San Bernardino Cnty. Children & Family Servs. v. K.M. (In re O.C.), E076984

CourtCalifornia Court of Appeals
PartiesIn re O.C. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.M., Defendant and Appellant.
Docket NumberE076984
Decision Date13 September 2021


APPEAL from the Superior Court of San Bernardino County. Nos J281851 & J281852 Steven A. Mapes, Judge. Affirmed in part; reversed in part with directions.

Janelle B. Price, by appointment of the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, and Kaleigh Ragon Deputy County Counsel, for Plaintiff and Respondent.



K.M. (Mother) is the biological mother of O.C. and I.R. In July 2019, the San Bernardino Children and Family Services (the department) filed petitions on behalf of both children, pursuant to Welfare and Institutions Code[1] section 300 et seq., after K.M. left her children in the care of a family friend and was unable to continue caring for them. The department discovered that K.M. was homeless and living out of her car at the time. The children were removed from Mother's custody and, after a contested 12-month review hearing, the juvenile court terminated reunification services and set a hearing to consider the termination of parental rights and the selection of a permanent plan pursuant to section 366.26.

On April 26, 2021, the juvenile court held a contested hearing pursuant to section 366.26. Mother appeared via telephone, indicated she was having “car issues” that morning, and requested permission to either testify telephonically or, in the alternative, that the matter be continued for one day so that she could physically appear to provide testimony. The juvenile court denied both requests, proceeded to summarily deny a petition by Mother seeking to reinstate reunification services pursuant to section 388, and ultimately issued an order terminating Mother's parental rights and selecting a permanent plan of adoption for children. While Mother remained present telephonically for the entire hearing, she was not permitted to testify.

Mother appeals from the April 26, 2021 orders, arguing (1) the juvenile court erred in summarily denying her section 388 petition; (2) the juvenile court abused its discretion in denying her request to testify telephonically or, in the alternative, to grant a one-day continuance to permit her to physically appear to provide testimony; and (3) the juvenile court erred in determining that the parental bond exception to termination of parental rights did not apply based upon the evidence before it at the section 366.26 hearing. We find no error in the juvenile court's summary denial of Mother's section 388 petition. However, we conclude the juvenile court abused its discretion in issuing a combination of orders that had the result of preventing Mother from testifying in violation of her due process right to present evidence at a section 366.26 hearing. We further conclude that such error was not harmless; the order terminating Mother's parental rights must be reversed and the matter must be remanded for a new hearing.

A. Dependency, Jurisdiction, and Disposition

In July 2019, a family friend reported that Mother had left the children in her care; and that she, the friend, had been caring for the children for over a week; Mother had not returned for the children despite the friend's attempts to contact Mother; and Mother's whereabouts were unknown to the friend. The department filed petitions pursuant to section 300 et seq. on behalf of both children, and the children were formally detained following a hearing on July 31, 2019.

On August 30, 2019, the department filed amended dependency petitions on behalf of each child pursuant to section 300, subdivisions (b) and (g). Following a mediation, the department agreed to revise the allegations of the petition to state that Mother (1) used inappropriate physical discipline, placing the children at risk of physical injury; (2) failed to provide adequate care and support for the children and is unable to arrange a suitable plan for the children's ongoing care; (3) has a substance abuse problem, placing the children at risk; (4) lived an unstable and unsafe lifestyle and has a lack of parenting skills, placing the children at risk of physical harm, abuse or neglect; and (5) had a history of engaging in domestic violence, placing the children at risk of abuse or neglect. At the joint jurisdictional and dispositional hearing, Mother submitted on the petitions as rewritten and waived her right to contest the allegations. The juvenile court sustained the allegations of the petitions and declared both children dependents.

B. Twelve-month Review Hearing

In a 12-month review report, the department recommended that the juvenile court terminate Mother's reunification services and set a hearing pursuant to section 366.26 to consider a permanent plan of adoption for both children. While the report acknowledged Mother's ongoing participation in services, it noted that Mother still had not completed the requirements of her case plan, despite having more than a year to do so. The report further acknowledged Mother had participated in visitation, [2] but she missed several visits, and frequently attended late or cut the visits short. Mother objected to the department's recommendations, and the matter was set for a contested hearing.

On November 19, 2020, Mother failed to appear when the juvenile court called the matter for a contested 12-month review hearing. Mother's counsel represented that Mother had issues with transportation, which prevented her from appearing on time. Ultimately, Mother was permitted to appear by telephone, but she did not testify. The trial court admitted the department's 12-month review report into evidence and adopted the report's recommendations. Specifically, the juvenile court found that reasonable services had been provided to Mother; Mother failed to complete her court-ordered case plan; Mother had made only minimal progress toward alleviating or mitigating the causes necessitating placement; and it was not substantially probable that the children would be returned to Mother within the statutory time frame. The juvenile court ordered reunification services for Mother terminated, and it set the matter for a hearing to select a permanent plan for the children pursuant to section 366.26.

C. Permanency Planning Hearing Pursuant to Section 366.26

The department submitted a report in advance of the section 366.26 hearing, recommending termination of Mother's parental rights and selection and implementation of a permanent plan of adoption for the children. In response, Mother requested the matter be set for a contested hearing and indicated her intent to testify, as well as potentially cross-examine one of the social workers who had contributed to the reports. The parties and the court agreed the social worker need not personally appear but could testify remotely via video conference, if necessary. The juvenile court ordered Mother to be personally present if she intended to testify and admonished Mother that the court would proceed without her if she failed to appear.

On April 26, 2021, the juvenile court held the contested section 366.26 hearing. Mother failed to appear in person, but she appeared telephonically. Her counsel represented that Mother was again having transportation issues and was currently stuck in another county. Mother offered to either testify telephonically or have the matter continued one day so that she could personally appear to testify. The trial court denied both requests and proceeded with the hearing.

The juvenile court noted that, prior to the section 366.26 hearing, Mother submitted a petition pursuant to section 388 requesting reinstatement of reunification services as a result of changed circumstances. In support of her petition, Mother submitted documentation showing she had recently completed a substance abuse treatment program on April 21, 2021. The juvenile court denied the petition, expressing the view that it was “untimely” because it “would require the Court... to do further investigation to determine benefit and actual change or substantial change of circumstances....” Additionally, it expressed the view that, “As it is, just a mere completion of a program, doesn't show prima facie and [the] best interest of the child.”

With respect to the department's recommendation to terminate parental rights, Mother's counsel objected and requested the juvenile court adopt a permanent plan of legal guardianship, arguing that Mother had participated in visitation and that Mother had a parental bond with the children. The juvenile court found both children generally and specifically adoptable and further found that Mother “failed to meet [her] burden” to establish an exception to the termination of parental rights.


On appeal, Mother contends the juvenile court's order terminating her parental rights must be reversed because (1) the juvenile court erred in summarily denying her section 388 petition seeking reinstatement of reunification services; (2) the juvenile court erred in denying Mother's request to testify telephonically or, in the alternative, to continue the hearing one day to permit Mother to offer live testimony and (3) even in the absence of Mother's testimony, the juvenile court erred in terminating Mother's parental rights because Mother met her burden to show the application of the parental bond exception set forth in section 366.26, subdivision (c)(1)(B)(i). We find no error in the juvenile court's order denying Mother's section 388 petition. However, we conclude the juvenile court...

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