In re Rolando B. CA2/7

Filed 4/17/13 In re Rolando B. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ROLANDO B., a Person Coming B244300
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK84705)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
PATRICIA S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Terry
Troung, Juvenile Court Referee. Affirmed.
Thomas S. Szakall, under appointment by the Court of Appeal, for Patricia S.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jessica S. Mitchell, Senior Associate County Counsel, for Plaintiff and Respondent.
____________________
Patricia S., the mother of two-year-old Rolando B., appeals from the juvenile
court’s order terminating her parental rights pursuant to Welfare and Institutions Code
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section 366.26. Patricia contends the court erred when it refused her request for a
hearing to demonstrate her bond with Rolando warranted application of the parent-child
relationship exception to the termination of parental rights provided in section 366.26,
subdivision (c)(1)(B)(i). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initiation of Dependency Proceedings
Rolando was born in July 2010 with a positive toxicology screen for
methamphetamine. Patricia, who had a history with the Los Angeles County Department
of Children and Family Services (Department) in connection with her two other children,
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then 14-year-old Josephine T. and nine-year-old A.T., also tested positive for
methamphetamine. Patricia agreed to participate in a voluntary family maintenance
program that included drug counseling and parenting classes and required drug and
alcohol testing.
On October 4, 2010 a Department social worker contacted the maternal
grandmother with whom Patricia and the children were living to see how they were
doing. The maternal grandmother reported Patricia had been under the influence of
alcohol earlier that week while she was at home with the children and “was out of
control.” The maternal grandmother called the police. When they arrived, Patricia was
sitting on the kitchen floor where she had urinated several times. The maternal
grandmother told the social worker Patricia had a serious drug problem and needed help.
The next day the social worker interviewed Patricia, Josephine and A.T. Patricia denied
she had a problem with alcohol. Josephine said she wanted her mother to get treatment
1 Statutory references are to the Welfare and Institutions Code.
2 Between April 2005 and July 2010 four referrals about Patricia had been made
alleging general neglect and one for physical abuse. Two of the general neglect referrals
were found substantiated.
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because she had been abusing alcohol for many years, A.T. always “covered” for Patricia
and Josephine wanted to remain with the maternal grandmother while her mother
received treatment. A.T. denied Patricia was intoxicated when the police came to the
house.
A team decision meeting was held on October 13, 2010 with the Department,
Patricia, the maternal grandmother and Jose T., the presumed father of Josephine and
A.T. At the conclusion of the meeting Patricia agreed Josephine and A.T. would be
placed with Jose and Rolando with the maternal grandmother while Patricia attended a
drug treatment program. When Josephine was told she would be living with her father,
she became very upset.
On October 18, 2010 the Department filed a petition to declare Rolando, Josephine
and A.T. dependent children of the juvenile court under section 300, subdivisions (a), (b)
and (g), alleging serious physical harm, failure to protect and no provision for support
based on the history of violent altercations between Patricia and Rolando’s father,
Patricia’s history of substance abuse and her current use of alcohol and
methamphetamine. At the detention hearing the court found a prima facie case for
detaining the children and ordered Rolando placed in the home of the maternal
grandmother, Josephine and A.T. placed with Jose, and Patricia to have monitored
visitation with all three children.
In a November 18, 2010 jurisdiction/disposition report, the Department noted
Patricia had failed to comply with her case plan, denied she abused drugs and alcohol and
blamed her mother for reporting her to the Department. The report stated Josephine and
A.T., who were very protective of their mother, wanted to live with her and visit their
father. Additionally, the maternal grandmother reported Patricia came to the home on
November 8, 2010, apparently under the influence of drugs or alcohol, became violent
and broke two windows.
At the December 8, 2010 jurisdiction and disposition hearing the court sustained
an amended version of the section 300 petition after Patricia pleaded no contest to the
allegations. The court declared the children dependents of the court and ordered
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Josephine and A.T. placed with Jose and Rolando suitably placed by the Department. It
appears Rolando was placed with the maternal grandmother. The court ordered family
reunification services and visitation for Patricia and directed that she participate in
individual counseling, parenting classes, drug abuse treatment and random drug testing.
2. The Review Hearings and Reunification Efforts
In an interim report as of February 10, 2011 the Department stated Josephine had
been visiting Rolando, who was still living with the maternal grandmother, and acting
appropriately, but had failed to comply with the court’s orders, including that she enroll
in a drug treatment program. She had twice tested positive for amphetamines. The report
also noted Josephine, used to living in a household with no rules or supervision, had been
refusing to follow Jose’s rules, repeatedly threatening to run away or hurt herself. The
Department recommended family reunification services be terminated for Patricia with
respect to Josephine and A.T., but continue for Rolando.
