Monterey Cnty. Dep't of Soc. & Emp't Servs. v. S.B. (In re A.G.)

58 Cal.App.5th 973

273 Cal.Rptr.3d 36

IN RE A.G., a Person Coming Under the Juvenile Court Law.

Monterey County Department of Social and Employment Services, Plaintiff and Respondent,

v.S.B., Defendant and Appellant.

H047951

Court of Appeal, Sixth District, California.

Filed December 18, 2020

Leslie J. Girard, County Counsel, Annette M. Cutino, Deputy County Counsel, William M. Litt, Deputy County Counsel, for Plaintiff and Respondent.

Leslie A. Barry, Huntington Beach, under appointment by the Court of Appeal, for Defendant and Appellant.

BAMATTRE-MANOUKIAN, J.

On July 24, 2018, the Monterey County Department of Social and Employment Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (b)(1)¹ relative to a boy, A.G. (the minor), who was then four years old. S.B. (mother) is the minor's mother, and the minor's father is deceased. The minor was placed into protective custody after mother, twice in successive days, drove a car in which the minor was a passenger while she was under the influence. The Department alleged that mother had a "severe" ongoing substance abuse problem that prevented her from adequately caring for the minor. The juvenile court declared the minor a dependent child, and he was placed in out-of-home foster care. Mother received family reunification services, which were terminated at the 12-month review hearing in September 2019, when the minor was five years old. At that time, the court scheduled a selection and implementation hearing pursuant to section 366.26 (366.26 hearing).

At the initial 366.26 hearing on January 14, 2020, mother requested a contested hearing on the potential application of two statutory exceptions to adoption and the termination of parental rights, namely, (1) the beneficial parental relationship (see § 366.26, subd. (c)(1)(B)(i)), and (2) the sibling relationship (see id. , subd. (c)(1)(B)(v)). The juvenile court requested that mother provide an offer of proof concerning the evidence she intended to present in support of the two exceptions. Mother, through her counsel, made an oral offer of proof, and the court granted mother leave to file a supplemental written offer of proof. Mother submitted a written offer of proof, which was opposed by the Department and by counsel for the minor. At a further hearing on January 28, 2020, the court found mother's offer of proof insufficient and denied her request for a contested hearing on her claimed exceptions to adoption. After conducting a 366.26 hearing, the juvenile court found the minor's continued out-of-home placement was necessary, the minor was adoptable; and he was placed in a prospective adoptive home. The court ordered that adoption was the permanent plan for the minor, and it terminated mother's parental rights.

Mother filed an appeal from the order after the 366.26 hearing. She argues that the juvenile court denied her due process by rejecting her request for a contested hearing concerning the potential applicability of the parental relationship exception to adoption.² Mother contends that her written offer of proof was a sufficient showing of proposed evidence of her regular contact with the minor and the existence of a beneficial parent-child relationship to warrant the granting of a hearing on the parental relationship exception.

The juvenile court may, in its discretion and consistent with due process, condition a contested hearing concerning the parental relationship exception upon a parent's submission of an offer of proof. ( In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122, 118 Cal.Rptr.2d 873 ( Tamika T. ).) The parent's offer of proof must be adequate in scope and must be specific. We hold that the offer of proof must address two components of the parental relationship exception, namely, the parent's regular contact with the child, and the existence of a beneficial parent-child relationship. We hold further that a parent's offer of proof need not address the third component of the parental relationship exception, namely, " ‘whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child." ’

[Citations.]" ( In re Caden C. (2019) 34 Cal App.5th 87, 104, 245 Cal.Rptr.3d 797 ( Caden C. ), review granted Jul. 24, 2019, S255839.) A legally sufficient offer of proof by a parent must also be one that is "specific, setting forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued." ( Tamika T., supra , at p. 1124, 118 Cal.Rptr.2d 873.) Here, the scope of mother's written offer of proof was adequate, addressing both her regular contact with the minor and the existence of a beneficial parent-child relationship. And her proffer, while imperfect, included some relevant, admissible evidence in support of those two components of the parental relationship exception. Indeed, the Department conceded below that mother had satisfied the regular contact element.

