not have standing to raise any issue as to the permanency plans because he had not filed a section 388 petition seeking modification of the no-services order. The Agency contends that the sole issue as to the permanency plans at the 12-month review hearing was whether the court should extend reunification services to Ruby for an extended period. (§ 366.21, subd. (g)(1).) The Agency argues that section 366.21, subdivision (g)(3), which allows for placement of a child in long-term foster care, did not apply because Faith's stepfather was willing to adopt her or to assume legal guardianship and there was no evidence to suggest that Faith was not adoptable.
In Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67 (Kimberly H.), this court held that a parent's general right to a contested six-month review hearing may be limited if the court denied reunification services to that parent at the disposition hearing under section 361.5, and the court did not proceed to a section 366.26 hearing at that time because the other parent was entitled to receive reunification services. (Id. at p. 72.) When those circumstances exist, the court may not consider returning the child to the physical custody of, or extending reunification services to, the non reunifying parent unless that parent has filed a section 388 petition seeking an order returning the child to his or her physical custody or an order granting the parent a period of reunification services. (Kimberly H., supra, at p. 72.) In the absence of a showing of a prima facie case under section 388 petition, the juvenile court may not consider returning the child to the custody of the non reunifying parent or determine whether there is a substantial probability that the child will be returned to that parent within the extended review period. (Ibid.;§ 366.21, subd. (g) & (g)(1).)
For convenience, we refer to a parent who has been denied reunification services as the "non reunifying parent." (In re Alanna A. (2005) 135 Cal.App.4th 555, 565 & fn. 10 [noting that a non reunifying parent may seek an order for reunification services or the return of the child to his or her custody under section 388].)
The Agency's proposition that, under Kimberly H., supra, 83 Cal.App.4th 67, a non reunifying parent must file a section 388 petition before that parent is entitled to a contested hearing on any issue as to the permanency plans at a review hearing is overbroad. Even when reunification appears to be highly unlikely, a parent retains an interest in his or her child's companionship, care and management, and in avoiding termination of parental rights. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 223; Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 759.) In addition, the court often must determine a variety of issues at a review hearing that are relevant to the child's interim placement, safety and well-being. (See §§ 366, 366.21, 366.22.) The court's determination of these issues may ultimately affect the child's permanent placement and the final disposition of the case.
A. acknowledged that his circumstances did not and will not allow him to reunify with Faith within the statutory time frame. (§ 366.21, subds. (f) and (g)(1).) He did not seek a contested hearing on those issues, nor did he seek to assert those issues as to Ruby. Rather, A. argues that he sought to address "two distinct, critical issues"—the issue of Faith's placement with an appropriate relative caregiver, which would allow A. to preserve his ties to his daughter, and whether Faith should be placed in long-term foster care under section 366.21, subdivision (g)(3). We conclude that A. had standing to raise these issues at the 12-month review hearing without first filing a petition for modification under section 388.
D
Forfeiture
A. contends that he was denied the opportunity at the 12-month review hearing to address the issue whether Faith should be placed with an appropriate relative caregiver. The Agency responds that A. did not raise the issue of relative placement in the juvenile court and that he has forfeited the issue on review.
A party forfeits the right to claim error on review when he or she fails to raise the objection in the trial court. (In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222.) At each status review hearing that is held prior to a section 366.26 hearing, the court is required to determine "the continuing necessity for and the appropriateness of the [child's] placement." (§ 366, subd. (a)(1)A).) If the court finds that the placement is no longer appropriate and that a new placement is necessary, the court is required to consider placement of the child with an appropriate relative. (§ 361.3, subd. (d).) Alternatively, a parent who seeks a modification of a previous placement order may file a petition under section 388. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317 [A motion for change of placement may be brought pursuant to section 388 at any time after the minor has been declared a dependent child of the juvenile court]; see also In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.)
The Agency recommended that the court continue Faith's interim placement with her stepfather. It presented evidence that the placement was appropriate and that Faith was comfortable and settled in the stepfather's home, as was her sibling. The record shows that A. did not object to Faith's interim placement on the ground that the placement was no longer appropriate or safe. (§ 366, subd. (a)(1)(A).) Further, A. did not file a section 388 petition asking the court to place Faith in the care of a suitable relative. We conclude that A. has forfeited this issue on review by failing to raise the issue in the trial court.
Under section 361.3, subdivision (c)(2), a stepparent is considered to be a relative for placement purposes, but is not afforded the preferential consideration for placement given to a grandparent, aunt, uncle or sibling of the child.
E
A parent's right to a contested review hearing is limited to the relevant issues before the court at that hearing
"It is axiomatic that due process guarantees apply to dependency proceedings." (Stanley v. Illinois (1972) 405 U.S. 645, 658; Santosky v. Kramer (1982) 455 U.S. 745, 753-754; Ingrid E. v. Superior Court, supra, 75 Cal.App.4th at p. 756; In re Dakota H., supra, 132 Cal.App.4th at p. 222.) Generally, the concept of due process encompasses the right to notice and a meaningful opportunity to be heard. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1068 ; In re Joshua M. (1998) 66 Cal.App.4th 458, 471; In re Matthew P. (1999) 71 Cal.App.4th 841, 851; In re Crystal J. (1993) 12 Cal.App.4th 407, 412.) A meaningful hearing requires an opportunity to examine evidence and cross-examine witnesses. (In re Crystal J., supra, at p. 413; see rule 5.534(j).)