Josephine committed suicide on April 25, 2011. In a report prepared for the
June 2, 2011 six-month review hearing the Department informed the court Patricia, who
had been admitted to an inpatient treatment program in early March 2011, left the
program against the advice of the staff after she received the news. Although Patricia
returned to the program in mid-May 2011, the Department recommended reunification
services be terminated because Patricia’s actions did not show she was committed to
reunification. The court terminated jurisdiction as to Josephine and set a contested
hearing for July 21, 2011. At the contested hearing the court ordered continued family
reunification services based on progress Patricia had made in her drug treatment program
and the Department’s revised recommendation
For the 12-month review hearing on December 1, 2011 the Department again
recommended reunification services be terminated. Although the maternal grandmother
had reported Patricia’s visits with Rolando and A.T. were going well, Patricia had failed
to participate in drug testing on four occasions after she was released from the inpatient
drug treatment program. In addition, she was terminated from an outpatient program
after she had failed to comply with its rules. The Department also noted Rolando had
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developed a strong bond with the maternal grandmother—during visits with Patricia he
would seek out the maternal grandmother when he cried or wanted something—and she
was committed to adopting him.
At the 12-month review hearing the court terminated its jurisdiction over A.T.,
ordering sole physical custody to Jose and joint legal custody to Jose and Patricia. The
court set a contested hearing regarding the Department’s recommendation reunification
services be terminated for Patricia and Rolando and ordered continued monitored
visitation for a minimum of four hours per week.
On January 9, 2012 the Department reported Patricia had failed to show up for
testing on three dates in December 2011. Nevertheless, at the January 11, 2012 contested
hearing the court ordered continued reunification services, explaining, “The only reason
why I am going to give you additional time is because your son is with his grandmother,
and, most likely, the plan is going to be legal guardianship. So it doesn’t hurt him for me
to give you a little more time because I know what the plan will be. But if your son had
been in foster care, I would not be doing this ma’am. I would be looking at terminating
your parental rights. You messed up.”
On February 14, 2012 Patricia tested positive for alcohol after a random test.
When the Department social worker confronted her during a telephone call, Patricia
claimed she tested positive because she had been sick and drank NyQuil. The social
worker asked Patricia to come to the Department office for a meeting. Patricia failed to
attend and did not return several telephone calls. Patricia’s individual therapy case
manager told the social worker Patricia’s case was going to be terminated because she
had not attended therapy since enrollment in early January 2012. Patricia’s drug
counselor indicated Patricia had been attending Alcoholics Anonymous meetings and
admitted she had drunk wine the day she tested positive for alcohol. When the social
worker finally met with Patricia in early April 2012, Patricia continued to deny drinking
alcohol and claimed she was in compliance with the court’s orders. In its April 20, 2012
report the Department yet again recommended termination of family reunification
services.
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The court terminated reunification services at the May 23, 2012 contested 18-
month review hearing. The court explained, “At this time, time has run out for [Patricia].
She has had the benefit of 18 months in order to reunify with [Rolando] even though he
was under the age of three when he entered the system.” The court permitted
unmonitored visits in the maternal grandmother’s home if Patricia was in compliance
with her case plan and set a section 366.26 selection and implementation hearing, which
Patricia was ordered to attend.
3. The Section 366.26 Selection and Implementation Hearing
For the September 20, 2012 section 366.26 hearing the Department reported the
adoption home study for Rolando had been approved, Rolando was attached to the
maternal grandmother and she was committed to adopting him. The Department
recommended Rolando remain suitably placed with her, adoption be completed and
Patricia’s parental rights be terminated.
Patricia did not appear at the section 366.26 selection and implementation hearing.
Her attorney asked the matter be set for a contested hearing. In response to the court’s
request for an offer of proof, counsel stated, “Apparently, mother has been visiting
regularly, and I’d like to call her to question her regarding [the parental] bond exception.”
The court denied the request stating, “Well, she was noticed for today’s proceeding; she’s
not here.” The court then terminated Patricia’s parental rights and transferred Rolando’s
care, custody and control to the Department to complete adoption by the maternal
grandmother. Patricia filed a timely notice of appeal.
DISCUSSION
1. Governing Law
Section 366.26 directs the juvenile court in selecting and implementing a
permanent placement plan for a dependent child. The express purpose of a section
366.26 hearing is “to provide stable, permanent homes” for dependent children.
