In re Beautifull C. CA2/7 ( 2022 )

Filed 7/13/22 In re Beautifull C. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re BEAUTIFULL C., a Person B315748
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. 20LJJP00482A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
PRICILLA R., et al.
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephanie M. Davis, Juvenile Court Referee. Affirmed.
Annie Greenleaf, under appointment by the Court of
Appeal, for Defendant and Appellant Pricilla R.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant Johnny C.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Pricilla R. and Johnny C. appeal from the juvenile court’s
orders under Welfare and Institutions Code section 366.26
terminating their parental rights to their daughter, Beautifull C.1
They contend that the court abused its discretion in denying their
requests for a contested hearing and that the Department’s
unclean hands barred it from arguing they did not have a
sufficient bond with Beautifull. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Beautifull Tests Positive for Methamphetamine at
Birth; the Department Files a Petition Under Section
300, Subdivisions (b)(1) and (j); and the Juvenile
Court Sustains the Petition and Removes Her
When Pricilla gave birth to Beautifull in July 2020, they
both tested positive for methamphetamine. Pricilla denied
abusing drugs and claimed a friend gave her a cup of coffee that
“must have been spiked with [m]ethamphetamines.” Johnny
denied seeing Pricilla use drugs. One week later, the Los Angeles
County Department of Children and Family Services filed a
petition under section 300, subdivision (b)(1), alleging that
Pricilla’s substance abuse placed Beautifull at risk of serious
1 Statutory references are to the Welfare and Institutions
Code.
2
physical harm and interfered with Pricilla’s ability to provide
regular care for Beautifull, that Johnny failed to protect
Beautifull from Pricilla’s substance abuse, and that Johnny’s
substance abuse interfered with his ability to provide regular
care for Beautifull. The Department also alleged under section
300, subdivision (j), that Beautifull’s older sister, Jaylene C., was
a dependent child of the court due to Pricilla’s and Johnny’s
substance abuse and that Pricilla’s and Johnny’s substance abuse
endangered Beautifull’s physical health and safety. The juvenile
court detained Beautifull, granted the Department custody for
placement, and ordered monitored visitation for Pricilla and
Johnny.2
The social worker gave Pricilla the contact information of
Beautifull’s caregivers so that Pricilla could “set up visitation”
three times a week. Pricilla told the social worker to give the
caregivers the following message: “‘Don’t get comfortable.’” The
social worker gave Johnny (and Pricilla again) the same
information and encouraged him to “arrange for in person visits”
three times a week.
On September 23, 2020 the court sustained the allegations
in the petition and found Beautifull was a person described by
section 300, subdivisions (b) and (j). For the disposition hearing
one month later, the Department reported that both Pricilla and
Johnny failed to complete the drug testing ordered by the court.
At disposition, the court removed Beautifull from Pricilla and
Johnny. The Department informed the court that, in a separate
dependency case involving Jaylene, the court had terminated
2 At the time of the detention hearing, Beautifull was still in
the neonatal intensive care unit with a sepsis infection and
feeding difficulties. Since her discharge from the hospital,
Lourdes A. and Hildebrando A. have cared for Beautifull.
3
Pricilla’s and Johnny’s reunification services and their parental
rights to Jaylene. The court in this case denied Pricilla and
Johnny reunification services under section 361.5, subdivision
(b)(10) and (b)(11),3 and set a selection and implementation
hearing under section 366.26. The court granted Pricilla’s
request to continue visiting Beautifull a minimum of three times
a week for three hours per visit.
B. Pricilla and Johnny Did Not Consistently Visit with
Beautifull
In a February 2021 report the Department stated its
investigator had not been able to locate Pricilla or Johnny since
December 2020. Over the next two months, the investigator
repeatedly tried to serve Pricilla and Johnny with notices of the
hearing under section 366.26. When the investigator finally
3 Section 361.5, subdivision (b), provides that reunification
services “need not be provided” to a parent or guardian in
specified circumstances, including where “the court ordered
termination of reunification services for any siblings or half
siblings of the child because the parent or guardian failed to
reunify with the sibling or half sibling” and the “parent or
guardian has not subsequently made a reasonable effort to treat
the problems that led to removal of the sibling or half sibling ”
and where “the parental rights of a parent over any sibling or
half sibling of the child had been permanently severed, and
. . . [the] parent has not subsequently made a reasonable effort to
treat the problems that led to removal of the sibling or half
sibling.” (See § 361.5, subd. (b)(10) & (11); see also § 361.5, subd.