"Parents generally have a right to a contested hearing on issues to be determined by the court." (Kimberly H., supra, 83 Cal.App.4th at p. 71 .) This general due process right extends to status review hearings. In view of the critical role of review hearings in the dependency system, principles of due process require that parents be afforded the same due process protections at review hearing as are afforded in other dependency proceedings. (In re James Q. (2000) 81 Cal.App.4th 255, 265 [six-month review hearing]; see David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777-779 [18-month review hearing]; Ingrid E. v. Superior Court, supra, 75 Cal.App.4th at p. 756 [review hearing].)
What constitutes procedural due process is not absolute. (In re Matthew P., supra, 71 Cal.App.4th at p. 850.) Due process is a flexible concept, and its application depends on the circumstances and the balancing of various factors. (In re Earl L. (2004) 121 Cal.App.4th 1050, 1053; Ingrid E. v. Superior Court, supra, 75 Cal.App.4th 751, 757; In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817; see In re Malinda S. (1990) 51 Cal.3d 368, 383.)
" 'The balancing standard considers the private interest that will be affected by the agency's action, the risk of an erroneous deprivation of that interest, the interest in informing parents of the basis for and consequences of the action and in enabling them to present their side of the story, and the agency's interest in expeditious decision making as affected by the burden caused by an additional procedural requirement. [Citation.]' " (David B. v. Superior Court, supra, 140 Cal.App.4th at p. 780, quoting In re James Q., supra, 81 Cal.App.4th at p. 267.)
Due process connotes a "hearing appropriate to the nature of the case." (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 313.) While a parent in a juvenile dependency proceeding generally has a due process right to a meaningful hearing with the opportunity to present evidence, a parent is not necessarily entitled to the right to full confrontation and cross-examination at every hearing. Within the context of a specific dependency proceeding, " 'the due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court.' " (In re Thomas R. (2006) 145 Cal.App.4th 726, 733 quoting Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147.)
The juvenile court has the statutory duty and the authority to identify the issues relevant to the particular hearing and to make necessary determinations as to relevancy. (Ingrid E., supra, 75 Cal.App.4th at p. 760.) "[I]t is reasonable for the court, in pursuit of its statutory duties, to ascertain the issues relevant to the hearing and make some relevancy determinations. That power should be exercised in such a manner as to make clear for all an identification of the issues and a recognition that time is not an unlimited commodity in today's busy juvenile courts." (Ibid.) Thus, a parent's due process right to the opportunity to present evidence, cross-examine witnesses and controvert the contents of the Agency's report may be limited to the relevan tissues that are to be determined by the court at that hearing. (In re Thomas R., supra, 145 Cal.App.4th at p. 733; Maricela C. v. Superior Court, supra, 66 Cal.App.4th at pp. 1146-1147; In re Jeanette V., supra, 68 Cal.App.4th 811, 816-817; In re Earl L., supra, 121 Cal.App.4th at p. 1053.) The court's determination of the relevant issues before it is not the same as a formal offer of proof.
Under some circumstances, in addition to the court's determining what the relevant issues will be at a hearing, the court may require a formal offer of proof before it sets a matter for a contested hearing, without violating a parent's due process right to be heard. (See In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122-1123; but see In re James Q., supra, 81 Cal.App.4th at p. 266.) A trial court generally has the discretion to require a parent to submit a formal offer of proof at a section 366.26 hearing — which occurs after reunification services have been terminated — before setting a contested hearing. (David B. v. Superior Court, supra, 140 Cal.App.4th at p. 780 citing In re Earl L., supra, 121 Cal.App.4th at p. 1053, In re Tamika T., supra, 97 Cal.App.4th 1114, In re Jeanette V., supra, 68 Cal.App.4th 811, and Maricela C. v. Superior Court, supra, 66 Cal.App.4th 1138; but see In re Thomas R., supra, 145 Cal.App.4th at p. 731 [the court cannot, consistent with due process, preclude a parent from testing the evidence supporting the agency's position that the child is likely to be adopted].)
In other circumstances, appellate courts, including a division of this court, have concluded that a parent has a right to a contested review hearing "without conditioning that right on a demand for an offer of proof." (David B. v. Superior Court, supra, 140 Cal.App.4th at p. 780 quoting In re James Q., supra, at p. 267; see also In re Kelly D. (2000) 82 Cal.App.4th 433, 439; In re Josiah S. (2002) 102 Cal.App.4th 403, 416-417.) However, those cases do not address the court's requiring an offer of proof from a parent as a precondition to granting the parent's request to a contested review hearing on issues that arise out of section 366.21, subdivision (g)(3). Whether the court can impose such a requirement without violating a parent's due process right to a contested hearing depends on the circumstances of the case and the balancing of various factors. (In re Earl L., supra, 121 Cal.App.4th at p. 1053; Ingrid E. v. Superior Court, supra, 75 Cal.App.4th at p. 757.)
F
The court did not violate A.'s due process right when it denied his request for a contested hearing
A. contends that the court violated his due process right to present evidence and to cross-examine witnesses concerning whether Faith's placement in long-term foster care under section 366.21, subdivision (g)(3) would be in her best interest. This argument misstates the applicable legal standard. Under section 366.21, subdivision (g)(3), the court may order the child's placement in long-term foster care only when "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 not a proper subject for adoption and has no one willing to accept legal guardianship." (§ 366.21, subd. (g)(3) (italics added).)
"At any given point in the process, the applicable statute lists exactly what is at issue by specifying the required findings." (David B. v. Superior Court, supra, 140 Cal.App.4th at p. 779; In re Thomas R., supra, 145 Cal.App.4th at p. 734.) The circumstances under which the court may order the child's placement in long-term foster care pursuant to section 366.21, subdivision (g)(3) are narrowly defined. (In re Stuart S. (2002) 104 Cal.App.4th 203, 207-209.) Unless exceptional circumstances exist that would justify the court's exercise of discretion to order long-term foster care, the court must order a section 366.26 hearing. (In re John F. (1994) 27 Cal.App.4th 1365, 1374-1375.)
Due process does not permit a parent to introduce irrelevant evidence. (In re Tamika T., supra, 97 Cal.App.4th at p. 1122.) In this case, the court acted within its discretion in limiting the hearing to the issues it was to consider under the statutory framework of the 12-month review hearing. (In re Thomas R., supra, 145 Cal.App.4th at p. 733; Maricela C. v. Superior Court, supra, 66 Cal.App.4th at pp. 1146-1147.) A. was not denied due process: He had no right to a contested hearing on the issue he presented to the trial court.
Even if we were to broadly construe A.'s request for a contested hearing as a request to cross-examine the social worker on her assertions that Faith was a proper subject for adoption and that Faith's stepfather was willing to become her legal guardian, and to present opposing evidence, we would conclude that the court did not violate A.'s procedural due process rights when it denied his request for a contested hearing in the absence of an offer of proof. Because the applicable statute is narrowly tailored, the court may demand an offer of proof detailing the evidence the parent intends to offer as to the issue of a child's placement in long-term foster care before it will be required to hold a contested hearing on that issue. (See In re Thomas R., supra, 145 Cal.App.4th at p. 733.)
Because Ruby had disappeared and A. was going to be incarcerated for an extended period of time, there was no likelihood that Faith would be returned to parental custody within the statutory period. (§ 366.21, subd. (g)(1).) A. did not suggest at trial, and does not assert on appeal, that the stepfather's statement that he was willing to adopt Faith or to become her legal guardian was false or inaccurately reported. Therefore, the only issue at the 12-month review hearing was the determination of permanency plans selection and implementation procedures. In view of the fact that long-term foster care, which A. intended to urge as an alternative plan, is the least preferred permanency plan for a dependent child, (§ 366.26, subd. (b); see also In re Celine R. (2003) 31 Cal.4th 45, 53) the court did not err in denying A.'s request for a hearing on the issue.
An order placing the child in long-term foster care at the 12-month hearing is reviewed by the court every six months. (§ 366.3, subd. (d).) At that hearing, if appropriate, the court must set a section 366.26 hearing to consider a plan of adoption or guardianship unless it determines, by clear and convincing evidence, that there is a compelling reason for determining that a hearing 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. (§ 366.3, subd. (g).) Thus, after reunification services are terminated, the preference for a permanent plan other than long-term foster care continues.
We also note that A.'s interest in maintaining his relationship with Faith was significantly limited by factual circumstances beyond the court's control. A. acknowledged that he could not reunify with his daughter within the statutory time limitations imposed by the dependency system. A. had not established any kind of relationship with Faith. In fact, Faith did not even remember him. Throughout the dependency proceedings, she steadfastly refused to communicate with A. The court was entitled to place great emphasis on Faith's interest in permanency and stability, and on a prompt determination of her custody status. (In re Stephanie M., supra, 7 Cal.4th 295, 317.)
Even when a court determines that a child is not a proper subject for adoption and has no one willing to assume guardianship under section 366.21, subdivision (g)(3), the court has the discretion to set a hearing under section 366.26, and to consider the permanency plan options of adoption, guardianship or placement in long-term foster care at that hearing. (§§ 366.21, subd. (g), 366.26, subd. (b)(4).) There are thus additional safeguards built into the dependency scheme that provide a parent the opportunity to be heard on the issue of the selection of the appropriate permanency plan for his or her child.
In the absence of an offer of proof of relevant evidence of significant probative value to the court, the court did not violate A.'s due process rights by denying his request for a contested hearing on the issue of Faith's placement in long-term foster care. Since the court had determined there was not a substantial probability of returning Faith to Ruby's physical custody within the extended period, the court did not violate A.'s due process rights or abuse its discretion when it set a section 366.26 hearing. (§ 366.21, subd. (g)(2).)
DISPOSITION
The petition is denied. The request for a stay is denied.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.