In re P.C., B214788 (Cal. App. 9/11/2009)

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In re P.C., a Person Coming Under the Juvenile Court Law LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.C., Objector and Appellant.

B214788

Court of Appeals of California, Second Appellate District, Division Five.

September 11, 2009

Not to be Published in the Official Reports

Appeal from an order of the Superior Court of Los Angeles County, No. CK39731, Marilyn K. Martinez, Commissioner, (pursuant to Cal. Const., art I, § 21). Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Objector and Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Fred Klink, Senior Deputy County Counsel for Plaintiff and Respondent.

MOSK, J.

INTRODUCTION

R.C. (mother), mother of three-year-old P.C., appeals from the juvenile court's order terminating her parental rights under Welfare and Institutions Code section 366.26.¹ Mother contends that the juvenile court erred when it denied her a contested selection and implementation hearing, arguing that she made a sufficient offer of proof as to the application of the parental visitation exception to adoption (§ 366.26, subd. (c)(1)(B)(i) (§ 366.26(c)(1)(B)(i)), and that the juvenile court improperly required an offer of proof from mother on the issue of P.C.'s adoptability. We hold that the juvenile court did not err in denying mother a contested hearing on the parental visitation exception because mother's offer of proof did not warrant a contested hearing. We also hold that the juvenile court erred when it required an offer of proof from mother on the issue of P.C.'s adoptability because the Department of Children and Family Services (Department) has the burden of proof on adoptability, but that the error was harmless beyond a reasonable doubt.

BACKGROUND²

On August 21, 2006, the Department filed a petition pursuant to section 300 on P.C.'s behalf. As relevant, the petition alleged the following: in January 2006, mother and R.W., P.C.'s father (father), engaged in a violent altercation in which father physically assaulted mother; father had been incarcerated for battery since January 2006; mother had a history of domestic violence with her male companions; mother had a history of mental and emotional problems, including depression and suicidal ideation, that periodically rendered her incapable of providing P.C. with regular care and supervision; father had a history of substance abuse; P.C.'s siblings, R.C. and J.L., were prior dependents of the juvenile court due to mother's mental and emotional problems and her domestic violence with her male companion, R.L.; and mother failed to comply with the juvenile court's orders and failed to reunify with R.C. and J.L. who had received permanent placement services.

The juvenile court found a prima facie case that P.C. was a person described by section 300 and ordered P.C. to be detained. The juvenile court ordered the Department to provide mother with family reunification services and referrals for drug counseling, drug testing, parenting classes, and domestic violence counseling. The juvenile court also ordered mother to undergo a psychological evaluation. The juvenile court granted mother weekly monitored visits of three hours.

The juvenile court placed P.C. with U.C.³ P.C. has ongoing medical and developmental needs. P.C. has a chromosome defect that has rendered him medically fragile and has experienced issues with reflux, lack of urination, and asthma-like symptoms. He went to the hospital several times to have his kidneys examined. P.C. receives Regional Center services, including occupational therapy, physical therapy, and speech therapy. Through the Regional Center, he was to be evaluated to determine the presence of mental retardation. At age two, P.C. reportedly was functioning at the level of a four-month-old. He needs 24-hour supervision. U.C. reportedly provided excellent care and supervision for P.C, providing P.C. with a safe and stable home and ensuring that P.C.'s emotional and medical needs were met on a consistent basis. P.C. appeared to be happy and thriving in his placement with U.C. After caring for P.C., learning about his chromosome defect, and deciding that she could handle caring for P.C., U.C. wanted to adopt P.C.

On November 8, 2006, the juvenile court sustained the section 300 petition. On October 6, 2008, after mother had received "extensive" family reunification services for over two years, the juvenile court terminated mother's family reunification services. The juvenile court set the matter for a selection and implementation hearing on February 2, 2009.

