Marin County Health & Human Services v. J.B. , 179 Cal. Rptr. 3d 540 ( 2014 )

Filed 10/29/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re A.B. et al., Persons Coming Under the
Juvenile Court Law.
MARIN COUNTY HEALTH AND
HUMAN SERVICES, A140804, A141095
Plaintiff and Respondent, (Marin County
v. Super. Ct. No. JV25708A, JV25709A)
J.B.,
Defendant and Appellant.
Minors A.B. and Z.B. were removed from the home of their mother, J.B.
(Mother), and placed in the homes of their respective biological fathers in early 2013
pursuant to Welfare and Institutions Code section 361.2.1 After a contested disposition
hearing, the dependency court upheld the removals, ordered the fathers to assume custody
of the minors, declined Mother’s request for reunification services, and ordered Marin
County Health and Human Services (Department) to conduct home visits and report back
within three months pursuant to section 361.2, subdivision (b)(2). We upheld these
rulings in an earlier appeal. Mother now appeals from the dependency court’s ensuing
orders which again denied her reunification services, and terminated its jurisdiction as to
A.B. She contends she had a due process right to a further evidentiary hearing on the
home visit reports that could not be conditioned on the sufficiency of her offer of proof.
We disagree, and affirm the findings and orders in issue.
1
All further statutory references are to the Welfare and Institutions Code.
I. BACKGROUND2
A. Predispositional Proceedings
Minor A.B., born in September 2001, is the biological child of Mother and
Julian L. A.B. was diagnosed with autistic spectrum disorder at an early age. A.B.’s
half-sibling, Z.B., was born in October 2005. Z.B.’s biological father is Gavin E.
1. Section 300 Petitions
Just after midnight on December 31, 2012, San Anselmo police received a call that
Z.B. had been observed running from his apartment toward a nearby park. When officers
found him he was crying and fearful of his mother. When they brought Z.B home,
officers saw a marijuana pipe, thousands of empty nitrous oxide containers all over the
apartment, and very unclean and hazardous conditions, including rotting food in the sink,
a toilet bowl full of feces, and prescription pain pills within reach of the minors. A.B.
was asleep upstairs. Police arrested Mother for possible child endangerment, child abuse,
and possession of illegal substances, and called the Department. The boys were taken to
an emergency foster home.
The Department filed section 300 petitions, alleging the boys were at substantial
risk of harm due to Mother’s inability to provide them with adequate care and supervision
due to her “mental illness, developmental disability, or substance abuse.” Supporting
facts were taken from the December 31 police report. The Department recommended the
boys be detained with their respective biological fathers, and Mother be given case plan
services, including substance abuse treatment services, random drug testing, parenting
education, and mental health counseling. Both fathers requested custody of their sons.
The plan also included weekly supervised visitation for Mother with the minors.
On January 7, 2013, Mother submitted on detention. The court found both fathers
to have presumed father status, and made the recommended orders, including to provide
both fathers with parenting education.
2
Portions of this section are excerpted from our nonpublished opinion in an
earlier, related proceeding. (In re A.B. (May 19, 2014, A139346) (A.B. I).)
2
2. Jurisdiction
According to the jurisdiction report, there had been a total of 29 referrals regarding
the family, dating back to 2005. Some were related to domestic disturbances between
Gavin and Mother in 2005, and physical altercations between Gavin and his brother
witnessed by Z.B. Others involved drug use and lack of supervision by Mother, and
allegations by Mother of sexual abuse by Z.B.’s uncle during Z.B.’s visitation with Gavin
(determined to be unfounded). In 2011, it was reported that Mother may have been under
the influence of drugs or alcohol when she dropped Z.B. off for summer camp, that Z.B.
stated Mother spanked him for no reason and would sleep and not supervise him or A.B.,
and that the minors did not get dinner or lunch at home sometimes. These reports were
later determined to be unfounded or inconclusive. There were several reports of concerns
about Mother’s mental health and appearance of being overmedicated. Z.B.’s special
needs school “had many concerns about this family.” He had poor school attendance and
many disciplinary actions, including suspension after he brought a lighter and some straw
to school and said he knew how to burn the school down. He was suspended from school
six times. A reporting party at the school believed Mother was abusing
methamphetamines and/or prescription drugs, and was uncooperative with attempts to
help her and Z.B. Mother ignored or rejected repeated attempts by the Department in
2012 to get her to agree to a voluntary case plan, and refused all forms of communication
with the Department about services for the family.
Social worker Janelle Torres reported Mother told her she was attending a weekly
support group and was participating in individual counseling. She had completed an
outpatient substance abuse program three years earlier and attributed her current relapse
to chronic pain arising after receiving a massage in 2010. Mother presented as
disheveled and disorganized. Torres wrote that although Mother wanted to have her sons
returned to her care and expressed willingness to participate in services, she tended to
minimize the situations leading to the removal of her children, and blame others. Torres
felt Mother would continue to endanger her children until she was willing to seriously
address her chronic drug dependency and unstable mental health.
3
The court sustained an amended allegation that Mother put the boys at substantial
risk of suffering serious physical harm or illness due to (1) her willful or negligent failure
to supervise or protect the boys; and (2) inability to provide regular care for the boys due
to mental illness, developmental disability, or substance abuse.