(c)(2).) Section 361.5, subdivision (f), provides that, if the court
does not order reunification services, the court must determine
whether to set a hearing under section 366.26. (See In re M.S.
(2019) 41 Cal.App.5th 568, 587; In re Jonathan P. (2014)
226 Cal.App.5th 1240, 1257.)
4
spoke to Pricilla and Johnny on the phone in May 2021, they
provided a mailing address, but refused to disclose where they
lived or to meet with the investigator. The investigator did not
learn where Pricilla and Johnny lived until a social worker in
another case contacted the investigator in July 2021 and said
that Johnny and Pricilla recently had another baby, Logan C.,
and that they lived with the maternal grandmother.4 During
these months, Pricilla and Johnny did not visit with Beautifull,
in person or virtually.
For the selection and implementation hearing on
October 15, 2021, the Department summarized the history of
Pricilla’s and Johnny’s visitation with Beautifull. In the 14
months of the dependency case, Pricilla participated in six virtual
visits, four in 2020 and two in 2021, while Johnny participated in
one virtual visit in 2020.5 The social worker arranged for an in-
person visit, but Pricilla did not show up. The social worker also
offered Pricilla “consistent in-person visits on Saturdays” and
additional virtual visits, but Pricilla either “did not respond” or
did not confirm the visits. Pricilla asked to visit approximately
seven additional times, but either did not confirm the visit or
failed to show up. On one occasion Pricilla said she missed the
visit because she had technical difficulties with the
videoconference platform, and on another occasion she said she
had a scheduling conflict.
4 Two months later, in a separate dependency case, the
juvenile court detained Logan after Pricilla tested positive for
methamphetamine.
5 A previous report documented one additional virtual visit
Pricilla attended. The report indicated Johnny was “reported to
be present” during three virtual visits, but the report did not
state to what extent he participated in the visits.
5
C. The Court Denies Pricilla’s and Johnny’s Requests for
a Contested Hearing and Terminates Their Parental
Rights
At the hearing under section 366.26, Pricilla and Johnny
asked the court to set the matter for a contested hearing.
Counsel for Pricilla argued Pricilla and Bernadette L., a maternal
great aunt, “could offer testimony with respect to . . . the parent-
child bond, as well as the sibling bond.”6 Counsel stated Pricilla
could also testify about “a bond that was interrupted” by the
Department’s failure “to comply with a minimum visitation
order,” the “unfortunate circumstances with COVID because of
lack of in-person visits,” and “the caregivers’ own desire to adopt
[Beautifull] even from the very beginning.” Counsel for Pricilla
asserted “it would be a miscarriage of justice for the Department
to argue a lack of bond based on [the] forces which interrupted
the ability for [Pricilla] to form a bond.” Counsel for Pricilla also
argued the Department presented “contradictory information” on
visitation because the February 2021 report indicated “there was
no contact between the parents and the caregiver,” but the most
recent last minute information indicated “numerous entries” of
“attempts at visitation, as well as some of the barriers that
existed.” Counsel added that Pricilla would provide “information
as to the circumstances of these barriers, as well as the specific
information about how those visits that did occur, in fact, went
6 The court denied Pricilla’s request to continue the hearing
to allow the Department to complete the assessment of
Bernadette as a placement option. An investigation revealed
Bernadette suffered a criminal conviction in 2019, the nature of
which, according to the social worker, was “concerning.” The
court found it would not be in the best interest of Beautifull to
delay the proceedings on the slim likelihood Bernadette could
obtain a criminal waiver.
6
with respect to [Beautifull’s] connection with [Pricilla].” Counsel
for Pricilla argued Beautifull would lose “her ability and
opportunity to know her biological family, . . . including siblings
that are placed with relatives.” Finally, counsel stated that, if
the court did not terminate Pricilla’s parental rights, Beautifull
would enjoy “stability” and “continued family connection.”
