Filed 6/14/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re A.B., a Person Coming Under the 

Juvenile Court Law.

 H049676

 (Santa Cruz County

 Super. Ct. No. 18JU00208)

SANTA CRUZ COUNTY HUMAN 

SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

G.B.,

Defendant and Appellant.

On August 31, 2018, the Santa Cruz County Human Services Department (the 

Department) filed a juvenile dependency petition under Welfare and Institutions Code 

section 361, subdivision (c) concerning a girl, A.B. (the minor), who was then 11 years 

old.1 The minor had been residing with her father, G.B., when the petition was filed. 

The whereabouts of the minor’s mother, A.E., were unknown when the petition was filed. 

It was alleged that father had physically abused the minor in August 2018 and had 

physically and emotionally abused her in the recent past. The juvenile court ordered the 

minor detained, and in November 2018, it found the allegations of the petition, as 

amended, true under section 300, subdivisions (b)(1) and (c), and adjudged the minor a 

1 All further statutory references are to the Welfare and Institutions Code.
2

dependent of the court. Father received family reunification services for approximately 

17 months. 

In September 2020, the court found legal guardianship with the minor’s maternal 

grandparents to be the appropriate permanent plan at the selection and implementation 

hearing pursuant to section 366.26 (366.26 hearing). At the hearing, the court found that 

visitation of the minor by father would be detrimental, and it denied visitation and 

ordered that father have no contact with the minor. Thereafter, father requested visitation 

of the minor. On May 5, 2021, after a contested six-month post-permanency review 

hearing in which the court heard testimony from three witnesses, it reaffirmed the 

detriment finding and denied visitation. Father renewed his request for visitation at the 

12-month post-permanency review hearing on November 30, 2021. The Department 

opposed the request and asked that father present an offer of proof to justify a second 

contested hearing on visitation. The juvenile court denied father’s request for a contested 

hearing, reaffirmed the detriment order, and denied father’s request for visitation. 

Father argues that the denial of a contested hearing on his request for visitation 

violated his statutory right to participate in post-permanency review proceedings and his 

constitutional right to due process. After reviewing the language of section 366.3 and the 

history of legislative amendments to that statute, we hold that father, as the parent of a 

child where the permanent plan is legal guardianship, did not have an unqualified 

statutory right to a contested post-permanency review hearing. We conclude further that 

father did not have an unfettered due process right to such a contested post-permanency 

review hearing, and the juvenile court did not err in requiring him to make an offer of 

proof in support of his request for that hearing. Accordingly, finding no error, we will 

affirm the court’s order after the 12-month post-permanency review hearing.
3

I. FACTUAL AND PROCEDURAL BACKGROUND2

A. Petitions

In August 2018, the minor reported that father had punched her leg with a closed 

fist, had scratched her arm, and had struck her head. The minor had a bruise on her leg

and a scar on her arm. She also reported that father had physically abused her on prior 

occasions and had made negative comments to her, including threatening her, yelling 

profanity at her approximately five times per week, and blaming her for difficulty in his 

interpersonal relationships. The minor was sad and withdrawn, had pulled out her hair 

due to stress, and had stated a fear that father would kill her. 

On August 31, 2018, the Department filed a petition as to the minor under 

section 300. On September 4, 2018, the juvenile court ordered the minor detained and 

ordered supervised visitation a minimum of one time per week for father. 

The Department filed first and second amended petitions under section 300, 

subdivisions (a) [serious physical harm], (b)(1) [failure to protect], and (c) [serious 

emotional damage]. In addition to the allegations concerning father’s treatment of the 

child, the Department alleged that mother abused substances including alcohol and

cocaine, and that she was aware of father’s harmful conduct to the minor. 

B. Jurisdiction/Disposition Reports

1. Family history and prior referrals in Alaska

A court in Alaska in 2012 awarded father sole legal custody and primary physical 

custody of the minor, and mother was granted visitation. 

2 There have been several prior appeals and writ proceedings in this dependency 

case. At the minor’s request in this appeal, we have taken judicial notice of the record in 

case No. H049078. At the Department’s request in this appeal, we have taken judicial

notice of the record in case Nos. H046437, H046828, and H047115. The factual and 

procedural history through November 7, 2018, presented here are taken from our opinion 

in In re A.B. H046437, June 6, 2019 [nonpub. opn.], of which we have taken judicial 

notice.
4

Between 2007 and 2016, there were 11 referrals in Alaska for child abuse and/or 

neglect. One referral involved a September 2016 incident of alleged child abuse by 

father at a hotel. Hotel security provided police with a video of the incident showing 

father upset with the minor because she had not brushed her hair. Father told the minor

that if she did not take care of her hair, he would have her head shaved. He also told her 

that he would beat her if she did not come over to him. It appeared from the video that 

father struck the minor’s face or head. Father denied that he had slapped or struck the 

minor but said he had “swatted at her face” when she talked back to him. The officer did 

not observe any injuries on the minor’s face. She stated that she felt safe at home, and 

that she was only talked to, not spanked, when she was in trouble. The report of physical 

abuse was found not substantiated. 

2. The minor’s disclosures in California

In 2018, while in school in California, the minor appeared “ ‘shut down’ and 

‘sad.’ ” On August 29, the minor was placed into protective custody after she disclosed

at school that father had been physically abusive for the past three years. The most recent 

incident occurred that morning when he yanked her hair and hit her head hard. She also 

had a bruise on her leg from being hit the week prior. The minor, crying, indicated that 

father blamed her for his former wife and the minor’s half-sibling leaving him. When the 

social worker informed the minor that she would not have to go home with father, she let 

out an audible and visible sigh of relief.

The minor was interviewed by a Santa Cruz County sheriff’s deputy and a social 

worker that same day. She disclosed that father had been hitting her for three years after 

her half-sibling was born. He usually hit her on the leg about two times a week. Father 

hit her on the head frequently because it would not leave a mark. The leg bruise from the 

week prior resulted from his striking her hard once or twice with a closed fist. A few 

weeks prior, he intentionally scratched her, leaving a scar. Father also yelled profanity at 

her about five times per week and used a lot of profanity when speaking about mother. 
5

The minor had not seen mother in years, and father’s negative talk about mother hurt the 

minor’s feelings. When the social worker asked about returning home, the minor’s stress 

level increased. She asked if she had to go home and stated that father was “going to 

mess” with her and “kill” her. The minor said she did not feel safe at home with father.

Father told the social worker and a sheriff’s deputy by telephone that the minor

had been fighting with him and was “oppositional.” He denied ever hitting the minor. 

When asked about the bruise on the minor’s leg, he indicated that it may have come from 

riding a bike or climbing on rocks. Father stated that the minor “ ‘did this before’ ”

because she was jealous of his intimate partners. He said the minor had been acting up 

because his current girlfriend had been spending more time with them. He reported that 

his ex-wife (the mother of the child’s younger half sibling) had left him because of the 

minor. 

When the social worker discussed relative or non-relative placement options, 

father stated, “She did this to herself,” and the child would have to deal with going into 

foster care. 

3. Father’s supervised visits/phone contacts

The social worker gave father the phone number for the foster home where the 

minor was living. Father was told to keep his conversations with the child neutral and to 

not discuss the case. The Department was required to restrict and monitor father’s phone 

calls because he did not respect the minor’s verbal boundaries. The minor told father not 

to talk negatively about mother, but he continued to bring up past allegations against 

mother. Prior to the dependency proceedings, father called mother names and told the 

minor that mother was probably dead. The foster mother reported that the minor had 

cried when she learned that her mother was alive. 

During supervised visits, father often spoke negatively about the minor’s mother, 

the Department, and the case. During one supervised visit in September 2018, the minor

told father that she had talked to mother by phone the previous night. The minor was 
6

upset with father because, according to mother, she had been trying to get in contact with 

the minor over the years. Father stated that he hadn’t heard from mother since he 

obtained custody of the child, and he expressed concern about mother’s having contact 

with the minor. The visit supervisor told father to talk to the social worker about his 

concerns and to refrain from making certain comments during the visit. Father continued 

to express concern about the minor having contact with mother. 

The pattern of father’s making critical comments about mother, expressing 

concern about her having contact with the minor, making negative comments about the 

Department and its social workers, and threatening lawsuits, continued throughout 

September and October 2018 during multiple supervised visitation sessions and other 

contacts. Father repeatedly disregarded the requests of visit supervisors to refrain from 

inappropriate comments in front of the minor. The Department also expressed concern 

that father was attempting in text messages and unmonitored phone calls to manipulate 

the minor and to encourage her to recant her statements that led to the filing of the 

petition.