3. Disposition Report
A disposition report filed in March 2013 noted Mother had taken initiative in
obtaining individual and group therapy, and a pain management course. Nonetheless,
social worker Torres stated she was still deeply concerned about Mother due to her long
struggle with a polysubstance dependency, and her recent relapse. Although Mother
reported she had ceased to use inhalants as of early January 2013, she had made recent
misrepresentations to that effect. Due to limitations in drug testing for nitrous oxide, the
Department would have to rely on Mother’s self-reports in order to protect the minors’
safety and well-being in her care. The children stated Mother had instructed them not to
divulge information about the family situation, and both children had complied. A.B.’s
psychologist for the past year, Dr. Barbara Nova, also believed Mother had coached the
children. The Department was “very concerned about [the minors] being safe in
[Mother’s] care and about being able to oversee [Mother’s] ability to make appropriate
and safe choices in the care of the children,” and therefore could not recommend family
reunification services for Mother.
Dr. Nova expressed concern about an “enmeshed” relationship between Mother
and A.B, where Mother placed undue focus on A.B.’s body and hygiene. The
relationship dynamics between A.B. and Mother tended to result in Z.B. being “pushed
out,” blamed for A.B.’s actions, and made to feel mistreated and resentful. The social
worker wrote: “Dr. Nova stated that were [A.B.] to return to his mother’s care she would
be concerned about [A.B.] being neglected again [and] it was not clear that the children
were always fed and getting their meals at appropriate times.” Dr. Nova felt living with
his father was having a positive effect on A.B., making him feel stronger and more
empowered.
4
With respect to custody by their fathers, the social worker reported: “[I]t has been
very positive for both [A.B.] and [Z.B.] that they are now safe, are able to continue being
cared for within their family and that they seem happy with their fathers.” She also
reported visitation with Mother had generally gone well, the visits had been warm and
positive, and Mother had acted appropriately for the most part. With regard to Z.B.’s
father, Gavin, the social worker reported he “would like to participate in counseling to
help him through the process of transitioning into being a full time father.” Z.B.’s
paternal grandmother said they “very much wanted to be more involved in [Z.B.’s] life.”
Although Z.B. said his father and uncle had sometimes fought, the Department learned
Gavin completed an anger management course in 2006. In addition, about a year and a
half had passed since Gavin and his brother had a physical fight. Based on Gavin’s
willingness to attend therapy and recent reports about Z.B.’s progress in school, the social
worker concluded there were no concerns about the safety of Z.B. In a May 1, 2013
addendum to the disposition report the Department recommended termination of
dependency jurisdiction as to Z.B.
With regard to A.B.’s father, Julian, the social worker wrote that he sought full
custody of A.B. The social worker concluded Julian “can continue parenting [A.B.]
safely and appropriately without the oversight of the Department and can ensure that
[A.B.] maintains a relationship with his brother.” The Department recommended
dismissing the case as to A.B. with full physical custody of A.B. granted to Julian.
4. Disposition Hearing
The social worker testified the basis for the recommendations to remove the boys
and not offer Mother services to reunify was concern the Department was unable to
assure the children will be safe in Mother’s care because (1) no tests can detect use of
nitrous oxide; (2) Mother was not a reliable self-reporter; (3) A.B. indicated Mother has
asked him to keep her use of nitrous oxide secret; and (4) in 2012, Mother “absconded”
with the boys when she thought Child Protective Services (CPS) might remove them.
The basis for the recommendation to give both fathers full custody and dismiss the
dependencies was that the boys seemed to have positive relationships with their fathers
5
and seemed to be safe in their care. The social worker believed it was in the boys’ best
interests to continue to have contact with Mother through supervised visits.
On cross-examination, the social worker acknowledged there had never been any
substantiated referrals that Mother physically abused either minor, and the amended
petition contained no allegation that Mother had physically abused either child. The
disposition report included opinions about Mother’s mental health from A.B.’s individual
therapist, who had done no therapy with Mother, or performed any mental health
examination or evaluation of Mother. The social worker did not include information
from Mother’s therapist, Rose Rutman, in her disposition report because Rutman’s
observations of Mother did not agree with what she had observed. Rutman said Mother
had been attending therapy consistently, and as of February 2013, was doing much better
and making significant efforts to get her house cleaned up despite her physical
impairments.
Mother asked the social worker on a number of occasions what case plan she had
in mind for her, but the social worker never provided her with one. Mother was already
working with a therapist and found a parenting class on her own. At some point the
social worker told Mother a case plan for her would look like the services she was
already receiving.
Mother testified about her medical diagnoses which caused pain and mobility
issues, and required medications. After the incident causing court intervention, she
signed up for a pain management class at Kaiser, and was told that she could start one
shortly. She testified she was hopeful this would help her deal better with her pain.
She had attended more than 25 Narcotics Anonymous meetings, which had also been
very helpful. None of the things Mother had been doing had been the result of referrals
or assistance from the Department. Through her own efforts she had also made many
changes and improvements to her home. Mother believed the children could be safely
returned to her custody at disposition with some supportive services in place.
Mother testified she got a domestic violence restraining order against Gavin in
2010, due to his verbal abuse. Mother had always tried to make it possible for Z.B. to
6
have a relationship with his father, but based on her conversations with Z.B., she was
very concerned he would be at risk of harm in Gavin’s custody.
Mother urged the court to provide for further supervision of the placement with
the fathers and, at the same time, provide family reunification services to her.
5. Dispositional Ruling and Appeal
Over Mother’s objection, the court ordered on June 3, 2013 that both fathers
assume custody of their sons, subject to dependency court jurisdiction and requiring a
home visit within three months, as set forth in section 361.2, subdivision (b)(2) (hereafter
subdivision (b)(2)).3 The court authorized Mother to have supervised visitation with the
boys, but no family reunification services.
