Filed 3/24/14 Roosevelt W. v. Superior Court CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

SECOND APPELLATE DISTRICT

DIVISION FOUR

ROOSEVELT W. et al.,

Petitioners,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Real Party in Interest.

 B252748

 (Los Angeles County

 Super. Ct. No. CK89770)

ORIGINAL PROCEEDINGS in mandate. Carlos Vasquez, Judge. Petitions

denied.

Law Offices of Katherine Anderson, Jennifer Pichotta and Roosezetta 

Upshaw for Petitioner Roosevelt W.

K.G., in pro. per., for Petitioner K.G.

No appearance by Respondent.
2

John F. Krattli, Office of the County Counsel, James M. Owens, Assistant 

County Counsel and William D. Thetford, Deputy County Counsel for Real Party 

in Interest.

Children’s Law Center of Los Angeles and Patty Choi for Minor.

_____________________________________________

Petitioners Roosevelt W. (Father) and K.G. (Mother), the parents of a son 

K.W. (K.), challenge the court order made at the 18-month review hearing 

terminating family reunification services for Father and setting a Welfare and 

Institutions Code section 366.26 hearing.1 Father contends the juvenile court erred 

in requiring him to make an offer of proof prior to allowing him to testify or crossexamine the caseworker at the hearing. Mother’s petition, filed in propria persona

after her appointed attorney found no meritorious issues, asserts the court erred in 

failing to provide her an opportunity to present facts at the 18-month review 

hearing.2 Real party in interest Department of Children and Family Services 

(DCFS), joined by the attorney for K., opposes the petitions. We conclude that any 

error was not prejudicial. Accordingly, the petitions are denied.

FACTUAL AND PROCEDURAL BACKGROUND

The family came to the attention of DCFS in September 2011, when K. was 

almost four. He and Mother were living with her parents in Southern California. 

Mother had a mental breakdown, claiming she was God, that God was talking to 

 

1 Undesignated statutory references are to the Welfare and Institutions Code.

2 As will be seen, Mother’s reunification services were terminated at the 12-month 

review hearing. Mother’s section 388 petition to modify that order, scheduled to be heard 

at the 18-month review hearing, was withdrawn, and Mother offered no evidence at the 

18-month review hearing.
3

her, and that the police officers and medical personnel who came to evaluate her 

were devils. Mother was placed on a psychiatric hold. K. was left in the care of 

the maternal grandparents. Mother was diagnosed with a schizophrenia-like

mental disorder. 

When Mother was released from the psychiatric hold, she fled with K. to 

Alabama, where Father lived. Father contacted DCFS and arranged for the boy to 

be returned to the maternal grandparents in California. He agreed K. was not safe 

with Mother as she was behaving bizarrely.

3

 He reported that K. had been born in 

California and had lived with Mother in the home of his maternal grandparents 

since his birth. Father was not providing any financial support. In September 

2011, the court formally detained K. and placed him with the grandparents. 

At the November 2011 jurisdictional/dispositional hearing, the court found 

true that Mother had displayed mental and emotional problems which rendered her 

incapable of providing regular care for K., endangered his physical and emotional 

health and safety, and placed him at risk of physical and emotional harm under 

section 300, subdivision (b) (failure to protect). Her reunification plan required her 

to undergo a psychiatric evaluation, participate in counseling, and take all 

prescribed psychotropic medication. Prior to the jurisdictional hearing, there were 

no visits by either parent. 

Father was initially deemed non-offending and was not ordered to 

participate in any services. However, subsequent to the jurisdictional hearing, 

Mother, who was pregnant and had returned to Southern California, filed a section 

388 petition in which she stated that when she was in Alabama, Father had held a 

 

3 Among other things, Mother went out the house naked, threw away many of 

Father’s belongings saying she had been told to do so by the Lord, threw knives at Father, 

and spanked K. for inappropriate reasons.
4

knife to her throat, choked her until she blacked out, tied her to a chair, forced her 

to take medication, raped her, and regularly beat her. Prior to the hearing on the 

section 388 petition, the caseworker interviewed Mother, who repeated the 

accusations set forth in her petition, and further stated that Father had whipped her 

with a rope after she became pregnant, held his hand over her nose and mouth until 

she blacked out, punched her in the eye, and hit her with a cooking pot.

