Opinion
H044516
01-10-2018
In re A.G., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-14-JD022984)
I. INTRODUCTION
J.G. is the father of A.G., the child at issue in this juvenile dependency matter, in which the juvenile court terminated the father's parental rights at a Welfare and Institutions Code section 366.26 permanency planning hearing.
All further statutory references are to the Welfare and Institutions Code unless ortherwise indicated.
On appeal, the father challenges the termination of his parental rights, contending: (1) no substantial evidence supports the juvenile court's finding that the beneficial parent-child relationship exception did not apply; and (2) the juvenile court violated the father's fundamental due process right of access to the court by failing to provide him with his requested accommodation for hearing loss. For reasons that we will explain, we will affirm the juvenile court's orders.
II. BACKGROUND
This court previously reviewed the proceedings in this case from the filing of the initial dependency petition through the termination of the father's reunification services at the 18-month hearing. (J.G. v. Superior Court (Jan. 26, 2017, H044119) [nonpub. opn.].) This court has granted the father's request for judicial notice of the record in that prior writ proceeding. We briefly summarize the facts leading up to the termination of reunification services.
This court also granted the father's request for judicial notice of the record in an earlier appeal, which challenged orders made at the jurisdiction/disposition hearing. (In re A.G. (May 14, 2015, H042093).) This court ultimately dismissed that appeal as abandoned. (See In re Phoenix H. (2009) 47 Cal.4th 835, 849.) --------
A. Initial Proceedings through Jurisdiction/Disposition
On November 20, 2014, the Santa Clara Department of Family and Children's Services (the Department) filed a petition under section 300, subdivision (b) [failure to protect] alleging that the child, then 22 months old, came within the jurisdiction of the juvenile court. The petition alleged that the mother, S.G., had substance abuse and mental health issues and that the child had been exposed to domestic violence perpetrated by the father.
The father was on probation due to a conviction of willful cruelty to a child. In March 2014, the father had given a piece of a marijuana cookie to the mother's older child, T.M., who was then six years old. The father claimed that he had given T.M. the cookie by accident. The father was receiving psychiatric services at a Veterans Administration (VA) hospital. He had been diagnosed with posttraumatic stress disorder (PTSD) and had been prescribed medication.
At the combined jurisdiction/disposition hearing held on January 9, 2015, the juvenile court found the allegations of the first amended section 300 petition true and adopted the Department's recommendations, which included supervised visitation for the father and placement of the child and T.M. with non-relative extended family members who were willing to become legal guardians or to adopt the children.
B. Jurisdiction/Disposition to 18-Month Review
The father had weekly supervised visits with the child through mid-October 2015. The father had insisted on weekend visitations due to his work schedule. During the visits, the father was "very engaging" and interacted well with the child.
The child remained placed with a non-relative extended family member and was doing well. The child had a strong bond with her half-sibling, T.M., who also resided in the home.
The social worker wanted to increase the father's visitation, but the father insisted that the child continue to come to San Jose for visits; he did not want to visit the child near her placement in Morgan Hill, even though decreasing the child's travel time would allow for an increase in the length of his visits. Moreover, the father did not provide any additional times that he was available for visits.
Beginning in mid-October 2015, the father missed four successive visits with the child. He cancelled the first visit due to travel. The Department cancelled the second visit because the father had failed to confirm the visit. The father cancelled the third visit because he was sick. The fourth visit was cancelled because the father again failed to confirm the visit. Make-up visits were offered to the father, but he declined because they were only offered on weekdays and he would not accept visits anywhere except in San Jose. Because of the four successive missed visits, a fifth visit was taken off the schedule. The father did visit with the child a week later, but he then moved to Indiana.
Following his move to Indiana, the father visited with the child in January 2016, February 2016, and early March 2016. He had agreed to have one visit near the child's residence. The father and child had a "good connection." The father had a support person at each visit.
The father visited with the child two times in April 2016 and two times in May 2016. During the visits, he struggled with setting limits for the child: he had difficulty denying her requests without support.