Mother filed a timely appeal. This court affirmed the dependency court’s findings
and orders in A.B. I, supra, A139346, filed on May 19, 2014. We found substantial
3
Section 361.2 provides in relevant part: “(a) When a court orders removal of a
child pursuant to Section 361, the court shall first determine whether there is a parent of
the child, with whom the child was not residing at the time that the events or conditions
arose that brought the child within the provisions of Section 300, who desires to assume
custody of the child. If that parent requests custody, the court shall place the child with
the parent unless it finds that placement with that parent would be detrimental to the
safety, protection, or physical or emotional well-being of the child. [¶] (b) If the court
places the child with that parent it may do any of the following: [¶] (1) Order that the
parent become legal and physical custodian of the child. The court may also provide
reasonable visitation by the noncustodial parent. The court shall then terminate its
jurisdiction over the child. . . . [¶] (2) Order that the parent assume custody subject to the
jurisdiction of the juvenile court and require that a home visit be conducted within three
months. In determining whether to take the action described in this paragraph, the court
shall consider any concerns that have been raised by the child’s current caregiver
regarding the parent. After the social worker conducts the home visit and files his or her
report with the court, the court may then take the action described in paragraph (1), (3),
or this paragraph. . . . [¶] (3) Order that the parent assume custody subject to the
supervision of the juvenile court. In that case the court may order that reunification
services be provided to the parent or guardian from whom the child is being removed, or
the court may order that services be provided solely to the parent who is assuming
physical custody in order to allow that parent to retain later custody without court
supervision, or that services be provided to both parents, in which case the court shall
determine, at review hearings held pursuant to Section 366, which parent, if either, shall
have custody of the child.”
7
evidence supported the removal order, and the court did not abuse its discretion by
proceeding under subdivision (b)(2) instead of providing Mother with a case plan and
family reunification services under section 361.2, subdivision (b)(3) (hereafter
subdivision (b)(3)).
B. September 9 Review Hearing and Interim Review Report
The court scheduled a review hearing for September 9, 2013. The hearing was set
to discuss the outcome of a mediation between the parties over visitation issues, and any
other outstanding issues. In scheduling the hearing, the court stated it would consider
extending the court’s jurisdiction for an additional three months if the visitation issues
were not resolved by the time of that hearing.
In its interim review report prepared for the September 9 hearing, the Department
recommended the dependency petitions for both minors be dismissed and exit orders
prepared by the parties’ attorneys be adopted. The report stated in relevant part: “Both
children seem to be doing well in their father’s [sic] care. [A.B.] does not articulate
having any worries in his father’s home. He speaks positively about his experience there.
[Julian L.] seems to be validating of his son and thoughtful about his parenting towards
[A.B.] . . . [Z.B.] is having less behavioral outbursts, and seems to be managing his
feelings better. [Z.B.] reports his father [is] using appropriate discipline and denies
having concerns for his safety in his father’s home. [¶] The Undersigned is, however,
disappointed that the family has been unable to reach an agreement as to visitation.
[Mother] seems to be capable of having positive interactions with her children when
supervised . . . . She struggles with prompting the children . . . on directing their fathers
as to how they should be parented. [Mother] also struggles being able to appropriately
handle [Z.B.’s] difficult behaviors . . . . [and] seems to ascribe very negative traits to
[Z.B.] . . . . [T]herapeutic visitation would be in the children’s best interest . . . to help
[Mother] better communicate with her children and better handle their behaviors and
meet their needs. [¶] . . . The undersigned has made multiple visits to the home of
[Julian L.] and [Gavin E.] and has determined that both children are safe and well cared
for in their fathers’ respective homes. . . . There are presently no concerns that would
8
warrant the Department’s continued involvement in the lives of these families. It is the
opinion of the Undersigned that in the best interest of the children, in order to retain the
sense of normalcy and stability they so desperately need, that they remain in the physical
care of their fathers and . . . have continued visitation with their mother.”
With regard to Z.B., the report recounted one visit between Z.B. and Mother in
which Z.B. became upset the visit was ending. He screamed out that he did not want to
go back to Gavin’s house, he wanted to go home. Mother asked him why, and he said,
“Dad told CPS that they wouldn’t argue but they do,” and said he did not feel safe there.
Z.B. later denied there was violence at Gavin’s home and said he only “worried” it would
happen. The Department investigated Z.B.’s allegations and determined they were
unfounded.
The interim review report also addressed visitation issues. The social worker
reported that supervised visitation between Mother and both boys had generally gone
well although there were times when Mother needed to be reminded certain subjects were
off limits such as discussing coparenting issues or matters concerning court strategy with
the minors. The social worker expressed disappointment the family had been unable to
reach an agreement as to visitation.
At the September 9 review hearing, the parties addressed the Department’s
recommendation for dismissal of the dependencies for both minors—which Mother
opposed—as well as ongoing disputes over visitation schedules and supervision. The
Department’s counsel noted at the hearing that the court had decided three months earlier
to keep the cases open in order to allow the parties to work out visitation issues amongst
themselves before the cases were dismissed. The Department felt the boys were safe in
their fathers’ homes, nothing more could be done to help the families, the cases should be
dismissed, and visitation issues should be resolved in the family court. Counsel for the
fathers and the minors concurred the cases should be closed.
Mother disagreed with the Department’s recommendations. She requested a
hearing to present her side concerning allegations discussed in the Department’s interim
review report, as well as the Department’s dismissal recommendations and outstanding
9
visitation issues. The court continued the then-existing orders and put the matter over to
October 7, 2013, for a contested hearing on the Department’s recommendations. The
hearing date was ultimately continued to December 17, 2013. It appears from the record
these continuances resulted primarily from further unsuccessful attempts by the parties to
reach agreements concerning visitation.
