Filed 6/25/14 In re G.M. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re G., JASMIN, K. & DANIEL M. , 2d Juv. No. B250355
Persons Coming Under the Juvenile Court (Super. Ct. Nos. J1395649, J1395650,
Law. J1395651, J1395652)
(Santa Barbara County)
SANTA BARBARA COUNTY CHILD
PROTECTIVE SERVICES,
Petitioner and Respondent,
v.
KARLA M. ,
Respondent and Appellant.
Karla M. (mother) appeals from an order terminating her parental rights to her
children K.M. (now seven years old) and Daniel M. (now six years old). (Welf. &
Inst. Code, § 366.26.)1 Although the dependency proceedings also involved two older
children - G. M. and Jasmin M. - mother's parental rights to them were not terminated.
Mother contends that the juvenile court abused its discretion by refusing to
conduct a contested evidentiary hearing on the beneficial parental relationship
1
All statutory references are to the Welfare and Institutions Code.
exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) Mother argues that "the denial
of a contested hearing was a violation of her due process rights" because she "provided
an adequate offer of proof" as to the evidence that she would produce at a contested
hearing. We disagree and affirm.
Factual and Procedural Background
At a jurisdictional/dispositional hearing in January 2012, the juvenile court
sustained a dependency petition (§ 300), removed K.M. and Daniel M. (the children)
from mother's custody, and ordered that she be provided reunification services.
According to the petition's allegations, mother left the children "home alone without
appropriate adult supervision." When the home was inspected, it "was found to be
unsafe for the children." The home was filthy and stank of urine. Mother had "failed
to provide the children with adequate food, clothing, and shelter, placing [them] at risk
of physical harm and illness." In February 2013 the court terminated reunification
services and set a section 366.26 hearing.
Mother lived in Santa Maria in Santa Barbara County. K.M. was placed in a
group home in Pasadena in Los Angeles County. Daniel M. was placed in a foster
home in Merced County. The section 366.26 report, dated May 30, 2013, states:
"From September 2012 through January 2013, the mother . . . failed to participate
regularly in her visitation schedule with [the children], after the Department [of Social
Services (Department)] had purchased Amtrak tickets for her traveling needs.
[Mother] failed to pick up the tickets in order to participate in visitation. The mother
also reduced her hours of visitation with [K. M.], after the second visit, to one hour per
week, when she was authorized to visit for two hours per week." "The mother did not
visit with Daniel from 2/2013 to the present time. The mother did not call Daniel on
his birthday [in March 2013] when he turned 5 years old." In her opening brief mother
acknowledges that, "[a]ccording to the Department's court reports, [she] did not
regularly visit K. and Daniel after they were moved out of county."
2
The section 366.26 report further states: "[B]oth K. and Daniel have had a
mother/child relationship with their mother. Both children love and miss their mother
and would choose to go home to her if allowed by the court. Neither child has been in
their mother's care for the majority of their short lives. K. has been in protective
custody for approximately 3 of her 6.5 years and Daniel for 3 of his 5 years."
An addendum report dated June 27, 2013, notes that Daniel told his mother
over the telephone "that he was going to stay in his current placement and be adopted."
Mother responded by telling Daniel "that the social worker had lied to him . . . and that
she was going to get him back." This was the first time that mother had spoken to
Daniel for "several months." The report continues: "[Daniel] is thriving in his current
placement," and his foster "family hopes to adopt" him. As to K. M., the report notes
that she "loves her mom and wants to go home to her even though her mom hit her
with a belt."
The juvenile court ordered mother to submit an offer of proof if she wanted a
contested section 366.26 hearing. Mother submitted a written offer of proof stating as
follows: She "was trying desperately to get the tickets for Amtrak but was not met with
any assistance. She called repeatedly to know when she could get them and asked
every time she had a session and was given the run-around. They were not made
available in a consistent and easy manner. [¶] The children all desire to be returned to
their mother . . . [and] have 'a mother/child relationship with [her]. Both children love
and miss their mother and would choose to go home if allowed by the Court.' "
The court concluded that the offer of proof was insufficient to warrant a
contested hearing. It found that "there is clear and convincing evidence it's likely the
children will be adopted." The court terminated mother's parental rights and selected
adoption as the permanent plan.
3
Beneficial Relationship Exception
"By the time of a section 366.26 hearing, the parent's interest in reunification is
no longer an issue and the child's interest in a stable and permanent placement is
paramount. [Citations.] . . . The child has a compelling right 'to [have] a placement
that is stable, permanent, and that allows the caretaker to make a full emotional
commitment to the child.' [Citation.] Adoption is the Legislature's first choice
because it gives the child the best chance at such a commitment from a responsible
caretaker. [Citations .]" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
"If the court finds that a child may not be returned to his or her parent and is
likely to be adopted, it must select adoption as the permanent plan unless it finds that
termination of parental rights would be detrimental to the child under one of [several]
specified exceptions. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
The exception at issue here is the beneficial relationship exception. It applies if (1)
"[t]he parents have maintained regular visitation and contact with the child and [2] the
child would benefit from continuing the relationship." (§ 336.26, subd. (c)(1)(B)(i).)