4. Interviews with mother and other family members

Mother reported to the Department that her relationship with father began when 

she was 17 and he was 29 years old. Father physically abused her and told her he knew 

martial arts and could hurt her without leaving a mark. Mother stated she was in a 

“constant battle” with father to maintain a relationship with the minor. At some point, 

father would not take mother’s telephone calls during scheduled contact with the minor. 

Father told mother that the minor did not want to speak to her.

Mother admitted she had drug and alcohol problems. She indicated that she had 

last used cocaine in 2017, and she had stopped drinking regularly in 2017. Mother 

indicated that she was not yet stable enough to care for the minor.
7

The maternal grandparents described father as “ ‘very controlling’ ” and that he

would use the minor “as a tool against everyone.” Father would not take phone calls 

from mother who sought to speak with the minor. 

The minor has three paternal half siblings—two older and one younger.

According to Alaska court records, the mother of the two older half siblings had sole 

legal custody and primary physical custody. 

Father’s ex-wife, who was the mother of the minor’s younger half sibling,

dissolved her marriage with father in 2017 and was granted sole legal and physical 

custody of the half sibling. In December 2017, the ex-wife obtained a three-year 

domestic violence restraining order against father. 

The ex-wife reported that she had known the minor and father since the minor was 

three years old. Father would not answer the phone when the minor’s mother tried to 

speak with the minor pursuant to court-ordered phone contact. He also regularly talked 

disparagingly about mother in front of the minor. Father was verbally abusive to the exwife and to the minor. Father yelled at the minor a lot, told her that she was “ ‘terrible,’ ” 

and called her a “ ‘bitch.’ ” He slapped the minor across the face regularly and “[swung]

his hand at her.” The ex-wife had been the main point of contact for the minor’s schools 

because father would become mad and had frequent conflicts with school staff. The exwife left father because of his behavior, not because of the minor.

5. Father’s Contacts with Department and Foster Family

The Department reported that it had attempted to engage father in safety planning 

around the minor’s physical and emotional well-being. Father’s responses included 

blaming the social worker for harassing him and accusing the social worker of 

unprofessional behavior. Father also blamed the minor for being placed into foster care, 

stating, “ ‘She did this to herself . . . .’ ” After the Department located mother and put her 

in contact with the child for the first time in years, father texted messages to the minor’s 

foster family threatening legal action if the family allowed the minor to talk with mother 
8

on the phone. The Department instructed father not to discuss the case with the foster 

family and not to disparage mother to the child, but he continued to do so. 

C. Jurisdiction/Disposition Hearing (November 2018)

After a contested jurisdiction/disposition hearing on October 29 and November 7, 

2018, the juvenile court found true the allegations in the second amended petition under 

section 300, subdivision (b)(1) and (c); it did not find true the allegations under 

subdivision (a). The court adjudged the minor a dependent of the court, ordered her 

removed from father’s physical custody, found that placement with mother, the 

noncustodial parent, would be detrimental to the minor, and ordered reunification 

services and visitation for both parents. Father’s case plan included participating in an 

anger management assessment and any recommended treatment, participating in therapy, 

and participating in a psychological evaluation and following all recommendations. In 

making these findings and orders, the juvenile court found credible the minor’s 

statements to social workers and found not credible the minor’s retraction of those 

statements at the hearing.

D. Six-Month Review Hearing (June 2019)

As of April 2019, the minor had changed placements four times. Three placement 

changes had been the result of caregivers being unable to manage successfully the 

minor’s behavior, leading to an assessment that the minor needed a higher level of care. 

She was living at that time at Chamberlain’s Children’s Center in Hollister 

(Chamberlain’s). The minor was attending a local school and had an Independent 

Education Plan (IEP) with emotional disturbance as a primary disability. It was reported 

by the school psychologist that father had not cooperated in providing information 

necessary for an accurate IEP assessment. 

Father had visited the minor consistently, and his visits had increased to 1.5 hours 

in length. He had, however, used the GPS feature on the minor’s phone to locate her and 

to appear at unscheduled times insisting on visitation. There had been incidents in the 
9

past where law enforcement had been called to intercede. During visits with the minor at 

Chamberlain’s, father often brought food that he prepared for the minor. In April 2019, it 

had been reported that after a visit, father had left an ice chest that included a container of 

cannabis-infused butter; law enforcement was contacted.

3 Also that month, 

Chamberlain’s advised the Department that father could no longer visit there because of 

his belligerent treatment of staff and the harm caused to the minor by her witnessing the 

encounters. 

On June 21, 2019, after a two-day contested six-month review hearing, the 

juvenile court ordered that the minor continue as a dependent child of the court, with the 

parents continuing to receive services. The court suspended further telephone calls 

between father and the minor until father was able to demonstrate that he understood that

certain negative behaviors were detrimental and interfered with the minor’s ability to 

stabilize her mental health.4

E. Twelve-Month Review Hearing (December 2019)

As of October 2019, the minor was placed at Promesa STRTP (Short Term 

Residential Treatment Program; Promesa) in Fresno.5 The minor had refused to attend 

school and had missed 41 of 43 school days. Father, the holder of the minor’s 

3 Father’s ex-wife advised the Department that he had told her he used cannabisinfused butter when he cooked for the minor because it calmed her. 

4 Father’s negative behaviors included discussing (1) dependency allegations and 

other court matters, (2) the minor’s proposed testimony and her statements to others 

about court matters and the allegations, (3) the minor’s past or current placements in 

negative terms, (4) his planned litigation in response to the dependency proceedings, (5) 

his beliefs that the minor had been kidnapped or needed to be rescued, (6) that there were 

ongoing investigations by the FBI and CIA, and (7) mother and her relatives in a 

derogatory manner. 

5

In July 2019, Chamberlain’s (one of the minor’s previous placements) had 

advised the Department that it could no longer provide service to the minor. A 

representative of the facility indicated that the decision was due to father’s behavior, 

namely that “the amount of anger that [he] display[ed] [was] beyond what [it was] willing 

to accept as healthy and safe for [its] clients and [s]taff members.” 
10

educational rights, had told the minor “the County must send her to her school of origin 

[in Santa Cruz County] and . . . [no one could] make her go to any school she [didn’t] 

[want] to attend.” After he received a School Attendance Review Board notice, father 

contacted the school district but did not discuss the minor’s education, instead stating 

“that the County [was] holding [the minor] hostage.” Father did not lend assistance in 

attempting to persuade the minor to attend school. The Department recommended an 

order that the parents no longer hold the minor’s educational rights. 

Promesa noted that there were both positive and negative aspects of father’s visits. 

Father prepared meals for the minor and brought her snacks, and their relationship 

appeared to “have a loving foundation.” Negative aspects included father’s criticism of 

the Department, discussion of the dependency proceedings, swearing at, and having an

aggressive attitude toward Promesa staff, and telling the visit supervisor that the minor 

did not have to attend school because she had the right to go to school in Santa Cruz 

County. 

On December 2, 2019, after a contested 12-month review hearing, the court 

ordered that (1) the minor continue as a dependent child in out-of-home placement, 

(2) father’s services continue, (3) mother’s services be terminated, (4) the parents’ rights 

to make educational decisions be limited, and (5) the Clovis Unified School District be 

appointed the minor’s educational representative. 

F. Eighteen-Month Review Hearing (March 2020)

The Department reported that as of February 2020, the minor continued to refuse 

to attend school. The minor had a reenrollment appointment scheduled for 

January 23, 2020. When Promesa staff reminded the minor and father about the 

appointment, father advised that he would not be attending, and the minor said she would 

not attend without her father. She later said she was disappointed because she had 

wanted to attend the meeting, but that “ ‘she could not and that she ha[d] to listen to her 

dad.’ ” 
11

The minor also refused to attend medical and dental appointments. Father had 

specifically instructed the minor during a supervised phone call in January 2020 not to 

attend them. 

On approximately 20 occasions between December 12, 2019 and 

February 10, 2020, the new social worker attempted unsuccessfully to reach father by email, text, and telephone to schedule a face-to-face meeting. 

