In re GRACE P. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.P. et al., Defendants and Appellants.
No. B275689
Second Dist., Div. Three
Feb. 10, 2017
8 Cal. App. 5th 605
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant Father M.P.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Mother L.R.
Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
GOSWAMI, J.*—
INTRODUCTION
Father and Mother appeal from the juvenile court‘s order terminating parental rights to six-year-old daughter, Grace, five-year-old son, Marco, and three-year-old son, Michael, pursuant to
In a matter of first impression, we reverse because the juvenile court abused its discretion in denying Father a contested selection and implementation hearing under
FACTS AND PROCEDURAL BACKGROUND
In September 2013, the court granted the Los Angeles County Department of Children and Family Services‘s (DCFS) request to detain Grace and Marco after concluding they were at high risk of abuse due to the parents’ ongoing domestic violence, Father‘s abuse of marijuana, their exposure to Father‘s drugs, and Father‘s gang-related activities (Father is a member of the Mara Salvatrucha gang). Because Mother continued to associate with Father, the court detained Michael in February 2014, shortly after his birth. In April 2014, the children in this case were adjudged dependents of the juvenile court as a result of Father and Mother‘s domestic violence and Father‘s abuse of marijuana.
Upon detention, DCFS assessed that the two older children had serious mental health, emotional, and developmental issues. The eldest, Grace, was with her parents for the first two years 11 months of her life. All three children were placed in the same foster home and were enrolled in therapy and services to address their mental health, behavioral, and developmental needs. Over the course of this nearly three-year-long dependency case, the children‘s issues were largely corrected via participation in services and the nurturing environment created by the foster family. Unfortunately, the children never reunited with their parents.
Throughout the dependency case, Father was in and out of jail as a result of his gang activities. Although he completed a substance abuse program, he did not complete the court-ordered domestic violence counseling or drug testing. His weekly visitation with all three children remained monitored throughout the case, but was consistent. Early on, the visits were three hours per week. The foster parent, who monitored the visits, repeatedly reported that Father was always on time, interacted well with the three children and that he was attuned to their needs. The foster parent reported to DCFS that Father dedicated himself to all three children during the visits and the children were bonded with him. During visitation, he played with them, fed
At the
After the court ascertained from counsel that Father visits the children weekly and that the visits are monitored, the court indicated that the offer of proof was insufficient. The court stated,
“Accepting your offer of proof at full value, I would have to find that what father has described is a stronger bond and more important bond than they have with their caregivers, and I don‘t believe based on the evidence that you have suggested, I would obviously make that finding. I‘m specifically referring to the statement in M.W.3 that the father would need to prove that the child has developed such a substantial positive relationship with the father that the child would be greatly harmed or there would be substantial detriment to the child if parental rights were terminated, and that the court in M.W. expressly directs the court to consider the strength of the relationship with the children in determining what would be the most appropriate life for the children.
“So, I believe, that your offer of proof is inadequate and I‘m denying the request for a contest.”
The court then admitted DCFS‘s reports into evidence, and found by clear and convincing evidence that the children were adoptable and that there were no impediments to adoption. The court found that no exception to adoption applied and terminated the parental rights of Father and Mother to the children.
DISCUSSION
Father appeals the termination of his parental rights arguing that the court erred in denying him a contested selection and implementation hearing to present evidence on the applicability of an exception to termination of parental rights. Mother also appeals, joining in Father‘s arguments but not asserting any other basis for our review. We review the court‘s denial of a contested hearing for an abuse of discretion. (In re A.B. (2014) 230 Cal.App.4th 1420, 1434 [179 Cal.Rptr.3d 540]; Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 759 [89 Cal.Rptr.2d 407].)
1. A Parent‘s Right to Present Evidence at the Selection and Implementation Hearing
“The selection and implementation hearing under
If the parents have failed to reunify and the court has found the child likely to be adopted, the burden shifts to the parents to show exceptional circumstances exist such that termination would be detrimental to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574 [32 Cal.Rptr.2d 535] (Autumn H.).) Parents can request a contested hearing on this issue to present evidence supporting their claim that an exception to termination of parental rights exists.