By July 14, 2016, the father had moved back to California, and the social worker had recommended that the father's visitation be monitored instead of supervised. The father continued to struggle with setting limits for the child during visits. During one visit, the father allowed the child to stand on the outside of a shopping cart while he pushed it. The father subsequently had visitation at his home on several occasions, in addition to an unsupervised visit at a church. However, following the visits, the child's behavior had been problematic. The social worker had referred the child for services to address the behaviors.
The social worker continued to have concerns about the father's ability to safely supervise the child. During one supervised visit, the child had run towards a busy parking lot. The father had responded to the social worker's concerns by saying that "you can not always be there to catch your child fall" and that the child was "smart enough to be safe in what she is doing." The father said that he had learned this in parenting classes.
C. 18-Month Review
A contested 18-month review hearing was held beginning on October 17, 2016. The father testified at the hearing. The father did not believe he had any challenges or struggles during his visits with the child. He believed the child was ready to live with him full-time. He planned to take the child back to Indiana with him, but he was willing to look into staying in California and finding a new job if necessary. He would allow the child to see T.M., but he did not think that the child would experience any grief or loss from being separated from her half-sibling. He did not believe the child had any special needs.
Social worker Tina Ramirez testified that she was concerned about the father's ability to maintain limits for the child and his ability to redirect the child when she exhibited problematic behaviors. She was particularly concerned about the father's dismissive attitude about the child's challenging behaviors. In addition, the father had demonstrated poor coping skills during two recent visits, when he took the child to the emergency room because he believed that her shoes were too tight and because she had warts on her finger.
Social worker Wendy Kinnear-Rausch testified that some of the interactions between the father and the child had been "wonderful." However, Kinnear-Rausch did not believe the child could be safely returned to the father on family maintenance at the time. She shared Ramirez's concerns about the father's parenting ability, particularly after he had taken the child to an emergency room because of warts on her fingers and his belief that her shoes were too small. Kinnear-Rausch was also concerned that the father would not follow through with family maintenance services, particularly services that the child needed to meet her behavioral problems, which had increased at the same time as the father had been given unsupervised visits. The child was likely to be traumatized by moving away from her half-sister and current caregivers.
The father presented the testimony of Sarah Stodghill Haggis, who had observed some of the father's visits with the child and had supervised some visits. According to Haggis, the father was attuned to the child's needs and provided structure in the visits, and the father and the child enjoyed their time together.
The father also presented testimony from the paternal grandmother, who had seen some of the father's visits with the child and had seen that the father and the child loved each other.
The juvenile court found that returning the child to the father would create a substantial risk of detriment and that reasonable services had been provided to the father. The juvenile court terminated reunification services and set a permanency planning hearing for February 3, 2017. This court denied the father's subsequent petition for extraordinary writ, in which he sought to set aside the juvenile court's orders. (J.G. v. Superior Court, supra, H044119.)
D. The Department's Section 388 Petition
On January 31, 2017, the Department filed a section 388 petition seeking to terminate the father's visitation. The social worker reported that the father failed to visit the child between October 17, 2016 and January 9, 2017. Since his visits had resumed on January 10, 2017, the child had presented with "escalating maladaptive behavior." Her behaviors included increased aggression, extreme emotionality, low tolerance, anxiety and deregulation, sleep disturbances, eating disturbances, and "potty routine disturbances."
The father continued to express that he was upset about the child's warts and the size of the child's shoes. His behavior included speaking over the social worker, demanding to go to the emergency room, and pushing chairs. "He was unable to remain focused on the visit and his time with [the child]." Following the visit, the child's behaviors worsened.
The Department had determined that the child's caregivers were treating her warts and that the child's shoes were the proper size. However, the father "continue[d] to be fixated on these issues."
On February 3, 2017, the father requested a contested hearing. The juvenile court continued the permanency hearing to March 3, 2017 and set a hearing on the section 388 petition for the same date. The juvenile court also temporarily suspended the father's visits and ordered the father to return three pairs of shoes that he had taken away from the child.
