In re A.G., a Person Coming Under the Juvenile Court Law.
H047951
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 12/18/20
CERTIFIED FOR PUBLICATION; (Monterey County Super. Ct. No. 18JD000104)
MONTEREY COUNTY DEPARTMENT OF SOCIAL AND EMPLOYMENT SERVICES, Plaintiff and Respondent, v. S.B., Defendant and Appellant.
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
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
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
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 (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 (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.) 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), 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 (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, 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 beneficiаl 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.) 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
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.‘”
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 abuse history that impairs her ability to provide adequate care, supervision and protection for the child. Despite completing drug treatment, the mother placed the child under great risk of physical harm or death by driving with him while she was under the influence of alcohol and other drugs on at least two occasions.” The Department advised further that mother had a criminal history (unlicensed driving, transportation/sale of controlled substances, domestic violence, and forgery) that impaired her ability to adequately care, supervise, and protect the minor.
On July 25, the juvenile court ordered the minor detained with temporary placement vested with the Department.
B. Jurisdiction/Disposition Hearing (August 2018)
In its jurisdiction/disposition hearing report, the Department reported that the minor was residing with a foster family in Salinas that was a concurrent home, and that he appeared to be comfortable in that placement. The minor was able to express himself well for a four-year-old, and he indicated that mother was “the ‘only one there for [him]’ and that he look[ed] forward to his visits to give his mother ‘huggies and kisses.‘” Supervised visitation between mother and the minor had gone well, and after the initial visit, the Dеpartment increased visitation to twice a week for a total of two hours. Mother arrived on time for the visits and came prepared with snacks and activities. She had demonstrated that she had good parenting skills when she was sober, and that she appeared to have a healthy attachment to the minor. Mother also requested that the minor
be permitted to visit her two half-sisters, and the Department was proceeding to schedule such visitation.
It was reported that mother had a good relationship with her counselors at Genesis House, and she was attending Narcotics Anonymous (NA) meetings.
At the uncontested jurisdiction/disposition hearing on August 28, the juvenile court found the allegations of the petition true and that the minor was a person described under
C. Six-Month Review (February 2019)
In a six-month review hearing report, the Department advised that the minor continued to live in a concurrent foster home in Salinas. The minor said that he felt happy in his placement but that he wanted to live with mother.
The Department reported that mother had been discharged from the sober living environment (SLE) in which she had resided “on February 14, 2019[,] following numerous relapses.” While staying at Genesis House, she had negative drug tests in 2018 on September 15 and October 6. She had failed drug tests on November 21, 2018, January 14 and 29, 2019, and Februаry 12, 2019, testing positive for methamphetamine, and she had failed to appear for a scheduled drug test on February 4, 2019. She attended
NA meetings inconsistently,3 telling the social worker on different occasions that she did not see the utility of NA meetings and indicating the 12-Step Program “doesn‘t work.” The social worker reported that “mother has stated she recognized her triggers and ‘knows what to do‘[;] however[, she] has not been able to demonstrate these skills . . . [On] January 29 2019, the Department talked with the mother regarding the importance of sharing with the team what would work to help her stay sober[;] however, she was unable to vocalize any strategies.”
Mother had completed a mental health assessment in October 2018. She “was diagnosed with Major Depressive Disorder and Substance Abuse Disorder.” Mother was assigned to a therapist and attended five sessions between
Mother completed a parent education group course in December 2018. The Department advised that mother “had maintained [throughout the review period] strong communication with [the case worker] as she often call[ed] and text message[d] multiple times per week sharing her day-to-day activities and struggles.”
Mother attended supervised visits with the minor two times per week, having progressed from once a week in October 2018 after completing the Genesis House recovery program. The visits had gone well, and mother had been observed validating the minor‘s feelings and engaging in age-appropriate activities with the minor, including reading, drawing, and playing. Visits were moved to the maternal grandmother‘s home in November 2018 to permit visits with the minor‘s two sisters. Because of mother‘s
relapses, the Department in February 2019 modified visitation to resume fully supervised visits.
The Department concluded that mother had not shown she was motivated to follow through with her case plan in that, although she acknowledged her problems with methamphetamine and alcohol, she had failed to actively participate in the recovery services available to address those problems. It recommended that the minor continue in out-of-home placement, and that mother‘s reunification services continue.
At the six-month review hearing on February 26, 2019, the juvenile court adopted the Department‘s recommendations and found that continued need for protective care of the minor was required.
D. Twelve-Month Review (September 2019)
In the Department‘s 12-month review hearing report, it advised the court that the minor continued to reside and do well in a concurrent licensed foster home in Salinas. He had expressed feelings of being happy in his foster home. The minor participated in weekly therapy. It was reported that he was “‘preoccupied with his mother‘s well-being’ and ha[d] taken a role of being the caregiver to his mother as he [sought] reassurance that she [would] be safe once visits [were] over.” The Department also reported that the minor had “struggle[d] with trusting adults” and had “difficulty expressing his emotions and feelings during therapy.”
On March 20, 2019, while mother was staying at Genesis House, she had a negative drug test. She left the facility shortly afterward. After the case
recovery facility, Door To Hope. Mother completed the hair follicle screening on August 8 with results that were inconclusive for amphetamines and methamphetamines. Mother provided the Department with drug screen results from Door to Hope on August 11 showing negative results for all substances. At the time, mother was attending four to six NA/AA (Alcoholics Anonymous) meetings per weеk.
