Offers of proof required before setting a .26 for contest.
In re Tamika T., 97 Cal. App. 4th 1114, 118 Cal. Rptr. 2d 873 (2002)
Mother appeals from the trial court’s order terminating her parental rights pursuant to 366.26 hearing. Mother asserts that she attempted to circumvent the termination of her rights by raising the “regular visitation and contact” exception. The trial court had asked her for an an offer of proof before setting a contested hearing. The mother provided evidence; however, the trial court opined that mother had failed to proffer sufficient evidence to warrant setting a contested matter hearing. The trial court then terminated the mother’s rights. Mother filed a timely appeal citing that she had a statutory and constitutional right to a contested hearing and thus the trial court had committed a reversible error in requiring her to first make a sufficient offer of proof. The appellate court dissented and provided its reasoning citing that due process rights are not as strict in dependency cases and due to the countervailing interest the court and the county has in preserving its funds by not wasting money on extraneous hearings, the court had not erred rejecting the mother’s offer of proof and proceeding with terminating the mother’s rights.
The minor had come under the juvenile court’s jurisdiction as it found that the minor was a minor described under Welf & I C § 300 (b). The mother at the time of detention and juris was a substance abuser and was neglectful in raising her child. The mother was ordered to comply with a family reunification plan which involved substance abuse classes, parenting classes, and monitored visitation. For a while the mother complied, made progress in her court ordered plan, and moved to unmonitored visits. However, the mother started to use again. The court at the next .22 hearing opined that the mother was given reasonable services, but that to return home to mother's custody would create a substantial risk of physical and emotional harm. The court also restricted the mother’s visits to monitored visits. The mother soon dropped out of her substance abuse program and did not notice the department or the court of her whereabouts. Because the mother was deemed a parent whereabouts unknown, the .26 hearing was delayed for a year in order to locate the mother and prevent the need for an Ansley motion. Eventually, the mother made an appearance again and requested “a contested .26 hearing”. The court set the hearing but predicated the hearing upon an offer of proof from mother.
The court admonished mother: “[You] should know that minor was very worried about you during the period that we didn't know where you were. And she was coming to court expressing concern about you and where you were. And to be her age and have to be worrying about that, I can't even imagine. But the other thing is the impact that has long range for her has got to be strong. So I don't know what minor’s desires are today about having contact with you. But she's probably going to have to deal with some stuff before she's even interested in trying to see about forming a new relationship with you again”.
The department in preparing its .26 report detailed the extensive bond the minor had with her foster placement and desire to stay with her foster family. The report also included information about how the minor was emotionally secure in her new placement and was calm with her new placement.
Mother’s counsel addressed the bonding issue with the following:
“Mother has maintained an emotional bond with the minor. She has written the minor several times recently․ The child is 7 years old․ [She] developed a strong bond prior to the removal [in 1997] of the child from her care. And it would be in the best interests of the minor to continue to have contact with the mother. This isn't an infant who's going to forget the contact and the bond that was developed by the mother and the minor.”
In response to the court questions regarding bonding, mother avers that she had last visited Tamika in February 2000 and had written her two letters since then. As a side note, this holds very little weight as the court wishes to see regular visitation with the minor alongside demonstration of a parental bond and despite strong evidence of a parental bond the court can still find that it is not in the minor’s best interest and overrule Autumn H c1b1 exceptions. In re Caden C., 11 Cal. 5th 614, 486 P.3d 1096 (2021)
The court also noted that the minor was found to be generally adoptable. The court terminated the mother’s rights freeing the child for adoption and permanency planning. The mother filed a timely notice of appeal and the appellate court returns a remitter upholding the trial court’s decision citing the below reasons.
The appellate court first outlines the necessary provisions for a .26 hearing and factors that go into making a finding of parental unfitness.
At the hearing, the court shall review the .26 report. If the court determines, based on the assessment provided, by clear and convincing evidence that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The court if it finds a compelling reason for determining that termination would be detrimental to the child may not terminate the parents rights. These two compelling reasons may be that “The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship”. However, should the parent attempt to defeat termination proceedings, they carry the burden of proof. In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, 93 Cal.Rptr.2d 644. The mother asserts that these two circumstances apply to her case. However, the mother avers that the burden of proof shifting to the parent does not entail this offer of proof before setting the matter on contest. Because mother contends that the offer of proof is not predicated by the parental burden of proof shifting, the trial court committed prejudicial error.
The court of appeal dissented and cited In re Jeanette V., supra, 68 Cal.App.4th 811, 80 Cal.Rptr.2d 534. The Jeanette court found that the father misconstrued the application of due process rights which requires the defendant have a “meaningful opportunity to cross-examine and controvert the contents of the report”. The court in this case opined that the father was extrapolating from the confrontation clause which grants full cross examination rights and that due process is a fluid concept and because dependency court has different constraints and standards than criminal per say, the father’s due process rights in a dependency matter are different than he initially asserted. Due process rights of the parent are limited to relevant evidence which means that the evidence proffered must have material and probative value to the proceedings. Should the defendant attempt to provide evidence that is not relevant, then the court may request an offer of proof before proceeding. Because the father had failed to make regular and meaningful contact with his children, the court opined that his request to cross examine the social worker would only bring to light immaterial facts.
Through a parity of reasoning, this court aligned the two cases and stated that the mother in this case could offer any probative evidence that would counter the department’s negative statements made in the .26 report regarding regular visitation and contact exception. In order to prevent undue delays in the proceedings the court indicated it wanted an offer of proof before it conducted a contested hearing on the applicability of the c1 b1 exception. Mother asserts that she did not make this appeal based on the facts contained the report; rather, she avers that the trial court had no right to even make such a request. She adopts the posture that she has a statutory and constitutional right to a contested section 366.26 hearing “irrespective of [any] offer of proof”. Mother asserts that during the course of a contested hearing, should she proffer irrelevant evidence the court could properly exclude such evidence through motions and objections.
The appellate court once more cites the limited court resources and that an offer of proof would prevent wasted county funds to administer a doomed contested hearing. The appellate court also cites the balancing act the trial court must do whenever it is faced with the parent’s right to due process and the courts need to allocate its funds. The appellate court in its opinion citing that a right to due process does not mean unfettered access to all of the provisions covered by due process more specifically confrontation clause.
Based on these reasons the appellate court issued a remitter ordering that the trial court’s orders be upheld, parental rights remain terminated, and permanency planning continue.
It is interesting to note that the appellate court did not cite to the counterveiling interest that frequently comes up in dependency appeals; the interests of the minor’s need for stability and permanency. So many courts cite to the minor’s need for an expeditious hearing and that holding hearings with evidentiary merit would slow the proceedings and delay the minor’s final placement.
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