Filed 3/14/14 In re J.C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re J.C. et al, Persons Coming Under the 

Juvenile Court Law.

TULARE COUNTY HEALTH AND HUMAN 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

S.C.,

Defendant and Appellant.

F068011

(Super. Ct. No. JJV066587A, B)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Hugo Loza, 

Commissioner.

Roni Keller, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kathleen Bales-Lange, County Counsel, John A. Rozum and Jason Chu, Deputy 

County Counsel, for Plaintiff and Respondent.
2.

-ooOooAppellant Sarah C. (mother) appeals from orders of the juvenile court terminating 

her parental rights after the court found it likely her children R.M. and J.C. would be 

adopted. (Welf. & Inst. Code,1 §§ 366.26, 395.) 

Mother contends that the juvenile court violated her due process rights when it 

denied her request for a contested section 366.26 hearing, and she challenges the 

sufficiency of the evidence to support the adoptability findings. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Mother was arrested in Stanislaus County on September 18, 2012. At the time of 

her arrest, she had a bag of methamphetamine, methamphetamine pipes, and a scale in 

her car with her. Her one-year-old son, R.M., was also in the car, in an unsecured car 

seat. Stanislaus County CPS took R.M. into protective custody and then released him to 

the care of a maternal uncle and aunt. R.M.’s siblings, M.C. and J.C., were already in the 

care of these same relatives. 

When mother was released from incarceration on September 20, 2012, she 

instructed R.M.’s father (father) to pick up J.C. and R.M. from the relatives’ care, which 

he did without knowledge or approval of Stanislaus County CPS. Father took the two 

children to Riverside County. M.C. was taken by her own father to the Bay Area.2 

Riverside County Proceedings

On October 9, 2012, father was arrested for strong arm robbery, resisting arrest, 

and a probation violation. Riverside County DPPS-CPS learned of father’s arrest and 

found R.M. and J.C. at their paternal grandmother’s home. They were taken into 

protective custody. 

 

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

otherwise indicated.

2 Only R.M. and J.C. are involved in this appeal. 
3.

A section 300 petition filed October 12, 2012, alleged that mother had substance 

abuse issues and was unable to provide a safe and stable home for the children. The 

petition further alleged that mother was transient, that J.C.’s biological father was 

unknown, and that R.M.’s father was incarcerated.

Mother was present at the detention hearing October 15, 2012, in Riverside 

County. The juvenile court found a prima facie showing that R.M. and J.C. fell under the 

jurisdiction of the juvenile court pursuant to section 300, subdivisions (b) and (g), and 

ordered the children detained. They were placed in a foster family home in Riverside 

County. A jurisdiction/disposition hearing was set for November 5, 2012. 

In the report prepared in anticipation of jurisdiction/disposition, mother admitted 

that she started using methamphetamine when she was in a relationship with M.C.’s 

father, nine years earlier. Over the ensuing years, she had used frequently for two and a 

half years, then occasionally for three years, then stopped three years ago before she 

relapsed one time in September of 2012. Mother said she was now in a meaningful and 

positive relationship and that her “partner” (who is not identified as this point) was 

supportive of her efforts to regain custody of J.C. and R.M. According to mother, she 

was very motivated to pursue reunification services as she wanted the children returned 

to her as soon as possible. Mother was living in Tulare County at the time. 

At the November 5, 2012, jurisdiction hearing, mother did not contest jurisdiction, 

waived her right to a trial, and submitted on an amended petition. The Riverside County 

juvenile court found true the amended allegations, removed the children from mother, 

and ordered reunification services for mother. Mother was to be given unsupervised 

visits after it was deemed safe to do so. The juvenile court authorized that an ex parte 

request could be submitted when appropriate to address overnight/weekend visits and 

family maintenance services for mother. The Riverside County juvenile court transferred 

the case to Tulare County because mother was residing in Visalia. 
4.

Tulare County Proceedings

A Tulare County HHSA/Child Welfare Services social worker interviewed mother 

on November 16, 2012, for the Tulare County transfer-in report. According to mother, 

she moved to Visalia to be closer to her family, including her mother and other relatives 

who would give her family support. Mother was involved with a domestic partner, S.S., 

and living in S.S.’s residence. Mother’s earlier case plan consisted of parenting and 

domestic violence classes, substance abuse treatment, and individual therapy. This plan 

was adopted at the November 26, 2012, transfer-in hearing. 

The juvenile court ordered continued twice a week supervised visits, with 

discretion for the social worker to increase them and lift supervision. The juvenile court 

wanted every effort made to place the children with a relative in Tulare County. Mother 

told the juvenile court that, if her own mother wasn’t able to be assessed for placement, 

mother would move out of S.S.’s place and S.S. could be assessed for placement. 