The Department reported that mother had been assigned to a Children‘s Behavioral Health therapist, but that her attendance had been “‘spotty.‘” She had failed to show up for appointments for several weeks during the review period. Mother and the therapist agreed that therapy would not occur if mother were under the influence; mother reported that several sessions did not take place because of this agreement. The Department reported that mother was not always honest with her therapist regarding her drug use.
At an April 15 team meeting, the Department advised mother of its concerns regarding the legal time frame mother had with respect to the dependency proceedings and her lack of commitment to available recovery services. Mother told the Department that “‘there is not much progress‘” to report concerning her sobriety. When asked what the Department could do to support her, mother responded “‘there‘s nothing you guys can do[;] you have done enough.‘” She also told the representatives of the Department: “‘I am not doing another program. Otherwise I would live at a fucken program, hearing the same shit over and over, doesn‘t help me . . . meetings don‘t work for me . . . I don‘t have to stay clean to get my son[.] I am not going to jail; I am not on probation. . . .‘”
In a team meeting on July 16, the social worker observed that mother “appeared to be in a better space as she was alert and engaged in discussion topics, and [she] was open to feedback about the Department‘s concerns regarding her lack of engagement in recommended services during this dependency case.” Mother advised that she had been “‘clean’ since July 4, 2019.” She had not been going to meetings, but she said she “was ‘going to try.‘” The Department representatives advised mother at the meeting that
“based on the mother‘s inconsistencies in recovery services throughout the dependency case, and continued relapses, the Department had no option but to recommend termination of reunification services.”
Mother missed consecutive visits for two weeks in May, and the Department reduced visits to once per week until mother improved her behavior during visits. On June 4, the visitation supervisors were required to intervene after the minor took a lighter from mother‘s purse. Mother told the minor, “[T]here‘s nothing wrong with that.” At no time did mother tell the minor that he should not touch the lighter. During the same visit, mother brought a pair of “play handcuffs to play with her son pretending to be arrested, saying, ‘I didn‘t do it.‘” The Department noted that mother had been more attentive during her visits in August, and she provided more structured activity for the minor.
Based upon mother‘s long history of substance abuse, her inconsistent participation in services, her lack of motivation in following through with her case plan, and her inability to recognize and take responsibility for her actions during the
dependency, the Department recommended that the court terminate mother‘s reunification services, and that it reduce supervised visitation to once a month.
The juvenile court conducted a contested 12-month review hearing on September 20, 2019. The minor was five years old at the time. Mother submitted, inter alia, two letters from Doors to Hope and a letter from her therapist noting mother‘s progress in undergoing treatment, and drug tests dated August 11, 15, 18, and 26 indicating negative results. The juvenile court adopted the Department‘s recommendations. It found that (1) the Department had provided reasonable services, (2) mother had failed to participate regularly in a court-ordered treatment plan, (3) her progress toward alleviating or mitigating the causes that had necessitated the minor‘s placement had been minimal, (4) the minor‘s continued out-of-home placement was necessary, and (5) the minor‘s return to the home would create a substantial risk of detriment to his safety, protection, or physical or emotional
E. Department‘s Section 366.26 Report (December 2019)
The Department reported in connection with the 366.26 hearing that the minor continued to do well in his placement in a Salinas concurrent foster home and was comfortable living with his foster family. The minor knew that “he [was] in a nurturing and caring home environment.” The Department opined that the prospective adoptive parents had “continuously met all of [the minor‘s] physical, social, and emotional needs.” The Department advised that the minor was too young to understand the concept of adoption. He “continue[d] to hope to return to the care of his mother, but he seem[ed] to understand that he [would] stay with the prospective adoptive parents.”
During the review period, mother‘s supervised visits with the minor “taper[ed] down to once a month.” Mother had been “appropriate” during the visits, and she had been making a better effort in planning for the visits.
The Department recommended that the parental rights of mother be terminated, and that a permanent plan of adoption for the minor be established.
F. Hearing Pursuant to Section 366.26 (January 2020)
1. Initial Hearing
At the initial hearing on January 14, 2020, mother requested that the case be set for a contested hearing, her counsel indicating that mother was asserting the applicability of the beneficial parental relationship and the sibling relationship exceptions to adoption. The court, at the Department‘s request, required that mother submit an offer of proof in support of her claim that these exceptions to adoption applied. Counsel stated that (1) mother had raised the minor from birth to the time of his detention; (2) the minor had “learned very definite skills from the mother“; (3) mother read to the minor, took care of him, and nurtured him; (4) the minor was “very enthusiastic” about his mother in December, repeatedly asking when he could go home; and (5) the minor would benefit from a continued relationship with his siblings. The juvenile court asked if there were specifics that counsel could provide in his offer of proof. Mother‘s counsel responded that he had “made preliminary inquiries” and “begun [his] interviews,” and he anticipated that
2. Mother‘s Written Offer of Proof
Mother‘s written offer of proof submitted on January 23, 2020, identified nine witnesses who would be available to testify at the 366.26 hearing concerning the
beneficial parental and sibling relationship exceptions to adoption.5 As discussed in greater detail, post, the witnesses identified and their proposed testimony were (1) mother, regarding her predetention relationship with the minor, activities they engaged in together, their close relationship, and her continuous contact with the minor during the proceedings through visitation; (2) Janet B., the maternal grandmother, concerning the close relationship between mother and the minor; (3) Robert B., Maternal grandfather, a reiteration of Janet B.‘s testimony; (4) Ar. B. (age 7), the minor‘s sister, concerning the minor‘s attachment with mother; (5) Al. B. (age 13), the minor‘s sister, concerning the minor‘s attachment with mother; (6) Michael S., a friend of mothеr‘s during her predetention treatment, regarding the close relationship between mother and the minor; (7) Brittney O., who was part of mother‘s support group, regarding mother‘s commitment to sobriety; (8) Katlin B., a member of mother‘s support group, who would offer testimony additional to that provided by Michael S. and Brittney O.; and (9) Betsi Andrade, a therapist who had provided counseling services to Al. B. and Ar. B., regarding the relationship between the minor and mother, and concerning the potential harm resulting from the permanent separation of a child from his parent, where they are bonded or attached.