Counsel for Johnny argued that, “with respect to a sibling
bond exception,” he wanted Beautifull “to grow up with and
around Logan.” Counsel stated that, “with respect to . . . the offer
of proof for the parent bond,” Johnny “was having difficulties
with any type of in-person visits because of COVID.” Counsel for
Johnny asserted that, even though the Department could not
locate Johnny in February 2021, after Logan was born in July
2021 the Department had Johnny’s contact information, and
Johnny had been “trying to work with the social worker since
[the] summer to try to get his visits in.” Finally, counsel for
Johnny claimed that Johnny’s visits “have been stymied or
stopped by the Department” and that, “[o]nce the Department
does allow [Johnny] to have his visits, . . . he does want to
continue to have a strong bond with Beautifull.”
The juvenile court denied the request for a contested
hearing. The court ruled: “There’s been absolutely no evidence
presented with respect to there being a reason to set the matter
for a hearing regarding the sibling exception to adoption” because
the sibling bond “has to already exist for the exception to apply.
It does not apply in the hopes and happenstance that a sibling
relationship will form.” The court found the offers of proof on the
parental-benefit exception “presented very little facts and a whole
lot of argument, which is not what an offer of proof is supposed to
do.” The court agreed with the Department that, based on “the
totality of the reports,” there was “no contradictory evidence.”
The court concluded Pricilla’s and Johnny’s offers of proof “failed
7
to provide the necessary information justifying a contested
[section 366.26] hearing” because both offers of proof “were
basically projections about what would happen. . . . They were
arguments about the law, not presenting facts.” The court found
that Beautifull was adoptable, that it would be detrimental to
return her to Pricilla or Johnny, and that no exception to
adoption applied. The court terminated Pricilla’s and Johnny’s
parental rights, selected adoption as the permanent plan, and
designated Lourdes A. and Hildebrando A. as Beautifull’s
prospective adoptive parents. Pricilla and Johnny timely
appealed.
DISCUSSION
Pricilla and Johnny argue the court abused its discretion in
denying their requests to present evidence at the selection and
implementation hearing. Because the offers of proof did not
sufficiently specify the evidence Pricilla and Johnny would
present, however, the court did not abuse its discretion in
denying their request for a contested hearing. Pricilla and
Johnny also argue the doctrine of unclean hands precluded the
Department from arguing they did not have a sufficient bond or
attachment with Beautifull. Pricilla and Johnny, however,
forfeited this argument and, in any event, they have not shown
the doctrine applies.
8
A. The Juvenile Court Did Not Abuse Its Discretion in
Denying a Contested Hearing on the Parental-benefit
Exception
1. Applicable Law and Standard of Review
“If the court cannot safely return a dependent child to a
parent’s custody within statutory time limits, the court must set
a hearing under section 366.26.” (In re Caden C. (2021)
11 Cal.5th 614, 630; see §§ 361.5, subd. (f), 366.22, subd. (a)(3);
In re M.S. (2019) 41 Cal.App.5th 568, 580; In re Jonathan P.
(2014) 226 Cal.App.4th 1240, 1257.) The goal at the section
366.26 hearing “is ‘specifically . . . to select and implement a
permanent plan for the child.’” (Caden C., at p. 630; see In re
A.G. (2020) 58 Cal.App.5th 973, 992.) Statutory exceptions
“‘permit the court, in exceptional circumstances [citation], to
choose an option other than the norm, which remains adoption.’”
(Caden. C., at p. 631; see In re A.G., at p. 992.)
The parental-benefit exception under section 366.26,
subdivision (c)(1)(B), applies where “‘[t]he court finds a
compelling reason for determining that termination would be
detrimental to the child due to one or more of the following
circumstances: [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit
from continuing the relationship.’” (In re Caden C., supra,
11 Cal.5th at p. 631; see In re L.A.-O. (2021) 73 Cal.App.5th 197,
206.) To prove the exception applies, the parent must show
“regular visitation and contact with the child, taking into account
the extent of visitation permitted”; “the child has a substantial,
positive, emotional attachment to the parent—the kind of
attachment implying that the child would benefit from continuing
the relationship”; and “terminating that attachment would be
detrimental to the child even when balanced against the
9
countervailing benefit of a new adoptive home.” (Caden C., at
p. 636; see In re J.D. (2021) 70 Cal.App.5th 833, 854.)