The section 366.21, subdivision (e) six-month review hearing was set for April 25, 

2013. 

The report prepared in anticipation of the review hearing stated that mother, 

despite earlier claims that she wished to do whatever was necessary to have her children 

returned to her, made herself unavailable. The social worker was last able to make 

contact with mother on February 25, 2013, and unable to make contact with her at all in 

March and April of 2013. Mother’s mother informed the social worker on April 5, 2013, 

that mother was no longer participating in her case plan and that she appeared to have 

given up on reunifying with her children. 

According to the social worker, mother failed to contact the domestic violence 

service provider and failed to provide proof of attendance for parenting classes. Mother 

did not attend substance abuse evaluations in December 2012 and January 2013. When 

she did complete an evaluation in late January 2013, she was discharged three weeks later 
5.

for missing multiple appointments. Mother failed to random drug test beginning in 

January 2013. Mother did complete 12 sessions with her mental health therapist. 

The children had been placed with S.S. since December 20, 2012. Both mother 

and S.S. claimed they were no longer in a relationship with each other. Mother’s visits 

with the children were supervised by S.S., who claimed they were appropriate and 

positive for the children. S.S. did state that mother was visiting the children less and less 

often, seeing them only about once every two weeks. S.S. stated that it was emotionally 

difficult for the children when mother failed to show for visits. The social worker 

recommended reducing mother’s visits to two hours once a week, supervised by S.S. 

According to the social worker, the children were doing well in S.S.’s care and did 

not have any significant behavioral or medical issues. J.C. was in good health, 

developmentally meeting all of his milestones, and did not exhibit any emotional and 

mental health concerns. Although R.M. was also in good health, he showed some signs 

of delay. His vocabulary was smaller than appropriate for his age and he was not using 

words together. A referral was made for R.M. to be evaluated. The social worker 

observed J.C. and R.M.’s bond with S.S., calling her “mom” and going to her gladly. 

The social worker recommended terminating mother’s reunification services and 

setting a section 366.26 selection and implementation hearing to consider a permanent 

plan. An adoption assessment was completed on April 3, 2013, and was consistent with 

the social worker’s recommendation, and determined that the children were adoptable. 

Adoption with S.S. was anticipated and both mother and S.S. were in agreement with this 

plan. 

A copy of the section 366.21, subdivision (e) review report and notice of the 

upcoming hearing was mailed to mother on April 11, 2013. 

The section 366.21, subdivision (e) review hearing was held April 25, 2013. 

Mother was present with counsel. At the hearing, mother’s counsel argued that mother 

would like her services continued, but “understands and stated to me that she has been 
6.

overwhelmed with all of her services and this has affected her progress.” Counsel also 

requested that visits not be reduced but continued at twice a week. 

The juvenile court terminated mother’s reunification services and set a section 

366.26 hearing for August 8, 2013. The juvenile court found it detrimental to return J.C. 

and R.M. to mother. It also found mother had been provided reasonable services, but that 

mother had failed to participate regularly or make any substantive progress. The juvenile 

court found that mother’s time to reunify with R.M. had expired since he was under three 

years at the time of removal; J.C. was part of that sibling group; and there was no 

substantial probability of return if mother was given another six months of services. 

Visits remained as previously ordered. The juvenile court suspended mother’s rights to 

make any medical or education decisions and vested those rights with S.S. 

A section 366.26 hearing was set for August 8, 2013. 

The report prepared in anticipation of the permanency hearing stated that R.M., at 

age 20 months, had difficulty speaking because he was unable to move or lift his tongue 

up to his hard palate. A surgical procedure to correct this was scheduled. 

In its report in anticipation of the section 366.26 hearing, the social worker 

recommended that mother’s parental rights be terminated in order to free J.C. and R.M. 

for adoption by S.S., with whom they had lived eight months. Mother told the social 

worker that she was “clearly” in favor of S.S. adopting both children. Although mother’s 

visits with the children in S.S.’s home went well, S.S. did not believe the children were 

attached to mother as they did not ask about her when she was gone. The social worker 

opined that the children were attached to mother and enjoyed visits with her, but they did 

not appear to have a true parent-child relationship with her. Instead, the children relied 

on S.S. to fulfill the parental role in their lives. S.S. was appropriately attentive to the 

children’s needs. 

The social worker found that both children had developed a close bond and 

attachment to S.S. in the eight months they had been together. J.C., age five, had known 
7.

