Opinion
B301693
10-23-2020
In re T.B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. YOLANDA B., Defendant and Appellant.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Melania Vartanian, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. DK16920A and 17LJJP00240A) APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Judge Pro Tempore. Affirmed. Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
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The juvenile court terminated the parental rights of Yolanda B. (mother) over her two young daughters. On appeal, mother argues that the juvenile court erred in denying her request for a contested hearing on the issue of whether she could show a beneficial parent-child relationship. We conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
As pertinent to this appeal, mother has two daughters—T.B. (born June 2016) and E.B. (born November 2017). Mother used amphetamines or methamphetamine while pregnant with each child. T.B. tested positive for methamphetamine when she was born.
Each child has a different father, but the fathers are not parties to this appeal.
Mother has a third child, G.B. (born January 2019), but G.B. is not at issue in this appeal.
II. Procedural Background
A. Exercise of dependency jurisdiction and disposition
1. As to T.B.
On June 22, 2016, the Los Angeles Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over T.B. due to mother's "history of substance abuse" and "current abuse[]" of amphetamines and methamphetamine, which placed T.B. at substantial risk of serious physical harm (thereby warranting the exertion of jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1)). The Department detained T.B. the same day. On November 1, 2016, the Department filed an amended petition adding new allegations involving T.B.'s father.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On March 16, 2017, the juvenile court found the allegation regarding drug abuse to be true, exerted dependency jurisdiction over T.B., removed T.B. from mother's custody, and ordered the Department to provide mother with reunification services. Over the next 15 months, mother completed two, 90-day residential drug treatment programs but relapsed into methamphetamine use after each program.
On June 22, 2018, the juvenile court found mother in "partial" compliance with her case plan and terminated reunification services.
2. As to E.B.
On December 6, 2017, the Department filed a petition asking the juvenile court to exert dependency jurisdiction over E.B. due to mother's "history of substance abuse" and current abuse of amphetamines and methamphetamine, which placed E.B. at substantial risk of serious physical harm (thereby warranting the exertion of jurisdiction under section 300, subdivision (b)(1)). On February 22, 2018, the Department filed an amended petition that added a further allegation that mother had engaged in substance abuse while pregnant with T.B., which also warranted the exercise of jurisdiction under section 300, subdivision (b)(1).
On June 22, 2018, which was the same day the juvenile court terminated reunification services in the case involving T.B., the juvenile court sustained the two allegations against mother as to E.B. and exerted dependency jurisdiction over E.B.
On July 25, 2018, the juvenile court held the dispositional hearing regarding E.B., removed E.B. from mother's custody and declined to provide mother with reunification services because it had previously terminated those services in the case involving T.B., which is a basis for bypassing such services for E.B. under section 361.5, subdivision (b)(10).
B. Mother's visitation with T.B. and E.B.
T.B. was detained from mother 16 days after she was born, on June 22, 2016. E.B. was detained from mother the day after she was born, on December 1, 2017. T.B. was placed with a non-related extended family member, Yolanda J. (foster mother), on June 13, 2017; E.B. was placed with foster mother on December 1, 2017.
Mother has only had monitored visits with T.B. and E.B. Although mother's March 2017 case plan for T.B. provided for two visits per week, mother was "inconsistent" with her visits in 2017. She visited twice in March 2017, once in April 2017, twice in June 2017, once in July 2017, and once in August 2017. While mother was in her first residential drug treatment program (from January 2018 to March 2018), mother usually, though not always, had three visits per week. In April and early May 2018, mother would visit once a week. In late May 2018, mother canceled several visits. She stopped her visits altogether in July 2018. Between July 2018 and April 2019, mother visited T.B. and E.B. only once—in late November 2018; she was invited to E.B.'s first birthday party during that period but did not attend. While mother was in her second residential drug treatment program (from April 2019 to June 2019), mother resumed weekly visits with the girls.
During the visits, mother was "appropriate" and "attentive." T.B. "appear[ed] to have a bond with . . . mother" and would call her "mom," but T.B. called everyone "mom" and observers reported that the relationship between mother and T.B. was "more [like] a sibling relationship" than a parent-child relationship. Although E.B. initially cried when mother visited, she eventually became "familiar with" mother.
C. Mother's section 388 motion
On June 3, 2019, mother filed a motion pursuant to section 388 asking the juvenile court to reinstate reunification services and to place T.B. and E.B. back in her custody. Specifically, she articulated three changed circumstances: (1) mother had "successfully completed" two parenting classes, (2) mother had completed the second residential drug treatment program, and (3) mother had "maintained frequent and consistent visits" with T.B. and E.B.