E. Section 366.26 Report and Addendum Reports
In its section 366.26 report filed on March 3, 2017, the Department recommended the juvenile court terminate parental rights and select adoption as the child's permanent plan. The child was four years old and remained in the same non-relative extended family member placement, which was "the only home she knows."
The Department reiterated that the child's behavioral issues had presented following visits with the father. When the child was not having visits with the father, there was a "drastic reduction" in the maladaptive behaviors.
Starting in late October 2016, the father had declined or cancelled all offered visits. He did not visit the child until January 10, 2017. However, he sent emails demanding unsupervised visits and that the child be returned to him. He also demanded that his visits be scheduled from 6:00 p.m. to 8:00 p.m. at a location that would require the child to travel at least one hour each way.
An addendum report described some of the father's January 2017 visits with the child. On January 19, 2017, the father became upset about the child's warts and shoes. He demanded to take the child to the emergency room and indicated he was calling 911 and the police. He pushed chairs and "aggressively" dropped a pen in front of a Department staff member. At a visit one week later, on January 26, 2017, the father took off the child's shoes after she arrived and ordered the Department staff member to change the shoes and end the visit. He threatened to "press charges" against the staff member. A social worker later assessed the child's shoes and found them to be appropriately sized. However, at a visit on January 31, 2017, the father again replaced the child's shoes and insisted she needed bigger shoes. Prior to that visit, the child had indicated that she wanted to wear her favorite shoes but that she knew "my daddy doesn't like them, he said they are too tight but he is wrong, all my shoes have room."
The addendum report described the father's interactions with the child as "positive" and noted that "[h]e is always prepared with healthy snacks and age appropriate activities." However, the social worker believed that these interactions were "overshadowed" by the father's other behavior.
In another addendum report, the Department reported that the child's maladaptive behaviors had been steadily reducing since the father's visitation was suspended. The child had told her therapist that "she 'did not want to have visits with her daddy' and that she 'used to go to the hospital with my daddy, but I didn't like it'." The child told her therapist that the father had brought her to the hospital because he thought her shoes were too tight. Asked whether the shoes were in fact too tight, the child replied, "No, but my daddy said they were."
The child's therapist had reported that although the child recognized the father as her "daddy," she considered her caregivers to be her family. She was affectionate with the father during visits, but outside of the visits she did not talk about the father with the caregivers except when talking about her shoes. The child did not ask for visits with the father after the visits were suspended. The child did not have a "secure attachment" with the father and thus they did not have a "parent-child relationship."
F. Section 366.26 Hearing
The juvenile court held a permanency planning hearing on March 3, 2017.
1. Testimony of the Social Worker
At the beginning of the hearing, counsel for the Department indicated he intended to submit the matter based on the reports and to tender the social worker, Tina Ramirez, who he offered as an expert in risk assessment and permanency planning, for cross-examination.
Ramirez testified that the child was adoptable and that she saw no barriers to the child being adopted by the caregivers. The father's attorney then questioned Ramirez about the reports she had written concerning "the shoe issues." Ramirez noted that after the father insisted that the child wear bigger shoes that he had purchased, the child had tripped and fallen "because the shoes were too big." Ramirez further explained that the Department's concern was that the child was being impacted by the father's perseveration about her shoes during visits, as shown by the behaviors she was exhibiting after visits.
Ramirez also testified about the father's missed visits in late 2016. The father had declined when he was offered visits on October 25, 26, and 27, and on November 1, 2, and 3. The father had canceled visits scheduled for November 5 and 12. He had declined visits on November 22 and 23. He had been offered visits on December 3 and December 10, but he had refused to have the visits in Gilroy and was unwilling to comply with the Department's request that he check in one hour prior to each visit. The father had declined visits on December 13 and 15 in San Jose. The father had supervised visits with the child on January 10, 12, 17, 19, and 26. He left the January 26 visit after only 15 minutes, however.
Ramirez acknowledged that at "times," the father had said he could not visit the child during the scheduled 4:00 p.m. to 6:00 p.m. time slots because he had to work, but the Department had also offered him Saturday visits.
