Filed 7/7/21 In re L.D. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re L.D. et al., Persons Coming B309852
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 18CCJP02204A-B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Debra R. Archuleta, Judge. Reversed and
remanded.
John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter A. Ferrera, Principal
Deputy County Counsel, for Plaintiff and Respondent.
**********
Father M.D. appeals the juvenile court’s order terminating
his parental rights to his then 10- and seven-year-old sons, D.D.
and L.D. Father challenges the juvenile court’s COVID-19
protocols limiting personal court appearances, arguing they
violate state law and his constitutional rights. Father also
contends his due process rights were violated because he did not
receive proper notice of the Welfare and Institutions Code
section 366.261 hearing, and the juvenile court erred by denying
his request to continue the hearing after he was prevented from
testifying because of his poor remote connection. He also
contends the court never admitted the Department’s reports into
evidence, and therefore the court’s order terminating his parental
rights is not supported by substantial evidence.
We grant father’s request that we take judicial notice of the
superior court’s general orders, and to augment the record to
include the record from his prior appeal.
The Department concedes the court erred when it failed to
continue the hearing, but argues the error was harmless.
Because we cannot find the error harmless, we reverse the order
terminating father’s parental rights, and remand to the juvenile
court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
We draw the following facts from our earlier opinion
affirming the juvenile court’s jurisdictional and dispositional
orders, In re L.D. (Apr. 30, 2019, B291401) [nonpub. opn.].
This family has an extensive history of referrals to the Los
Angeles County Department of Children and Family Services
1 All further statutory references are this this code unless
otherwise indicated.
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(Department). On September 14, 2016, the Department received
a report of general neglect after a neighbor observed L.D., then a
toddler, crossing the street alone. Mother J.D. was “passed out”
and the house was a “disaster.” Father, who did not live in the
home, went there and picked up the children. The referral was
substantiated but closed after father agreed to care for the
children and pursue custody in family court.
On October 19, 2017, the Department received an
emotional abuse referral based on domestic violence between
father and his girlfriend, J.B. Soon after that, the family again
came to the attention of the Department in January 2018,
following a referral that D.D., the seven-year-old, arrived at
school wearing only shorts and a T-shirt, despite the cold winter
weather. When J.B. picked up D.D. after school, she appeared to
be under the influence of drugs, with an unsteady gait and
unclear speech. D.D.’s former school had contacted his current
school and reported concerns that father and J.B. were abusing
methamphetamines. J.B. told the reporting party that she and
father were suffering from “financial difficulties” and were living
at a motel.
When a Department social worker visited the family at the
motel where they were staying, it was discovered the family was
struggling with homelessness. The social worker offered father
voluntary family reunification services to help provide some
stability to the children, but father did not “want to resort to that
just yet.”
J.B. admitted to a history of psychiatric hospitalizations,
and that she was diagnosed with anxiety and bipolar disorder but
was not taking her medications.
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Employees at the children’s school believed father and J.B.
were abusing methamphetamines, based on their appearance and
odd behavior, but father and J.B. denied they were using drugs.
Father refused to drug test without a court order.
While the Department was investigating the family, father
took the children out of school, and the Department was unable
to contact him because his phone numbers had been
disconnected. The Department obtained a removal warrant for
the children, and the children were eventually located after
father enrolled them in a different school. They were removed
and placed in foster care on April 30, 2018.
At the June 15, 2018 adjudication hearing, the juvenile
court sustained allegations based on the October 2017 domestic
violence incident between father and J.B.; father’s and J.B.’s drug
use while caring for the children; and father’s failure to provide
for the children’s basic needs.
At the July 17, 2018 dispositional hearing, the court
removed the children from father, ordered that his visitation be
monitored, that J.B. have no contact with the children, and that
father participate in reunification services, including a full drug
and alcohol program with aftercare, weekly random drug testing,
and parenting classes. Father appealed, and we affirmed.
Following disposition, father and J.B. continued to struggle
with homelessness. Father was not complying with his case plan,
insisting that he did not need to drug test or complete a program
because he and his girlfriend were not using drugs. He had not
enrolled in parenting classes, even though the Department had
provided him with referrals for services. He denied the sustained
allegations were true, insisted that J.B. was bonded to his
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children and would be a part of their lives if father reunified with
them.