4

 She 

provided pictures taken in December 2011 showing bruises, welts and other marks 

on her thigh, arms, neck, face, ears, stomach and cheek. She also provided a text 

message from Father apologizing for the “medicine[,] . . . straight jacket[,] [and] 

chair.” Interviewed by the caseworker, Father admitted that he had tied Mother to 

a chair because she was “acting crazy.” He also admitted slapping Mother twice, 

hitting her legs with a jump rope, and forcing her to take medication. 

In April 2012, DCFS filed a section 342 subsequent petition, alleging that K.

was in danger of serious physical harm due to the domestic violence between 

Father and Mother and physical abuse on the part of both parents. During the 

period between the original jurisdictional finding and the filing of the subsequent 

petition, Father had not visited K. He had contacted the boy telephonically, but K. 

showed little interest in speaking to Father and sometimes refused to talk to him at 

all. After filing the petition, DCFS obtained evidence that Father had been arrested 

and charged with third degree assault in Alabama. 

The court held a second detention hearing and formally detained K. from 

Father. At a second jurisdictional/dispositional hearing held in July 2012, the court 

sustained allegations that Mother and Father had a history of engaging in violent 

altercations, specifically finding true that Father struck Mother with a rope, tied her 

 

4 Mother also reported throwing boiling water on Father, threatening Father with 

knives, and hitting K. with a belt. 
5

to a chair, and slapped her, and that Mother threw boiling water at Father. The 

court also found that Mother inappropriately physically disciplined K. by striking 

him with a belt.5 The court found that the sustained allegations endangered the 

child’s physical health and safety, placed him at risk of harm, and supported 

jurisdiction under section 300, subdivision (b). The court directed Father to take a 

parenting class and to participate in individual counseling to address domestic 

violence and other case issues with a DCFS-approved counselor. 

The January 2013 report stated that Father had participated in a parenting 

class and an anger management and counseling program in Alabama, and had 

received certificates of completion for both.6The report stated that Father was “in 

complian[ce] with the court orders by completing [i]ndividual counseling and 

participating in parent education classes.” The caseworker recommended an ICPC 

(Interstate Compact on the Placement of Children) evaluation of Father’s home in 

Alabama. The report stated that there was not a substantial probability of K.

returning to Father’s home at the next hearing because he resided out of state, he 

had not been able to visit regularly, and his home had not been assessed by child 

protective services in Alabama. The caseworker said she wanted “to observe how

. . . [K.] interacts with [Father] and allow them to re-establish their relationship.” 

At the January 7, 2013 12-month review hearing, Father testified that he had 

attended sessions with the therapist in Alabama twice weekly for a brief period. 

He further testified he did not recall all the incidents of domestic violence found 

true by the court. During the counseling, he did not indicate to the therapist that he 

had struck Mother with a rope because “it did not happen.” He discussed tying her 

 

5 K. initially reported being hit with a belt by both parents. Prior to the jurisdiction 

hearing, he stated that only Mother had hit him and that Father had hit Mother. The court 

dismissed the allegation that Father physically abused or inappropriately disciplined K. 

6

The certificates indicated Father completed the programs in October 2012. 
6

up, but indicated he did not believe that to be domestic violence. The court found 

that Father had consistently and regularly contacted and visited the child, and had 

made “partial” progress in resolving the problems that led to K.’s removal from the 

home. The court terminated Mother’s reunification services, finding she had not 

made substantial progress.