Visitation logs from Promesa disclosed a pattern in which during visitation, father 

berated and attacked the staff, accused Promesa of kidnapping the minor and holding her 

illegally, threatened litigation, recorded visitation over the staff’s objection, interfered

with supervision of the visits, and discussed the dependency proceedings. In an 

addendum report, the Department reported that since its report of February 13, 2020, “the 

quality of contact between [father] and [the minor] have become increasingly more 

worrisome, and [father] has displayed increasingly more aggressive behavior while in the 

presence of [the minor] that appears to impact her emotionally.”

On March 18, 2020, after with a contested 18-month review hearing, the juvenile 

court, inter alia, ordered that father’s services be terminated, he receive supervised 

visitation a minimum of once per month (with the additional terms and conditions 

governing father’s behavior during visitation), he be allowed one weekly, 10-minute, 

supervised telephone call with the minor, and that a 366.26 hearing be set for 

July 7, 2020.

G. Selection and Implementation Hearing (§ 366.26) (September 2020)

The minor made inquiry to the Department about being placed with her maternal 

grandparents in Alaska. The maternal grandparents participated in and were approved an 

Interstate Compact for the Placement of Children (ICPC) home study from Alaska. On 

June 2, 2020, the maternal grandmother flew to San Jose, met with the minor, and the two 

flew home together to Alaska the next day. 
12

A 366.26 hearing occurred on July 7, 2020. At the hearing, the court ordered that 

father have visitation with the minor once a month for one hour, telephonically only, and 

supervised by a person approved by the Department.

6

At the continued 366.26 hearing on September 29, 2020, the Department changed 

the permanent plan recommendation from adoption to legal guardianship. The court 

found that the permanent plan of legal guardianship was appropriate and appointed the 

maternal grandparents as the minor’s legal guardians. It found by clear and convincing 

evidence that termination of parental rights would be detrimental to the minor, stating

that the minor, who was 12 years or older, objected to termination of parental rights.

Additionally, the court found that visitation by father would be detrimental to the minor 

and it was therefore denied. It ordered that father stay at least 300 yards away from the 

home of the maternal grandparents and have no contact in any way with the minor. 

Letters of guardianship appointing the maternal grandparents as guardians of the minor 

were issued by the clerk of the court on November 10, 2020. 

H. Six-Month Post-Permanency Planning Review Hearing (May 2021)

The Department reported in March 2021 that overall, things had gone well in the 

minor’s placement with her maternal grandparents in Alaska. The minor and her teacher 

advised the case worker that the minor was doing very well in school. The minor had had 

no contact with father during the reporting period; the caregivers advised the Department 

that the minor did not wish to have contact with him. 

6 Based upon the Department’s application alleging father’s prior harassment and 

threats of county personnel and his current harassment, intimidation and threats by text 

message to the maternal grandmother, the court issued a temporary restraining order 

(TRO) on May 19, 2020, with the maternal grandmother and the minor as protected 

persons. At the July 7 hearing, the court dissolved the TRO but incorporated its terms 

into the visitation order. It was indicated in a subsequent order of September 29, 2020, 

that father’s visitation rights were terminated on July 24, 2020. 
13

At the initial post-permanency planning review hearing on March 23, 2021, the 

juvenile court stated that father—who the court noted had not appeared in any 

proceedings for one year and four months—had submitted an e-mail the night before the 

hearing requesting custody and that legal proceedings be transferred to Alaska. The court 

continued the case for a contested hearing on the issue of visitation and the prior finding 

that visitation by father would be detrimental to the minor. 

In its report, the Department opposed visitation. The Department recited, inter 

alia, father’s “history of being uncooperative with visit supervisors, including verbally 

undermining them in front of [the minor]”; his “minimal engagement in his case plan”; 

his expulsion from anger management class; his termination from individual therapy; his 

failure to provide information showing he had “ameliorated any of the issues which 

brought his family before this Court”; and that father’s presence at the March 23, 2021 

hearing had had a negative impact upon the minor’s subsequent school attendance and 

her emotional well-being. It was the Department’s position that before supervised 

visitation could begin, father needed to (1) be involved in counseling and parenting 

classes, (2) provide releases to the Department allowing it to speak with service 

providers; (3) “demonstrate an awareness of [the minor’s] needs and past trauma, and 

how his behavior caused her harm,” and (4) show his “ability to cooperate with visit 

supervisors, social workers and other service providers.” 

At the continued hearing on May 5, 2021, the court heard evidence concerning 

father’s request for visitation. Testimony was presented by father, the minor (who was 

then 14 years old), and Tammy Hull.

Hull testified that she is father’s fiancée. The home where Hull and father lived in 

Alaska had a room ready and available for the minor. There were horses and a waterfall 

on the property. 

Father testified that the minor was in his care from 2010 until her detention in 

2018. He was regular in his visitation with the minor and she enjoyed the visits. He last 
14

visited the minor in person in Fresno approximately one year and three months earlier. 

Father testified that he wanted to resume visitation with the minor because he loved her 

and missed her. He stated: “My property needs to be returned. She was taken.” Father 

stated that he would accept visitation that was supervised, although “[the visits] don’t 

need to be supervised, she’s 14.” 

The minor testified in chambers outside the presence of father pursuant to 

section 350, subdivisions (b)(1) and (b)(3). On brief examination by father’s counsel, the 

minor testified that she was open to visiting with father and would agree to restrictions on 

such visitation that might be place by the court. She also indicated that “[she] could do 

that” in response to whether she would like to talk to father by phone. After the court 

granted the minor’s request to speak without examination by counsel, she testified that 

father’s statement that “[his] property ha[d] been taken away from [him] . . . made me 

very mad. That’s how he treats me. It shows he’s not a stable father in that—it just made 

me mad because I’m not a piece of property and I never will be. . . . [¶] And also how he 

speaks to me and how he speaks to me and my siblings is—I actually don’t want any part 

of living with him, which I know is totally out of the question.” The minor also stated 

she felt father was “try[ing] to bribe [her]” to regain custody, which she found “just 

repulsive.”

The juvenile court ordered the minor to continue as a dependent child, found the 

permanent plan of legal guardianship continued to be appropriate, and concluded it would 

not change its previous detriment finding made on September 29, 2020. It ordered that 

father have no visitation with the minor, but it allowed father, if he so chose, to submit 

correspondence to the minor through the social worker.7

7 Father appealed the May 5, 2021 order after the six-month post-permanency 

planning review hearing. Deeming the appeal to have been abandoned by father, this 

court dismissed the appeal on September 20, 2021. (See In re A.B. H049078.) 

Therefore, we do not review the May 5, 2021 order here, although we present some detail 
15

I. Twelve-Month Post-Permanency Planning Review Hearing (Nov. 2021)

1. Department’s Report 

The Department reported that after delays due to staffing problems, the minor 

began to receive monthly visits from the assigned Alaska ICPC social worker. The minor 

had established relationships with medical and dental care providers; her physician had 

diagnosed the minor with post-traumatic stress disorder and sleeping difficulties. The 

minor had also established a relationship with a therapist, whom she had been seeing on a 

weekly basis since May 2021. The maternal grandmother reported that the new school 

year for the minor was going well. In September 2021, however, because of a statement 

the minor made, school officials made a suicide assessment and gave the minor the 

option to go home for the day. The minor was receiving emotional support from her 

school counselor. 

In August, the minor told the Department’s social worker “that she would like to 

see her father face consequences for his abusive behavior.” In a November 2021 meeting 

to discuss the minor’s needs, she told the social worker that she “would like her 

dependency case to remain open and she would like to see her father face 

consequences[,] specifically jail time[,] for his abusive behavior and for feeding her 

marijuana. She reported that he’s abused other children and adults and ‘he will not stop, 

he will keep abusing people’ and he has ‘caused so much harm.’ She reported that the 

‘best case scenario would be that he goes to jail and I can visit him in jail.’ [The minor] 

reported “I don’t want to live in a world where he doesn’t get punished.’ [¶] While [the 

minor] would like her dad to have repercussions for his actions, she reported that she 

would also like to maintain a relationship with him and visit with him.” 