3. Responses to Offer of Proof
The Department filed a written response, arguing that mother‘s written offer of proof was inadequate to require a contested hearing. The Department asserted the offer of proof did “not provide actual evidence to be produced . . . and primarily [gave] [conclusory] and vague statements about the
further that in some cases, the evidence proffered by mother was inadmissible due to relevancy, speculation, or lack of foundation.
The minor also submitted a written response, arguing that mother‘s offer of proof was insufficient. The minor asserted that mother‘s prior relationship with the minor was not relevant; rather, it was “the nature and quality of the present relationship and the detriment to [the minor] presently if [mother‘s] parental rights are terminated” that were the relevant questions. The minor argued further that therapist Andrade‘s prospective opinion testimony concerning potential harm to the minor in severing the relationship with his siblings would be speculative as she had no direct dealings with the minor. He contended that the offer of proof provided no prospective evidence supporting the conclusion that maintaining mother‘s parental rights outweighed the benefits to the minor of adoption.
4. Further 366.26 Hearing
The juvenile court conducted a further 366.26 hearing on January 28, 2020. The minor was over five and one-half years old at the time. Both before hearing argument of counsel and after such argument, the juvenile court found that mother‘s offer of proof was insufficient to warrant the granting of an evidentiary hearing concerning the beneficial parent-child and sibling relationship exceptions to adoption. The court noted that it “[understood] that Tamika T. says that the offer of proof must be specific[,] setting forth the actual evidence to be produced and not merely the facts or issues to be addressed.” (See Tamika T., supra, 97 Cal.App.4th at p. 1124.) The juvenile court concluded that mother‘s offer of proof provided “categories of information” and “issues that would be addressed . . . without the specific articulable facts that mother would need to be able to raise to meet her burden of proof.” It therefore held that mother‘s offer of proof had not satisfied the Tamika T. requirements for the court to order a contested hearing.
The court received the Department‘s section 366.26 report into evidence, and it requested updates to the report. The minor‘s counsel stated that the minor had recently come back from a trip with his foster family to Samoa; the minor was able to relate the experiences he had on the trip and the people he met there; the minor had recently moved with his foster family to San Diego; the minor stated that he was happy; and the minor‘s counsel indicated that the minor appeared to be happy and well-adjusted.
The juvenile court adopted the findings proposed by the Department, including the findings that the minor‘s continued out-of-home placement was necessary, the minor was adoptable; and that he was placed in a prospective
Mother filed a timely notice of appeal from the order after the 366.26 hearing.
II. DISCUSSION
A. Hearings Under Section 366.26
1. Generally
After it has been adjudicated that a child is a dependent of the juvenile court, the exclusive procedure for establishing the permanent plan for the child is the selection and implementation hearing as provided under
option if it “determines . . . by a clear and convincing standard, that it is likely the child will be adopted.” (
Thus, at the 366.26 hearing, “in order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated. . . . ‘[T]he critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to
“If the court determines it is likely the child will be adopted, certain prior findings by the juvenile court (e.g., that returning the child to the physical custody of the parent would create a substantial risk of detriment to the physical or emotional well-being of the child) shall constitute a sufficient basis for the termination of parental rights unless the juvenile court finds one of six specified circumstances in which termination would be detrimental [to the child].” (In re I.W. (2009) 180 Cal.App.4th 1517, 1522-1523, citing
termination would be detrimental to the child due to one or more of the [six statutory] circumstances.” (
2. Parental Exception to Adoption at 366.26 Hearing
The six specified circumstances in
The beneficial parental relationship exception to adoption (hereafter, the parental relationship exception) is asserted by mother in this appeal. (See fn. 2, ante.) Under this exception as provided in
There are three ” ‘component determinations’ ” made by the juvenile court, the first two of which establish the existence of a beneficial parental relationship, and the third being the court‘s assessment of whether that relationship (assuming its existence) presents a compelling reason not to terminate parental rights. Those three ” ‘component determinations [are]—[(1)] whether the parent has maintained regular visitation, [(2)] whether a beneficial parental relationship exists, and [(3)] whether the existence of that relationship constitutes “a compelling reason for determining that termination would be detrimental to the child.“’ [Citations.]” (Caden C., supra, 34 Cal App.5th at p. 104, rev. granted; see also In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316 [mother demonstrated regular visitation but not a beneficial parental relationship].)9
Assessment of the first component is “quantitative and relatively straightforward, asking whether visitation occurred regularly and often.” (Grace P., supra, 8 Cal.App.5th at p. 612.) It is an evaluation of “whether the
Determination of the second component of “whether the nature and extent of a particular parent-child relationship is sufficient to be deemed ‘beneficial’ . . . is a more involved inquiry, made on a case-by-case basis by taking into account many variables which affect the parent/child bond.” (Caden C., supra, 34 Cal App.5th at p. 104, rev. granted.) “The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th 567, 575.) In this case-specific endeavor, the court looks at such factors as “[t]he age of the child, the portion of the child‘s life spent in the parent‘s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child‘s particular needs.” (
notwithstanding the existence of an ‘emotional bond’ with the child, ‘the parents must show that they occupy “a parental role” in the child‘s life.’ [Citations.]” (In re K.P. (2012) 203 Cal.App.4th 614, 621.)