“The burden is on the parent asserting the parental
[benefit] exception to produce evidence establishing that
exception.” (In re A.G., supra, 58 Cal.App.5th at p. 996; see
§ 366.26, subd. (c)(1)(B)(i); In re Caden C., supra, 11 Cal.5th at
p. 635.) The juvenile court “may require, without violating due
process, that the parent provide an offer of proof in support of the
adoption exception before setting a contested hearing.”
(In re A.G., at p. 998; see In re Grace P. (2017) 8 Cal.App.5th 605,
612 [“‘The trial court can . . . exercise its power to request an offer
of proof to clearly identify the contested issue(s) so it can
determine whether a parent’s representation is sufficient to
warrant a hearing involving presentation of evidence and
confrontation and cross-examination of witness.’”]; In re
Tamika T. (2002) 97 Cal.App.4th 1114, 1124 [“due process does
not preclude the trial court from requiring an offer of proof before
a parent offers evidence on a contested issue at a section 366.26
hearing”].)
The offer of proof “must address two components of the
parental [benefit] exception, namely, the parent’s regular contact
with the child, and the existence of a beneficial parent-child
relationship.” (In re A.G., supra, 58 Cal.App.5th at p. 982.) “The
parent’s offer of proof ‘must be specific, setting forth the actual
evidence to be produced, not merely the facts or issues to be
addressed and argued.’” (In re Grace P., supra, 8 Cal.App.5th at
p. 612; see In re A.G., at pp. 996-997 [“‘“The judge may properly
reject a general or vague offer which does not indicate with
precision the evidence to be presented and the witnesses who are
to give it”’”; a “proper offer of proof must identify the substance of
the evidence to be presented, not merely contain a recitation of
facts.”].) We review the juvenile court’s order denying a request
10
for a contested hearing for abuse of discretion. (In re A.G., at
p. 1003; see Grace P., at p. 611.)
2. The Offers of Proof Did Not Warrant a
Contested Hearing on the Parental-benefit
Exception
The juvenile court did not abuse its discretion in denying
Pricilla’s and Johnny’s requests for a contested hearing on the
parental-benefit exception because their offers of proof did not
identify, with precision or otherwise, the specific evidence they
would present at such a hearing. Pricilla’s and Johnny’s offers of
proof did not include specific evidence they had maintained
regular and consistent visitation with Beautifull; indeed, neither
counsel for Pricilla nor counsel for Johnny even argued Pricilla
and Johnny regularly visited Beautifull. Nor did either counsel
describe specific evidence Beautifull had a significant emotional
attachment to Pricilla or Johnny.
As discussed, a parent’s offer of proof must address “regular
visitation” and “the existence of a beneficial parent-child
relationship.” (In re A.G., supra, 58 Cal.App.5th at p. 1005; see
In re Grace P., supra, 8 Cal.App.5th at pp. 613-614.) The offers of
proof by Pricilla and Johnny addressed neither. Pricilla’s offer of
proof consisted of a vague assertion there was a parent-child
bond, a recitation of circumstances (including the restrictions
imposed by the COVID-19 pandemic) that purportedly interfered
with creating or maintaining that bond, and references to
portions of the social worker’s reports that counsel claimed were
contradictory. None of these descriptions provided specific
evidence on the elements Pricilla and Johnny had to prove: that
they regularly visited Beautifull and that Beautifull developed
strong, positive, emotional attachments to them such that it
would be beneficial for her to continue the relationships. (See
11
In re Caden C., supra, 11 Cal.5th at pp. 632, 636.) For example,
Pricilla’s assertion she would testify about “how those visits that
did occur, in fact, went with respect to [Beautifull’s] connection
with [Pricilla]” did not address whether Pricilla visited with
Beautifull consistently or whether the visits were a positive
experience that created a substantial emotional connection. (See
Caden C., at p. 632 [in evaluating the significance of the parent-
child bond, “courts often consider how children feel about,
interact with, look to, or talk about their parents”].)