C. Addendum Reports
In November and December 2013, the Department prepared two short addendum
reports to the interim review report. These were read and considered by the court in
advance of the December 17 hearing. In the first addendum report, the social worker
reported on two conversations she had with A.B’s therapist on October 9, and 25, 2013,
and on a meeting she had with A.B. on October 14, 2013. Dr. Nova told the social
worker she was not in favor of Mother having unsupervised visits with A.B. but believed
it was clinically important for A.B. to still have supervised visitation with his mother.
Dr. Nova also opined that Mother having shared custody would not be in A.B.’s best
interests, as he needs a home environment that is safe and where “he won’t have to lie or
learn to lie.” Dr. Nova did not believe Mother could sustain progress in A.B.’s
development as she treated A.B. in a child-like manner, encouraging his infantilizing and
dependent behaviors. Dr. Nova agreed A.B. desperately wanted to please Mother and
would have a hard time disclosing her substance abuse for fear of impacting their
relationship.
A.B. told the social worker that he had had some nightmares about Mother, and
was afraid she would “get sick and die.” He said he enjoyed visits with her and “felt he
needed” to go back to her, because he was afraid something bad would happen to her.
A.B. said that, if he lived with Mother, he would cook her breakfast, give her foot
massages, buy groceries, and meditate with her. He said if Mother began using nitrous
oxide, he would call the police if she continued to use them after he asked her to stop. He
affirmed Mother had asked him to keep her nitrous oxide use secret and he did not want
to hurt her feelings or disappoint her by divulging this. He thought it was possible he
10
would feel the same way in the future and would not tell anyone if she was using nitrous
oxide.
The first addendum report also recounted the social worker’s conversations with
Z.B.’s therapist and with Z.B. Z.B.’s therapist told the social worker it did not appear
that Z.B. was being exposed to domestic violence, his behavior was improving, and he
expressed being upset with Mother but also missing her. The therapist noted Z.B.
“assumes some of the adult concerns in the home and becomes concerned when there is
arguing in his home.” Z.B. told the social worker he felt bad about disclosing what was
going on in his home the night of his removal, and he did not like thinking about it.
Regarding Z.B., the social worker reported in the first addendum report that
Dr. Nova, A.B.’s therapist, had expressed significant concerns about the relationship
between Z.B. and Mother. Dr. Nova told the social worker she had observed “significant
‘hostility’ ” and conflict between Mother and Z.B., and Mother had made several
negative comments to her about Z.B. Z.B. had also called Mother names, made himself
throw up in Dr. Nova’s presence, and stolen toys from her office. Dr. Nova believed
Z.B.’s behaviors were symptomatic of neglect and possible lack of nurturing in his early
home environment. The social worker added that she worried the “unhealthy dynamics”
between Z.B. and Mother would affect Z.B.’s ability to relate to others in healthy ways.
The second addendum report prepared in December 2013, recounted that on a visit
with A.B. on November 27, 2013, Mother told A.B. that his therapist was a liar and could
not be trusted—specifically referencing statements contained in the first addendum
report—and told him not to divulge this conversation to his father or Dr. Nova. This
conversation disturbed A.B. greatly, and he later divulged it unprompted to the social
worker telling her that having to keep secrets made him feel bad and he worried about
Mother having so many secrets. He expressed that no one other than Mother asked him
to keep secrets. The social worker stated she was “deeply concerned” about Mother’s
visits with A.B. due to A.B.’s statements to her and due to her own and Dr. Nova’s belief
that, intentionally or not, Mother was continuing to interact with A.B. in ways that
threatened his development into an independent adult.
11
D. Dismissal of A.B.’s Dependency Proceedings
At the December 17th hearing, the Department withdrew its recommendation for
the dismissal of Z.B.’s case and requested and obtained a continuance of the hearing in
that matter based on new information discussed with the court off the record.
Regarding A.B., the Department took the position Mother was not entitled to a
contested hearing on the issues before the court under subdivision (b)(2) since, among
other reasons, Mother had already had a full contested hearing at the disposition stage on
the same issues that were back before the court for review under the statute. The
Department argued the court had contemplated back in June 2013, that it would dismiss
the cases subject to the home visit reports, and specifically advised Mother in its June
findings and orders that “ ‘Custody may be given to the parent with whom the child is
currently placed and the jurisdiction of the Court dismissed’ ” at the next review hearing.
According to the Department, the only issue left to be resolved at that time was the
appropriate exit orders to make on visitation, which the court had hoped the parties could
resolve among themselves before the case was dismissed. Counsel for Julian L. and A.B.
concurred in the Department’s position that Mother was not entitled to an evidentiary
hearing. Mother’s counsel disagreed, insisting Mother had a due process right to contest
and dispute the information contained in the Department’s interim review report and two
addenda, including calling witnesses.
At the suggestion of A.B.’s counsel, the court requested an offer of proof from
Mother’s counsel concerning the new matters on which Mother intended to provide
evidence. Counsel responded that Mother would dispute statements regarding events
occurring during her visitation with A.B., as well as suggestions she was unable to meet
A.B.’s needs and has him holding secrets for her, and made negative statements to him
about his therapist. Mother also wished to dispute comments and diagnostic impressions
Dr. Nova conveyed to the social worker about her and Z.B., who are not Dr. Nova’s
patients. Finally, Mother’s counsel stated Mother would provide unspecified evidence
and testimony “that there are concerns with regard to the current home situation [of both
12
minors]” and concerning “Mother’s ability to be involved and support [A.B.] . . . who’s
autistic and has developmental needs . . . .”
The court found the offer of proof was directed at what it regarded as visitation
issues, not placement issues, and ruled there was no need for further testimony regarding
visitation issues. The court dismissed the dependency proceeding as to A.B., and
continued the matter until December 23, 2013 to resolve details about the exit orders.