The Department reported that since the May 2021 hearing, notwithstanding the 

court’s order permitting father to correspond with the minor in care of the social worker, 

concerning those prior proceedings for purposes of giving background and context to the 

twelve-month post-permanency planning review hearing at issue in this appeal.
16

she had not had contact with father. In October, father did contact the social worker to 

see if he could arrange through social services to get a birthday present to the minor. The 

social worker advised in her report: “[The minor] has at times expressed a desire to see 

her father, partly to confront him about his abusive behavior. Most recently, [the minor] 

has told the undersigned she would like to have visitation with her father. [The minor’s] 

therapist is aware of [her] desire to have a relationship with her father and is currently 

working with [the minor] to explore these feelings further to determine if it would be in 

[her] best interest to resume communication between [the minor] and her father.” 

The Department noted that the minor had had 10 different placements during the 

dependency proceedings. The Department reported that the maternal grandparents had 

provided a loving home for the minor, who enjoyed spending time with nearby relatives. 

2. CASA Worker Report 

Rosalie Hershberger, the minor’s Court Appointed Special Advocate (CASA)

worker since September 2018, reported that she had maintained contact with the minor by 

text, phone, and mail since her move to Alaska in June 2020. Hershberger advised that 

the minor spent considerable time with her nearby niece and nephew. The minor’s 

closest relationship was with her adult half-sister. The minor regularly attended class, 

and she participated in a theater club in the summer. The minor had been seeing a 

therapist weekly, and Hershberger stated that the minor “seem[ed] to have connected 

with her.” 

In October 2021, Hershberger visited the minor in Alaska for her birthday. The 

minor showed Hershberger her room, which Hershberger said was tidy, well-decorated, 

“and most definitely hers and hers alone.” They enjoyed an afternoon having lunch, 

shopping for books, and attending a movie. Hershberger stated the minor showed quick 

mood swings, “go[ing] from angry to silent and depressed in a flash.” The minor was 

initially very happy but later began “talking about not wanting to live long. She’d say 

things like ‘this might be my last birthday’ and ‘I may not make it to 18.’ When 
17

[Hershberger] asked her why[,] her answer was ‘I don’t want to live in a world where my 

dad is not in jail for what he’s . . . done.’ ” In talking with the minor, Hershberger found 

that “it always [came] back to her dad not being in jail. At the same time, she want[ed] to 

visit him again.” 

Hershberger opined that the minor’s placement with was very beneficial, and the 

maternal grandparents provided her a “safe, stable and loving home environment.” 

Hershberger stated: “After seeing her bedroom and the way she takes pride and 

ownership of the space[,] it’s easy to see this is where she needs to be. [The minor] is 

very lucky to have such caring and dedicated grandparents.”

3. Twelve-Month Review Hearing

The court conducted a 12-month post-permanency review hearing on 

November 30, 2021. No testimony was presented. The court heard from counsel, and 

from the minor and father themselves. 

The Department submitted the matter on its report. Counsel reiterated the 

Department’s recommendation that the court continue dependency jurisdiction with the 

continued permanent plan of legal guardianship with the maternal grandparents, and that 

the court continue to deny visitation to father based upon the court’s prior detriment 

finding. 

The minor’s counsel stated that the minor requested that some visitation be 

established. In an effort to accommodate that wish, counsel suggested that therapeutic 

visitation involving the social worker and the minor’s therapist might be appropriate to 

provide safeguards for the visits. The minor, speaking on her own behalf, confirmed that 

she was requesting monthly visitation. 

Father’s counsel confirmed that her client would very much like monthly 

visitation as requested by the minor and a lifting of the court’s prior detriment finding. 

Father’s counsel provided the court with an e-mail sent by father the day before the 

hearing in which he disputed many of the statements made in the Department’s report. 
18

Father stated in the e-mail that he believed the Department was “pushing abuse, which 

did not occur, as a motive to keep my daughter from communicating with or seeing me.” 

He stated further in the e-mail, in addressing the Department’s comments that the minor 

wanted him in jail and on the other hand wanted a relationship with him: “She is 

obviously very confused and I know that most of her trauma in the last three years is 

mainly from being bounced from one home or institution to another where conditions 

were unacceptable and/or the other occupants were causing her stress.” Father’s counsel 

requested a contested hearing to address the report and visitation (if the court did not 

contemplate ordering it). The court ordered that the e-mail be scanned and made part of 

the record and would be deemed “parents’ comments on the report.”

The Department indicated its continued opposition to visitation, urging the court 

that while the minor’s statements should be considered, the best interest of the minor was 

the standard. Counsel argued that it would not be appropriate to lift the prior finding of 

detriment without any evidence that circumstances had changed since the hearing in 

May 2021. She argued further that there had been no evidence of change in father’s life, 

his taking parenting classes or receiving therapy, his taking advantage of the opportunity 

to send letters to the minor pursuant to the prior court order, or the existence of other 

changed circumstances to justify lifting the detriment finding. Counsel opposed setting a 

contested hearing on visitation, inquiring what offer of proof father might make showing 

a change in circumstances occurring since the May hearing that warranted lifting the 

detriment finding. 

Father’s counsel responded that a parent was not required to make an offer of 

proof in seeking a contested hearing, and, further, that there was no requirement of a 

showing of changed circumstances. Counsel incorporated father’s e-mail in support of 

the request for visitation and stated that “he would testify to the Court that he has stability 

and support, a job, that he was extremely respectful about all restrictions upon him to 

have communications with his daughter. [¶] Further, he lives nearby . . . in the same 
19

town. . . . [H]e has never crossed any line in that regard. He was nothing but respectful . 

. . to the court orders, respectful to his daughter, respectful to the family that cares for 

her.”

The court concluded that father had made no preliminary showing warranting a 

contested hearing on visitation. It reasoned: “This Court made a detriment finding in . . . 

2020 based on evidence that was presented at that time. The detriment finding was 

confirmed by a full[-]blown evidentiary testimonial hearing in May [2021]. The only 

thing that [father] has advanced for today’s hearing . . . is an email that says we all got it 

wrong, that the social worker report is wrong, that the Court made the wrong 

decisions . . . . What would be the purpose of an evidentiary hearing other than a rehash 

of the evidence that the Court took in May and the fact that nothing bad has happened in 

the interim? He was accorded the opportunity to potentially commence visits in the form 

of written correspondence. He didn't even take advantage of that[,] and he at least needs 

to make a preliminary showing.” 

The juvenile court found that legal guardianship continued to be the appropriate 

permanent plan, with the minor remaining under the custody, care, and control of the 

Department placed with the maternal grandparents. Having previously found that 

visitation with father would be detrimental and thus not in the minor’s best interests, the 

court ordered no visitation. It, however, indicated that father could submit 

correspondence to the social worker for potential submission to the minor.8 The court 

denied father’s request for a contested hearing. The court set a further post-permanency 

planning review hearing for May 24, 2022.

8 At the request of the minor’s counsel, the court indicated that the minor, working 

with her therapist and the social worker, could prepare a letter to father stating everything 

she wished to tell him for delivery by the social worker. 
20

II. DISCUSSION

A. Applicable Law

1. Dependency Proceedings

This case concerns proceedings occurring after the termination of reunification 

services and the selection of a permanent plan at a 366.26 hearing. Given that procedural 

context, we provide the following discussion of relevant dependency law. 

As summarized by the First District Court of Appeal (Division 2): “Although the 

legislative scheme is somewhat labyrinthine, it is simple in basic concept. Its purpose is 

to balance efforts to reunify a parent with their child with the child’s need for a stable, 

permanent home. [Citation.] ‘The parent is given a reasonable period of time to reunify 

and, if unsuccessful, the child’s interest in permanency and stability takes priority.’ 

[Citation.] The critical juncture is when a hearing pursuant to Welfare and Institutions 

Code section 366.26 is set to determine a permanent plan of care for the dependent 

child . . . . ‘[U]p until the time the section 366.26 hearing is set, the parent’s interest in 

reunification is given precedence over the child’s need for stability and permanency.’ 

[Citation.] The reunification period may last as long as 18 months, and it may be yet 

another four months before the section 366.26 hearing is held. [Citation.] ‘While this 

may not seem a long period of time to an adult, it can be a lifetime to a young child. 

Childhood does not wait for the parent to become adequate.’ [Citation.] ‘After the 

termination of reunification services, the parents’ interest in the care, custody and 

companionship of the child are no longer paramount. Rather, at this point, “the focus 

shifts to the needs of the child for permanency and stability” [citation], and in fact, there 

is a rebuttable presumption [pending the adoption of a permanent plan] that continued 

foster care is in the best interests of the child.’ [Citation.]” (In re C.W. (2019) 33 

Cal.App.5th 835, 839, fns. omitted.) 