2. Arguments and Juvenile Court Findings
The father did not testify or present any evidence. The father argued that he was effectively precluded from showing a beneficial parent-child relationship (see § 366.26, subd. (c)(1)(B)(i)) because his visitation had been terminated for a month prior to the hearing. He asserted that he had made "a lot of effort" and substantially completed "a number of portions of his case plan." The father requested the juvenile court order one month of visitation before "making a final determination."
The Department urged the juvenile court to find the child adoptable, both generally and "specifically . . . in her current placement." The Department also argued that no evidence supported any exception to adoption.
The child's attorney requested the juvenile court find the child adoptable and order termination of parental rights. The child's attorney argued that the father had shown "very little insight" and was "still not taking accountability for his actions."
The juvenile court found, by clear and convincing evidence, that the child was adoptable, and it terminated parental rights.
III. DISCUSSION
A. Termination of Parental Rights
The father contends no substantial evidence supports the juvenile court's finding that the beneficial parent-child relationship exception did not apply.
1. Legal Background
The California Supreme Court has stated that "[t]he objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.]" (Marilyn H. (1993) 5 Cal.4th 295, 307.) "When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) Where reunification efforts have failed, " 'the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. [Citation.]' " (Ibid.)
"The court has four choices at the permanency planning hearing. In order of preference the choices are: (1) terminate parental rights and order that the child be placedfor adoption . . . ; (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care. (§ 366.26, subd. (b).)" (Celine R., supra, 31 Cal.4th at p. 53.) "When the juvenile court finds that the child is adoptable, it must terminate parental rights unless it finds one of four specified circumstances in which termination would be detrimental (§ 366.26, subd. (c)(1)(A)-(D))." (In re Brittany C. (1999) 76 Cal.App.4th 847, 852.) "The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.]" (Celine R., supra, at p. 53.)
The parent/child relationship exception is set forth in section 366.26, subdivision (c)(1)(B)(i). Under that statutory provision, parental rights cannot be terminated where the juvenile court "finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The requirement of benefit from continuing the relationship means that "the 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
2. Standard of Review
This court has determined that there is a two-part standard of review for a juvenile court's ruling regarding the application of the parent/child relationship exception. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.).)
First, "[s]ince the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental . . . relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination. Thus, . . . a challenge to a juvenile court's finding that there is no beneficial relationship amounts to a contention that the 'undisputed facts lead to only one conclusion.' [Citation.] Unless the undisputed facts established the existence of a beneficial parental . . . relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed." (Bailey J., supra, 189 Cal.App.4th at p. 1314.)
"The other component of . . . the parental relationship exception . . . is the requirement that the juvenile court find that the existence of that relationship constitutes a 'compelling reason for determining that termination would be detrimental.' (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child is based on the facts but is not primarily a factual issue. It is, instead, a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. [Citation.] Because this component of the juvenile court's decision is discretionary, the abuse of discretion standard of review applies." (Bailey J., supra, 189 Cal.App.4th at p. 1315; accord, In re C.B. (2010) 190 Cal.App.4th 102, 123.)
3. Analysis
The Department contends the father failed to establish either prong of the exception, arguing that the juvenile court could not have found that he had maintained regular visitation and contact with the child or that the child would benefit from continuing the relationship with the father.
Regarding the first prong of the exception, the father contends that he maintained regular visitation and contact with the child other than the 11-week period between October 21, 2016 and January 1, 2017. Regarding the second prong of the exception, the father contends the social worker's opinion was "baseless" and that the record overwhelmingly showed that the parent-child relationship was beneficial because the child loved the father and the father had "engaged in the full role of parental activities and supervisory responsibilities."
Having reviewed the entire record, we find substantial evidence to support the juvenile court's finding that the father failed to show the exception provided in section 366.26, subdivision (c)(1)(B)(i).
First, the record supports a finding that the father failed to maintain regular visitation and contact. He missed four consecutive visits starting in mid-October 2015, and he then failed to visit with the child from mid-October 2016 to early January 2017. (See In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [mother failed to show regular visitation and contact where she had some periods of consistent visitation and other periods in which visitation was "sporadic"].)