S.S. since he was two; R.M., age one, had known her since birth. Both boys referred to 

her as “mom,” and looked to her for direction and comfort to meet their emotional and 

physiological needs. The social worker believed that, at their young age, the children 

needed stable and consistent attachments to at least one healthy adult in order to achieve

maximum well-being. 

The section 366.26 hearing was held August 8, 2013. Mother did not appear but 

was represented by counsel. At the hearing, mother’s counsel made the following 

request:

“I want to set this contested because even though it states what it does at 

page 2 and page 11,

[3]

I haven’t talked to my client and I don’t want to 

submit the adoption away without her -- or submit to the adoption probably 

being granted without talking to her.” 

The juvenile court asked if mother had received notice, and county counsel stated 

that she had. The juvenile court noted mother’s statements in the section 366.26 report 

expressing her preference for adoption with S.S. The juvenile court then asked county 

counsel for a recommendation on how to proceed with the hearing. County counsel, with 

agreement of the children’s attorney, recommended that the section 366.26 hearing 

proceed that day. When the juvenile court asked for any additional comments from 

mother’s counsel, he stated only:

“Yes, that at page 12 of the report it indicates that [mother] was given 

visitation orders on November 26th, 2012, and they were going well, they 

were appropriate and positive for the children. Then the social worker 

writes that it appears that they became inconsistent in visiting the children. 

So with that I will submit.” 

The juvenile court followed the Tulare County HHSA/Child Welfare Services 

recommendation of adoption and found,

 

3 These page numbers are referring to the August 8, 2013, section 366.26 report, 

which states mother’s preference that the children be adopted by S.S. 
8.

“the children are adoptable and that the current care providers express their 

desire to provide permanency to the children and adoption has been 

selected as appropriate and the plan most suitable and in the best interest of 

the children.” 

The juvenile court terminated mother’s parental rights and designated S.S. as the 

children’s prospective adoptive parent. The juvenile court ordered no visits for mother 

and that any visits would be up to S.S. to determine. 

DISCUSSION

At the section 366.26 hearing, mother’s counsel asked the juvenile court to set a 

contested hearing because he had not spoken to mother and did not want to submit on the 

adoption without talking to her. Mother contends that her due process rights were 

violated when the juvenile court denied her counsel’s request for a contested section 

366.26 hearing. We disagree.

The procedures for conducting hearings to terminate parental rights are set forth in 

section 366.26. (§ 366.26, subd. (a).) Subdivision (b) states: 

“At the hearing, which shall be held in juvenile court for all children who 

are dependents of the juvenile court, the court, in order to provide stable, 

permanent homes for these children, shall review the report as specified in 

Section 361.5, 366.21, or 366.22, or 366.25, shall indicate that the court has 

read and considered it, shall receive other evidence that the parties may 

present, and then shall make findings and orders ....”

Under section 366.26, subdivision (c)(1)(B), “If the court determines, based on the 

assessment provided as ordered ... and any other relevant evidence, by a clear and 

convincing standard, that it is likely the child will be adopted, the court shall terminate 

parental rights and order the child placed for adoption ... unless ... [¶]...[¶] [t]he court 

finds a compelling reason for determining that termination would be detrimental” due to 

one or more of five enumerated circumstances.4 While it is the child welfare agency’s 

burden to prove a likelihood of adoption (In re Brian P. (2002) 99 Cal.App.4th 616, 623), 

 

4 Those circumstances are: that parents have maintained regular contact with the 

child and the child would benefit from the parental relationship (§ 366.26, subd. 
9.

the burden is on the parent or parents to establish the existence of one of the 

circumstances that are exceptions to termination. (In re Tamika T. (2002) 97 Cal.App.4th 

1114, 1119 (Tamika T.) 

In Tamika T., the juvenile court required the mother to make an offer of proof 

before holding a contested hearing at which she could attempt to prove the predicate facts 

of the strong parental relationship circumstances that is an exception to termination 

(referring to former § 366.26, subd. (c)(1)(A), which is now (c)(1)(B)(i)), and denied her 

request for the hearing because she could not identify any evidence she would offer in 

support of the exception. (Tamika T., supra, 97 Cal.App.4th at p. 1119.) The Court of 

Appeal affirmed and held that is does not violate due process to require an offer of proof 

before setting a contested hearing on whether the parent can carry his or her burden of 

establishing a statutory exception to termination. (Id. at p. 1116; see also In re Earl L.

(2004) 121 Cal.App.4th 1050 (Earl L.) [same conclusion where parents wanted a 

contested hearing to demonstrate the applicability of the “sibling exception” circumstance 

(referring to former § 366.26, subd. (c)(1)(E), which is now (c)(1)(B)(v)].) 