In assessing the third component, assuming the parent establishes the existence of a beneficial parent-child relationship, the juvenile court must then determine whether the relationship “constitutes a ‘compelling’ reason to forgo termination of parental rights.” (Caden C., supra, 34 Cal App.5th at p. 105, rev. granted.) This high standard underscores that ” ‘[a] biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.’ [Citation.]” (In re Marcelo B., supra, 209 Cal.App.4th at p. 643, original italics.) In determining whether the exceрtion applies, the juvenile court performs a balancing task of determining whether “the relationship 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 other words, 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. If severing the natural
The burden is on the parent asserting the parental relationship exception to produce evidence establishing that exception. (In re Breanna S., supra, 8 Cal.App.5th at p. 646.) “The court‘s decision a parent has not satisfied this burden may be based on any or all of the [three] component determinations—whether the parent has maintained regular visitation, whether a beneficial parental relationship exists, and whether the existence of that relationship constitutes ‘a compelling reason for determining that termination would be detrimental to the child.’ [Citations.]” (Id. at pp. 646-647) The parent must prove the exception by a preponderance of the evidence. (Caden C., supra, 34 Cal App.5th at p. 104, rev. granted.)
B. Offers of Proof Generally
Where the trial court is considering a ruling or has made a ruling that certain evidence is inadmissible, the party offering the evidence may make an “offer of proof” to explain its “substance, purpose, and relevance.” (
“An offer of proof must consist of material that is admissible, it must be specific in indicating the purpose of the testimony, the name of the witness аnd the content of the answer to be elicited. ‘Where required, the offer of proof must consist of matter which would be admissible. If a general offer is made to prove a number of things, without segregation, and it includes some inadmissible matter, the entire offer may be rejected. . . . [¶] ” . . . [¶] ‘The offer of proof must be specific in its indication of the purpose of the testimony, the name of the witness, and the content of the answer to be elicited. 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 . . . .’ [Citation.]” (Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 167-168, original italics (Semsch); see also Wegner, et al., Cal. Practice Guide: Civil Trials and
A proper offer of proof must identify the substance of the evidence to be presented, not merely contain a recitation of facts “The substance of evidence to be set forth in a valid offer of proof means the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue.” (United Sav. & Loan, supra, 57 Cal.App.3d at p. 294.) Thus, for example, in a case involving an injured motorcyclist, it was held that the trial court properly exсluded testimony from a defense traffic safety expert concerning his opinions “‘about what [he] would expect the perception reaction time of the motorcyclist to be, and based on the research what [the expert] would expect him to do when faced with an emergency intrusion,’ . . . [and about] what [he] would expect of a normal motorcycle rider operating in a normal manner to do based on research about how motorcyclists behave.‘” (Bowman, supra, 186 Cal.App.4th at p. 328.) The appellate court concluded that the defendant‘s offer of proof was deficient because it did not “‘set forth the actual evidence to be produced‘” and the “‘“substance, purpose, and relevance of the excluded evidence,“‘” because the defendant‘s proffer did not include foundational facts such as the distance between the plaintiff and the defendant when the defendant entered the intersection, or research that a reasonable motorcyclist traveling at the plaintiff‘s speed could have avoided colliding with the defendant‘s truck. (Id. at p. 329.)
C. Parent‘s Offer of Proof in Support of Adoption Exception
The above principles concerning offers of proof generally under
1. In re Jeanette V.
In Jeanette V., supra, 68 Cal.App.4th 811, the father appealed from an order after a
The appellate court affirmed. It observed that “the admissibility of social worker reports [under
2. In re Tamika T.
In Tamika T., supra, 97 Cal.App.4th 1114, the mother challenged the juvenile court‘s order denying a contested 366.26 hearing after she had submitted an offer of proof in support of the parental relationship exception. (Id. at p. 1116) The mother, who had a substance abuse problem, had received more than a year of reunification services. (Id. at pp. 1117-1118) After the mother had relapsed several times, the juvenile court in August 1999 terminated services and set a 366.26 hearing. (Id. at pp. 1117-1118) The court continued that hearing for more than a year because of the mother‘s whereabouts being unknown. (Id. at p. 1118) The mother appeared in court for a June 2001 hearing, stating that she was then living in Denver, Colorado; her attorney requested a contested hearing. (Ibid.) The juvenile court scheduled the hearing for two months later, conditioned on the mother providing the court with an offer of proof. (Ibid.)
On appeal, the mother argued that, even though a due process right to present evidence “is limited to relevant evidence of significant probative value and that if she proffered irrelevant evidence on the issue being contested, the court could properly exclude such evidence,” the juvenile court could not require her to first make an offer of proof. (Tamika T., supra, 97 Cal.App.4th at p. 1121.) Following Jeanette V., supra, 68 Cal.App.4th at pages 816 to 817, the Tamika T. court rejected the mother‘s contention, holding that the juvenile court had not violated the mother‘s due process rights by conditioning a contested hearing upon the mother‘s making an offer of proof in support of the parental relationship exception. (Tamika T., supra, at p. 1121.) In determining it to have been appropriate for the juvenile court to have insisted upon an offer of proof, the appellate court concluded that given the facts of the case, “the trial court could reasonably [have been] skeptical whether [the] mother could offer probative evidence on the . . . exception.” (Ibid.) Although the mother on appeal did “not contend that her offer of proof was sufficient to trigger a contested hearing,” she argued nonetheless that “her due process right to present evidence at a
The Tamika T. court also explained that a parent‘s generalized showing is an insufficient offer of proof. “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. [Citation.] This procedure adequately protects a parent‘s rights.” (Tamika T., supra, 97 Cal.App.4th at p. 1124.)11