Second, even assuming that the father showed he had maintained regular visitation and contact, the record supports a finding that the parent-child relationship did not "promote[] 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The father and child did not have "day-to-day-interaction, companionship and shared experiences." (Ibid.) The child was removed from the father in November 2014, when she was less than two years old, and for the next two and a half years, the father had mostly supervised visitation with her. Although the father had mostly positive interactions with the child and was prepared with snacks and activities, the juvenile court could reasonably determine that the father did not occupy a parental role in her life but rather the role of a "caretaker or friendly visitor." (See In re Casey D. (1999) 70 Cal.App.4th 38, 51.) And although the child recognized the father as her "daddy" and was affectionate with him during visits, she did not talk about him outside of the visits or ask for visits with him. (Cf. In re Amber M. (2002) 103 Cal.App.4th 681, 689-690 [evidence of children's strong attachment to mother showed beneficial parent-child relationship].) On this record, the juvenile court reasonably determined that the parent-child relationship exception was not shown by the father.
In sum, while we commend the father's efforts and progress, this is not a case in which "the undisputed facts established the existence of a beneficial parental . . . relationship." (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Substantial evidence therefore supports the juvenile court's finding that the parent/child exception did not apply.
B. Failure to Provide Hearing Loss Accommodations
The father contends the juvenile court violated his fundamental right of access to the court by failing to provide him with his requested accommodation for his hearing loss.
1. The Father's Request for Auditory Assistance
When the social worker's voir dire began, the father's attorney told the juvenile court that the father was "just bringing to [his] attention that he is hard of hearing, and he would like the Court's assist[a]nce with a hearing device." The father then said, "I don't want the device."
The father's attorney continued, "My client is telling me that he is having trouble hearing, and because of the serious nature of this hearing he would like to have an interpreter that can help him to make sure that he understands what is being said. He has just told me that he does not feel that I'm able to do that for him while I'm also proceeding with the case."
The juvenile court responded, "Well, I'm not going to provide him an interpreter because it would be English to English. I am prepared to try to locate a hearing device if that would aid him in hearing what is going on today."
The father's attorney replied, "The kind of interpreter he's asking for is under the Americans with Disabilities Act, and he believes that there is a provision for the Court providing a special kind of interpreter for auditory issues."
The juvenile court commented, "So I don't recall this ever being brought to my attention in any of our previous hearings." The court asked, "I'm wondering what has changed that would trigger this request?"
The father's attorney answered, "So in the past, Your Honor, when listening devices were offered, my client did not feel that it was very helpful, and he did not know that the Court could provide an auditory interpreter."
The juvenile court asked the courtroom deputy if such an interpreter was available. The deputy indicated that a Spanish interpreter was on the way. The deputy also noted that an auditory device was available, but the father said, "They don't help."
After the Spanish interpreter arrived, the father indicated he had given her instructions. He had informed the interpreter that he could "hear a little bit" and that he would indicate when he needed her to repeat something. The juvenile court indicated it did not think such an arrangement would work, because witnesses would continue to testify as the interpreter repeated testimony for the father. The father's attorney suggested that if the father's requests interfered with "the flow of the testimony," the witness's testimony could be paused until the interpreter was done repeating the testimony.
The juvenile court asked the father whether he could hear everything that the court was saying. The father explained, "I can hear you at times, but then the words might get jumbled, and it may be another word. That's what I need help with making sure that I have the correct word that you said . . . ." The father said he had been "tested by a doctor."
The juvenile court agreed to try the father's proposed interpreter arrangement, but the interpreter declined: "I'm excusing myself from this case. I don't have the capability to deal with this kind of situation . . . ." She further explained that the father's proposed interpretation was "not using [her] skills as a Spanish interpreter," and that other departments needed her Spanish interpretation skills. The juvenile court indicated it would call the interpreter's supervisor to see if her job duties included providing auditory enhancement, but after apparently making that call, the juvenile court announced, "So we don't have anybody who is trained and capable and has that job description."