In In re Thomas R. (2006) 145 Cal.App.4th 726 (Thomas R.), counsel for the 

Department of Health and Human Services and both children moved for an order 

requiring the parents to identify the particular statutory exception to termination of 

parental rights they intended to rely upon and make an offer of proof if they were 

intending to contest the section 366.26 hearing. The parents opposed the request, stating 

 

(c)(1)(B)(i)); a child of 12 years or older objects to termination (id., subd. (c)(1)(B)(ii)); 

the child is in a residential treatment facility, adoption is unlikely or undesirable, and 

continuation of parental rights will not prevent finding a permanent placement (id., subd. 

(c)(1)(B)(iii)); the child is living with a relative or foster parent who is unable or 

unwilling to adopt due to exceptional circumstances but who is able and willing to 

provide a stable and permanent home, and removal would be detrimental (id., subd. 

(c)(1)(B)(iv)); and adoption would cause substantial interference with a sibling 

relationship (id., subd. (c)(1)(B)(v)). 
10.

they wished to cross-examine the adoptions specialist and the prospective adoptive 

parents on the issue of adoptability. The parents were concerned that the foster parents 

had changed their minds on the issue of adoption in a short period of time, suggesting 

they may have been pressured to adopt and might change their minds again. Further, no 

home study had been done, and the prospective adoptive father had a disabling heart 

condition. The juvenile court found the offer of proof inadequate, denied the request for 

a contested hearing, and terminated parental rights. (Thomas R., supra, at p. 730.) 

The question before the court in Thomas R. was whether the juvenile court may 

deny a parent the opportunity to test the sufficiency of the child welfare agency’s 

evidence of adoptability through cross- or direct examination at a section 366.26 hearing. 

The court in Thomas R. determined that “where, as here, the proposed questioning is 

relevant to whether the dependent child is likely to be adopted, the answer is no.” 

(Thomas R., supra, 145 Cal.App.4th at p. 731.) “Although the court may limit any 

examination within the confines of what is permissible under the Evidence Code, it 

cannot, consistent with due process, preclude a parent from testing the evidence 

supporting the child welfare agency’s position that the child is likely to be adopted.” 

(Ibid.) 

The court in Thomas R. distinguished its reasoning from that in Tamika T. and 

Earl L. by stating,

“The critical difference between his 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, like the circumstances that are 

exceptions to termination, while the contested factual issue in this case is 

the likelihood the child or children will be adopted, which the Department 

has the burden of proving. Precluding the parents from exploring and 

testing the sufficiency of the Department’s evidence is fundamentally 

different than requiring them to describe evidence they will offer to prove a 

point.” (Thomas R., supra, 145 Cal.App.4th at p. 732.)
11.

In other words, it is one thing to require a parent to show he or she has relevant evidence 

to proffer on an issue on which he or she bears the burden of proof before scheduling a 

contested evidentiary hearing on that issue; it is quite another to deprive him or her of the 

opportunity to explore the strength of the agency’s evidence that the child is likely to be 

adopted. (Ibid.) 

“Different levels of due process protection apply at different stages 

of dependency proceedings. [Citations.] After reunification services are 

terminated and a section 366.26 hearing is set the focus shifts from the 

parent’s interest in reunification to the child’s need for permanency and 

stability. [Citation.] For this reason, we agree that cases holding a parent 

has an unfettered due process right to confront and cross-examine adverse 

witnesses at contested hearings held before the permanency planning stage 

do not compel the identical conclusion with respect to the section 366.26 

hearing. But the parent retains a right to due process at the hearing under 

section 366.26, and due process ‘requires, in particular circumstances, a 

“meaningful opportunity to cross-examine and controvert the contents of 

the report”’ if it is relevant to the issues before the court. [Citations.]” 

(Thomas R., supra, 145 Cal.App.4th at p. 733, fn. omitted.)

In mother’s case, her counsel requested a contested section 366.26 hearing, but 

failed to specify any issues of contention. Contrary to mother’s inference on appeal, 

counsel did not indicate that mother wished to cross-examine any witnesses on the issue 

of adoptability. Instead, counsel stated only that he had not spoken to mother and did not 

want to submit on the adoption or probability of adoption being granted without speaking 

with her. Counsel did not offer any explanation for mother’s absence at the hearing. The 

juvenile court specifically asked if mother was provided notice of the hearing and county 

counsel stated that she was. Mother’s counsel did not argue otherwise. The only other 

comment made by mother’s counsel at the hearing was pointing out that visits with the 

children were appropriate and positive, but that they had become inconsistent. 