The exclusive procedure for establishing the permanent plan for the child is the 

selection and implementation hearing as provided under section 366.26. The essential 
21

purpose of the hearing is for the court “to provide stable, permanent homes for these 

children.” (Id., subd. (b).) “At the section 366.26 hearing, the question before the court 

is decidedly not whether the parent may resume custody of the child. [Citations.] In fact, 

it is not permissible to order reunification at the section 366.26 hearing. [Citations.] 

Indeed, when the court orders the section 366.26 hearing, reunification services have 

been terminated, and the assumption is that the problems that led to the court taking 

jurisdiction have not been resolved. [Citation.]” (In re Caden C. (2021) 11 Cal.5th 614, 

630.)

There are seven statutory choices for the permanency plan; the preferred choice is 

adoption, coupled with an order terminating parental rights. (§ 366.26, subd. (b); see also 

In re Celine R. (2003) 31 Cal.4th 45, 53 [“Legislature has thus determined that, where 

possible, adoption is the first choice”].) The court selects this option if it “determines . . . 

by a clear and convincing standard, that it is likely the child will be adopted.” (§ 366.26, 

subd. (c)(1).) The next preferred choice (if the Indian Child Welfare Act does not apply) 

is relative legal guardianship. (§ 366.26, subd. (b)(3).) The last-preferred choice, which 

is “therefore disfavored” (In re C.W., supra, 33 Cal.App.5th at p. 840), is long-term foster 

care. (§ 366.26, subd. (b)(7).)

After the juvenile court has selected a permanent plan at the 366.26 hearing, it 

must conduct periodic reviews under section 366.3. (In re C.W., supra, 33 Cal.App.5th at 

p. 840.) “If the permanent plan is either for adoption or guardianship, that statute calls 

for the juvenile court to retain jurisdiction until either step is accomplished, and to review 

the child’s status every six months to ensure that the plan ‘is completed as expeditiously 

as possible.’ (§ 366.3, subd. (a).) For all other children (i.e., those who have neither been 

ordered placed for adoption nor with a legal guardian), section 366.3 specifies that ‘the 

status of the child shall be reviewed at least every six months’ (id., subd. (d)) in order to 

inquire into ‘the progress being made to provide a permanent home for the child,’ which 

inquiry also ‘shall consider the safety of the child’ (id., subd. (e)).” (Ibid.)
22

2. Standard of Review

Father makes two basic contentions on appeal. First, he contends that the juvenile 

court was required under section 366.3 to grant his request for a contested 12-month postpermanency review hearing. Such matters of statutory interpretation are issues of law 

that are reviewed de novo. (In re J.F. (2011) 196 Cal.App.4th 321, 329 (J.F.).) Second, 

father asserts that he had a constitutional right to due process under the Fifth and 

Fourteenth Amendments to a contested post-permanency review hearing, and the court 

could not condition such right upon his making an offer of proof. Such a due process 

contention is likewise an issue of law for which the de novo standard of review applies. 

(In re A.B. (2014) 230 Cal.App.4th 1420, 1434.)

B. Claimed Error in Denial of Contested Hearing on Visitation

1. Statutory Right to Contested Hearing

Father contends that under section 366.3, he was entitled to notice and an 

opportunity to participate at the 12-month post-permanency hearing. He argues that such 

right to participate included the right to a contested hearing that was unfettered by the 

requirement that he submit an offer of proof justifying such hearing. He relies on a trio 

of cases decided at the post-permanency stage: In re Kelly D. (2000) 82 Cal.App.4th 433

(Kelly D.), In re Josiah S. (2002) 102 Cal.App.4th 403 (Josiah S.), and J.F., supra, 196

Cal.App.4th 321. 

In Kelly D., supra, 82 Cal.App.4th at page 435, the juvenile court ordered longterm foster care as the permanent plan for the three dependent children. At a postpermanency review hearing, the agency (having not made the proposal in the social 

worker’s report) recommended a reduction in visitation; the father objected to the lack of 

notice of the proposed change and requested a contested hearing. (Id. at p. 436.) The 

juvenile court granted the agency’s request to modify the visitation schedule, concluding 

that the father had no right to a contested hearing. (Ibid.) The appellate court reversed, 

holding that “subdivision (e) of section 366.3 expressly entitles the parents of a minor in 
23

long-term foster care to notice of and participation in the six-month [post-permanency] 

status review hearing. ‘Notice’ of that hearing must include notice to the parent of any 

proposed departmental modifications to existing juvenile court orders. Moreover, to 

‘participate’ in the hearing connotes involvement as a party to the proceeding, one 

essential aspect of which is the reasonable expectation that parents could challenge 

departmental proposals and proposed court modifications.” (Id. at p. 438.)9 The Kelly D. 

court’s conclusion was based in part upon the requirement under section 366.3, 

subdivision (e) that “the juvenile court . . . review the adequacy of services provided to 

the minor, consider the minor’s safety, and assess the progress the parents have made 

toward mitigating the causes necessitating placement in foster care. [Citation.]” (Kelly 

D., supra, at p. 438.) The court reasoned that because the statute gave the parent the 

opportunity to show that additional steps toward reunification may promote the 

dependent child’s best interests and it was possible that the parent and child in long-term 

foster care might reunify, the parent was entitled under the statute to have a contested 

review hearing. (Ibid.)

Kelly D., supra, 82 Cal.App.4th 433 does not support father’s claim of error. The 

court’s conclusion that the father in Kelly D. was entitled to a contested post-permanency 

review hearing was based upon “the express language of subdivision (e) of 

section 366.3.” (Id. at 440.)10 That statutory provision applies to review hearings 

9 The relevant language relied on and quoted by Kelly D. concerning the rights of a 

parent of a child in long-term foster care at post-permanency review hearings was the 

version of section 366.3, subdivision (e) then in effect. It read as follows: “ ‘Unless their 

parental rights have been permanently terminated, the parent or parents of the child are 

entitled to receive notice of, and participate in, those hearings.’ ” (Kelly D., supra, 82 

Cal.App.4th at p. 437, fn. 3, original italics.) That identical language is found in the 

current version of section 366.3 in subdivision (f).

10 Subdivision (e) of section 366.3 provides in part: “[A]t the review held every 

six months pursuant to subdivision (d), the reviewing body shall inquire about the 

progress being made to provide a permanent home for the child, shall consider the safety 

of the child, and shall determine all of the following: [¶] (1) The continuing necessity 
24

involving dependent children whose permanent plan is long-term foster care. (In re C.W., 

supra, 33 Cal.App.5th at p. 840.) Because subdivision (e) refers to “the review held 

every six months pursuant to subdivision (d),” and subdivision (d)(1) requires status 

review hearings at least every six months for a child who “is in a placement other than 

the home of a legal guardian” (italics added), the provision expressly does not apply to 

the post-permanency review hearing involving the minor here. Section 366.3, 

subdivision (a)(1) is the provision applicable where the dependent child’s permanent 

placement is with a legal guardian. (In re C.W., supra, 33 Cal.App.5th at p. 840.)11 That 

statute does not contain the language then found in subdivision (e) and now found in 

subdivision (f)—that “the parent or parents of the child are entitled to receive notice of, 

and participate in, those hearings”—upon which the Kelly D. court relied. 

In Josiah S., supra, 102 Cal.App.4th at page 409, the court ordered long-term 

foster care as the permanent plan of the dependent child. After receipt of an interim 

review report by the agency that included a recommendation to curtail visitation, 

for, and appropriateness of, the placement . . . . [¶] . . . [¶] (3) The continuing 

appropriateness and extent of compliance with the permanent plan for the child . . . . 

[¶] (4) The extent of the agency’s compliance with the child welfare services case plan in 

making reasonable efforts either to return the child to the safe home of the parent or to 

complete whatever steps are necessary to finalize the permanent placement of the 

child. . . . [¶] . . . [¶] (7) The extent of progress the parents or legal guardians have 

made toward alleviating or mitigating the causes necessitating placement in foster care.” 

Expressly excluded from the review hearings required under subdivision (e) are cases in 

which the child’s permanent plan involves placement with a legal guardian. (§ 366.3, 

subd. (d)(1) [“[i]f the child . . . is in a placement other than the home of a legal guardian 

and jurisdiction has not been dismissed, the status of the child shall be reviewed at least 

every six months”].)