3. In re Grace P.
In Grace P., supra, 8 Cal.App.5th 605, the father appealed from the juvenile court‘s order after a 366.26 hearing (1) finding that the parental relationship exception did not apply with respect to his six-year-old daughter, Grace, and her two younger brothers, and (2) denying him a contested hearing on the exception after the father made an offer of proof. (Id. at pp. 608-609.) In that offer of proof, the father indicated that he would provide testimony regarding his regular visitation with the three children, including how he interacted with them during the visits and his children‘s perception of father as a parent. (Id. at p. 610.) The juvenile court found that the father‘s offer of proof was inadequate to require a contested hearing. (Id. at p. 611.)
The appellate court reversed, holding that the father‘s offer of proof was sufficient to require a contested hearing. (Grace P., supra, 8 Cal.App.5th at pp. 613-615.) It observed that a parent has due process rights at a 366.26 hearing involving the termination of parental rights, including “a meaningful opportunity to be heard, present evidence, and confront witnesses. However, these procedural rights are subject to evidentiary principles.” (Id. at p. 612.) Quoting from Tamika T., supra, 97 Cal.App.4th at page 1122, the Grace P. court reiterated that “‘due process does not require a court to hold a
D. Standard of Review
A determination of the appropriate standard of review requires that we first ascertain what is, and what is not, being asserted on appeal. In the ordinary appeal from an order after a 366.26 hearing, a finding by the juvenile court based upon clear and convincing evidence that the child is likely to be adopted is reviewed for substantial evidence. (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) Review of a court‘s determination of the applicability of the parental relationship exception under section 366.26 is governed by a hybrid standard under which the court‘s determination (1) rеgarding the existence of a beneficial parental relationship is reviewed for substantial evidence; and (2) as to whether the existence of the parental relationship constitutes a compelling reason to conclude that termination of parental rights would be detrimental to the child is reviewed for abuse of discretion. (In re Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.)
Here, however, mother does not challenge on appeal the court‘s finding at the 366.26 hearing that the minor was adoptable. Moreover, mother does not challenge the court‘s implicit conclusion at the 366.26 hearing—after denying mother‘s request for a contested hearing concerning the parental relationship exception to adoption—that the exception did not apply in mother‘s case. Rather, the sole challenge raised on appeal by mother is whether the court erred in denying her request for a contested hearing after she submitted an offer of proof concerning the parental relationship exception.
In her opening brief, mother did not address the applicable standard of review of a juvenile court order denying a contested hearing on a statutory
As stated by the court in Grace P., the denial of a contested hearing by the juvenile court is subject to appellate review for abuse of discretion. (Grace P., supra, 8 Cal.App.5th at p. 611.) Further support for the application of the abuse of discretion standard of review here is found in In re A.B. (2014) 230 Cal.App.4th 1420 (A.B.). There, the appellate court affirmed the juvenile court‘s denial of an evidentiary hearing on the mother‘s requests for an agency home visit within three months of the child‘s placement with a noncustodial parent (see
E. The Juvenile Court Should Further Consider Its Denial of a Contested Hearing
Mother contends that the court erred in denying her request for a contested hearing. She argues that her written offer of proof was sufficient both in its scope and in its presentation of relevant and admissible evidence to establish the parental relationship exception. Mother argues that she was required to,
The Department responds that mother‘s offer of proof did not contain “relevant, probative, and admissible evidence with the specificity required by Tamika T. and Jeanette V.” In a supplemental letter brief, the Department argues further that mother was required in her offer of proof to propose evidence that “not only would establish the existence of a beneficial parent-child relationship, but also prove that this relationship was a compelling reason that termination of parental rights would be detrimental to [the minor], and that maintenance of that relationship would benefit [the minor] significantly enough to outweigh the stability and permanence that adoption would provide him.”
1. Scope of Offer of Proof
We address initially the scope of the offer of proof required in support of the parental relationship exception. Mother argues that her offer of proof needed to show evidence regarding only two of the three components of the exception (see Caden C., supra, 34 Cal App.5th at p. 104, rev. granted), namely, regular visitation and the existence of a beneficial parent-child relationship. Mother argues that she was not required to submit an offer of proof concerning the third component, i.e., the court‘s discretionary determination of whether, based upon a balancing of the quality and strength of the parent-child relationship against the security afforded to the minor by a new family, the preference for adoption has been overcome because the “severing [of] the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Although the appellate courts in the three offer-of-proof cases discussed at length above provide no direct guidance on this question, a close review of the cases suggests support for mother‘s position. In Jeanette V., supra, 68 Cal.App.4th at pages 814-815, the reviewing court focused on the visitation and benefit аspects of the mother‘s offer of proof below, before concluding that the reasoning that supported the juvenile court‘s rejection of a contested hearing for the mother applied equally to the appellant father‘s position. However, because the appellate court‘s conclusion that a contested hearing was properly denied was founded upon a clear record that the father could
In Tamika T., supra, 97 Cal.App.4th at pages 1118-1119, the juvenile court rejected the mother‘s offer of proof based upon her failure to rebut the evidence that the mother had had no contact with the child (except for two letters) for one and one-half years, thereby failing to meet a minimum showing of regular visitation. Significantly, because the mother did “not contend her offer of proof was sufficient to trigger a contested hearing” (id. at p. 1121), Tamika T.‘s focus concerned the rejection of the mother‘s position that conditioning a contested hearing upon the making of an offer of proof was of itself a violation of her right to due process (id. at pp. 1120-1123). The court in Tamika T. did not discuss whether a proper offer of proof required the parent to address all three components of the parental relationship exception.