Initially, father’s visitation was sporadic. He had
transportation issues, yet he refused to accept bus tokens offered
by the Department. Father’s visitation became consistent when
paternal relatives, such as paternal grandmother, started joining
his visits. However, father would miss visits if paternal
grandmother was not available, and he did not respond to the
Department’s efforts to provide him with more visitation. The
children’s foster mother reported that she did not see a strong
bond between father and the children. Father usually let the
children play with his phone during visits. During the entire
reunification period, father never once graduated to unmonitored
visits with the children.
At the September 2019 12-month review hearing, the court
terminated reunification services, set a permanency planning
hearing for January 22, 2020, and set a permanency planning
review hearing for March 25, 2020. The court also ordered the
children placed with their maternal grandparents in the State of
Washington. The court ordered that father receive weekly
monitored Skype visits with the children. Father was personally
served with notice of the section 366.26 hearing on October 24,
2019.
The children were placed with maternal grandparents in
November 2019. They were thriving in their new placement, and
maternal grandparents were committed to adopting them.
As of January 9, 2020, father had not visited or called the
children since their placement in Washington the previous
November. Maternal grandmother and the former foster mother
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reported that father had “not made an effort to establish a
meaningful relationship with the children.”
The January 22, 2020 permanency planning hearing was
first continued to March 2020 so that an adoptive home study
could be completed. It was continued again on the court’s own
motion to May 1, 2020, and then to January 6, 2021, because of
the COVID-19 emergency.
During this time, father had limited phone contact with the
children. He reported to the court and to the Department that
maternal grandparents would not take his calls. Maternal
grandparents claimed that father did not call, although they
inconsistently reported that he called outside of his scheduled
visitation times. Maternal grandparents were reluctant to
facilitate video calls, and wanted father’s contact to be only by
phone, even though the court had ordered Skype visits for father.
Father remained homeless, and there was some confusion
about where notices should be served. Some of the Department’s
reports failed to identify an address for father, noting he was
homeless. Others designated a Department of Public Social
Services address in El Monte for him. To add to the confusion,
father reported different addresses to the Department, and used
different addresses for his filings, including an address in San
Gabriel, and another address in Rosemead. Nevertheless, father
consistently stated his preference to receive notices and reports
by email.
On May 25, 2018, father filed a consent to electronic service
designating his Gmail address for receipt of service. On July 17,
2018, father filed a consent to receive electronic service,
designating a different Gmail address. The Department received
multiple emails from father from this new address. Father asked
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the Department to use a third Gmail address for service of
documents, although he never filed a consent to receive electronic
service at this address. This third address was also used by
father on court filings, such as a notice of intent to file a writ
petition.
According to the Department’s January 2021 report, the
adoption home study had been approved for maternal
grandparents, and there were no impediments to adoption.
Notice of the hearing was emailed to the third Gmail address
father had provided on December 10, 2020, per father’s request,
and was mailed to the El Monte address. The notice of the
hearing included an attachment informing the parties that the
courts were conducting remote hearings due to the COVID-19
emergency, and that the parties could call in or participate by
WebEx, and provided information for how to do so.
The court held the combined section 366.26 hearing and
permanency review hearing on January 6, 2021. The hearing
was conducted remotely via WebEx. Father submitted a
declaration for the permanency planning hearing which the court
admitted into evidence. In his declaration, father summarized
the procedural history of the case and argued J.B. was a
necessary party to the dependency proceeding. The declaration
did not discuss the bond between father and his children.
Father objected to notice for the hearings, arguing notice
was sent to an address that he never designated as his address
(the El Monte address), and that the notices and report were not
sent to his designated email address. Father asked for the
hearing to be continued “for proper notice so that he has an
opportunity to read the report and fully prepare for his hearing.”
The court found notice to be proper.
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Father also objected that the hearing was not conducted in
person, noting that he had requested an in-person hearing, and
that because of his homelessness, he was required to testify in a
public place. The court acknowledged that father had requested
an in-person hearing but found such a hearing was not possible
given the COVID-19 emergency.