Although at the stage of dependency proceedings involving the 366.26 hearing, "the focus" is upon "the needs of the child for permanency and stability" ( In re Marilyn H. (1993) 5 Cal.4th 295, 309, 19 Cal.Rptr.2d 544, 851 P.2d 826 ), it is also in the child's best interests for the parent to be given the opportunity to establish the parental relationship exception to adoption through probative, relevant, and admissible evidence as proposed in an offer of proof. Because the termination of parental rights is at stake, the juvenile court, particularly where the parent's regular contact with the child is not in dispute, should exercise caution before denying the parent a contested hearing and should therefore construe the parent's offer of proof liberally in favor of its sufficiency. (See In re Grace P. (2017) 8 Cal.App.5th 605, 614-615, 213 Cal.Rptr.3d 714 ( Grace P. ).)

It is not clear from the record here whether the juvenile court properly exercised its discretion (1) by requiring that mother address in her offer of proof only two of the three components of the parental relationship exception, or required her to address all three components; and (2) in addressing whether the proffer met the specificity requirements of Tamika T., supra , 97 Cal.App.4th at page 1124, 118 Cal.Rptr.2d 873, construed the offer of proof liberally in favor of deeming it sufficient to warrant the granting of a hearing. We conclude that, in the interests of justice and in furtherance of the minor's best interests, the juvenile court should further consider mother's request for a contested hearing concerning the parental relationship exception to adoption.

We will therefore reverse and remand the case to the juvenile court with directions that it, consistent with this opinion, further consider the legal sufficiency of mother's offer of proof in support of the beneficial parental relationship exception. The court shall permit further argument and, in its discretion, may allow mother the opportunity to amend her prior offer of proof with any specific evidence she believes she can produce that is consistent with her prior oral and written offers of proof to assist the court's determination of whether her proffer is "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, 118 Cal.Rptr.2d 873.) If the juvenile court concludes that the denial of a contested hearing is appropriate, in order to permit meaningful appellate review, it shall specify its reasons for determining that mother's offer of proof is not legally sufficient.

I. FACTS AND PROCEDURAL HISTORY

A. The Minor's Detention (July 2018)

On July 24, 2018, the Department filed a petition under section 300, subdivision (b)(1) relative to the minor, who was then four years old. Prior to the Department's intervention, the minor was living with mother. The minor's father, J.G., was deceased. Mother had two older daughters who resided with the maternal grandparents at the time the petition was filed; they did not need the protection of the juvenile court.

It was alleged that mother had an ongoing substance abuse problem. Since February 2018, she had been living at Pueblo Del Mar, a sober living environment/transitional housing program. She had tested positive for amphetamine and methamphetamine on July 9, 2018, and she was reportedly associating with people using drugs. On July 19, mother drove under the influence with the minor in the car. She had been observed smoking methamphetamine that evening. The next day, mother drove under the influence to Genesis House, a drug treatment facility, again with the minor in the car; she had a container of vodka and Kool Aid in the car. It was also reported that mother left the minor alone in the car on occasions to go gambling. The Department noted that the minor had been observed to mimic mother's aggressive behaviors by "telling people to ‘fuck off’ and ‘flipping them off.’ "

The Department met with mother at Genesis House on July 20. Mother presented as very agitated, and she "was belligerent and uncooperative with the social worker." She admitted that she had smoked methamphetamine the night before and had drunk alcohol that morning. The Genesis House program director indicated that mother would be allowed into the residential treatment program—in which mother had previously participated before transitioning to Pueblo Del Mar—but that the minor could not stay with her because she was unable to care for him.

It was also reported that there had been 10 referrals to the Department regarding the family over the past 10 years, due to mother's substance abuse and untreated mental health issues. Her problems included use of methamphetamine while pregnant with the minor, driving under the influence with her children in the car, and aggressive behavior in the children's presence.

The Department summarized: "The mother has a severe substance...