And in Grace P., supra, 8 Cal.App.5th at page 610, the father‘s offer of proof, deemed deficient by the trial court, included statements concerning his regular visits with the children, his activities with them, that they “‘call[ed] him papa . . . [and] perceive[d] him in a parental role.‘” The offer of proof thus addressed the first two components of the parental relationship exception, i.e., regular visitation and the existence of the beneficial parental relationship.
Thus, none of the three cases discussed whether the parent‘s offer of proof must include evidence concerning whether preservation of the parent-child relationship “constitutes a ‘compelling’ reason to forgo termination of parental rights.” (Caden C., supra, 34 Cal App.5th at p. 105, rev. granted.) But the third component of the exception involves “a ‘quintessentially’ discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. [Citation.]” (In re Bailey J., 189 Cal.App.4th at p. 1315.) Thus, if the parent‘s offer of proof addresses regular visitation and the existence of a beneficial parent-child relationship, it is for the court to then weigh the importance of that relationship against the benefits of adoption. Nothing more should be required of the parent to gain a contested hearing. Further, a requirement that the parent‘s offer of proof provide evidence addressing the juvenile court‘s detriment/benefit balancing efforts would provide an uncertain standard. In assessing the parent‘s offer of proof, how much evidence showing detriment to the child as a result of termination would be sufficient to require a contested hearing? And if the parent were required to show in his or her proffer that the parent-child
Here, mother offered to present evidence concerning her visitation with the minor. Indeed, as to the first component of the parental relationship exception, the Department conceded below that “mother [had] maintained regular visitation with [the minor].” Mother also offered to provide evidence concerning the nature and extent of their relationship. Mother‘s offer of proof was therefore sufficient in scope.
2. Legal Sufficiency of Mother‘s Offer of Proof
It is clear, as discussed above, that under Jeanette V., supra, 68 Cal.App.4th 811 and its progeny, a parent asserting an exception to adoption at a 366.26 hearing is not automatically entitled to a hearing, and the juvenile court may require him or her to make an offer of proof demonstrating that the parent will present specific evidence to support the claimed exception. ((Tamika T., supra, 97 Cal.App.4th at pp. 1121-1122.) That “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.” (Id. at p. 1124.) However, what is not clear from Tamika T. and Grace P. are the standards for determining whether the parent‘s offer of proof meets the threshold to require the court to order a contested hearing.
The offer of proof must consist of “‘testimony, writings, material objects, or other things presented to the senses.‘” (United Sav. & Loan, supra, 57 Cal.App.3d at p. 294, quoting
We apply these same principles within the context of a dependency case involving a parent‘s offer of proof concerning an exception to adoption. It may be readily concluded that, for example, an offer of proof containing the assertion of the fact that the parent had a close parent-child bond with the minor—without identification of a witness or witnesses who would so testify to that fact—would not be sufficient. (United Sav. & Loan, supra, 57 Cal.App.3d at p. 294.) Similarly, a proffer identifying a witness who would testify to a close parent-child bond, without including enough specifics of the substance of that testimony to establish both that the witness has evidence to offer and that he or she is competent to so testify, would also not meet the threshold of a valid offer of proof. (Bowman, supra, 186 Cal.App.4th at p. 329; Semsch, supra, 171 Cal.App.3d at p. 167.) And a proffer that does not include a showing of the relevance of thе proposed evidence is likewise insufficient. (Bowman, supra, at p. 329.)
Mother‘s written offer of proof in this case identified nine witnesses she proposed to present at the hearing, namely, mother, Janet B. (maternal grandmother), Robert B. (maternal grandfather), Ar. B. (minor‘s sister), Al. B. (minor‘s sister), Michael B. (mother‘s acquaintance), Brittney O. (member of mother‘s support group), Katlin B. (member of mother‘s support group), and Betsi Andrade (therapist of minor‘s sisters).13
As discussed, post, mother‘s written offer of proof identified potential testimony from witnesses on certain topics that were plainly relevant to the first two components of the parental relationship exception. The offer of proof in some respects was quite general and therefore was arguably not in compliance with the specificity requirements of Tamika T., supra, 97 Cal.App.4th at page 1124. But the proffer also included other material that was more specific and was arguably in compliance with Tamika T.
Mother relies on Grace P., supra, 8 Cal.App.5th 605. There, the father‘s counsel made an offer of proof that the father ” ‘would testify that during his regular visits with the kids, he talks to them about school. He has on occasion redirected them with regards to behavioral issues. He brings food for the children. He also does play with them. He tells them he loves them and they
satisfied the visitation and contact prong of the parental relationship exception. (Grace P., supra, at pp. 613-614.)
The offer of proof in Grace P. was similar in some respects to the proffer by mother in this case that the juvenile court found legally insufficient. For instance, in both cases, the parent‘s proffer as to contact with the minor(s) was very general, the visits in Grace P. being described as “regular ” (Grace P., supra, 8 Cal.App.5th at p. 610), and the mother here having stated that she had “maintained continuous contact and visits with [the minor] during the period of reunification.” Likewise, in both instances, the offers of proof contained generalized descriptions of the relationship with the minor(s), with the father in Grace P. stating that ” ‘he ha[d] demonstrated parental capacity ’ ” (ibid.), while the mother stated that she had “a true and significant mother-child relationship with [the minor].” But the father‘s offer of proof in Grace P., unlike mother‘s proffer here, included a description of the father‘s activities and conversations with his children during visitation. (Ibid.)