Johnny’s offer of proof, which consisted largely of excuses
for not visiting, also failed to provide any specific details. Even
his accusation the Department “stymied” his efforts to visit
Beautifull lacked substance. For example, counsel for Johnny did
not set forth specific evidence of Johnny’s attempts to contact the
social worker or the caregivers to set up visitation, nor did
counsel describe how the Department impeded those efforts.
And, like Pricilla’s offer of proof, Johnny’s did not address the
elements he needed to prove under the parental-benefit
exception. (Compare In re A.G., supra, 58 Cal.App.5th at p. 1013
[mother’s offer of proof partially complied with the specificity
requirement by stating she would testify that she maintained
continuous contact with her child and that the child said he
wanted to return home with her, and by indicating she would
submit photographs and videotapes showing they had a close
relationship]; In re Grace P., supra, 8 Cal.App.5th at pp. 610, 615
[juvenile court abused its discretion in denying a father’s request
for a contested hearing, where counsel’s offer of proof stated that
the father would testify he consistently and regularly visited his
children, who called him “papa,” and that the oldest child would
testify she “‘would be sad if he were not her father’”].)
The record in fact demonstrated both parents’ visitation
with Beautifull was minimal: Over the course of 14 months,
12
Pricilla participated in five virtual visits in 2020 and two virtual
visits in 2021; Johnny participated in one virtual visit in 2020—
hardly regular or consistent, given that the court had approved
visits at the rate of three times per week. (See In re Caden C.,
supra, 11 Cal.5th at p. 632 [“[t]he question is just whether
‘parents visit consistently,’ taking into account ‘the extent
permitted by court orders’”]; In re A.G., supra, 58 Cal.App.5th at
p. 1010 [“parent’s failure to set forth specific evidence, especially
with a record negating the parent’s regular visitation of the
minor, will justify the denial of a hearing”]; In re Grace P., supra,
8 Cal.App.5th at p. 614 [“evidence of the nature of the visits
would be ineffective in proving a beneficial parent-child
relationship, where the parent failed to maintain consistent and
frequent contact with the child”]; In re Jeanette V. (1998)
68 Cal.App.4th 811, 817 [juvenile court did not err in denying the
father an opportunity to cross-examine a social worker about the
father’s visitation “during an unspecified earlier period” because
he had not visited his child for more than one year before the
section 366.26 hearing].) The record also showed a pattern of
missed scheduled visits and unanswered messages from the
social worker to arrange visits.
Pricilla and Johnny argue counsel for Pricilla “set forth
actual evidence to be produced,” namely, “testimony of [Pricilla]
and [Bernadette] of the parent-child bond,” the “Department’s
failure to comply with a minimum visitation order,” “Covid
preventing the lack of in-person visits,” and “the caregivers’
desire to adopt [Beautifull] from the beginning.” These
statements were not evidence of the elements under section
366.26, subdivision (c)(1)(B)(i), that Pricilla and Johnny had the
burden to prove. (Compare In re A.G., supra, 58 Cal.App.5th at
pp. 1012-1013 [mother’s offer of proof “included matters that
were unquestionably relevant to the parental relationship
13
exception,” such as testimony about the activities she shared with
her child and the child’s wishes]; In re Grace P., supra,
8 Cal.App.5th at p. 610 [father’s offer of proof included a
description of his activities and conversations with his children
during his weekly visits].)
And to the extent any obstacles to visitation Pricilla and
Johnny faced were relevant to the section 366.36 hearing,
Pricilla’s offer of proof still lacked specificity. Counsel for Pricilla
did not identify any (let alone specific) evidence Pricilla would
present to substantiate the conclusory allegation the Department
did not comply with the visitation order. For example, neither
Pricilla nor Johnny pointed to any proposed testimony that the
social worker ignored calls to set up visits in the months when
the investigator could not locate the parents or that the social
worker frequently cancelled visits either parent had scheduled.
(See In re A.G., supra, 58 Cal.App.5th at p. 997 [an “‘offer of proof
should identify the specific evidence being offered (e.g., “Witness
X will testify that he heard the defendant state . . .”); and that
evidence must be admissible’”].)