11 “If a juvenile court orders a permanent plan of adoption, tribal customary 

adoption, adoption of a nonminor dependent . . . or legal guardianship . . . , the court shall 

retain jurisdiction over the child or nonminor dependent until the child or nonminor 

dependent is adopted or the legal guardianship is established, . . . . The status of the child 

or nonminor dependent shall be reviewed every six months to ensure that the adoption or 

legal guardianship is completed as expeditiously as possible.” (§ 366.3, subd. (a)(1).)
25

mother’s counsel filed an objection and requested a contested hearing on the report’s 

contents, which request was denied by the juvenile court. (Id. at pp. 414-415.) The 

appellate court reversed. Relying extensively on Kelly D., 82 Cal.App.4th at pages 438 

to 440, the court in Josiah S. held that the mother was entitled to a contested postpermanency hearing because under then-subdivision (e) of section 366.3, the parent of a 

child placed in long-term foster care has the right to notice and participation at such 

hearings. (Josiah S., supra, at pp. 416-417.) The court’s decision in Josiah S., like Kelly 

D., was based upon a statute inapplicable to the proceedings here.

In J.F., supra, 196 Cal.App.4th at page 328, long-term foster care was selected by 

the juvenile court as the permanent plan for child. At the 12-month post-permanency 

hearing, the mother disputed the agency’s report and requested a contested hearing 

concerning matters related to the child’s potential return to her care. (Ibid.) The juvenile 

court required that the mother present an offer of proof and then concluded that the offer 

was not sufficient to warrant a contested hearing. (Ibid.) 

The appellate court in J.F.—reciting the same “notice . . . and participate” 

language of section 366.3 relied on by the courts in Kelly D. and Josiah S.12—concluded 

that the statute grants the parent of a dependent child whose permanent plan is long term 

foster care “the right to take part in the post-permanency review and anticipates the 

parent may present evidence to overcome the presumption continued foster care is in the 

child’s best interests.” (J.F., supra, 196 Cal.App.4th at p. 331.) In so concluding, the 

court held that the statute did not condition the right to participate at such review hearings 

upon the parent’s making an offer of proof. (Ibid.) Further, the court in J.F. emphasized 

that section 366.3 treated differently cases in which the child’s permanent plan was long12 After Kelly D. and Josiah S. were decided, the statutory language formerly 

under subdivision (e) that “the child’s parent is ‘entitled to receive notice of, and 

participate in, those [post-permanency review] hearings’ ” (J.F., supra, 196 Cal.App.4th 

at p. 330) had been recodified under subdivision (f) of section 366.3. (See stats. 2008, ch. 

482, § 7.)
26

term foster care: “The Legislature recognizes that a placement in long-term foster care is 

not necessarily a stable placement and directs the court to hold periodic reviews to 

consider all permanency plan options for the child, including returning the child to the 

parent’s home. [Citations.] . . . A dependent child has a compelling interest in a 

placement that is more permanent than long-term foster care, which is the least favored 

permanency plan. [Citation.] The Legislature directs the court to consider all 

permanency placement options for a child in long-term foster care, including return to the 

parent’s home. (§ 366.3, subd. (h).)” (J.F., supra, at p. 334, fn. omitted.) The court in 

J.F. therefore reversed, holding that both section 366.3 and the right to due process 

afforded “the parent of a child in long-term foster care the right to participate in the postpermanency review, without conditioning that right on an offer of proof. [Citations.]” 

(Id. at pp. 335-336.) 

J.F., supra, 196 Cal.App.4th 321 offers no support for father’s position here. 

Subdivisions (e), (f) and (h) of section 366.3, relied on by the J.F. court, concerning postpermanency review of cases in which the dependent child’s permanent plan is long-term 

foster care, have no application to the post-permanency review hearing for the minor in 

this case whose permanent plan was legal guardianship. Further, as the J.F. court noted, 

the statutory provisions at issue there focused on the disfavored option of long-term 

foster care and the importance of the post-permanency review process in accomplishing 

more stable placement for the child, including his or her possible return to the parent’s 

home. (Id., at p. 334.)

Father argues that, notwithstanding the fact that Kelly D., Josiah S., and J.F.

concerned review of long-term foster care placements under subdivision (e) of 

section 366.3, the principles enunciated in those cases nonetheless apply here because 

subdivision (f) of the statute provides: “Unless their parental rights have been 

permanently terminated, the parent or parents of the child are entitled to receive notice of, 

and participate in, those hearings.” He asserts that “those hearings” referred to in 
27

subdivision (f) of the statute includes permanency plan review hearings required every 

six months under subdivision (a)(1) where the permanent plan of legal guardianship has 

been ordered. Based upon this assertion, father concludes that cases holding that parents 

of children in long-term foster care have an unfettered right to a contested postpermanency review hearing apply equally to this legal guardianship case. We disagree

for four reasons. 

First, subdivision (a)(1) creates one category of post-permanency review hearings 

specifically for cases in which the permanent plan selected is either “adoption, tribal 

customary adoption, adoption of a nonminor dependent . . . , or legal guardianship.” 

Section 366.3, subdivision (d)(1) is the provision addressing cases in which the 

permanent plan is long-term foster care. (See § 366.3, subd. (d)(1) [“[i]f the child or 

nonminor dependent is in a placement other than the home of a legal guardian and 

jurisdiction has not been dismissed, the status of the child shall be reviewed at least every 

six months”]; see also J.F., supra, 196 Cal.App.4th at p. 330 [noting that subdivision (d)’s 

requirement of status review hearings every six months applies where long-term foster 

care is permanent plan].) 

Second, there is no reference in subdivision (f) of section 366.3 to the postpermanency review hearings provided for under subdivision (a)(1). 

Third, clearly, subdivision (e) (which specifically refers back to subdivision (d))

and subdivision (f) of section 366.3 both relate to cases in which the permanent plan 

selected is long-term foster care. (See J.F., supra, 196 Cal.App.4th at p. 331 [“by its 

plain language, section 366.3, subdivision (f), grants the parent the right to take part in 

the post-permanency review and anticipates the parent may present evidence to overcome 

the presumption continued foster care is in the child’s best interests”].) 

Fourth, father’s claim that the phrase “those hearings” in subdivision (f) is 

intended to include post-permanency review hearings involving legal guardianship does 

not survive close scrutiny. We so conclude by tracing the origin of the sentence in 
28

question. The sentence was contained in section 366.3, as originally enacted in 1987

(becoming effective in 1989). The sentence appeared in the last paragraph of thensubdivision (c), which concerned review hearings for a minor “in a placement other than 

a preadoptive home or the home of a legal guardian.” (Stats. 1987, ch. 1485, § 49.) In a 

1995 amendment, then-subdivision (c) became subdivision (d). (See stats. 1995, ch. 540, 

§ 9.) In another amendment the next year, then-subdivision (d) became subdivision (e). 

(See Stats. 1996, ch. 1138, § 5.) In both the 1995 and 1996 amendments, the last 

paragraph included the notice and participation sentence at issue here. And, after 

numerous subsequent amendments to section 366.3, in 2008, the statute was again 

amended. The 2008 amendment effectively splintered the last paragraph of subdivision

(e)—that included the sentence at issue here, reading “ . . . the parent or parents of the 

child are entitled to receive notice of, and participate in, those hearings”— from 

subdivision (e) to create a new subdivision (f). (See Stats. 2008, ch. 482, § 7.) From this 

history, it is clear that “those hearings” to which parents are entitled to receive notice and 

in which they are entitled to participate (§ 366.3, subd. (f)), are hearings involving longterm foster care cases; the language has no application to cases in which legal 

guardianship has been selected as the permanent plan. 

Accordingly, we find no merit to father’s contention that the juvenile court’s denial 

of a contested post-permanency review hearing was a deprivation of his statutory rights

under section 366.3. 

2. Due Process Right to Contested Hearing

a. Applicable Law

Parents enjoy a fundamental liberty interest in the care, custody, and management 

of their children. (Santosky v. Kramer (1982) 455 U.S. 745, 753.) “The state and federal 

Constitutions guarantee no state shall deprive parents of this interest in their children 

without due process of law, which includes the right to confront and cross-examine 

witnesses in dependency proceedings. [Citations.]” (David B. v. Superior Court (2006) 
29

140 Cal.App.4th 772, 777 (David B.).) In the context of dependency proceedings, 

however, “due process is not synonymous with full-fledged cross-examination rights. 