The court in Grace P. concluded on the facts before it, notwithstanding the proffer‘s inclusion of some generalities, that the father‘s offer of proof was “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.) Importantly, in addition to the father‘s offer of proof containing some detail in support of the father‘s claim of the parental relationship exception, the Grace P. court‘s decision can be explained in part by its view that a juvenile court‘s denial of a contested 366.26 hearing on a parent‘s claimed exception to adoption should be made with caution. (Grace P., supra, 8 Cal.App.5th at pp. 614-615.) Noting that evaluating whether the parental relationship exception should be applied “requires the court‘s careful assessment of the child‘s relationship with the parent” (id. at p. 614), the appellate court held that “[b]ecause this is an individualized inquiry and parenting styles and relationships differ greatly between families, the juvenile court
We agree that, when the record clearly shows regular parent-child contact, “the juvenile court must take caution before denying a contested hearing” on the parental relationship exception. (Grace P., supra, 8 Cal.App.5th at p. 615.) When the parent has addressed regular visitation and the existence of a beneficial parent-child relationship, but there is some question about the proffer‘s adequacy, the juvenile court should find the parent‘s offer of proof legally sufficient and order a contested hearing. Parents have a “fundamental liberty interest . . . in the care, custody, and management of their child [which] does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” (Santosky v. Kramer (1982) 455 U.S. 745, 753.) This fundamental liberty interest “may not be extinguished without due process. [Citation.]” (In re James Q. (2000) 81 Cal.App.4th 255, 263.) Although parents in general have a right to due process in dependency proceedings, our courts have recognized that “‘different levels of due process protection apply at different stages of dependency proceedings.‘” (A.B., supra, 230 Cal.App.4th at p. 1436.) Thus, although a parent at a 366.26 hearing may be required to make an offer of proof to support his or her burden of establishing one of the exceptions to adoption (Tamika T., supra, 97 Cal.App.4th at p. 1121-1122; In re Earl L., supra, 121 Cal.App.4th at p. 1053), due process does not permit the denial of an evidentiary hearing if the parent has made a
legally sufficient offer of proof in support of the exception claimed. Nor does the fact that the stage of the section 366.26 proceeding is one in which “the focus shifts to the needs of the child for permanency and stability” (In re Marilyn H., supra, 5 Cal.4th at p. 309) diminish the due process rights of the parent in these circumstances. Given the stakes at issue to the parent—the potential termination of his or her parental rights—the juvenile court “must take caution before denying a contested hearing” on the parental relationship exception (Grace P., supra, at p. 615, italics added), and it should construe the parent‘s offer of proof liberally in favor of allowing such a hearing. (Cf. In re Marilyn H., supra, at p. 309 [parent‘s petition under § 388 for change of order should “be liberally construed in favor of granting a hearing to consider the parent‘s request“].)
The Department, in supplemental briefing requested by this court, argues that because a parent has the burden of establishing the parental relationship exception, including the fact that terminating parental rights would be detrimental to the minor (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350), “the juvenile court in this instance was entitled to set a high bar regarding the mother‘s offer of proof.” We find no language in Jeanette V., Tamika T., or Grace P. suggesting that the juvenile court should “set a high bar” in evaluating the legal sufficiency of the parent‘s offer of proof, i.e., whether it is “specific, setting forth the actual evidence to be produced.” (Tamika T., supra, 97 Cal.App.4th at p. 1124.) Rather, those cases hold simply that the juvenile court, if it so
chooses and without offending due process, may condition the right to a contested hearing upon the parent‘s submission of a legally sufficient offer of proof regarding the parental relationship exception. A 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. There is no suggestion in the cases that the parent‘s offer of proof must withstand a hеightened scrutiny, and such a requirement would be antithetical to the notion that a parent, assuming he or she has offered probative and admissible evidence, is entitled to a contested hearing and an opportunity to persuade the court that the parental relationship exception to adoption and the termination of parental rights should be applied.15
T.S., supra, 52 Cal.App.5th 503 supports our conclusion that a parent‘s offer of proof should be viewed liberally in favor of the right to present his or her case at a contested hearing. After the children‘s removal from the mother‘s custody, and after their return to her custody with family maintenance services at the disposition hearing, the agency at the 12-month rеview hearing recommended that jurisdiction be terminated, sole physical custody be granted to mother, the father and mother be granted joint legal custody, and that the father receive visitation. (Id. at p. 511.) The father opposed the recommendation and requested a contested hearing, wishing to call witnesses in support of his request for physical custody. (Id. at p. 512.) In response to the court‘s request, the father submitted an offer of proof, indicating that a private investigator would testify that the mother “resided with a convicted felon and associated with drug dealers,” and there were activities outside the house indicative of drug activity, such as ” ‘various people going in the house unloading things’ ” (Ibid.) Counsel for the father also stated that he would attempt to examine the mother to confirm these observations. (Ibid.) The
After concluding that the juvenile court properly required the father to submit an offer of proof (T.S., supra, 52 Cal.App.5th at p. 517), the appellate court held, quoting Tamika T., supra, 97 Cal.App.4th at page 1124 concerning the requirements of specificity and recitation of actual evidence, that the father‘s offer of proof was sufficient to require a contested hearing: “[R]esponding to the court‘s request for an offer of proof to justify a contested hearing on custody and visitation issues, [the father‘s] counsel stated he would present the testimony of a private investigator who had observed arguably suspicious activity outside of [the mother‘s] residence. He stated the testimony would also show [the mother] resided with a convicted felon despite having been told the individual was not allowed to be around the children. This proposed evidence (as well as [the mother‘s] explanation of these circumstances) was relevant to the court‘s consideration whether jurisdiction should be terminated or whether the family required further supervision to ensure there was no substantial risk to the boys’ safety. It was also relevant to the court‘s determination of the custody and visitation arrangement that would be in the children‘s best interest. Further, the offer was sufficiently specific, setting forth the observations about which the private detective would testify.” (T.S., supra, at p. 517.)