7

The March 2013 report was not filed in time for the 18-month review 

hearing, scheduled for that month. The court continued the hearing to May and 

instructed DCFS to initiate an ICPC assessment of Father’s home in Alabama. The 

next report, filed May 1, 2013, again stated that Father had “completed the court 

ordered individual counseling and parenting education classes.” The caseworker 

had received a letter from Father’s Alabama therapist, who stated that Father had 

been under her care from September 4 to October 2, 2012 and that they had 

addressed the issues relating to the case. The therapist recommended that K. be 

 

7 Mother’s compliance vacillated wildly during the period reunification services 

were provided. Prior to her return to Southern California, she had no contact with K. and 

presented no evidence of having made any progress in her reunification plan. After her 

return, Mother submitted to an intake assessment at a mental health clinic and began 

attending an anger management group, parenting classes, and group counseling for 

people suffering from schizophrenia. She was evaluated by a psychiatrist in April 2012, 

who diagnosed a psychotic disorder, but prescribed no medication because Mother was 

pregnant and was unwilling to take medication. Subsequently, Mother claimed she had 

no need to participate in counseling or change any of her behavior and cut off all contact 

with the caseworker. Her monitored visits with K. were equally varied. During certain 

periods, the visits were pleasant and appropriate. Other times, Mother would argue with 

the monitor and the grandparents instead of interacting with K., would talk to the boy 

about the case, or would threaten to “whoop” him. 

After the court terminated reunification services, Mother became more cooperative 

and began participating in a counseling program. She filed a section 388 petition for 

modification seeking additional reunification services based on her compliance. 

However, prior to the hearing on the motion, Mother was terminated from the program 

for being aggressive and hostile toward staff members. She thereafter withdrew her 

petition. 
7

returned to his care. The report indicated Father telephoned K. two to three times 

per week and had positive and appropriate monitored visitation with him. The sole 

concerns expressed by the caseworker were that Father did not communicate well 

with the caregiver grandparents, and that his home had not been assessed by 

Alabama child protective services. The report recommended that an ICPC be 

ordered to assess Father’s home for possible release. At the May hearing, 

however, counsel stated that DCFS’s recommendation was to terminate 

reunification services for Father and to set a section 366.26 hearing. The court 

found the caseworker’s report to be “inadequate, incomplete and unclear.” It

continued the 18-month review hearing and ordered a supplemental report. 

The May 2013 report stated that the caseworker had spoken with Father’s 

therapist, who told the caseworker that Father participated in one month of 

counseling, but that she could not remember what was addressed. The caseworker 

reported that K. had begun therapy to “help[] him process his feelings regarding 

the conflict he witnessed between his parents . . . .” The report stated that Father 

had received inadequate counseling and that DCFS’s recommendation was to set a 

section 366.26 hearing. The court set the matter for contest, and specifically 

requested that the next report include information on the status of the assessment of 

Father’s home and an update regarding the progress of the parents. 

The July 2013 report continued to express DCFS’s concern that Father had 

received only a brief period of counseling. K. stated to the caseworker that he did 

not want to live with Father because he remembered when Father hit Mother in the 

face. The August 2013 report stated that Father was visiting K. regularly. The 

visits were reportedly positive and appropriate. Alabama child protective services 

had attempted to assess Father’s home, but concluded a home study could not be 
8

completed because Father appeared to be living in California.8 DCFS continued to 

recommend termination of Father’s reunification services because he had not 

participated in counseling or therapy beyond the four weeks completed in 2012. 

The 18-month review hearing did not take place until November 4, 2013.

9

 

At the hearing, Father’s counsel stated Father’s position that he had completed all 

the counseling required by the court-ordered reunification plan. The court stated to 

Father: “[T]he Department’s position [is] . . . that the counseling was insufficient. 