(§ 366.26, subd. (b).) Once the court has decided to end parent-child reunification
services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1);
In re Celine R. (2003) 31 Cal.4th 45, 53[“[I]f the child is adoptable . . . adoption is the
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norm. Indeed, the court must order adoption and its necessary consequence, termination
of parental rights, unless one of the specified circumstances provides a compelling reason
for finding that termination of parental rights would be detrimental to the child.”]; see
In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found
unsuccessful, the state has a “compelling” interest in “providing stable, permanent homes
for children who have been removed from parental custody” and the court then must
“concentrate its efforts . . . on the child’s placement and well-being, rather than on a
parent’s challenge to a custody order”].) When the court finds by clear and convincing
evidence the child is likely to be adopted, the statute mandates termination of parental
rights unless the parent opposing termination can demonstrate one of six enumerated
exceptions applies. (§ 366.26, subd. (c)(1)(B); see In re Matthew C. (1993) 6 Cal.4th
386, 392 [when child adoptable and declining to apply one of the statutory exceptions
would not cause detriment to the child, the decision to terminate parental rights is
relatively automatic].)
To satisfy the subdivision (c)(1)(B)(i) exception to termination a parent must
prove he or she has “maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i); see In re
Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden to show that the
statutory exception applies”].) The “benefit” prong of the exception requires the parent
to prove his or her relationship with the child “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 [“the
court balances the strength and quality of the natural parent/child relationship in a
tenuous placement against the security and the sense of belonging a new family would
confer”].) No matter how loving and frequent the contact, and notwithstanding the
existence of an “emotional bond” with the child, “the parents must show they occupy ‘a
parental role’ in the child’s life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108;
see In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The relationship that gives rise
to this exception to the statutory preference for adoption “characteristically aris[es] from
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day-to-day interaction, companionship and shared experiences. Day-to-day contact is not
necessarily required, although it is typical in a parent-child relationship.” (In re Casey D.
(1999) 70 Cal.App.4th 38, 51.) Moreover, “[b]ecause a section 366.26 hearing occurs
only after the court has repeatedly found the parent unable to meet the child’s needs, it is
only in an extraordinary case that preservation of the parent’s rights will prevail over the
Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1350.)
Although a parent has a right to due process at a section 366.26 hearing, the court
can require an offer of proof before setting a contested hearing on the parent-child
relationship exception to termination of parental rights. (In re Tamika T. (2002)
97 Cal.App.4th 1114, 1122 [“court can require an offer of proof to insure that before
limited judicial and attorney resources are committed to a hearing on the issue, mother
had evidence of significant probative value”].) “A proper offer of proof gives the trial
court an opportunity to determine if, in fact, there really is a contested issue of fact. The
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. If the trial court finds the offer of
proof insufficient and declines to hold a contested hearing, the issue is preserved for
appeal so that a reviewing court can determine error and assess prejudice.” (Id. at
p. 1124.)
2. Any Error in Failing To Hold a Contested Hearing Was Harmless
Patricia argues the juvenile court erred in refusing to set a contested 366.26
hearing merely because she failed to appear in court on the scheduled date. In support of
this contention Patricia emphasizes the court did not expressly find inadequate her offer
of proof concerning the parent-child relationship exception to termination of parental
rights.
We agree it would be error to deny a contested hearing solely on the basis of
Patricia’s unexplained absence. However, a reasonable inference from the record is that
Patricia’s failure to attend the hearing was not the animating reason for the court’s denial
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of her counsel’s request since it first asked for an offer of proof. Rather, it appears the
court concluded no hearing was necessary in light of the wholly inadequate offer.
Even if the court did improperly deny Patricia’s request for a hearing solely
because she did not appear on September 20, 2012, moreover, any error was harmless.
Although the Department reported Patricia had regularly visited Rolando three to four
days a week and the two were affectionate, the parent-child relationship exception to
termination requires a significantly greater showing. In her offer of proof Patricia’s
counsel did not mention, let alone set forth the evidence to be produced, that Patricia
could establish she occupied a parental role in Rolando’s life or that any benefit of a
continued relationship with her would outweigh the benefits of permanent placement
with the maternal grandmother with whom Rolando had lived essentially all of his young
life and with whom he was closely bonded. Patricia’s suggestion it was the court’s
responsibility to question her counsel to essentially draw out an adequate offer of proof is
simply wrong. Indeed, the record reflects the inadequate offer of proof accurately
mirrored the actual state of the evidence: There was no basis upon which the court could
conclude this was one of those extraordinary cases in which a continued tenuous
relationship between mother and child outweighed the well being Rolando would gain in
a permanent home with his grandmother.
DISPOSITION
The order is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J. JACKSON, J.
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