The juvenile court gave the father the choice of either trying to use the hearing device or proceeding and making notes about "what he thinks he doesn't hear" and having the testimony "reconstruct[ed]" later. The father continued to insist on having "the auditory assistance that he requires to meaningfully participate in this hearing under the American[s] [with] Disabilities Act." The father's attorney requested a continuance "to get the appropriate auditory interpreter."
Counsel for the Department objected to "any continuance in this matter," noting, "This is the first time that the father has raised this issue or made this request on the day of trial for the final trial on a case that's been open for over two years. He participated in a four-day trial last October, and he did not express at any point during that trial that he was unable to hear or understand without the assistance of an interpreter." Counsel for the Department further noted, "We haven't seen any medical documentation that substantiates his request that this is an ADA accommodation that he requires, and it would not be in the child's best interest to continue this proceeding today."
The father's attorney reminded the juvenile court that the father had previously provided a letter regarding his auditory issues. The letter, dated September 10, 2015, was written by a medical doctor at the Department of Veterans Affairs. The letter explained that the father has "Meniere's disease, a condition that causes vertigo, fluctuating hearing loss, tinnitus, and ear pressure." The letter explained that an audiological exam had revealed that the father had "low frequency sensorineural hearing loss" in his right ear. The father had been prescribed a hearing aid, but he had not found it to be helpful, "which is common." The father's hearing loss elevated his anxiety "in situations where clear understanding is essential," which triggered his posttraumatic stress disorder symptoms. The doctor recommended that the father "have an attendant or family member present during any meetings or hearings" so that he could "fully understand what is being said."
The father's attorney asserted that the father had raised the issue of his comprehension problems "throughout these proceedings" but had previously been unaware of his right to an auditory interpreter.
The juvenile court asked the deputy whether he could sit with the father and "repeat words back to him." The bailiff offered to provide the father with an earplug for one ear and an auditory device for his other ear "so he wouldn't have to hear out of that ear that he says he doesn't understand words from." The juvenile court agreed to "try it" but the father objected, requesting that a doctor "weigh in" on the proposed process.
The juvenile court refused to "adjourn this hearing" and noted that it did not find the father credible. "I think he may very well have some hearing problems, but I think given the length of time and the number of hearings in this case, I think he's trying to obstruct the hearing." The juvenile court reiterated that it would "give him the equipment" or "find someone" to help the father, but it overruled the father's objection to going forward with the hearing.
At the end of the hearing, after the social worker's testimony, the juvenile court noted that it had watched the father during the proceedings and seen "nothing that indicates any auditory hindrance." The father had reacted to questions "in a way that suggests to the Court that he understood the question." The father had made comments to his trial attorney and had written things down: he had been "meaningfully participating" and been "assertive and active in that participation."
The father's attorney informed the court that the father did not want to testify "for the reasons that have been previously stated."
2. Analysis
The father contends that his due process claim must be considered in light of Title II of the Americans with Disabilities Act (ADA), which "prohibits discrimination in the furnishing of public services by governmental agencies." (In re Anthony P. (2000) 84 Cal.App.4th 1112, 1115; see 42 U.S.C. § 12132 ["no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity"].)
The father begins by discussing two cases involving the question of whether states have Eleventh Amendment immunity from federal ADA lawsuits that are based on due process principles. (Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Div. (6th Cir. 2002) 276 F.3d 808 (Popovich); Tennessee v. Lane (2004) 541 U.S. 509.) Although the Eleventh Amendment immunity issue is not relevant to the instant case, we understand the father to be discussing those and other federal cases because they generally recognize that due process requires "a meaningful opportunity to be heard" (Boddie v. Connecticut (1971) 401 U.S. 371, 379), that a parent has a "commanding" interest in "the accuracy and justice of the decision to terminate his or her parental status" (Lassiter v. Department of Social Services of Durham County, N. C. (1981) 452 U.S. 18, 27), and that "some level of hearing assistance" must be provided for a hearing-impaired parent involved in a child custody case (Popovich, supra, at p. 815). (See also In re Crystal J. (1993) 12 Cal.App.4th 407, 412 ["parenting is a fundamental right the impairment of which requires strict adherence to procedural due process"]; In re Matthew P. (1999) 71 Cal.App.4th 841, 851 ["In juvenile dependency litigation, due process focuses on the right to notice and the right to be heard."].)