After hearing extensive argument on December 23, the court ordered Mother
would have supervised visitation with A.B. two times per month for two hours at a time,
on a schedule to be determined by Julian L. and Mother, with Julian L. to have sole legal
and physical custody of A.B. subject to modification by agreement of A.B.’s parents.
The court terminated its jurisdiction as to A.B. Mother timely appealed the court’s orders
(case No. A140804).
E. Extension/Transfer of Z.B.’s Dependency Proceedings
In an amended disposition report filed on January 8, 2014, the Department
reported that Z.B.’s father (Gavin E.) and paternal uncle had a physical altercation in his
presence in October or November 2013, which Z.B. disclosed to the social worker in
December 2013. Gavin E. had a further angry outburst toward his mother the following
day in which he kicked the car in which Z.B. and Z.B’s grandmother were sitting. There
had apparently been other incidents during the summer of 2013 in which Gavin had
altercations with his parents and may have punched his mother. Z.B. also reported that
Gavin had hit him on his bottom with a belt, but other family members denied any
knowledge of Gavin using corporal punishment with Z.B. Gavin apologized for not
having been forthcoming about the events due to fear of Z.B. being removed, and agreed
family counseling was necessary to prevent further instances of domestic violence. The
Department recommended against a change in placement for the time being, but proposed
that family maintenance services be ordered for Gavin and Z.B. pursuant to
subdivision (b)(3).
At hearings on January 6, and January 27, 2014, Mother objected to the
Department’s recommendation that only Gavin receive family maintenance services and
13
sought a contested hearing on that issue. Counsel for Gavin and Z.B. argued Mother’s
entitlement to services had already been litigated and could not be relitigated unless
Mother filed a petition under section 388 showing changed circumstances. The
Department proposed that Mother and Gavin could submit written statements on the
issues, and the “contested hearing” could consist of the court considering those
submissions along with the Department’s reports before rendering its decision. Mother’s
counsel objected because this procedure would not allow Mother to cross-examine the
social worker and present evidence from her own service providers. The court ruled that
a full evidentiary hearing was not required. It requested that Mother prepare a witness
statement outlining what she had done since the disposition hearing that would support
her request for services under subdivision (b)(3).
Mother submitted a statement on February 5, 2014. She (1) discussed the efforts
and progress she had made in addressing the issues that led to Z.B.’s removal;
(2) responded to some of the allegations the Department had made concerning her
parenting and relationship dynamics with Z.B.; and (3) made allegations concerning
Gavin’s mental health, drug use, and family conflicts. She stated: “I am requesting
services under Sec. 361(b)(3). Providing me with services will benefit my children . . .
and help ensure . . . [they] will not need to be placed in foster care, should they be
removed from their respective father’s care.” Mother requested family therapy with Z.B.
“so that I can continue to support my son and improve my relationship with him.” She
believed such family therapy “would be helpful for [Z.B.] as well so that he and I can
communicate in a therapeutic setting, and he can feel safe to talk to me about things, with
a professional there to help us.” Father also submitted a short written statement.
In an addendum to the amended disposition report, filed on February 9, 2014, the
Department recommended family maintenance services be provided for Z.B. and his
14
father pursuant to subdivision (b)(3), and recommended supportive services for Mother
limited to visitation with Z.B. supervised by a therapist.4
Following brief statements by counsel at a hearing on February 10, 2014, the court
denied reunification services to Mother, and authorized the Department to help arrange
therapeutic visitation services for her. The court ordered family maintenance services for
Gavin E., and transferred the matter to Stanislaus County where Z.B. and his father
reside. Mother timely appealed (case No. A141095).
Mother’s appeals raise substantially similar issues and were consolidated for
disposition on the court’s own motion.
II. DISCUSSION
Mother contends she had a due process right to evidentiary hearings as to each
minor under subdivision (b)(2) before the court could (1) deny her family reunification
services under subdivision (b)(3); or (2) make exit orders under section 361.2,
subdivision (b)(1) (hereafter subdivision (b)(1)). She maintains her right to an
evidentiary hearing was absolute, and could not be conditioned on an offer of proof.
Mother’s due process contentions present an issue of law which we review de novo. (In
re J.F. (2011) 196 Cal. App. 4th 321, 329 (J.F.).) In case No. A140804 pertaining to
A.B.’s case, Mother contends in the alternative that her offer of proof was sufficient to
require an evidentiary hearing. We review the dependency court’s decision in that regard
for abuse of discretion. (Ingrid E. v. Superior Court (1999) 75 Cal. App. 4th 751, 758–
759.)
A. Due Process
We start with the legislative history of subdivision (b)(2). Prior to the addition of
this provision in 2005, when a child was removed from an offending parent and placed
with a noncustodial parent under section 361.2, subdivision (a) the only options for the
court were those now described in subdivisions (b)(1) and (b)(3)—making the
4
This was not a change in the status quo. Mother was already being provided
with therapeutic visitation services with Z.B.
15
noncustodial parent the legal and physical custodian of the child and terminating the
juvenile court’s jurisdiction, or maintaining jurisdiction and ordering reunification
services to one or both parents, with permanent custody to be determined later.
(Historical and Statutory Notes, 73A pt. 1 West’s Ann. Welf. & Inst. Code (2008 ed.)
foll. § 361.2, p. 33.) The legislation adding current subdivision (b)(2) was named
“Adam’s Law” by the Legislature and the Governor’s message in signing the law stated:
“ ‘It is a travesty that a four-month-old baby lost his life at the hands of his abusive
father. This measure will give the courts additional tools to protect the safety of foster
children placed with non-custodial parents.’ ”5 (Historical and Statutory Notes, 73A pt. 1
West’s Ann. Welf. & Inst. Code, supra, foll. § 361.2, p. 36; Stats. 2005, ch. 632, § 1,
p. 4825.)