The offer of proof by the father in T.S.—like mother‘s offer of proof here—was somewhat general, such as its citation to evidence of the mother‘s association with drug dealers and the existence of activities outside the home that were consistent with drug use. (T.S., supra, 52 Cal.App.5th at p. 512.) But it also included some specific information and identified particular witnesses who would offer testimony, including the observations of one witness, a private investigator. (Id. at p. 517.) Under these circumstances, notwithstanding any failings in the proffer, the court in T.S. found the father‘s offer of proof legally sufficient. (Ibid.)
We find the facts in the case before us to be most closely aligned with the facts in Grace P. and T.S. And we conclude, conversely, that the facts in this case are very dissimilar to those in Jeanette V. and Tamika T.; in both cases, the parent had had little or no contact with the child for over a year, while the father in Grace P. and the mother here unquestionably maintained regular contact with the children/child.
The offer of proof here identified nine potential witnesses and did more than simply recite facts. (See United Sav. & Loan, supra, 57 Cal.App.3d at p. 294.)17 Likewise, in Grace P. and in T.S., the offers of proof identified two potential witnesses and they did not consist of a mere recitation of facts. Mother‘s proffer, like the one in Grace P., included matters that were unquestionably relevant to the parental relationship exception. This included proposed testimony from mother regarding (1) her continuous contact with the minor; (2) her relationship with him from his birth until detention, including the love and support she gave him; (3) the activities engaged in by mother and the minor; (4) the asserted close relationship she had with him (including a proffer of photographs and videotapes that would show that closeness); and (5) the minor‘s statement that he wanted to return home with mother. Mother‘s offer of proof also included proposed testimony from others, including Janet B., the maternal grandmother, regarding the close relationship between mother and the minor and the detriment that would result from its termination; Ar. B. (the minor‘s seven-year-old sister) concerning the interactions between mother and the minor; Michael S., who observed the closeness of the mother-minor relationship while they were together at a residential treatment facility (apparently before the minor was detained); and Andrade, a licensed therapist who had provided counseling services to the minor‘s sisters, regarding the loss that might be experienced by the minor if parental rights were terminated.18
Mother‘s offer of proof, however, included evidentiary matters for which the relevance was not apparent or explained. And her proffer, like the father‘s proffer in Grace P., included a significant amount of generalities or general topics, rather than being a “specific” offer of proof, “setting forth the actual evidence to be produced.” (Tamika T., supra, 97 Cal.App.4th at p. 1124.) Mother‘s offer of proof, for instance, did not provide any detail as to (1) the dates and nature of activities that mother participated in with the minor to which she would testify; (2) the dates and nature of mother‘s claimed “continuous contact” with the minor; (3) what the photographs and videotapes to be presented in mother‘s testimony would show about the closeness of her relationship with the minor; (4) Janet B.‘s testimony regarding detriment; and (5) the foundational basis for, and the substance of, Andrade‘s opinions concerning the potential “sense of loss” that the minor would
We conclude from our careful review of the record before us that (1) mother had maintained regular contact with the minor, satisfying the first component of thе parental relationship exception (see Caden C., supra, 34 Cal App.5th at p. 104, rev. granted); (2) her written offer of proof was proper in scope in that it addressed mother‘s regular contact with the minor and the existence of a parent-child relationship; (3) the offer of proof contained some specifics and was thus partially compliant, but it also included substantial portions that were not compliant with the specificity requirements of Tamika T., supra, 97 Cal.App.4th at page 1124; (4) this partial compliance found in mother‘s offer of proof is not dissimilar to the father‘s proffer in Grace P. found to be legally sufficient; and (5) if mother were granted leave to amend, with the benefit of the standards we have described, she may be able to cure some of the deficiencies in her offer of proof.
It is not clear from the record whether the court required that mother‘s offer of proof include evidence concerning the third component of the parental relationship exception, i.e., ” ‘whether the existence of that relationship constitutes “a compelling reason for determining that termination would be detrimental to the child” ’ [citations]” (Caden C., supra, 34 Cal App.5th at p. 104, rev. granted), which we hold is not within the scope of a parent‘s offer of proof. It is also not clear from the record whether the court below, in light of mother‘s having indisputably maintained regular contact with the minor, gave the offer of proof the liberal construction to which it was entitled under the circumstances. (Grace P., supra, 8 Cal.App.5th at p. 615.)
We will therefore reverse the challenged order and remand the case to the juvenile court for its further consideration of the legal sufficiency of mother‘s offer of proof consistent with this opinion. (See Joey W. v. Superior Court (1992) 7 Cal.App.4th 1167, 1170 [“because this record does not show whether the court properly exercised its discretion, we remand for further proceedings“].) In conducting such further hearing, the court may consider additional argument of the parties, and, in its discretion, may allow mother the opportunity to amend her offer of proof with any specific evidence she believes she can рroduce that is consistent with her prior oral and written offers of proof to aid the court in determining whether mother‘s offer of proof is “specific, setting forth the actual evidence to be produced, not merely the