Dependency Case Law

In re Tamika T. (April 23, 2002) 97 Cal.App.4th 1114 [118 Cal.Rptr.2d 873]. Court of Appeal, Second District, Division 4.

The juvenile court terminated a mother's parental rights under Welfare and Institutions Code section 366.26.

The court asserted its jurisdiction over a child based on a petition alleging that the mother's frequent use of heroin rendered her incapable of caring for the child. The child was declared a dependent of the court and placed with a foster parent. The mother relapsed into drug use several times and eventually left the area without leaving a forwarding address. After the mother was out of touch for three months, the court terminated reunification services, ordered the Department of Children and Family Services (DCFS) to provide permanent placement services, and set the matter for a section 366.26 hearing. The section 366.26 hearing was repeatedly continued for more than a year in order to properly notice the mother, who was still missing. The mother appeared in court two years later and requested a contested hearing. The juvenile court set the date for the hearing conditioned on an offer of proof from the mother that there was regular contact with the child and that the child would benefit from a continuing relationship. DCFS prepared a report for that meeting indicating that the child was thriving with her foster family, and recommended termination of the mother's parental rights and placement for adoption.

At the contested hearing, the mother presented evidence that she had written the child two letters and had visited the child once since her return. The juvenile court found that the mother's offer of proof was inadequate to rebut the DCFS's showing that the child was adoptable. The juvenile court terminated parental rights and found that the child was likely to be adopted. The mother appealed, arguing that she had a due process right to a contested hearing based on the applicability of the "regular visitation and contact" exception of section 366.26.

The Court of Appeal affirmed the decision of the juvenile court, determining that a trial court does not violate due process by requiring an offer of proof before conducting a contested hearing. Section 366.26 (c)(1) asserts that the court will terminate parental rights unless the court finds that termination would be detrimental to the child because the parents have maintained regular visitation and contact with the child and the child would benefit from the continuing relationship. The burden is on the parent to establish probative facts to that exception. The mother argued that her due process right to present evidence at a section 366.26 hearing cannot first be put to the test of an offer of proof. The appellate court rejected this argument. Relying on In Re Jeannette V (1998), 68 Cal.App.4th 811, the court held that due process does not require a court to hold a contested hearing if the court is not convinced the parent will present relevant evidence on the issue he or she is contesting. The mother further argued that the language of a section 366.26 hearing established the parent's right to a contested hearing without an offer of proof. The appellate court rejected that argument, holding that the right is not absolute and can be subject to the requirement of an offer of proof. The court also rejected the mother's argument that in the absence of a contested hearing, a parent's rights are left vulnerable to arbitrary judicial decision making. The court held that a parent's rights are protected by the appeal process. The juvenile court's decision was affirmed.