. . . So . . . you will have an opportunity to present your case, but at least you know 

going in that they are going to argue that this was not a sufficient program, that it 

was less than a month. [¶] So you can confer with your attorney as to whether you 

want to take that chance or not and go forward on the basis of the counseling that 

you have done.” Father did not change his position. Father’s counsel stated that 

Father wished to testify regarding his progress, the depth of the counseling and 

how often he attended. The court asked for an offer of proof. Counsel stated that 

the evidence would establish that Father attended counseling “[a]t least” twice a

week for four weeks.

10 Counsel also read into the record the letter written to the 

caseworker by the Alabama therapist expressing the opinion that K. could safely be 

returned to Father’s custody. Counsel urged the court to defer to the professional 

therapist. Counsel for DCFS contended that DCFS had informed Father that less 

 

8

The caseworker’s reports indicated that beginning in January 2013, Father was 

regularly visiting K. in California and also regularly meeting face-to-face with the 

caseworker here. Father subsequently explained that he had remained in the area to care 

for his ailing father, but maintained an address in Alabama. 

9

The review hearing was continued from August to November because the 

caseworker was on medical leave and because the parties were engaged in discussions to 

resolve the case. 

10 At the 12-month review hearing, Father had testified he attended counseling 

sessions twice weekly. 
9

than one month of counseling was insufficient to address the serious domestic 

violence incidents found true by the court, and that Father had refused to undergo 

further counseling. K.’s counsel joined in the request that Father’s reunification 

services be terminated. 

The court began to make its finding, stating that Father had not made 

substantial progress “given the seriousness of the domestic violence allegations

. . . .” Father’s counsel interrupted and asked if the court would permit Father to 

cross-examine the caseworker. The court denied the request. It found by clear and 

convincing evidence that Father had made only partial progress toward alleviating 

or mitigating the causes necessitating the assertion of jurisdiction and specifically 

found that one month in therapy could not address the violent conduct asserted in 

the petition. The court terminated reunification services for Father and set a 

section 366.26 hearing. Petitioners noticed their intent to file writ petitions.11

DISCUSSION

At the 18-month review hearing, which must be held within 18 months after 

the child was originally removed from the physical custody of his or her parents, 

“the court shall order the return of the child to the physical custody of his or her 

parent . . . unless the court finds, by a preponderance of the evidence, that the 

 

11 In Mother’s writ petition, filed in propria persona, she contends the court 

improperly denied her a contested section 366.22 hearing. Mother’s reunification 

services were terminated at the 12-month review hearing, on January 7, 2013. At the 

November 4, 2013 18-month review hearing, Mother’s counsel withdrew the section 388 

petition seeking modification of that order and argued that Mother should be permitted 

unmonitored visitation, but sought to present no evidence. The court agreed unmonitored 

visitation could begin as soon as K.’s therapist approved. In her writ petition, Mother 

raises no issues pertaining to the November 2013 visitation order or her petition for 

modification. To the extent Mother seeks review of the January 2013 order terminating 

her reunification services, the time for challenge of such order is long since past.
10

return of the child to his or her parent . . . would create a substantial risk of 

detriment to the . . . child.” (§ 366.22, subd. (a).) “The failure of the parent . . . to 

participate regularly and make substantive progress in court-ordered treatment 

programs shall be prima facie evidence that return would be detrimental.” (Ibid.) 

Unless reasonable services were not provided or certain exceptional conditions are 

present (see § 366.22, subd. (b)), if the child is not returned to a parent at the 18-

month review hearing, “the court shall order that a hearing be held pursuant to 

Section 366.26 in order to determine whether adoption . . . , guardianship or longterm foster care is the most appropriate plan for the child.” (§ 366.22, subd, (a);

see In re Taylor J. (2014) __ Cal.App.4th __ [2014 Cal.App.LEXIS 163].) 