We agree with respondent that it would be a stretch to conclude, on these facts, 

that at the time of the section 366.26 hearing, mother wished to test whether the Tulare 
12.

County HHSA/Child Welfare Services had met its burden of proof on the issue of 

adoptability. 

Assuming, for the sake of argument, that mother’s request was sufficient and 

should have been granted, we find the error harmless, and in doing so reject her claim of 

insufficiency of the evidence of adoptability. The standard of review where a parent is 

deprived of a due process right is whether the error was harmless beyond a reasonable 

doubt. (In re Dolly D. (1995) 41 Cal.App.4th 440, 446.) Termination of parental rights 

is authorized only if the court finds the children are adoptable. (§ 366.26, subd. (c)(1).) 

However, “[a]lthough a finding of adoptability must be supported by clear and 

convincing evidence, it is nevertheless a low threshold; The court must merely determine 

that it is ‘likely’ that the child will be adopted within a reasonable time. [Citations.] We 

review that finding only to determine whether there is evidence, contested or uncontested, 

from which a reasonable court could reach that conclusion. It is irrelevant that there may 

be evidence which would support a contrary conclusion. [Citation.]” (In re K.B. (2009) 

173 Cal.App.4th 1275, 1292; see also In re Gregory A. (2005) 126 Cal.App.4th 1554, 

1561-1562 [“We give the court’s finding of adoptability the benefit of every reasonable 

inference and resolve any evidentiary conflicts in favor of affirming.”].)

The issue of adoptability turns on whether the child’s age, physical condition, and 

emotional state make it difficult to find the child an adoptive home. (In re Sarah M.

(1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) “Hence, it is not necessary that the 

minor already be in a potential adoptive home or that there be a proposed adoptive parent 

‘waiting in the wings.’ [Citations.]” (Ibid.) Nonetheless, “[u]sually, the fact that a 

prospective adoptive parent has expressed interest in adopting the minor is evidence that 

the minor’s age, physical condition, mental state, and other matters relating to the child 

are not likely to dissuade individuals from adopting the minor. In other words, a 

prospective adoptive parent’s willingness to adopt generally indicates the minor is likely 
13.

to be adopted within a reasonable time either by the prospective adoptive parent or by 

some other family. [Citation.]” (Id. at pp. 1649-1650.)

When a child is not considered to be generally adoptable because of his or her age, 

poor physical health, physical disability, or emotional instability, he or she may be found 

to be “specifically” adoptable if a person has been identified who is willing to adopt the 

child. (Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Brandon T. (2008) 164 

Cal.App.4th 1400, 1408.) In specific adoptability situations, “‘the analysis shifts from 

evaluating the characteristics of the child to whether there is any legal impediment to the 

prospective adoptive parent’s adoption and whether he or she is able to meet the needs of 

the child.’ [Citation.]” (In re Jose C. (2010) 188 Cal.App.4th 147, 158.) 

In Thomas R. the initial adoption assessment was clear that the children were not 

otherwise adoptable if placement with the foster parents were to fall through. In addition, 

the foster parents’ vacillation about adoption versus long-term guardianship suggested the 

possibility that they were not conclusively committed to adopting “this otherwise hard-toplace sibling group.” (Thomas R., supra, 145 Cal.App.4th at p. 734.) The supplemental 

adoption assessment gave no explanation for the foster parents’ change of mind. “In 

these circumstances, we cannot conclude that denying the parents the opportunity to 

cross-examine the social worker and the prospective adoptive parents was harmless 

beyond a reasonable doubt.” (Ibid.)

We reach the opposite conclusion here. The adoption assessment for J.C. and 

R.M. was that they were generally adoptable and the juvenile court had no reservations in 

finding them so. The assessment did not find the children were in a hard to place sibling 

group. They were young and, other than R.M.’s speech delay caused by a condition 

which was to be surgically corrected, both children were physically and mentally on 

track. In addition, the children were bonded and attached with their caregiver S.S. and she 

was committed to adopting the children. Because the evidence is sufficient to support the 

juvenile court’s finding that the children were generally adoptable, mother’s argument 
14.

concerning S.S.’s suitability is not relevant to our analysis. (Sarah M., supra, 22 

Cal.App.4th at p. 1650.) 

We find sufficient evidence to support the juvenile court’s finding of adoptability 

and any failure on the part of the juvenile court to set a contested section 366.26 hearing

was harmless beyond a reasonable doubt.

DISPOSITION

The orders terminating mother’s parental rights are affirmed.

_____________________

LEVY, Acting P.J.

WE CONCUR:

_____________________

DETJEN, J.

_____________________

LaPORTE, J.*

 

*

Judge of the Superior Court of Kings County, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.