Father also requested that the section 366.26 hearing be
continued for a contest following a bonding study, so that father
could show that the beneficial relationship exception to the
termination of parental rights applies under section 366.26,
subdivision (c)(1)(B)(i). The court requested an offer of proof
regarding the contest. Counsel argued the children were bonded
to father because of their young age and the amount of time they
spent in his custody, and that father had maintained regular
visitation until the children were moved to Washington where
the maternal grandparents “thwarted” his visitation.
The court stated its view that the offer of proof was
insufficient, and that it intended to proceed with the hearing that
day, but then granted father’s request that he be allowed to
testify. The Department objected, noting that the court had
denied the contest. The court acknowledged, “I did deny the
contest. I’m going to allow [father] to make his statement or
answer a few questions now. I am not setting this for contest in
the future. I’m going to allow him an opportunity to be briefly
heard and let his lawyer ask him a minimal amount of
questions.”
Father’s counsel attempted to ask father about his bond
with the children, and about his visitation with the children.
Father’s responses could not be heard because of a poor phone
connection. After attempting to question father, the court stated
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“I don’t know what to suggest. I cannot hear him. I want to have
an answer for the record. I don’t know what else to suggest,
[counsel]. I’m assuming your client is going to testify that he is
bonded with the children, they are bonded to him. I don’t know
what kind of contact he’s had other than what’s in the report
which I’m relying on.” Father tried to testify further, stating that
he visited with his children at least one day per week. But the
court could not understand him and stated the court would have
to rely upon argument by his counsel rather than father’s
testimony.
The court, relying on the Department’s reports and father’s
declaration, found that the children were adoptable, father had
not maintained regular visitation, and the parental bond
exception did not apply. The court never formally admitted the
Department’s reports into evidence. The court terminated
father’s parental rights. Father timely appealed.
DISCUSSION
The juvenile court must ensure that a party appearing by
telephone can participate in the hearing with no transmission or
reception problems, their statements are audible to all other
participants and court staff, and the proceedings remain
confidential as required by law. (Cal. Rules of Court,
rule 5.531(b)(2)-(4).) We review the denial of a request for a
continuance for an abuse of discretion. (In re D.Y. (2018)
26 Cal.App.5th 1044, 1056.)
Father was prevented from testifying at the section 366.26
hearing because of his poor phone connection, and the juvenile
court made findings and terminated his parental rights without
giving father a meaningful opportunity to be heard. The
Department concedes the court denied father due process by not
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continuing the hearing. The Department argues the error was
harmless because father could not meet his burden to
demonstrate the beneficial relationship exception to the
termination of parental rights.
We agree the juvenile court abused its discretion by not
continuing the hearing so that father could provide clear,
intelligible testimony in support of his claimed exception to the
termination of parental rights. We cannot find that the error was
harmless under any standard of review. (In re J.F. (2011)
196 Cal.App.4th 321, 336 [discussing harmless error standards of
review].)
The beneficial relationship exception to the termination of
parental rights applies if termination of parental rights would be
detrimental to a child because the parents have maintained
regular visitation, and the child would benefit from continuing
the relationship. “The benefit to the child must promote ‘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 re L.S. (2014) 230 Cal.App.4th 1183,
1199.) The parent must be more than a friendly visitor and must
occupy a parental role in the child’s life. (In re Jason E. (1997)
53 Cal.App.4th 1540, 1548.)
Here, we do not know what testimony father tried to give,
except that he was attempting to testify about the bond between
him and his children, and the quality of his visitation. The
Department’s reports provided little information about the
quality of father’s visitation with the children. There was
evidence maternal grandparents were frustrating father’s ability
to visit the children. Father had been the custodial parent for
these children for over 18 months before they were detained. On
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this record, we cannot know whether father may have had a
better outcome had he been permitted to testify.
Because we have concluded the court abused its discretion
when it failed to continue the hearing to give father a meaningful
opportunity to be heard, we need not consider father’s other bases
for challenging the order terminating his parental rights. Father
must provide to the court his current contact information, so that
any notice issues may be avoided upon remand.
DISPOSITION
The order terminating father’s parental rights is reversed,
and this matter is remanded to the juvenile court for further
proceedings consistent with this opinion. Father is ordered to
provide the court with his current address for service of process.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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