At review hearings, the agency bears the burden of proving that reasonable 

services were provided to the parent and that the return of the child to the parent 

would create a substantial risk of detriment to the child. (David B. v. Superior 

Court (2006) 140 Cal.App.4th 772, 779 (David B.); In re Yvonne W. (2008) 165 

Cal.App.4th 1394, 1400; Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 

1748.) In making its findings and determinations, the court shall consider the 

“efforts or progress, or both, demonstrated by the parent,” as well as “the extent to 

which he or she availed himself or herself of services provided . . . .” (§ 366.22, 

subd. (a); Blanca P. v. Superior Court, supra, at p. 1748.) On appeal, this court 

reviews the juvenile court’s findings that the child would be at substantial risk of 

detriment if returned to the parent and that reasonable services were provided for

substantial evidence. (In re Yvonne W., supra, at p. 1400; In re Christina A. (1989) 

213 Cal.App.3d 1073, 1080.) If the juvenile court requests an offer of proof of a 

parent, “the offer of proof [provided] must be specific, setting forth the actual 

evidence to be produced, not merely the facts or issue to be addressed and argued.” 

(In re Tamika T. (2002) 97 Cal.App.4th 1114, 1124.) “If the [juvenile] court finds 

the offer of proof insufficient and declines to hold a contested hearing, the issue is 
11

preserved for appeal so that a reviewing court can determine error and assess 

prejudice.” (Ibid.)

It is undeniably true that review hearings represent “a critical aspect of the 

dependency system” at which “crucial determinations regarding reunification 

efforts and the return of the minor are made.” (In re James Q. (2000) 81 

Cal.App.4th 255, 262-263.) The review hearing at which the decision is made to 

terminate a parent’s reunification services “marks a critical turning point in the 

proceedings from a focus on family reunification to finding a permanent and stable 

placement for the child.” (David B., supra, 140 Cal.App.4th at p. 778.) 

Accordingly, some courts have held the juvenile court may not demand an offer of 

proof as a condition to conducting a contested review hearing. (In re James Q., 

supra, at p. 267; David B., supra, at p. 780; In re Johnny M. (1991) 229 

Cal.App.3d 181, 190; accord, In re A.D. (2011) 196 Cal.App.4th 1319, 1327.) 

In In re Tamika T., supra, 97 Cal.App.4th 1114, this court disagreed with

the reasoning on which In re James Q. and courts expressing similar views relied. 

We explained that a rule precluding a juvenile court from requiring an offer of 

proof at a contested review hearing was “at odds with, in general, the precedent 

that in a dependency proceeding due process is a flexible concept . . . .” (Id. at 

p. 1123.) We observed that “‘it is reasonable for the court, in pursuit of its 

statutory duties, to ascertain the issues relevant to the hearing and make some 

relevancy determinations [given] that time is not an unlimited commodity in 

today’s busy juvenile courts.’” (Ibid., quoting Ingrid E. v. Superior Court (1999) 

75 Cal.App.4th 751, 760.) We further stated: “A proper offer of proof gives the 

trial court an opportunity to determine if, in fact, there really is a contested issue of 

fact.” (In re Tamika T., supra, at p. 1124.) We continue to adhere to the view that 
12

the juvenile court could reasonably request an offer of proof of a parent at a review 

hearing under the appropriate circumstances.

12

Here, Father participated in only four weeks of counseling in Alabama in the 

fall of 2012. He testified concerning the substance of those sessions at the 12-

month review hearing in January 2013. His testimony indicated he had not fully 

addressed the domestic violence, as he denied recalling or having committed some 

of the acts admitted to the caseworker and found true by the court. Highlighting 

his lack of insight, he indicated he did not consider tying Mother to a chair to be 

domestic violence. Having heard that testimony, the court previously concluded 

Father had made only partial progress in overcoming the conditions that led to the 

assertion of jurisdiction over K. Although the caseworker was remiss in failing to 

timely investigate the details of the program or interview the counselor, by May 

2013, DCFS had made clear its position that the counseling in which Father had 

participated was insufficient. By the time the 18-month review hearing was held in 

November 2013, Father was well aware that neither DCFS nor the court considered

the four weeks of counseling he received nearly enough to address the proclivity 

for domestic violence demonstrated by the allegations of the petition. Asked by 

the court to clarify Father’s position prior to introducing evidence at the 18-month 