The parents have the burden of establishing the exception. (In re Derek W., supra, 73
Cal.App.4th at p. 826; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
Forfeiture
Mother forfeited her right to raise the beneficial relationship exception on
appeal because she had failed to raise it in the juvenile court. "In dependency
litigation, non-jurisdictional issues must be the subject of objection or appropriate
motions in the juvenile court; otherwise those arguments have been waived and may
not be raised for the first time on appeal." (In re Christopher B. (1996) 43
Cal.App.4th 551, 558; see also In re Erik P. (2002) 104 Cal.App.4th 395, 403 [father
waived the sibling exception to adoption because he had failed to raise it at the section
366.26 hearing].)
Mother's written offer of proof did not say that she was claiming the beneficial
relationship exception to adoption. In the offer of proof, her counsel stated: "I believe
4
the Court should reconsider what is in the best interest of these . . . children and give
[mother] a last chance to demonstrate her progress." At the section 366.26 hearing,
counsel never mentioned the beneficial relationship exception.
Although mother forfeited her right to raise the beneficial relationship
exception for the first time on appeal, we consider the merits of her claim.
The Juvenile Court Did Not Abuse Its Discretion
The juvenile court has discretion whether to require "a parent to make an offer
of proof before it conducts a contested hearing on the issue of whether a parent can
discharge his or her burden of establishing a statutory exception to termination of
parental rights." (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1116; accord, In re
Earl L. (2004) 121 Cal.App.4th 1050, 1053.) "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." (In re Tamika T., supra, 97 Cal.App.4th at p. 1124.) We
review for abuse of discretion the court's denial of a contested hearing. (See Ingrid E.
v. Superior Court (1999) 75 Cal.App.4th 751, 758-759.) " 'The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of reason.' " (In re
Stephanie M. (1994) 7 Cal.4th 295, 318-319.) The denial of a contested hearing does
not violate a parent's due process rights if the parent's offer of proof is inadequate. (In
re Tamika T., supra, 97 Cal.App.4th 1114.)
Mother's offer of proof does not set forth the actual proposed evidence showing
that she met the first prong of the beneficial relationship exception: regular visitation
and contact with the children. Instead, the offer of proof purports to provide an excuse
for not maintaining regular visitation and contact: the Department's failure to provide
her with Amtrak tickets. The offer of proof states that the Amtrak tickets "were not
made available in a consistent and easy manner" and mother "was given the run-
around" whenever she asked about them. These conclusory allegations are
insufficient. Mother was required to set forth the evidence underlying these
conclusions and designate the witnesses who would so testify. (See In re Mark
5
C. (1992) 7 Cal.App.4th 433, 444 [" 'The substance of evidence to be set forth in a
valid offer of proof means the testimony of specific witnesses . . . to be introduced to
prove the existence or nonexistence of a fact in issue' "].)
In any event, mother forfeited the visitation issue by her appellate inaction.
Mother is in effect contending that the Department did not offer reasonable
reunification services because it failed to provide her with Amtrak tickets so she could
visit the children. But in February 2013 when the court terminated reunification
services and set a section 366.26 hearing, it expressly found that "[r]easonable services
were provided." If mother disagreed, she should have sought writ review pursuant to
rule 8.452 of the California Rules of Court. Mother filed a notice of intent to file a
writ petition (rule 8.450(e)), but the petition was not filed. On April 17, 2013, we
dismissed the matter as abandoned (Case No. B247082). Because mother did not seek
writ review, she is precluded from challenging the juvenile court's determination that
the Department had provided reasonable reunification services. " ' "If an order is
appealable . . . and no timely appeal is taken therefrom, the issues determined by the
order are res judicata." ' [Citation.] 'An appeal from the most recent order entered in a
dependency matter may not challenge prior orders, for which the statutory time for
filing an appeal has passed.' [Citation.]" (Wanda B. v. Superior Court (1996) 41
Cal.App.4th 1391, 1396.)
Mother's offer of proof is also insufficient as to the second prong of the
beneficial relationship exception: the children would benefit from continuing the
relationship. "Satisfying the second prong requires the parent to prove that 'severing
the natural parent-child relationship would deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmed. [Citations.]' " (In
re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) Mother's offer of proof alleges that
the children love and miss her, have " 'a mother/child relationship' " with her, and
"desire to be returned to" her instead of adopted. These conclusory allegations are
6
unsupported by specific evidentiary facts, such as the children's conduct during
mother's visits.
The juvenile court therefore reasonably concluded that mother's offer of proof
did not warrant a contested section 366.26 hearing on the beneficial relationship
exception. Accordingly, the court did not abuse its discretion.
Disposition
The judgment (order terminating parental rights and selecting adoption as the
permanent plan) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
7
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Grace Clark, under appointment by the Court of Appeal, for Appellant.
Dennis A. Marshall, County Counsel, Count of Santa Barbara, Bo L.
Bae, Deputy County Counsel, for Respondent.
8