[Citation.] Due process is a flexible concept which depends upon the circumstances and 

a balancing of various factors. [Citation.]” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 

817 (Jeanette V.).) “The essential characteristic of due process in the statutory 

dependency scheme is fairness in the procedure employed by the state to adjudicate a 

parent’s rights. [Citation.]” (In re James Q. (2000) 81 Cal.App.4th 255, 265 (James Q.).)

Because due process “ ‘is a flexible concept’ . . . [e]ven where due process rights 

are triggered, it must always be determined ‘what process is due.’ [Citation.] We look to 

‘the private interest that will be affected by the agency’s action, the risk of an erroneous 

deprivation of that interest, the interest in informing parents of the basis for and 

consequences of the action and in enabling them to present their side of the story, and the 

agency’s interest in expeditious decisionmaking as affected by the burden caused by an 

additional procedural requirement.’ [Citation.]” (In re A.B., supra, 230 Cal.App.4th at 

p. 1436.) 

Thus, for example, courts have rejected due process challenges to the juvenile 

court’s requiring an offer of proof by parents in support of the parental benefit 

relationship exception to adoption under section 366.26. (See In re Tamika T. (2002) 97 

Cal.App.4th 1114, 1122 (Tamika T.); Jeanette V., supra, 68 Cal.App.4th at pp. 816-817; 

see also In re Earl L. (2004) 121 Cal.App.4th 1050, 1053 [juvenile court properly 

required parent to make offer of proof on claim of sibling relationship exception to 

adoption].) Additionally, one court has held that the juvenile court, without offending 

due process, may require a parent seeking a post-permanency contested hearing to submit 

an offer of proof on whether the child placed in long-term foster care should return home. 

(Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1148; but see J.F., 

supra, 196 Cal.App.4th at pp. 332-333 [disagreeing with Maricela C.].) In contrast, the 

juvenile court cannot require the parent to submit an offer of proof to challenge the 
30

agency’s claim at a 366.26 hearing that it is likely that a child will be adopted: “The 

critical difference between this case and the Tamika T. and Earl L. line of authority is that 

the courts permit offers of proof on issues where the parent has the burden of proof, . . . 

while the contested factual issue in this case is [one] which the Department has the 

burden of proving.” (In re Thomas R. (2006) 145 Cal.App.4th 726, 732 (Thomas R.); see 

also James Q., supra, 81 Cal.App.4th at pp. 266-268 [conditioning parent’s request for 

contested six-month review hearing on parent’s offer of proof and terminating 

reunification services after denial of hearing deprived parent of due process].)

An important consideration in resolving father’s due process claim here is the fact 

that the dependency proceeding here is in the post-permanency stage. As explained by 

one court, a “factor bearing on the right to a contested hearing is the stage of the 

dependency proceeding, which is closely tied to the issue of which party has the burden 

of proof. ‘Different levels of due process protection apply at different stages of 

dependency proceedings. [Citations.]’ [Citation.] In the initial phases of a dependency 

proceeding, family preservation is the primary focus and the ‘ “parent’s interest in 

reunification is given precedence over the child’s need for stability and permanency.” 

[Citation.]’ [Citation.] ‘However, “[o]nce reunification services are ordered terminated, 

the focus shifts to the needs of the child for permanency and stability.” [Citation.]’ 

[Citation.]” (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1181 (M.T.); see also 

David B., supra, 140 Cal.App.4th at p. 778 [18-month pre-permanency review hearing 

“marks a critical turning point in the proceedings from a focus on family reunification to 

finding a permanent and stable placement for the child”].)

b. Claim of Error

The circumstances presented here as detailed above did not compel the juvenile 

court, under principles of due process, to grant father’s request for a contested postpermanency 12-month review hearing. In the three-plus years since the minor had been 

detained, she had had 10 placements. At the time of the hearing in November 2021, the 
31

minor, then 15 years old, had been living with the legal guardians, her maternal 

grandparents, for 18 months, by far the longest placement during these proceedings. The 

Department reported that the legal guardians had provided a loving home for the minor, 

who enjoyed spending time with nearby relatives. CASA worker Hershberger confirmed 

that the minor was in a “safe, stable and loving home environment,” and that the minor 

was “very lucky” to be in her present placement. After moving to Alaska, the minor had 

established relationships with medical and dental care providers, had established a 

relationship with a therapist whom she was seeing weekly, was doing well in school

(after a history during dependency of poor attendance), and had support from a school 

counselor. 

Notwithstanding the increased stability of the minor’s home environment, there 

were concerns about her mental health that centered around her relationship with, and 

attitude toward, father. At the six-month permanency hearing in May 2021, the minor, 

through her in-chambers testimony, exhibited significant anger toward father, about his 

referring to her during the hearing as “his property,” and with how he treated her. She 

stated she wanted no part of living with him; believed he was not a stable father; believed 

he was not (as he claimed) in a stable relationship; and felt he was trying to bribe her to 

regain custody, which she found “just repulsive.” As of November 2021, the minor had

made repeated statements to the Department and to CASA worker Hershberger that she 

wanted to see father in jail. The minor nonetheless said she would like to visit him. The 

Department reported that in September 2021, the minor expressed suicidal ideation. And 

in late October during their visit CASA worker Hershberger reported that the minor was 

emotionally volatile, said she did not want to live long, and said she did not want to live 

in a world where father was not in jail for what he had done. 

The record showed that father had a history of problems during visitation,

telephone calls, and other communications with the minor, specifically, inappropriate 

communications with the minor and a lack of respect for verbal boundaries, disregard of 
32

visitation staff’s requests and direction, and aggressive attitude toward group home 

placement staff. The inappropriate communications included negative comments about 

mother and her family, negative comments about the minor’s placements, discussion of 

the dependency proceedings, criticisms of case workers and staff, discussion of filing 

lawsuits and initiating federal investigations related to the dependency, telling the minor 

she had been kidnapped and needed to be rescued, undermining placement’s efforts to get 

the minor to attend school, and instructing the minor not to attend medical and dental 

appointments.

After initially finding in September 2020 at the 366.26 hearing that visitation 

would be detrimental to the minor, the juvenile court, at the May 2021 six-month postpermanency review hearing, heard testimony and argument concerning father’s request 

for visitation and the Department’s recommendation to extend the detriment finding.13

The court reaffirmed the detriment finding and denied visitation but permitted contact by 

father with the minor by correspondence submitted through the social worker. The court 

provided a detailed statement of its reasons. It noted that it was very surprised that father 

had “completely dropped out of any involvement or participation with his daughter after 

November of 2019,” emphasizing that there had been a number of court appearances in 

which father’s counsel had stated she had had no communication with her client.

14 The 

court also found troubling father’s reference to the minor as “his property” both at the 

hearing an in a prior unreported proceeding. It stated that father’s previous reported 

13 The juvenile judge who made the detriment finding at the 366.26 hearing in 

September 2020 was also the judge at the subsequent six-month and twelve-month postpermanency review hearings in May 2021 and November 2021, respectively.

14 As of the first date scheduled for the six-month post-permanency hearing in 

March 2021 (which father did attend), he had not personally appeared in court for 19

months. His last personal appearance was at the June 2019 six-month review hearing. 

Father did not attend several hearings at critical stages of the proceedings: He failed to 

attend the 12-month review hearing in December 2019; the 18-month review hearing in 

March 2020; or the 366.26 hearings in July and September 2020. 
33

contacts with Promesa staff were “repeated, inappropriate, and inexcusable behavior.” 

The court concluded after the contested six-month post-permanency review hearing: 

“[I]t’s not access to horses or a nice property or a waterfall that needed to be addressed 

by [father], it’s behavioral and therapeutic. And he has not brought forth . . . one scintilla 

of evidence that he has attempted to do any of those things since he disappeared in 

November of 2019 until only recently reemerging.” 