The father contends the record shows that he "[p]lainly" was a "qualified individual under the ADA." The ADA defines " 'qualified individual with a disability' " as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." (42 U.S.C. § 12131(2).)
The Department contends the record does not show that the father meets the California definition of an " 'individual who is deaf or hard of hearing' ": "an individual with a hearing loss so great as to prevent his or her understanding language spoken in a normal tone, but does not include an individual who is hard of hearing provided with, and able to fully participate in the proceedings through the use of, an assistive listening system or computer-aided transcription equipment provided pursuant to Section 54.8 of the Civil Code." (Evid. Code, § 754, subd. (a).) The Department points out that "the record is replete with instances in which [the father] was able to understand language spoken in a normal tone." The Department also points out that California law requires a hearing-impaired party to be provided with "a functioning assistive listening system or a computer-aided transcription system," but requires that the party "give advance notice of his or her need to the appropriate court or agency at the time the hearing is set or not later than five days before the hearing." (Civ. Code, § 54.8, subd. (a); see also Cal. Rules of Court, rule 1.100(c)(3) [specifying that requests for accommodations "must be made as far in advance as possible, and in any event must be made no fewer than 5 court days before the requested implementation date," but giving courts the discretion to "waive this requirement"].)
On this record, the juvenile court would have been well within its discretion to deny the father's requested accommodations on the ground that he did not make a timely request. The father had meaningfully participated in all prior hearings in the case and had not made any prior requests for assistance due to a hearing impairment. Even if the father's asserted hearing problem only "manifested" at the beginning of the March 3, 2017 permanency planning hearing, the September 10, 2015 letter establishes that the father knew—a year and a half earlier—that he might need assistance from "an attendant or family member" during court hearings so that he could "fully understand what is being said."
But instead of denying the father's request as untimely, the juvenile court made numerous efforts to provide the father with accommodations. The juvenile court first offered to "try to locate a hearing device," but the father said he did not want the device. The juvenile court then attempted to provide defendant with an "auditory interpreter." When a Spanish interpreter was summoned to the courtroom, the juvenile court agreed to the father's proposed arrangement for having the father indicate when he needed the interpreter to repeat something. After the interpreter declined that arrangement, the juvenile court called the interpreter's supervisor and learned that the court did not have any interpreters who were trained to perform as the father requested. The juvenile court then proposed two options: the father could try to use the hearing device, or he could make notes about "what he thinks he doesn't hear" and have the testimony "reconstruct[ed]" later. The father, however, refused to even try the assistive listening device or the note-taking process, instead requesting a continuance "to get the appropriate auditory interpreter." The juvenile court then asked the deputy whether he could sit with the father and "repeat words back to him." The bailiff offered to provide the father with an earplug for one ear and an auditory device for his other ear "so he wouldn't have to hear out of that ear that he says he doesn't understand words from." But the father again refused to try either of these options. At that point, the juvenile court noted that it did not find the father credible and that it believed the father was "trying to obstruct the hearing." The juvenile court nevertheless reiterated that it would "give him the equipment" or "find someone" to help him, but the father continued to refuse any of the court's offers of assistance.
In determining whether the juvenile court violated the father's due process rights by refusing the father's request for a continuance "to get the appropriate auditory interpreter," we balance these factors: " ' "(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." ' [Citations.]" (In re Malinda S. (1990) 51 Cal.3d 368, 383 (Malinda S.).)