In other words, the legislative intent of subdivision (b)(2) was simply to give the
court and Department a further opportunity to confirm the minor’s safety in the
noncustodial parent’s home before deciding whether to grant that parent legal and
physical custody and dismiss the case, continue custody subject to court supervision, or
remove the child from that parent’s custody. The presumption implicit in the statute is
that if the Department identifies no issues of concern following the home visit, the
noncustodial parent will obtain legal and physical custody and the case will be dismissed.
The focus is on the noncustodial parent and the issue before the court is whether the
minor is safe in that parent’s home without further court supervision. Subdivision (b)(2)
5
A legislative committee analysis explained the purpose of the 2005 legislation as
follows: “According to the author, this bill is in response to an incident which occurred
in Bakersfield in 2003 in which a four-month old boy was placed with his father, [a
noncustodial parent] whose home had not been thoroughly evaluated for child safety and
appropriateness. Later, the child died as a result of physical abuse by his father. This bill
will increase scrutiny paid to biological parents who wish to take custody from foster
parents by authorizing the court to require a home visit and emphasizing foster parents’
opportunities to influence such placements.” (Assem. Com. on Appropriations, Analysis
of Sen. Bill No. 726 (2005–2006 Reg. Sess.), as amended July 6, 2005, p. 1.)
16
is silent as to what role, if any, the previously custodial parent has at that stage of the
proceedings.6
We note the court has complete discretion under subdivision (b)(2) over whether a
home visit is even necessary in the first instance: “[N]othing in this paragraph shall be
interpreted to imply that the court is required to take the action described in this
paragraph as a prerequisite to the court taking the action described in either paragraph (1)
or (3).” (§ 361.2, subd. (b)(2).) And, if the court does require a home visit, the statute
does not expressly require any type of hearing following submission of a home visit
report by the Department: “After the social worker conducts the home visit and files his
or her report with the court, the court may then take the action described in paragraph
(1), (3), or this paragraph.” (Ibid., italics added.) Since the dependency court has
complete discretion whether to require a home visit before deciding to dismiss the case, it
follows the court has equal discretion over whether to hold a hearing on the home visit
report, and over the nature and parameters of any such hearing. If there is a hearing, its
primary focus must be on the safety of the minor in the noncustodial parent’s home. The
parent from whose custody the minor has been removed would seldom have new
evidence to offer on this subject that was not already considered at disposition a few
months earlier.7
In this statutory context, we do not believe it offends due process to condition the
right to a contested evidentiary hearing on an offer of proof of new evidence relevant to
the child’s safety in the noncustodial parent’s home, or to other matters on which the
6
The “current caregiver” referred to in subdivision (b)(2) is not the parent from
whom the minor has been removed. Based on the provision’s text and legislative history,
the term refers to a foster parent or relative who has custody of the minor when
placement with the noncustodial parent is being considered. The current caregiver’s only
role under subdivision (b)(2) is “[i]n determining whether to take the action described in
this paragraph.” As the last sentence of the subdivision makes clear, the “action
described in this paragraph” means the action of requiring a home visit.
Subdivision (b)(2) does not specify any role for the current caregiver once the court has
decided to grant custody to the noncustodial parent subject to a home visit.
7
We note the court can order a home visit to occur any time within three months.
17
court in its discretion wishes to hear further evidence. The latter might include exit
orders if the court intends to dismiss the case, or the question of which parent or parents
should receive reunification services if the court intends to continue supervision. We do
not believe the statute or due process compel the court to hear evidence on any issue a
party wishes to litigate or relitigate merely because the court has requested a home visit.
The record in this case shows the court ordered home visits hoping the additional
time would allow the parties to work out visitation issues before the cases were
dismissed. Reunification with Mother was no more than a remote possibility in the
unlikely event the cases were not dismissed and legal custody could not be granted to one
or both of the fathers even after the provision of further services. Forcing the court and
the parties to relitigate the issue of services to the Mother absent a showing of new
evidence or changed circumstances would have been unproductive for all of the
concerned parties. We find nothing in the case law suggesting due process commands
such a result.
It is well recognized that due process “is a flexible concept which depends upon
the circumstances and a balancing of various factors.” (In re Jeanette V. (1998)
68 Cal. App. 4th 811, 817; see Sheri T. v. Superior Court (2008) 166 Cal. App. 4th 334,
341.) Even where due process rights are triggered, it must always be determined “what
process is due.” (In re Malinda S. (1990) 51 Cal. 3d 368, 383.) We look to “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 decisionmaking as affected by the burden caused by an additional procedural
requirement.” (In re James Q. (2000) 81 Cal. App. 4th 255, 267 (James Q.).)
Accordingly, our courts have recognized that “[d]ifferent levels of due process protection
apply at different stages of dependency proceedings.” (In re Thomas R. (2006)
145 Cal. App. 4th 726, 733.)
In James Q., cited by Mother, the Third District Court of Appeal held that a court
may not deny a party the right to a contested review hearing based on an allegedly
18
inadequate offer of proof. (James Q., supra, 81 Cal.App.4th at p. 258.) The review
hearing in issue in James Q. was a six-month review hearing pursuant to section 366.21,
subdivision (e) to decide whether the appellant parent should receive an extended period
of reunification services. (James Q., at pp. 258–259.) In holding the parent’s right to
obtain a contested evidentiary hearing at that stage was absolute, the court emphasized
the action taken at such a hearing could lead to a permanent severance of the parent-child
relationship, and it was the agency’s burden at that stage to prove the minor should not be
returned to parental custody or services should be ended. (Id. at pp. 260–261.)