 

12 Even those courts that have held a juvenile court generally may not require an 

offer of proof of a parent at a review hearing, have recognized that not every item of 

evidence a parent wishes to present must be heard. In In re James Q., the court stated: 

“[T]he Evidence Code, among other statutory provisions, provides ample means for the 

courts to control contested proceedings in the dependency courts. [Citations.]” (In re 

James Q., supra, 81 Cal.App.4th at p. 266.) In David B., the court recognized that in 

determining whether to admit evidence, the court may consider “relevancy” and “undue 

time consumption,” and further observed: “[T]he dependency statutes themselves are 

self-limiting. At any given point in the process, the applicable statute lists exactly what is 

at issue by specifying the required findings. The juvenile court is not faced with a vast 

sea of possible issues at every review hearing.” (David B., supra, 140 Cal.App.4th at 

p. 779.)
13

review hearing, his attorney insisted that the counseling Father had received was 

sufficient, and that there was no need for him to participate in any additional

counseling. In response to the court’s request for an offer of proof, Father’s 

counsel stated that Father would testify concerning the number of sessions he 

attended per week and the “depth of [the] program[].”13 But the number of 

sessions was not in dispute, and the court had already heard Father’s testimony 

concerning what he had addressed at the sessions. Any additional testimony would 

have been, at best, cumulative.

14

 

Moreover, even if the court erred by excluding potentially relevant 

testimony, the error may be deemed harmless where it can be said, based on the 

record, that no different result would have obtained had the request for a contested 

hearing been granted. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 

1386-1387.) Here, there was no dispute that after Father was instructed by the 

court in July 2012 to undergo DCFS-approved counseling to address domestic 

violence, he participated in only four weeks of out-of-state counseling. The 

domestic violence found to have been perpetrated by Father was serious: he had 

 

13 Father’s counsel later stated he wished to cross-examine the caseworker. 

However, neither at the hearing nor in his brief on appeal did he specify any relevant area 

for cross-examination. “A judgment shall not be reversed by reason of erroneous 

exclusion of evidence unless . . . it appears of record that ‘the substance, purpose, and 

relevance of the excluded evidence was made known to the court by the questions asked, 

an offer of proof, or by [some] other means . . . .’” (In re Mark C. (1992) 7 Cal.App.4th 

433, 443, quoting Evid. Code, § 354, subd. (a).) Moreover, as discussed, the only issue 

considered at the hearing was whether Father had addressed through counseling the 

domestic violence that led to the assertion of jurisdiction. Nothing in the record indicates 

the caseworker’s testimony would have assisted the court in resolving this issue.

14 We note that in the typical case, perpetrators of domestic violence are expected to 

complete a 26 or 52-week program, depending on the seriousness of the findings and 

other factors. (See, e.g., In re C. Q. (2013) 219 Cal.App.4th 355, 362; In re E.T. (2013) 

217 Cal.App.4th 426, 432; In re E.A. (2012) 209 Cal.App.4th 787, 790; In re Alexis E. 

(2009) 171 Cal.App.4th 438, 443; In re N.M. (2008) 161 Cal.App.4th 253, 258.)
14

tied Mother to a chair, forced her to swallow medication, and beat her with a rope 

when she was pregnant. Mother had been photographed with bruises all over her 

body. At least some of the violence had been perpetrated in front of K., who had 

reported not wanting to live with Father because he beat Mother. Remand for a 

contested hearing on whether under any set of facts, a court could find the level of 

counseling received by Father sufficient to alleviate the issues that led to the 

court’s jurisdictional finding would be an idle act. Any error in the juvenile court’s 

request for an offer of proof must be deemed harmless beyond a reasonable doubt.

DISPOSITION

The petitions are denied. The stay of the permanency review hearing under 

section 366.26 is lifted.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.