Finally, Pricilla and Johnny argue Pricilla’s offer of proof
stated she “would testify that the . . . report about visitation was
incorrect and contradictory.” However, counsel for Pricilla did
not describe any specific evidence of Pricilla’s contrary version of
the frequency or quality of the visits. For example, Priscilla and
Johnny did not offer any evidence to contradict the social
worker’s reports showing a string of missed visits, such as a
visitation log indicating they actually showed up for those visits.
And, as the juvenile court commented, even if the social worker’s
reports contained inconsistent information, any such
inconsistencies would be a matter of argument, not evidence.
(See In re A.G., supra, 58 Cal.App.5th at p. 996 [“The ‘“evidence”’
14
in an offer of proof shall consist of ‘“testimony, writings, material
objects, or other things presented to the senses.”’”].)
B. The Juvenile Court Did Not Abuse Its Discretion in
Denying a Contested Hearing on the Sibling-
relationship Exception
The sibling-relationship exception applies where “[t]here
would be substantial interference with a child’s sibling
relationship, taking into consideration the nature and extent of
the relationship, including, but not limited to, whether the child
was raised with a sibling in the same home, whether the child
shared significant common experiences or has existing close and
strong bonds with a sibling, and whether ongoing contact is in
the child’s best interest, including the child’s long-term emotional
interest, as compared to the benefit of legal permanence through
adoption.” (§ 366.26, subd. (c)(1)(B)(v); see In re Celine R. (2003)
31 Cal.4th 45, 54; In re I.R. (2014) 226 Cal.App.4th 201, 213;
In re L.Y.L. (2002) 101 Cal.App.4th 942, 951.) “The purpose of
the sibling exception is to preserve long-standing sibling
relationships that serve as ‘anchors for dependent children whose
lives are in turmoil.’” (In re Elizabeth M. (2018) 19 Cal.App.5th
768, 781.)
“The parent has the burden of proving the statutory
exception applies.” (In re Elizabeth M., supra, 19 Cal.App.5th at
p. 781; see In re Megan S. (2002) 104 Cal.App.4th 247, 251-252.)
“‘To show a substantial interference with a sibling relationship
the parent . . . must show the existence of a significant sibling
relationship, the severance of which would be detrimental to the
child. Many siblings have a relationship with each other, but
would not suffer detriment if that relationship ended. If the
relationship is not sufficiently significant to cause detriment on
termination, there is no substantial interference with that
15
relationship.’” (Elizabeth M., at p. 781; see In re L.Y.L., supra,
101 Cal.App.4th at p. 952.) The juvenile court has discretion to
require the parent seeking a contested hearing on the sibling-
relationship exception to make “‘an offer of proof to clearly
identify the contested issue(s)’ prior to determining whether a
hearing is warranted.” (In re Earl L. (2004) 121 Cal.App.4th
1050, 1053.)
As with the parental-benefit exception, Pricilla’s and
Johnny’s offers of proof on the sibling-relationship exception
lacked substance and specificity. Counsel for Pricilla described
the proposed testimony in the most general terms: witnesses
“could offer testimony with respect to . . . the sibling bond
between Beautifull and her siblings.” Counsel for Johnny did not
argue that a sibling bond existed, only that Johnny wanted
Beautifull and Logan to grow up together. And neither counsel
stated the “‘“content of the answer to be elicited”’” (In re A.G.,
supra, 58 Cal.App.5th at pp. 996, 1007) from proposed witnesses
on any of the issues the court needed to consider to determine
whether the sibling-relationship exception applied. (See In re
L.Y.L., supra, 101 Cal.App.4th at p. 952 [“To determine the
significance of the sibling relationship, the court considers the
factors set forth in section 366.26, subdivision [(c)(1)(B)(v)].”].)
The court did not abuse its discretion in denying Pricilla and
Johnny a contested hearing on the sibling-relationship exception.
C. Pricilla and Johnny’s Unclean Hands Defense Is
Forfeited and Meritless
Pricilla and Johnny also argue the doctrine of unclean
hands barred the Department “from arguing a lack of bond.”