Moreover, the statute itself expressly provided for a “hearing” to be held. (James Q., at
p. 261.) The court found review hearings during the reunification phase were also critical
because they were the parent’s “best opportunity . . . to make the strongest case possible”
for returning the child to parental custody and the decisions made at them could not be
relitigated at the termination hearing. (Id. at pp. 262–263.) James Q. specifically
distinguished earlier cases holding that dependency courts may properly require an offer
of proof before granting contested hearings in proceedings following the expiration of the
reunification period.8 (James Q., at p. 267; see also David B. v. Superior Court (2006)
140 Cal. App. 4th 772 [following James Q., holding dependency court could not require
father to tender offer of proof to obtain contested 18-month review hearing].)
In our view James Q. and the cases following it are distinguishable. First, Mother
is not facing termination of her parental rights. The fundamental issue in proceedings
under section 361.2 is which parent has the best potential to provide a safe and secure
permanent home for the minor. (In re Erika W. (1994) 28 Cal. App. 4th 470, 477
(Erika W.).) The statute “contemplates that reunification services will be offered only for
8
James Q. distinguishes two Second Appellate District cases that arose in post-
unification proceedings—Maricela C. v. Superior Court (1998) 66 Cal. App. 4th 1138 and
In re Jeanette V., supra, 68 Cal. App. 4th 811. In In re Tamika T. (2002) 97 Cal. App. 4th
1114 (Tamika T.), another Second Appellate District panel specifically rejected James Q.,
stating “due process does not require a court to hold a contested hearing if it is not
convinced the parent will present relevant evidence on the issue he or she seeks to
contest.” (Tamika T., at p. 1122.)
19
the purpose of facilitating permanent parental custody of the child by one or the other
parent.” (Id. at p. 476.) Unlike in James Q., the denial of reunification services to
Mother under section 361.2 is not a fateful step down the path toward terminating her
parental rights. The parental interest at stake in a section 361.2 proceeding—which
parent the minors will live with—is comparatively less consequential.
Second, a hearing following the three-month home visit under subdivision (b)(2) is
not Mother’s “best opportunity . . . to make the strongest case possible” for reunification
services. Mother’s best opportunity came at the three days of dispositional hearings held
in May 2013, and the ensuing appeal to this court in A.B. I, supra, A139346. At the
dispositional stage, Mother extensively cross-examined the social worker and other
witnesses, as well as testifying herself and offering documentary and other evidence. The
issue of whether Mother or the minors’ fathers had the greater potential to provide the
minors with a safe and secure home and which parent or parents should receive
reunification services was front and center in that proceeding, and the dependency court’s
decision not to grant her services was the major subject raised in Mother’s previous
appeal. Conditioning Mother’s right to a further evidentiary hearing on this issue on an
offer of proof does not seem to present any issue of procedural fairness or risk of an
erroneous decision comparable to those that troubled the court in James Q. Considering
the litigation that has already occurred, and the interests at stake in addition to Mother’s
interest in recovering custody of the minors—the governmental interests in conserving
judicial and agency resources, the fathers’ interests in avoiding costly, duplicative
litigation, and the minors’ interests in stability and permanence—we do not think it
offends due process for the court to determine in advance whether Mother proposes to
offer new evidence pertinent to the matters left to be decided under section 361.2, or
limits her as it did in Z.B.’s case to the submission of a written statement.
20
Mother also relies on cases concerning postpermanency review hearings under
section 366.3.9 (See, e.g., In re Kelly D. (2000) 82 Cal. App. 4th 433, 437–440 (Kelly D.)
[holding as a matter of statutory interpretation that father was entitled to notice of and a
contested status review hearing on the agency’s recommendation for a reduction of his
visitation with the minors under § 366.3]; J.F., supra, 196 Cal.App.4th at pp. 329–336
[holding on statutory and due process grounds that mother’s right to a contested
postpermanency review hearing on whether reunification was the best alternative option
for child in long-term foster care could not be conditioned on an offer of proof].) As J.F.
recognizes, the Courts of Appeal are divided on whether the right to a contested
postpermanency review hearing may be conditioned on an offer of proof. (Id. at p. 327,
citing Maricela C. v. Superior Court, supra, 66 Cal. App. 4th 1138 and M.T. v. Superior
Court (2009) 178 Cal. App. 4th 1170, both holding offers of proof can be required under
§ 366.3.)
We need not pick sides in this conflict. Kelly D. and J.F. are distinguishable from
our case. In both cases, the minors’ permanent plans were long-term foster care.
(Kelly D., supra, 82 Cal.App.4th at p. 435; J.F., supra, 196 Cal.App.4th at p. 328.) In
both cases, the court recognized that long-term foster care “is not necessarily a stable
placement.” (J.F., at p. 334; Kelly D., at p. 438.) In both cases, the statute in issue
expressly invites the parent to participate in the review process and seek to demonstrate if
possible that additional efforts at reunification will promote the minor’s best interests.
(§ 366.3, subd. (f).) In these circumstances, a review hearing under section 366.3 bears
many similarities to a review hearing during the reunification period in which, as
9
In cases where the court has ordered a permanent plan of adoption or legal
guardianship, section 366.3 requires status review hearings to take place every six months
until the minor is adopted or a guardianship is established. (§ 366.3, subd. (a).) The
statute expressly provides that unless parental rights have been terminated, the minor’s
parent or parents are entitled to notice of a right to participate in the hearings, and that the
parents may try to prove that further efforts at reunification are the best alternative. (Id.,
subd. (f).)
21
discussed ante, at least some appellate courts have held there is a due process right to a
contested hearing. (See Kelly D., at pp. 438–439; J.F., at pp. 334–335.)