It is undisputed that "a parent has substantial private interests at stake in a section 300 proceeding" and that parents have "significant dignity interests in being fully and fairly able to present their sides." (Malinda S., supra, 51 Cal.3d at pp. 383-384.) It is also undisputed that in dependency cases, the government has a "legitimate interest in providing an expedited proceeding to resolve the child's status without further delay" and that in such cases, " 'the paramount concern is the child's welfare.' " (Id. at p. 384.) Here, however, the record fails to show any " ' "risk of an erroneous deprivation of [the father's] interest[s] through the procedures used," ' " and the record fails to show " ' "the probable value, if any, of additional or substitute procedural safeguards." ' " (Id. at p. 383.) As noted above, the record contains nothing to suggest the father had any problems hearing during any of the proceedings leading up to the permanency planning hearing. Further, at the end of that hearing, the juvenile court—which was in the best position to observe the father—had seen nothing to indicate the father had "any auditory hindrance" during the testimony of the social worker. The father's reactions indicated that he understood questions posed to the social worker, and the father had meaningfully participated in the hearing by making comments to his trial attorney and writing notes. Nothing in the record shows that the father would have been able to participate even more meaningfully had the juvenile court granted a continuance and allowed the father time to seek out an auditory interpreter.
Having balanced the relevant factors, we conclude that in light of the juvenile court's numerous attempts to provide hearing accommodations for the father, the father was provided with his due process right to "some level of hearing assistance" during the permanency planning hearing. (See Popovich, supra, at p. 815; see also In re Bryon S. (1986) 176 Cal.App.3d 822, 829 [state law "does not require complete or total comprehension by the deaf person," because such a requirement "would be difficult if not impossible to satisfy and easily manipulated by a person intent on frustrating the judicial process"].)
Our conclusion is consistent with two criminal cases involving similar due process claims: People v. Guillory (1960) 178 Cal.App.2d 854 (Guillory) and People v. Freeman (1994) 8 Cal.4th 450 (Freeman). In Guillory, the defendant's hearing impairment was first mentioned on the on the first day of trial. The defendant, who had been out on bail, claimed he had run out of batteries for his hearing aid and that he could not hear what was being said. The trial court allowed the defendant to move closer to the witness for the morning session. During the afternoon session, the defendant indicated he had obtained batteries for his hearing aid, but he claimed he could hear some things and not hear others. (Guillory, supra, at p. 859.) The Court of Appeal found no due process violation, because the trial court had offered him reasonable accommodations, the record showed that the defendant had no difficulty in following the proceedings, and any hearing difficulty the defendant had "was self-imposed," in that he had not brought a working hearing aid to court. (Id. at p. 862.)
In Freeman, supra, 8 Cal.4th 450, the trial court ordered that the defendant be provided with batteries for his hearing aid, be treated for his hearing problem, and be provided with a daily transcript of the trial. (Id. at pp. 473-476.) At various hearings, the defendant indicated he understood the trial court's questions. On appeal, the defendant claimed he "was effectively not present because he could not hear what was going on and therefore could not participate." (Id. at p. 478.) The California Supreme Court found the record did not support this claim. Although the record showed that the defendant "had hearing difficulties, and that not all attempts to solve them were immediately successful," it also showed that "defense counsel and the court were solicitous of the problem, and took repeated steps to resolve it." (Id. at p. 479.) The Freeman court also rejected the defendant's claim that instead of a daily transcript, the proper remedy would have been "a 'qualified interpreter' or 'preferable visual substitutes, such as real-time transcription or CAT (computer assisted transcription).' " (Ibid.) Not only had the defendant failed to request either of those remedies, but the record did not demonstrate they were necessary. Moreover, even if the "defendant occasionally failed to hear something," nothing indicated "that anything of significance was missed, or that defendant's ability effectively to participate in the proceedings or assist his attorney was compromised." (Ibid.) Thus, the defendant failed to establish that "he was prejudiced or denied a fair trial." (Id. at p. 480.)
In this case, the record shows that the juvenile court offered the father reasonable accommodations despite the father's failure to provide the juvenile court with advance notice of any need for auditory assistance. The father fails to show that the juvenile court's failure to provide the father with his specific requested accommodation resulted in him having any difficulty in following the proceedings. Finally, the record does not show that the father's hearing impairment prevented him from effectively participating in the proceedings or meaningfully assisting his attorney, and thus the father fails to show a due process violation.
IV. DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.