At the February 2, 2009, selection and implementation hearing, mother requested that the juvenile court set the case for a contest. The juvenile court asked mother's counsel for an offer of proof. Counsel responded, "Your Honor, the mother has two issues. She would be testifying as to some concerns that she has observed regarding the care of the child with the prospective adoptive mother and she would also be testifying and it's our—it would be our argument that she had a bond with the child and it would be detrimental to terminate parental rights. She's been visiting regularly and she would be testifying as to the quality of those visits."

The juvenile court asked counsel to explain what she meant when she stated that mother visited regularly. Counsel stated that mother had visited P.C. once a week from the inception of the case with few missed visits.

The juvenile court asked counsel to set forth mother's concern about the care P.C. was receiving. Counsel responded that P.C.'s caretaker had yelled at mother and been "threatening toward" her in front of P.C. Mother had expressed these concerns to the social worker "many times."

The juvenile court stated, "I don't think I'm inclined to set the matter for contest and I'll tell you why so you can argue that further and so you may be able to persuade me otherwise. The social worker makes regular contact with this child. This child, of course, has special needs and the social worker has concerns. Opines that this child is very well cared for by the caretaker. So whatever the concerns of the mother are, they are not noted by the person who is professionally responsible to insure the child's well-being; and, second of all, the issue is not whether or not the mother has a bond with the child."

Counsel responded that mother would argue that P.C. has a bond with mother and that the caretaker does not have an emotional attachment to P.C. Counsel acknowledged that "all the reports" in the case indicated that P.C. was well cared for by the caretaker, but stated that although mother believed that the caretaker met P.C.'s basic medical needs, mother believed that the caretaker's incentive was financial. Counsel stated that mother believed that she could provide "examples that she has witnessed of those concerns" if permitted to testify.

The juvenile court stated that mother should have informed the social worker and her counsel of such concerns. Counsel responded, "She has, your Honor, and we have brought this up at previous court dates." Counsel for the Department stated, "And they have been addressed."

The juvenile court stated to mother's counsel that "visitation in and of itself is insufficient to persuade the court that it will be detrimental to terminate parental rights or that a relationship exists," and requested that mother's counsel expand on her offer of proof concerning the nature of the relationship between P.C. and mother and the detriment that P.C. would suffer if parental rights were terminated. After conferring with mother, mother's counsel stated that P.C. "has cried when he's left. Taken out of room when she is there and has cried and she doesn't believe that the worker has reported the bond that he has with her in the reports."

The juvenile court found that mother had "on some regular basis advised the social worker of a variety of concerns. Even a DCFS nurse was asked to be involved and [mother's] concern has not been substantiated."

The juvenile court stated that sufficient evidence had not been presented to persuade it that P.C. had a relationship with mother such that it would be detrimental to terminate parental rights. The juvenile court found, by clear and convincing evidence, that it was likely that P.C. would be adopted.

As the juvenile court was about to recess the case briefly to try to obtain P.C.'s birth certificate, mother's counsel stated that mother did not believe that the social worker had been honest in the reports and that the social worker had treated mother unfairly. The juvenile court responded that every time it considered family reunification, it found that reasonable efforts towards family reunification had been provided. If it had not made such findings, the juvenile court stated, it continued reunification services until it could make the necessary findings. The juvenile court continued the matter to March 11, 2009, for receipt of P.C.'s birth certificate.

On March 11, 2009, the juvenile court stated that it previously made findings as to the termination of parental rights and was inclined to make the findings again and the orders terminating parental rights. Mother's counsel stated that mother objected, that the reasons for the objection were stated at the previous hearing that included mother's concerns about the caretaker and her feelings for P.C.

The juvenile court stated that the social worker had provided mother with a number of dates to have a "kind of an exit-type visit or last visit" and that mother had not accepted any of the dates, stating that she would hire her own agency to monitor a visit. Mother had not provided the social worker with information concerning such a monitor. The social worker continued to make herself available to monitor a visit, but mother had not been agreeable.

The juvenile court then found,...