The Department, for the 12-month review hearing, recommended a continuation of 

the dependency with legal guardians remaining the permanent placement. It did not seek 

a modification of the order at the six-month post-permanency hearing. Father did not, 

either through counsel or through his e-mail, raise anything new in support of his request 

for visitation. Father did not identify any steps he had taken to address past issues 

identified during the dependency, such as addressing anger management, participating in 

therapy, or acknowledging past behaviors during visitation and other contacts with the 

minor that had been inappropriate and emotionally destabilizing for the minor. These 

steps, not taken, included various efforts that the Department identified in opposing 

visitation at the six-month post-permanency hearing in May 2021. Rather than 

identifying efforts that suggested that significant problems had been addressed, father’s 

November 2021 e-mail (1) identified claimed errors in the Department’s report; (2) 

denied issues that had resulted in the minor’s detention in August 2018; (3) alleged 

improper conduct by the Department, including its “pushing abuse . . . to keep [his]

daughter from communicating with or seeing [him]”; and (4) posited that the minor’s past 

trauma was the result of her many placements (and, by implication, denying any personal 

responsibility for that trauma). 

The juvenile court, in denying father’s request for visitation or a contested 

12-month review hearing, observed that it had previously made a detriment finding in 

2020, and had confirmed that finding in “a full[-]blown evidentiary testimonial hearing in 

May [2021].” The court noted further that father’s e-mail had not advanced anything 
34

concerning his request for visitation other than “we all got it wrong.” The juvenile court 

also stated that father had not “even taken advantage of” the opportunity, provided after 

the six-month review hearing in May 2021, to visit with the minor through 

correspondence. 

Under the circumstances, the juvenile court’s denial of father’s request for a 

contested review hearing did not deprive him of due process. Although parents in 

dependency proceedings have a right to due process, that right “is not synonymous with 

full-fledged cross-examination rights. [Citation.] Due process is a flexible concept 

which depends upon the circumstances and a balancing of various factors. [Citation.]” 

(Jeanette V., supra, 68 Cal.App.4th at p. 817.) As has been observed (a point critical to 

the analysis of father’s claim of error here), “[d]ifferent levels of due process protection 

apply at different stages of dependency proceedings. [Citations.]” (Thomas R., supra, 

145 Cal.App.4th at p. 733.) Up until a 366.26 hearing is set, dependency law emphasizes 

reunification of the parent and child (In re Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn 

H.)), but “[o]nce reunification services are ordered terminated, the focus shifts to the 

needs of the child for permanency and stability” (id. at p. 309). 

Accordingly, “cases holding that a parent has an unfettered due process right to 

confront and cross-examine adverse witnesses at review hearings held before the 

permanency planning stage do not compel the identical conclusion with respect to 

hearings held after reunification services are terminated. [Citations.]” (M.T., supra, 178 

Cal.App.4th at p. 1181.) The court in J.F., supra, 196 Cal.App.4th at page 333—a case 

relied on by father here—acknowledged this general proposition. Although the J.F. court 

declined to follow the reasoning in M.T., supra, at page 1181 to find it appropriate to 

require the parent of a child in long-term foster care to make an offer of proof to obtain a 

contested post-permanency review hearing, the J.F. court held: “Although this general 

proposition applies to post-permanency reviews for a child who is placed in a 

guardianship or who has been freed for adoption, the interests of a child in long-term 
35

foster care and those of his or her parent are not commensurate with those cases and merit 

closer scrutiny.” (J.F., supra, at p. 333, italics added.)

Here, it must be emphasized that the minor’s permanent plan was legal 

guardianship, not long-term foster care where the statutory scheme for post-permanency 

review hearings permits the juvenile court to “order another six-month period of 

reunification services if the parent proves by a preponderance of the evidence that further 

efforts at reunification are the best alternative for the child . . . [and] also imposes on the 

court the obligation to review statutorily-specified factors concerning the child’s 

circumstances and to consider all permanency options for the child, including return to 

the parent’s home. ” (J.F., supra, 196 Cal.App.4th at p. 327.) Further, unlike the 

circumstances in the long-term foster care cases relied on by father in which the agency 

proposed action or changes adverse to the parent, the Department here recommended that 

the status quo from the prior review hearing be maintained. (See J.F., supra, 196

Cal.App.4th at p. 328 [agency in report recited that child did not want to visit mother and 

she had not tried to see him, matters mother wished to contest]; Josiah S., supra, 102 

Cal.App.4th at p. 414 [agency in report sought restriction of mother’s visitation to onehour monthly visits]; Kelly D., supra, 82 Cal.App.4th at p. 436 [agency requested at 

hearing a reduction in frequency of father’s visitation, a matter not recommended in its 

report].) Moreover—also unlike the three long-term foster care cases on which father 

relies—the question of visitation (and the potential reversal of the previous detriment 

finding) identified by father at the 12-month review post-permanency hearing had been 

the subject of a contested evidentiary hearing six months earlier. 

Furthermore, the juvenile court’s denial of father’s request for a new contested 

hearing concerning visitation must be viewed in the context of the case and the focus of 

the court at the post-permanency stage of the proceedings. The minor had undergone the 

instability of 10 placements during the dependency. She had finally achieved some 

stability in her current placement with her grandparents. There were, however, still 
36

significant concerns reported by the Department and CASA worker Hershberger about 

the minor’s emotional stability. The likely stress and pressures imposed upon the minor 

from a second contested evidentiary hearing within six months were important 

considerations for the court in light of its focus at this stage of the dependency 

proceeding being “the needs of the child for permanency and stability.” (Marilyn H., 

supra, 5 Cal.4th at p. 309; cf. In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1089

[recognizing court’s authority in an appropriate case to decline compelling child witness 

to testify, based upon “a recognition of the overriding objective of the dependency 

hearing—to preserve and promote the best interests of the child”].)

As was true in M.T. (albeit it being a long-term foster care case), “[i]t is plainly not 

the case that a parent may insist upon an evidentiary hearing at every post-permanency 

review, irrespective of the nature of the parent’s objection to the social service agency’s 

recommendations.” (M.T., supra, 178 Cal.App.4th at p. 1181.) Here, the juvenile court’s 

denial of father’s request for a contested hearing, after considering the evidence he 

proposed to put forward at such hearing and rejecting that offer of proof as inadequate,

did not abridge father’s right to due process.15 In so ruling, the juvenile court respected 

15 The juvenile court did not specifically state that it was requiring father to submit 

an offer of proof in support of his request for a contested hearing. Counsel for the 

Department, however, requested that father submit an offer of proof supporting his belief 

that there had been a change of circumstances since the prior contested six-month hearing 

to warrant ordering visitation. Father’s counsel responded that father was not required to 

make an offer of proof, but counsel then referred to father’s e-mail and made an offer of 

proof as to his anticipated testimony. Shortly after this colloquy, the court stated that it 

agreed with the Department’s counsel, it had reviewed the matters presented by father’s 

counsel and in father’s e-mail, indicated that it had read and considered the evidence, and 

concluded that a new evidentiary hearing would be nothing more than a rehash of the 

evidence presented at the prior hearing. In the course of making its ruling, the court 

stated “[father] at least needs to make a preliminary showing.” The court denied father’s 

request for a contested hearing. We infer from this record that the juvenile court 

implicitly required father to submit an offer of proof, father’s counsel made such offer, 

and the court, after considering it, concluded that it was insufficient to justify granting an 

evidentiary hearing. Although father does not specifically argue on appeal that his offer 
37

“[t]he essential characteristic of due process . . . [of] fairness in the procedure employed 

by the state to adjudicate a parent’s rights. [Citation.]” (James Q., supra, 81 Cal.App.4th 

at p. 265.) Accordingly, the denial of father’s request for a contested 12-month postpermanency review hearing was not constitutional error.

III. DISPOSITION

The November 30, 2021 order after the 12-month post-permanency review hearing 

is affirmed.

of proof was sufficient to warrant granting an evidentiary hearing—instead, asserting that 

he had the unfettered right to such a hearing—we conclude that father’s offer of proof 

failed to meet the standard that such a proffer “must be adequate in scope and must be 

specific.” (In re A.G. (2020) 58 Cal.App.5th 973, 982.) 
___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

DANNER, P.J.

__________________________

WILSON, J.

In re A.B.; HSD v. G.B.

H049676
Trial Court: Santa Cruz County

Superior Court Nos.: 18JU00208

Trial Judge: The Honorable Timothy J. Schmal

Attorney for Defendant and Appellant Michael C. Sampson

G.B. : under appointment by the Court of

Appeal for Appellant

Attorneys for Plaintiff and Respondent Jason M. Heath,

Santa Cruz County HSD/Family and County Counsel

Children’s Service: 

Shannon Sullivan,

Deputy County Counsel

In re A.B.; HSD v. G.B.

H049676