79 Cal.App.5th 906
Cal. Ct. App.2022Background
- 2018 dependency petition filed after A.B., then 11, reported repeated physical and emotional abuse by father (G.B.); minor detained and reunification services provided to father for ~17 months.
- At the September 2020 section 366.26 selection hearing the juvenile court chose legal guardianship with maternal grandparents and found visitation by father would be detrimental, ordering no contact.
- At a contested six-month post-permanency review (May 5, 2021) the court heard testimony and reaffirmed the detriment finding, denying visitation but allowing father to submit correspondence via the social worker.
- At the 12-month post-permanency review (Nov. 30, 2021) father requested a contested hearing and visitation; the Department opposed and the court denied a contested hearing because father made no adequate offer of proof showing changed circumstances.
- Father appealed, arguing (1) a statutory right under Welf. & Inst. Code § 366.3 to an unfettered contested post-permanency hearing, and (2) a due process right that cannot be conditioned on making an offer of proof. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (Dept.) | Defendant's Argument (G.B.) | Held |
|---|---|---|---|
| Whether § 366.3 entitles a parent to an unfettered contested post‑permanency review hearing when the permanent plan is legal guardianship | §366.3’s notice/participation protections apply to long‑term foster care reviews; they do not create an automatic right to a contested hearing in guardianship cases | §366.3(f) gives parents notice and participation in “those hearings,” which includes six‑month post‑permanency reviews for guardianship and therefore a contested hearing | No. The court held no unqualified statutory right to a contested hearing for guardianship cases; the notice/participation language historically related to long‑term foster care reviews and does not automatically apply to guardianship reviews. |
| Whether the court may require a parent to make an offer of proof to obtain a contested post‑permanency hearing without violating due process | Requiring a preliminary offer of proof is a permissible, case‑sensitive way to protect the child’s stability and avoid repetitive, unnecessary evidentiary hearings; post‑permanency interests favor child stability | Conditioning a contested hearing on an offer of proof denies an essential due process right to confront evidence and to challenge agency recommendations | No due process violation. The court may require a specific, adequate offer of proof in this post‑permanency guardianship context; father’s proffer was insufficient. |
| Whether denying visitation (and maintaining the detriment finding) was an abuse of discretion | Prior detriment finding was supported by record (father’s abusive conduct, harassment of staff, destabilizing communications) and was reaffirmed after a full evidentiary hearing; continued denial protects child’s stability | Father sought supervised or therapeutic visits and argued changed circumstances; minor had at times expressed interest in seeing father | Affirmed. The court reasonably relied on the prior detriment finding, the May 2021 contested hearing, the child’s mental health concerns, and father’s failure to show rehabilitative change. |
| Whether precedents about post‑permanency rights in long‑term foster care (Kelly D., J.F., Josiah S.) control here | Those cases apply to long‑term foster care because the statute treats that status differently; they do not control guardianship cases | Father contends their principles (notice/participation and limits on offer‑of‑proof conditioning) apply broadly to all post‑permanency reviews | The court held those precedents are not controlling for guardianship reviews due to statutory distinctions and legislative history. |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (parents’ fundamental liberty interest in child custody)
- In re Caden C., 11 Cal.5th 614 (purpose of § 366.26: permanency, not reunification)
- In re Celine R., 31 Cal.4th 45 (adoption is the preferred permanency option)
- In re C.W., 33 Cal.App.5th 835 (overview of post‑permanency review scheme under § 366.3)
- In re Kelly D., 82 Cal.App.4th 433 (parents’ right to contested hearing applied in long‑term foster care context)
- J.F. v. Superior Court (In re J.F.), 196 Cal.App.4th 321 (post‑permanency participation in long‑term foster care reviews; rejected conditioning on offer of proof)
- Maricela C. v. Superior Court, 66 Cal.App.4th 1138 (court may require offer of proof for contested post‑permanency hearing in some contexts)
- In re Thomas R., 145 Cal.App.4th 726 (limits on requiring offers of proof where the agency bears the burden)
- In re A.B., 230 Cal.App.4th 1420 (due process is flexible in dependency proceedings)