Pricilla and Johnny assert that in their offers of proof they said
they “were often unable to get visits with [Beautifull] due to the
Department’s failure to comply with the minimum number of
16
visits ordered by the juvenile court” and that the Department did
not attempt “to set up a single visit between any of the siblings.”
Pricilla and Johnny’s unclean hands argument is both forfeited
and meritless.
“Generally, the equitable doctrine of unclean hands applies
when a plaintiff has acted unconscionably, in bad faith, or
inequitably in the matter in which the plaintiff seeks relief.
[Citations.] ‘“The misconduct which brings the clean hands
doctrine into operation must relate directly to the transaction
concerning which the complaint is made, i.e., it must pertain to
the very subject matter involved and affect the equitable
relations between the litigants.”’ [Citation.] If the required
showing is made, unclean hands may be a complete defense to
legal as well as equitable causes of action.” (Salas v. Sierra
Chemical Co. (2014) 59 Cal.4th 407, 432; accord, Teacher v.
California Western School of Law (2022) 77 Cal.App.5th 111,
139.) By not raising this argument in the juvenile court, Pricilla
and Johnny forfeited it. (See In re S.B. (2004) 32 Cal.4th 1287,
1293 [“a reviewing court ordinarily will not consider a challenge
to a ruling if an objection could have been but was not made in
the trial court,” and “the appellate court’s discretion to excuse
forfeiture should be exercised rarely and only in cases presenting
an important legal issue”]; In re C.M. (2017) 15 Cal.App.5th 376,
385 [“A party may not assert theories on appeal which were not
raised in the trial court.”]; see also In re A.K. (2017)
12 Cal.App.5th 492, 500 [father forfeited his contention the child
protective agency and the juvenile court failed to assess the
17
paternal grandmother’s request for placement because he failed
to raise the issue in the juvenile court].)7
Even if they had not forfeited the argument, Pricilla and
Johnny have not demonstrated the unclean hands doctrine
applies. The Department was not seeking legal or equitable
relief; Pricilla and Johnny were seeking to prove a statutory
exception to the termination of their parental rights applied.
(Cf. People v. Palacios (2021) 67 Cal.App.5th 184, 195 [unclean
hands doctrine, which “applies to bar plaintiffs from seeking
relief,” did not apply where the People “were not seeking relief
under the proffer agreement,” but instead, the “defendant . . . was
seeking to specifically enforce the proffer agreement”].) In any
event, even if the doctrine applied in this context, the record does
not support a finding the Department prevented Pricilla or
Johnny from visiting Beautifull. To the contrary, the record
shows Pricilla and Johnny often failed to request visits, refused
to disclose their whereabouts or to meet with the investigator,
and stopped visiting altogether for a five-month period after
disposition and then for another three-month period before the
7 Pricilla and Johnny assert counsel for Pricilla “raised this
defense when she argued that it would be a miscarriage of justice
for the Department to argue that the parents were unable to
demonstrate the parent-child bond due to both COVID-19
protocols that prevented in-person visitation and third parties
preventing [Pricilla] from visiting with her child.” The record
does not reflect counsel for Pricilla stated that the Department
had unclean hands or that the Department’s wrongdoing
precluded it from arguing the parental-benefit exception did not
apply. The record also does not reflect counsel for Pricilla stated
the Department’s failure to set up sibling visitation precluded it
from arguing the sibling-relationship exception did not apply.
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selection and implementation hearing. Pricilla sometimes
cancelled or did not show up to scheduled visits.
Finally, any error the juvenile court may have committed
in allowing the Department to argue Pricilla and Johnny did not
have a bond with Beautifull was harmless. (See Cal. Const.,
art. VI, § 13; In re Celine R., supra, 31 Cal.4th at pp. 59-60
[reversal permitted “only if the reviewing court finds it
reasonably probable the result would have been more favorable to
the appealing party but for the error”]; In re T.S. (2020)
52 Cal.App.5th 503, 517-518.) Pricilla and Johnny did not offer
or say they could offer evidence that they had visited consistently
or that Beautifull formed a significant attachment to them. (See
In re Caden C., supra, 11 Cal.5th at p. 632.)
DISPOSITION
The juvenile court’s orders terminating Pricilla’s and
Johnny’s parental rights to Beautifull are affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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