A review hearing held after a home visit report under subdivision (b)(2) presents a
completely different situation. The minor is not in a temporary foster home, but living
with a parent who has been found by the court to offer the best potential to provide a safe
and secure permanent home for the minor. (Erika W., supra, 28 Cal.App.4th at p. 477.)
“[T]he focus of dependency proceedings ‘is to reunify the child with a parent, when safe
to do so for the child. [Citations.]’ [Citation.] The goal of dependency proceedings—to
reunify a child with at least one parent—has been met when, at disposition a child is
placed with a . . . [non]custodial parent . . . .” (In re Pedro Z. (2010) 190 Cal. App. 4th 12,
20, italics omitted.) Here, the issue of whether Mother should receive family
reunification services had recently been litigated in a contested hearing, and neither the
Department nor the minors’ counsel had changed their views on that subject. As noted
earlier, the statute is silent about whether the dependency court even needs to hold a
review hearing before proceeding to order dismissal or supervision with services to only
one parent, much less about the type of hearing the court must provide. The parent who
has lost physical custody of the minor under section 361.2 is not left without recourse. If
the dependency court decides to terminate its jurisdiction, the noncustodial parent’s
interests in custody and visitation can be heard in the family law court. If the court
retains jurisdiction, any orders regarding custody, visitation, or services are subject to a
petition under section 388 if the parent can demonstrate a change of circumstances. For
all of these reasons, we find the reasoning of Kelly D., J.F., and similar cases does not
extend to proceedings under subdivision (b)(2).
Finally, Mother cites In re Michael W. (1997) 54 Cal. App. 4th 190 and In re
Roger S. (1992) 4 Cal. App. 4th 25, for the proposition that a parent who objects to the
terms of exit orders made when a dependency case is dismissed under subdivision (b)(1)
must be given an opportunity to put on evidence to show different orders should be made.
These cases merely held the court has power to receive evidence relevant to appropriate
exit orders on visitation when it terminates jurisdiction. (In re Michael W., at pp. 194–
22
195, quoting and adopting the holding in In re Roger S.) They do not require the court as
a matter of due process to hold an evidentiary hearing without regard to an offer of proof.
We therefore reject Mother’s position that she had an absolute due process right to
contested evidentiary hearings before the court could deny her family reunification
services under subdivision (b)(3) in Z.B.’s case or dismiss the proceeding and make exit
orders under subdivision (b)(1) in A.B.’s case. Since Mother makes no alternative
argument in Z.B.’s case that the dependency court abused its discretion in finding her
offer of proof insufficient to warrant an evidentiary hearing, we affirm the findings and
orders in case No. A141095.
B. Sufficiency of Offer of Proof in Case No. A140804
Mother maintains that even if it was proper for the dependency court to condition
an evidentiary hearing on an offer of proof in A.B.’s case, her offer of proof was
sufficient to warrant a hearing.
As Mother points out, supervision of A.B. in his father’s home had not been
ordered or provided as of the post-home-visit hearing. The issue before the court was
whether to dismiss A.B.’s case or to order supervision. And if supervision was ordered
under subdivision (b)(3), there was the further issue of whether Mother would receive
reunification services. According to Mother, because the dependency court had
requested a home visit report under subdivision (b)(2) at disposition, its recent
determinations on these issues no longer mattered and the court was bound to hear
evidence on them again regardless of whether any of the evidence was “new.” We do not
agree.
As discussed earlier, the purpose of requesting a home visit is simply to provide an
additional safeguard to verify the child’s safety in the previously noncustodial parent’s
home. If the home visit report or other evidence brought to the attention of the court does
not suggest issues requiring further supervision or calling into question whether that
parent can provide a safe and secure permanent home for the child, the court has no
reason to order supervision or consider reunification services for the other parent. The
goal of the dependency proceedings—to reunify a child with at least one parent—has
23
been met. (In re Pedro Z., supra, 190 Cal.App.4th at p. 20.) The mere selection of
subdivision (b)(2) in lieu of subdivisions (b)(1) or (b)(3) at disposition does not, as
Mother asserts, mandate repetitive proceedings over whether she should be receiving
reunification services. That issue only arises if the child’s safety and security in the
noncustodial parent’s home is placed in doubt. Mother’s offer of proof failed to specify
any evidence that would have cast doubt on the social worker’s conclusion, based on
multiple visits to Julian L.’s home, that A.B. was safe and well cared for there. As the
dependency court observed, Mother’s offer of proof was directed at visitation issues, not
placement issues.
With respect to visitation and exit orders, the court heard extensive argument from
Mother’s counsel on December 17, and December 23, 2013 focused primarily on whether
her visits should be supervised. She fails to persuade us the result would have been
different had she been permitted to cross-examine the social worker or put on unspecified
testimony she asserts would have contradicted statements about her interactions with
A.B. in the interim review report and addenda before the court. An 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.” (Tamika T., supra, 97 Cal.App.4th at p. 1124.) Moreover,
given the extensive evidence in the record concerning Mother’s problematic relationship
with A.B., the sources of the negative information Mother disputed in the reports (A.B.
and his therapist), and the adamant positions of minor’s counsel and the Department on
the issue, Mother fails to demonstrate an evidentiary hearing would have alleviated the
court’s concerns about unsupervised visitation.
24
III. DISPOSITION
We affirm the findings and orders in cases Nos. JV25708A and JV25709A.
_________________________
Margulies, J.
We concur:
_________________________
Humes, P.J.
_________________________
Banke, J.
25
Trial Court: Marin County Superior Court
Trial Judge: Hon. Faye D’Opal
Counsel:
Mary R. Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Steven M. Woodside, County Counsel and Brian C. Case, Deputy County Counsel for
Plaintiff and Respondent.
26