Here, the parents contend that the juvenile court violated their due process rights when it denied Father‘s request for a contested hearing on the
A parent has a right to due process at a
2. The Offer of Proof for the Beneficial Parent-child Relationship Exception to Termination of Parental Rights
Thus, at issue is whether Father‘s offer of proof was sufficient to warrant a contested hearing on the applicability of
The first prong is quantitative and relatively straightforward, asking whether visitation occurred regularly and often. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2016) Permanency Planning Procedures, § 2.171[5][b][ii][A], pp. 2-590 to 2-591 [“The first prong is
In contrast, the second prong involves a qualitative, more nuanced analysis, and cannot be assessed by merely looking at whether an event, i.e. visitation, occurred. Rather, the second prong requires a parent to prove that the bond between the parent and child is sufficiently strong that the child would suffer detriment from its termination. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.) In applying this exception, the court must take into account numerous variables, including but not limited to (1) the age of the child, (2) the portion of the child‘s life spent in the parent‘s custody, (3) the “‘positive’ ” or ” ‘negative’ ” effect of interaction between parent and child, and (4) the child‘s unique needs. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
This is particularly challenging because, as the court in Autumn H. noted, “[i]nteraction between natural parent and child will always confer some incidental benefit to the child,” requiring the balancing of the natural parent relationship against the benefit of a stable, permanent adoptive home. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The application of the beneficial parent relationship exception requires a robust individualized inquiry given that “[p]arent-child relationships do not necessarily conform to a particular pattern,” and no single factor—such as supervised visitation or lack of day-to-day contact with a noncustodial parent—is dispositive. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 [93 Cal.Rptr.2d 644]; see In re S.B. (2008) 164 Cal.App.4th 289, 294-300 [79 Cal.Rptr.3d 449] [reversing termination of parental rights even though father only had supervised visitation with daughter]; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [82 Cal.Rptr.2d 426] [“Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.“].)
3. Father‘s Offer of Proof Was Sufficient to Warrant a Contested Hearing
In this case, Father‘s offer of proof with respect to the first prong (about visitation and contact) was undisputedly sufficient: the proposed testimony addressed the consistency of his weekly visitation with the children. In addition, it appears from the record that DCFS‘s reports likewise support the conclusion that Father maintained regular visitation. The juvenile court also acknowledged this fact and stated that “Father has had regular contact with the child.”
As to the second prong, Father offered his testimony about the positive quality of his visitation, how he parented all three children during visits, and how the children considered him to be a father figure. Father also offered Grace‘s testimony regarding how she enjoyed visits with Father, saw Father as a parent, and would be sad if visitation with Father ended.4 The juvenile court opined this offer of proof was not sufficient to warrant a contested hearing. We disagree.
By comparison, In re Jeanette V. (1998) 68 Cal.App.4th 811 [80 Cal.Rptr.2d 534], is instructive. There, as here, the appellant father sought a contested
In contrast, since Father satisfied the first prong in the case at bar, his proffered evidence was consequential to and probative of the issue of his relationship with the children and the detriment they would suffer by its severance. As we mention above, this qualitative inquiry regarding the nature of the relationship between the parent and child cannot be as directly and summarily assessed as the first prong regarding contact. The second prong requires the court‘s careful assessment of the child‘s relationship with the parent. Because this is an individualized inquiry and parenting styles and
We note even when a parent makes a prima facie case and obtains a contested selection and implementation hearing under
DCFS argues that the offer of proof was insufficient because the proposed testimony would not provide new information to the court since DCFS‘s reports documented Father‘s interactions with the children. DCFS also argues that based on its own reports, Father was incapable of proving a sufficiently strong relationship with the children to satisfy the exception. DCFS‘s arguments are based entirely on the evidence it offered at the selection and implementation hearing. Father‘s proposed evidence, which purported to address the existence of a beneficial parent-child relationship, was not admitted. Without such evidence, we cannot conclude that Father was incapable of proving the exception. Without the evidence, we cannot conclude that Father‘s and Grace‘s testimony would be duplicative of the DCFS reports. On the contrary, the offer of proof indicated that Father and Grace would expound on the details of the relationship that has been positively (though concisely) documented by DCFS.
Based on the foregoing analysis, we conclude that the trial court abused its discretion in denying the contested selection and implementation hearing.
DISPOSITION
We reverse the termination of parental rights. We remand for the juvenile court to conduct the contested hearing and determine whether a beneficial parent-child relationship exists and prevents the termination of parental rights
Aldrich, Acting P. J., and Lavin, J., concurred.