That same day, the juvenile court set the motion for a hearing.
On July 15, 2019, mother tested positive for methamphetamine and was thereafter discharged from the aftercare portion of the second residential treatment program.
The juvenile court held its hearing on mother's 388 motion on August 21, 2019. After admitting specific reports as exhibits in consideration of the motion, the court denied the motion. The court reasoned that mother's recent positive drug test showed that her "recovery [was] incomplete" and that her circumstances were, at best, changing—not "change[d]." The court further explained that reinstituting reunification services and placing the girls back with mother was not in their best interest given that mother "ha[d] so recently relapsed."
D. Termination of mother's parental rights over T.B. and E.B.
The juvenile court held the permanency planning hearing for T.B. and E.B. on August 21, 2019, the same day the court heard mother's section 388 motion. By that time, T.B. had developed a "strong bond" with foster mother and E.B. had a "stronger attachment" to foster mother than mother.
After the juvenile court found T.B. and E.B. to be adoptable, mother asked the juvenile court to hold a contested hearing on the issue of whether she could establish the beneficial parent-child relationship exception to the termination of parental rights because (1) mother "has maintained consistent visitation" with the girls, and (2) foster mother is "an extended family member," which would allow for future "consistent visitation." The juvenile court reminded mother that the exception applies only if the benefit to the child from maintaining the parental relationship is "more than incidental" and "compelling," and asked mother for an "offer of proof" as to what she would present at a contested hearing. Mother's sole response was that her "visitation with these minors . . . would constitute at least a . . . prima facie . . . showing . . . that the parental bond exists." The court found this offer of proof to be insufficient, and denied mother's request.
One week later, the trial court found "no exception to adoption" and terminated mother's parental rights over T.B. and E.B.
E. Appeal
Mother filed timely appeals from the orders terminating her parental rights over each child.
DISCUSSION
Mother argues that the trial court erred in denying her request for a contested hearing on the applicability of the beneficial parent-child relationship exception to the termination of parental rights. We review the denial of a contested hearing for an abuse of discretion. (In re Grace P. (2017) 8 Cal.App.5th 605, 611 (Grace P.).)
A parent has a right to due process when the state seeks to terminate her parental rights over her children. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816.) But "[d]ue process is a flexible concept" (ibid.), and must be balanced against the state's "strong interest in prompt and efficient trials" that exclude evidence that "'necessitate[s] undue consumption of time.'" (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147 (Maricela C.).) Prior cases have struck that balance: A juvenile court may insist that a parent make an offer of proof as to what evidence she would adduce at a contested hearing and why that evidence is "'relevant . . . on the issue [the parent] seeks to contest.'" (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1121, 1124 (Tamika T.); Grace P., supra, 8 Cal.App.5th at p. 612; cf. In re James Q. (2000) 81 Cal.App.4th 255, 266-267 [court may not insist upon an offer of proof for hearings prior to the termination of reunification services].) After considering that offer of proof, a juvenile court may deny a contested hearing if (1) the offer of proof is itself deficient, or (2) the proffered evidence lacks "significant probative value" or would otherwise have no effect on the issue. (Grace P., at pp. 614-615; Tamika T., at p. 1122; Maricela C., at pp. 1147-1148 [denial of hearing appropriate where proffer on one element of exception to termination of parental rights would not affect result due to non-existence of the exception's other element].)
The juvenile court did not abuse its discretion in denying mother's request for a contested hearing for two reasons.
First, mother's offer of proof was itself deficient. To be valid, a parent's 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.'" (Grace P., supra, 8 Cal.App.5th at p. 612, quoting Tamika T., supra, 97 Cal.App.4th at p. 1124; accord, In re Mark C. (1992) 7 Cal.App.4th 443, 445 [an "'offer of proof . . . must be specific in indicating the purpose of the testimony, the name of the witness and the content of the answer to be elicited'"].) Here, mother's offer of proof consisted of her statement that she "has maintained consistent visitation" and that this "constitutes" "at least a" "prima facie" "showing" of a "parental bond," and that the foster mother is an "extended family member" who would facilitate future visitation. At no point did mother describe what evidence (that is, which witnesses or documents) she would offer in support of her statements; at bottom, her offer of proof was little more than an argument in favor of her position. As such, it was deficient. (Tamika T., at pp. 1121-1122 [offer of proof that mother "'maintained an emotional bond'" is deficient].)
Second, and even if we overlook the deficiency of mother's offer of proof, the evidence she inferentially sought to proffer would have no effect on the existence or non-existence of the beneficial parent-child relationship exception. That exception applies—and precludes a juvenile court from terminating parental rights—if (1) "the parent[] ha[s] maintained regular visitation and contact with the child," and (2) "the child would benefit from continuing the relationship." (§ 366.26., subd. (c)(1)(B)(i).) Because "'[i]nteraction between natural parent[s] and [a] child will always confer some incidental benefit to the child,'" the second element of the exception requires a parent to "show [that] [(1)] he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent" and (2) "the child would suffer detriment if . . . her relationship with the parent were terminated." (In re C.F. (2011) 193 Cal.App.4th 549, 555.)
In this case, mother's offer of proof would have had no effect on the absence of evidence to support either element of the exception. The first, "regular visitation and contact" element requires proof of visitation that (1) is "consistent[]," (2) is "to the extent permitted by court orders," and (3) has no "significant lapses." (In re I.R. (2014) 226 Cal.App.4th 201, 212.) Yet the record of mother's visitation set forth in the Department's reports does not meet this standard: Mother rarely visited the children "to the extent permitted by court orders" and she had several months-long periods without any visitation at all. This forecloses relief, and mother's offer of proof does not alter this. Because her proffer consisted solely of her statement that she "maintained consistent visitation," she did not challenge the accuracy of the Department's records. Her offer of proof is therefore largely a characterization of her record of visitation that has no effect on that record or its failure to meet the statutory standard. The second, "benefit from continuing the relationship" element requires proof that the parent occupied a parental role. Because mother had custody of T.B. for 16 days and E.B. for only one day and, since then, has had only monitored visits, mother has never occupied a parental role with respect to either child. This is undoubtedly why observers characterized mother as more of a "sibling" to T.B. than a parent. This also forecloses relief, and mother's offer of proof does not alter this. Mother's proffer that her visits constituted a "bond" (and, ostensibly, a "benefit") has no effect on the record or its failure to meet the statutory standard because her proffer (1) ignores that her visits do not even meet the first element of the exception, and (2) equates the first and second elements of the exception, which effectively—and impermissibly—obliterates the second element. Mother's further proffer that a non-related extended family member had custody of the girls adds nothing because the term refers to a person who is at least five degrees of kinship away (§ 361.3, subd. (c)(2)), and because mother fails to explain how or why a distant kinship with the foster mother compensates for the absence of evidence supporting the beneficial parent-child relationship.
Mother makes two further arguments on appeal.
First, she contends that the deficiency with her offer of proof is really the Department's fault because its reports do not detail the extent and nature of her visits with T.B. and E.B. For support, mother lists several specific Department reports that do not mention visitation. We reject this contention. To begin, it effectively shifts the burden of disproving the applicability of the beneficial parent-child relationship exception to the Department, when the law squarely places that burden on the parent. (Tamika T., supra, 97 Cal.App.4th at pp. 1119-1120.) More to the point, mother's contention is factually incorrect. Although the specific reports mother cites do not reference the number or quality of her visits with T.B. and E.B., many other reports do. Mother cites no support for her implicit proposition that the Department must include a summary about visitation in every report it submits to the juvenile court. Although mother is correct that section 366.21 requires the Department, prior to the permanency planning hearing, "to prepare an assessment" that "review[s] . . . the amount . . . and nature of any contact between the child and his or her parents . . . since the time of placement" (§ 366.21, subd. (i)(1)(B)), the Department's decision to set forth that assessment in various other reports rather than in the official section 366.26 report is of little consequence because the statute does not require the information to be in a specific report and because the juvenile court—like us—is required to consider "the entire record" in making its decision. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Second, mother asserts that two cases compel a ruling in her favor—namely, Grace P., supra, 8 Cal.App.5th 605 and In re Armando L. (2016) 1 Cal.App.5th 606 (Armando L.). We reject this assertion. In Grace P., the court held that the juvenile court erred where the record showed "regular visitation and contact," and the father proffered the testimony of himself and his daughter regarding the bond that developed during those visits. (Grace P., at pp. 612-615 & fn. 4; accord, In re J.S. (2017) 10 Cal.App.5th 1071, 1081 [parent's proffer of testimony regarding sibling exception to termination of rights wrongly rejected when that exception was still at play].) Unlike in Grace P., and as explained above, the record of this case—and which mother's proffer did not challenge—forecloses relief, such that her proffer would have no effect on that outcome. Armando L. holds that error in rejecting an offer of proof should not be reviewed for harmless error when the rejection leaves "a void in the evidence." (Armando L., at pp. 620-621.) Because we have concluded that the juvenile court did not err in rejecting mother's offer of proof, whether such errors may be harmless is irrelevant to this case.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST