Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. CK63063, Elizabeth Kim, Juvenile Court Referee. Affirmed in part, reversed in part, and remanded to juvenile court with directions.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Joseph O. III (father) appeals the juvenile court’s order denying his Welfare and Institutions Code section 388 petition to reopen reunification services in the dependency proceedings involving Joseph O. IV (Joseph) and Emmanuel O. (Emmanuel). Father also appeals the order terminating his parental rights. According to father, he was not provided with reasonable services while he was incarcerated, more reunification services would promote the minors’ best interest, and he proved an exception to the termination of parental rights pursuant to section 366.26, subdivision (c)(1)(B)(i). Regarding the section 366.26 hearing, father contends that the juvenile court erred when it excluded testimony from the minors’ paternal grandmother. Also, father contends that the juvenile court applied the wrong standard when assessing whether he proved an exception to the termination of parental rights. Finally, regardless of the foregoing, he contends that we must reverse and remand this matter so that the Department of Children and Family Services (Department) can give adequate notice to the Choctaw tribes pursuant to the Indian Child Welfare Act (ICWA).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Joseph and Emmanuel are sometimes referred to as the minors.
Section 366.26, subdivision (c) provides that if it is likely a child will be adopted, the juvenile court must terminate reunification services unless an exception applies. One such exception is that the juvenile court finds that it would be detrimental to the child to terminate parental rights because the parent has maintained regular visitation and contact with the child and the child could benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).)
We find no error except that ICWA notice to the Choctaw tribes was improper. Because ICWA notice was improper, we remand the matter with directions to the juvenile court to order the Department to provide notice to the Choctaw tribes as required by ICWA and California law.
The order terminating parental rights is reversed. (In re Nikki R. (2003) 106 Cal.App.4th 844, 846; In re Brooke C. (2005) 127 Cal.App.4th 377, 385 [“the only order which would be subject to reversal for failure to give [ICWA] notice would be an order terminating parental rights”].) If the minors are determined to be Indian children after the Choctaw tribes receive proper notice under ICWA and California law, then the juvenile court must hold a new section 366.26 hearing. If the minors are not Indian children, then the order terminating parental rights shall be reinstated. The order denying father’s section 388 petition is affirmed. However, if the minors are determined to be Indian children after the Choctaw tribes receive proper notice under ICWA and California law, then father is entitled to petition the juvenile court to invalidate the order. (Cal. Rules of Court, rule 5.486.)
FACTS
Background
Joseph was born in December 2003, and Emmanuel was born in March 2005. Father was arrested on July 19, 2005, and was sentenced to 365 days in jail after being convicted for grand theft in violation of Penal Code section 487, subdivision (d). On January 6, 2005, he was charged with bringing a controlled substance into jail. He was once again arrested for grand theft on March 17, 2006. He was sent to Wayside East Facility (Wayside).
Detention
Joseph and Emmanuel were living with Vanessa V. (mother) on April 15, 2006, when they came to the attention of the Department due to complaints that mother was using drugs. At the time, father was incarcerated at Wayside. Because the social worker who investigated the complaints believed that mother was incapable of safely caring for Joseph and Emmanuel, they were detained.
ICWA notice
At the detention hearing, the minors’ paternal grandfather stated that he had Indian heritage from the Ravino tribe from San Gabriel. When father first appeared, he said he was raised Choctaw. Father was later interviewed by the social worker. He denied telling the juvenile court that he mentioned any tribe, particularly the Ravino or Choctaw tribes. Paternal grandfather told the social worker that he had heard that his family had some Indian heritage through the “Grabino tribe of San Gabriel[,] California related to the Duarte family.” Paternal grandmother reportedly believed that she had Indian heritage, but she did not know which tribe. She was unable to provide her parents’ dates of birth. The Department searched for the Ravino and Grabino tribes. They were not listed in the federally recognized tribe lists. As a result, the Department sent notices only to the Bureau of Indian Affairs and the Secretary of the Interior.
The dependency petitions
The Department filed a dependency petition, alleging that Joseph and Emmanuel were at risk of harm due to mother’s drug use. The first amended petition added the allegation that father had a history of drug use and was unable to provide Joseph and Emmanuel with regular care and supervision.
Jurisdiction and disposition
On June 21, 2006, the juvenile court declared Joseph and Emmanuel dependents and removed them from mother’s custody. They were ordered into suitable placement. Father and mother received reunification services and were ordered to attend drug rehabilitation with random testing, parent education and individual counseling. Father was denied visitation while he was in custody.
The next day Joseph and Emmanuel were placed with their maternal cousin, Claudia V. (Claudia), in Arleta, California.
Further ICWA notice
The juvenile court ordered the Department to provide copies of all ICWA notices, and to explain why the Choctaw tribes were not notified of the proceedings.
The Department sent a second round of ICWA notices to the Bureau of Indian Affairs, the Secretary of the Interior, the Choctaw Nation of Oklahoma, and the Jena Band—Choctaw. The Department received return receipts. It also received a letter from the Choctaw Nation of Oklahoma stating that it was unable to establish Indian heritage.
Father’s reunification services
Father called the social worker from Wayside on September 13, 2006. The social worker asked if he was participating in any juvenile court ordered programs. He stated that he was unable to because the inmates were in lockdown and he would participate in his programs once he was transferred to another facility. The social worker informed father that it was important for him to stay in contact. He was eventually transferred to Ironwood State Prison (Ironwood).
The date of transfer is unclear from the record. It appears to have been between September 13, 2006, and December 19, 2006.
The social worker sent father letters on February 12, 2007, March 3, 2007, April 12, 2007, May 20, 2007, and June 1, 2007, asking him to contact her to discuss the juvenile court’s orders. She told him he could call collect and that she needed to know what programs he was attending. If he was attending groups, she asked father to provide them with her telephone number. By June 2007, father and the social worker had not communicated in nine months. Mother informed the social worker that father was participating in individual counseling and parenting classes. The social worker was unable to confirm mother’s statement.
The social worker contacted Ironwood on June 7, 2007, and verified with staff that father was residing there. She asked when he would be released. She was told by Ironwood staff that it could not divulge release information. The social worker had to obtain that information from father.
On June 27, 2007, the Department recommended terminating father’s reunification services and setting the matter for a section 366.26 hearing. According to the Department, the minors had bonded with Claudia. The juvenile court asked father’s counsel if she had any objection to the recommendation. She stated: “I have no direction from my client. Submitted.”
Reunification services were terminated.
Visitation; evidence of father’s participation in the case plan
Father was released from custody on November 1, 2007, and visited Joseph and Emmanuel for four hours on Sunday afternoons. The Department reported that he missed one visit due to illness. Regarding December 16, 2007, the Department inconsistently reported that father missed and attended his visit. The visits were supervised by the minors’ paternal grandmother. Father told the social worker that he intended to get the minors back. He gave the social worker certificates of completion for “Anger Management for Parenting Skills” and “Re-entry.” The topics covered in the latter course included substance abuse.
After his release, father lived with paternal grandmother in Garden Grove. On December 11, 2007, he informed the social worker that he planned to move to San Diego with his brother and start his life.
At a progress hearing on December 19, 2007, father asked the juvenile court for increased visitation. The Department was instructed to use its best efforts to arrange Christmas and birthday visits. It was given discretion to allow father visits in paternal grandmother’s home.
Father’s section 388 petition
On February 19, 2008, father petitioned to reinstate “family like reunification services” and liberalize visitation. He claimed that since the June 27, 2007, order he had enrolled in a substance abuse recovery program and visited Joseph and Emmanuel regularly. He claimed that the requested change would be in the minors’ best interest because they were bonded with him.
Further visitation; evidence of father’s compliance with the case plan
In January 2008, father began visiting Joseph and Emmanuel every other Sunday. Because father had moved to San Diego, he was unable to visit more frequently. Father missed a visit on February 17, 2008, and did not call to cancel. The Department changed father’s visits to one hour on Thursdays under the supervision of the social worker.
According to the Department, father missed 10 visits from November 18, 2007, to March 6, 2008. Between February 3, 2008, and March 24, 2008, he missed all of his scheduled visits.
Regarding December 16, 2007, the Department’s report is inconsistent as to whether father missed his visit.
It was not until March 5, 2008, that father finally enrolled in a 15-week substance abuse program. He attended on a weekly basis and submitted to testing. All of his tests were negative. At a May 13, 2008, hearing, father said he was also testing with his parole officer.
On March 24, 2008, father requested four hour visits on Sundays. His request was granted. The visits were scheduled to occur between 3:00 p.m. and 7:00 p.m. Father missed his visits between March 30, 2008, and April 13, 2008. At an ensuing hearing, father explained that he could not attend the visits because they were scheduled too late. He had to wake up at 3:00 a.m. on Mondays for work. As a result, he asked that the visits occur earlier. The juvenile court ordered that the visits take place between 7:30 a.m. and 3:00 p.m.
Father picked up the minors 20 minutes late on April 20, 2008. Claudia reported that he returned Emmanuel with a soiled diaper. The minors were confused or intimidated when father pressured them to call him “Dad.” Father visited on April 27, 2008, May 4, 2008, and May 8, 2008. Father denied ever returning Emmanuel with a dirty diaper.
By mid-May 2008, father had attended five group sessions and two individual sessions in his substance abuse program. He had missed four group sessions and two individual sessions.
The section 388 and section 366.26 hearing
The Department reported that father’s visits with the minors had not been consistent. Because he attended his treatment program on Wednesdays and knew he was going to be tested, his tests were not random. Only one of his tests was random. Since their placement with Claudia, the minors were observed to be healthy and happy. They maintained a loving relationship with her.
Father testified that he was ready to have the minors live with him, and that was what the minors said they wanted. According to father, it would be in the minors’ best interest for him to receive additional reunification services “[b]ecause of the drastic change I’ve made since I’ve been out and the progress I made completing everything the [juvenile court] asked me to do and the progress I’ve made with working and going to school.”
The parties stipulated that, if called, paternal grandmother would testify that “she is the monitor for the visits; that [father] acts appropriately; that he acts as a father figure; that [father] is attentive to the [minors’] needs and he addresses the [minors’] concerns; that he disciplines them appropriately[;]” that it would be in their best interest if father received further reunification services; and that she heard the minors say that they want to live with father, not Claudia.
Following presentation of the evidence, the matter was taken under submission and continued to May 23, 2008.
Prior to ruling on the section 388 petition, the juvenile court noted that father last attended his substance abuse program on April 23, 2008, and missed group and individual sessions. Although father stated that he wanted custody of the minors, he was unable to maintain regular visitation. Since his release from prison, he missed 15 visits. When the visitation schedule was changed to accommodate his work schedule, he “simply did not show up.”
The juvenile court found that “there is no change in circumstances.” Next, the juvenile court noted that the minors had been with Claudia since June 23, 2006. They were happy and healthy, and they maintained a loving relationship with Claudia. In the juvenile court’s view, there was no showing that reunification services would be in the minor’s best interest.
Regarding the section 366.26 portion of the hearing, the juvenile court found that even though father was bonded with the minors, it was not enough to establish the parental contact exception. The juvenile court found that the minors were adoptable and terminated father’s parental rights.
This appeal followed.
STANDARD OF REVIEW
When we review the reasonableness of services, we must view the evidence in the light most favorable to the prevailing party. “We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. [Citations.]” (In re Misako R. (1991) 2 Cal.App.4th 538, 545 (Misako R.).) Substantial evidence is evidence that is ‘“reasonable, credible and of solid value”’ and that permits a reasonable trier of fact to reach the same conclusion as the juvenile court. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) The substantial evidence rule also applies to a finding that an exception to the termination of parental rights does not exist. (In re Mary G. (2007) 151 Cal.App.4th 184, 206 (Mary G.).)
When reviewing a ruling on a section 388 petition, we examine the record for an abuse of discretion. (In re Amber M. (2002) 103 Cal.App.4th 681, 685–686 [applying the abuse of discretion standard and noting that “[t]he denial of a section 388 [petition] rarely merits reversal”].) Evidentiary rulings are reviewed under the same standard. (People v. Zambrano (2007) 41 Cal.4th 1082, 1144.)
DISCUSSION
1. Father was provided with reasonable services.
According to father, the trial court erred on June 27, 2007, when it terminated reunification services and set a section 366.26 hearing. Ordinarily such an order is not appealable. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722.) But there is no dispute that the juvenile court failed to advise father that the only way to challenge the June 27, 2007, orders was by filing a writ. As a result, father is entitled to have those orders reviewed on appeal from the subsequent order terminating his parental rights in May 2008. (Id. at pp. 722–724.)
Upon review, we find no error.
a. The law.
A reunification plan must address the particular needs of a family. The Department is obligated to “to make a good faith effort to address the parent’s problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.]” (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) “The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (Misako R., supra, 2 Cal.App.4th at p. 547.)
Reunification services are generally limited to 12 months. They can be extended to 18 months if that would achieve the objectives of the case plan. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164 (Robin).)
If a parent is incarcerated, reunification services may include contact between the parent and child through telephone calls, transportation services, and visitation services. Further, an “incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the service plan if these programs are available.” (§ 361.5, subd. (e)(1)(D).)
When services are not extended past 12 months, a juvenile court may order a section 366.26 hearing within 120 days of a section 366.21, subdivision (f) permanency hearing if there is clear and convincing evidence that reasonable services were provided or offered to a parent. (§ 366.21, subd. (g).)
b. Substantial evidence supports the juvenile court’s June 27, 2007, ruling.
Father contends that the Department failed to provide adequate services because the social worker never contacted him or his counselor by telephone, nor did the social worker ever contact the Wayside or Ironwood officials to determine what services were available. We disagree.
The Department was obligated to make a good faith effort to implement the case plan. (Robin, supra, 33 Cal.App.4th at p. 1164.) Here, the Department was required to facilitate, if possible, father’s participation in drug rehabilitation, parent education and individual counseling while incarcerated.
Father told the social worker that services were not available while he was at Wayside. This obligated the Department to “notify the [jail] an incarcerated parent is in need of reunification services; determine whether any appropriate services are available at the particular institution in question; and explore whether changes in the housing of the parent prisoner can be made to facilitate the provision of such services consistent with legitimate prison and public safety concerns.” (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1013 (Mark N.).)
The Department did not go to the lengths called for by Mark N. But, at most, the Department’s failure was limited to the couple of months during the case plan when father was at Wayside. Once he got to Ironwood, he failed to communicate with the social worker even though she wrote to him and told him he could call her collect. He never suggested that services were unavailable, which distinguishes this case from Mark N. Certainly he knew what he was obligated to do. He attended the hearing at which reunification services were granted. And, despite his lack of communication with the social worker, he completed individual counseling and parent education while incarcerated. Mother informed the social worker of father’s case plan related activities. While the services provided were not ideal, we conclude that there is substantial evidence that they were reasonable under the circumstances.
Father contends that In re Monica C. (1995) 31 Cal.App.4th 296, 307 (Monica C.) supports a reversal. The agency in Monica C. entered into a reunification plan services agreement that delegated to an incarcerated parent the task of providing a list of available services to the social worker by a date certain. The social worker made no effort to contact the parent while she was in jail, and he did not arrange visitation. Instead of taking advantage of existing opportunities, the reunification plan services agreement conditioned contact between the parent and child on admission to a limited prison program. The parent tried to arrange for her child’s care with someone other that the foster mother, but the social worker did not investigate the names the parent provided. Instead, the social worker told one of the potential caretakers that she had no chance of being appointed guardian unless she was willing to adopt the child before the parent got out of prison. The potential caretaker did not want to sever the parent and child relationship. The parent attempted to call the social worker and only reached him twice. He talked to her as if his mind was made up that he would seek permanent placement. (Id. at pp. 298–306.)
The Monica C. court concluded that the services were deficient because the plan did not provide for visitation except if mother and child were admitted to a limited prison program. (Monica C., supra, 31 Cal.App.4th at p. 306.) The agency acted unreasonably by delegating to the parent the task of sending the social worker a list of available services in the prison, which cast doubt on the agency’s good faith. The requested information was of limited value because the social worker already knew that the prison services were minimal or nonexistent. Moreover, the information was easily available from other sources. (Id. at pp. 307–308.) Further, the agency acted inconsistently with its duty to provide services when it refused to consider a prospective guardian nominated by the parent to care for the child. (Id. at p. 310.) In the court’s view, not only was the agency unreasonable in implementing the reunification plan, but the reunification plan itself was unreasonable. (Id. at p. 307.)
For father, Monica C. provides no aid. Whereas the social worker in Monica C. never attempted to communicate with the parent while she was incarcerated, and was difficult to reach by phone, the social worker in the minors’ case repeatedly contacted father by mail. She asked for updates about his progress in the plan, and she encouraged him to call collect. He did not cooperate. This is a case where reunification services were offered even if not entirely provided. Additionally, father does not challenge the reasonableness of the plan itself, as was the case in Monica C. Thus, the overriding issue is whether the Department made a good faith effort to provide services under the circumstances of this case. It did.
Father argues that even if he failed to respond to the Department’s letters, the Department was obligated to do more. Monica C., which he cites, does not support this proposition. Once again, the issue is what was reasonable under the circumstances. Father’s lack of communication must be factored into the equation. It stunted the Department’s ability to help him.
c. There was no miscarriage of justice.
Even if the juvenile court erred, it would be harmless absent a “miscarriage of justice.” (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); In re Rocco M. (1991) 1 Cal.App.4th 814, 819–820.) A miscarriage of justice occurs only when “the reviewing court finds it reasonably probable the result would have been more favorable to [father] but for the error.” (In re Celine R. (2003) 31 Cal.4th 45, 60, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
In our view, even if the Department had contacted Wayside and Ironwood to inquire about available programs and father’s progress in the case plan, it is not reasonably probably that the proceedings would have taken a different course. When he was released from Ironwood, his visits were monitored and sporadic. The sporadic nature of his visits was in part due to scheduling conflicts, but those scheduling conflicts were created when he decided to move to San Diego away from the minors. He did not attend all his group and individual sessions, and he stopped attending his substance abuse program on April 23, 2008. Thus, once he was free, he failed to demonstrate the necessary commitment to the case plan. Given these circumstances, we harbor serious doubts as to whether the termination of his parental rights could have been averted by the Department doing more.
2. The section 388 petition was properly denied.
Father assigns error to the juvenile court’s denial of his section 388 petition on the theory that additional reunification services would have promoted the minors’ best interest. After considering the evidence presented below, we conclude that the juvenile court ruled within its discretion.
a. The law.
A section 388 petition permits a parent to seek a change in a previous order based on new evidence or a change of circumstances. The petition must allege that a change is in the best interest of the dependent child. The allegations must be established by a preponderance of the evidence. (In re Andrew L. (2004) 122 Cal.App.4th 178, 190.) Any new evidence or change of circumstances must be significant in nature. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)
As a precursor to ruling, a juvenile court should consider the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; the strength of relative bonds between the dependent children to the parent and caretaker; and the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530–532.)
b. There was no change of circumstances.
Father contends that there was a change of circumstances between June 27, 2008, and his section 388 petition because his belated enrollment in drug counseling, his failure to attend various group and individual sessions, and failure to attend 15 visits was due to his poverty, the location of his job, and the Department’s manipulation of the visitation schedule. His position is unavailing.
When reunification services were terminated, father had not enrolled in or completed drug counseling or random testing. He did not enroll in a substance abuse program until March 5, 2008. He missed group sessions and individual counseling, and there was no evidence at the section 388 hearing that he completed the program. Being enrolled in a substance abuse program is not a change of circumstances. (In re Amber M. (2002) 103 Cal.App.4th 681, 686.) Given father’s failure to comply with the case plan, the juvenile court ruled within its discretion.
Father complains that he could not afford a substance abuse program until he got a job. That may be true, but it is undeniable that he did not complete the ordered treatment, and it does not explain why he missed group and individual sessions. This is enough by itself to support the juvenile court’s order. Additionally, we note that father chose to live far away from the minors. Even if the Department bears some blame for the missed visits, so does father.
c. Father’s request was not in the minors’ best interest.
The problem that led to the dependency was serious. Father had a history of drug use. He did not offer evidence of his alleged random testing with his parole officer, so whether the problem had been removed was an open question. The evidence established that the minors had a bond with father. But the inference is that after only 10 visits with father, they had a stronger bond with Claudia. She was their caretaker from June 2006. And, by the time of the section 388 hearing, the minors had already been wards of the juvenile court for two years. They had a strong interest in permanency. An order granting more reunification services would have placed them in limbo for another six months. These facts constitute substantial evidence that it was not in the minors’ best interest to order more reunification services.
3. Parental rights were properly terminated.
Father lobbies us to reverse the termination of his parental rights on the theory that he established the beneficial parental relationship set forth in section 366.26, subdivision (c)(1)(B)(i). He contends that the juvenile court erred when it excluded paternal grandmother’s testimony. And he also contends that the juvenile court applied the wrong standard. We find no basis to reverse.
a. The law.
At a section 366.26 hearing, a juvenile court must select and implement a permanent plan. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) If reunification is improbable, the dependency statutes set forth adoption as the preferred plan. (Ibid.) A juvenile court can select that plan once it finds, “by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. [Citation.]” (Ibid.) A parent who objects to the termination of parental rights bears the burden of establishing an exception. (Ibid.)
For a parent to establish the parental contact relationship exception, he has to show that his relationship with his children promotes their well being to such a degree that it outweighs the benefit they would gain in a permanent home with their caretaker. (Mary G., supra, 151 Cal.App.4th at p. 207.) Frequent and loving contact is not enough to block the termination of parental rights. The parent must prove that he occupies a parental role in his children’s lives that results in a significant, positive, emotional attachment between them. (Ibid.) “Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) When evaluating the bond between a parent and child, a juvenile court should consider, among other potential variables, the age of the child, the portion of the child’s life spent in the parent’s custody, the positive or negative effect of interaction between them, and the child’s particular needs. (Id. at pp. 575–576.)
b. Substantial evidence supports the juvenile court’s ruling.
The evidence established that the minors lived with Claudia since June 2006 and were healthy and happy, father was offered 25 visits and from the time he was released from prison he missed 15 times, and each of his 10 visits were monitored. This evidence is substantial, and it demonstrates that while Claudia occupied a parental role in the minors’ lives, father did not. She is the one who provided them with care, nourishment, comfort, affection and stimulation on a day-to-day basis. She is also the one with whom they have substantial shared experiences. Conversely, because father did not maintain regular visitation and contact, the inference is that he did not occupy a parental role on the minors’ lives.
Father contends that the evidence establishes that he visited regularly. He states: “[Father] visited a great deal between November 1, 2007[,] when he was released from custody and May 23, 2008, the date of the trial. Although the [juvenile court] found that he missed 15 scheduled visits, most of those were due to financial reasons and conflict with his employment.” We reject that 10 visits over a six to seven month period constitutes visiting “a great deal.” Father cites In re Brandon C. (1999) 71 Cal.App.4th 1530, 1538 (Brandon C.) and argues that as long as he maintained contact as much as possible, the exception is established. But Brandon C. is distinguishable. The Department appealed the juvenile court’s finding that parental contact exception had been established. The court affirmed. The parent was limited to monitored visits, and she visited the children every week for three years. The children referred to the parent as “mommy.” They shared a close bond, and the undisputed evidence was that they would benefit from maintaining a relationship. In rejecting the Department’s argument that the parent did not present substantial evidence that she regularly provided the children with comfort, nourishment or physical care, the court stated: “The benefit of continued contact between mother and children must be considered in the context of the very limited visitation mother was permitted to have.” (Id. at pp. 1537–1538.) Unlike the parent in Brandon C., father did not take advantage of all the visits offered to him. And, notably, Brandon C. was not a reversal. It applied—as we do to this appeal—the substantial evidence rule, which is deferential.
Father goes on to argue that maintaining a relationship with him will be beneficial to the minors. He points out that, prior to his incarceration, Joseph lived with him for two years. Father also points out that the minors indicated that they wanted to live with him, and that they were bonded. But that is not enough. At most, these facts suggest that they would derive an incidental benefit if parental rights were not terminated. We find it significant that Joseph spent the majority of his life in Claudia’s custody, and Emmanuel was three months old when she became his caretaker. Given their young ages, and having spent important formative years with Claudia, they are unlikely to have memories of living with father. Based on the foregoing, the juvenile court was entitled to infer that terminating father’s parental rights would not deprive the minors of significant, positive emotional attachment to father.
In an attempt to circumvent these facts, father argues that we must reverse because the juvenile court applied the wrong standard. He contends that instead of ruling on whether the minors had such a substantial, positive emotional attachment to father that terminating parental rights would be harmful, the juvenile court ruled that the parental contact exception did not apply because it would be detrimental if the minors were returned to him.
The record establishes otherwise.
The juvenile court stated: “You’ve demonstrated, [counsel], that [father] through his testimony and through the . . . reporting of the paternal grandmother and with the photos that you provided to the [juvenile court] that [father] does have a relationship with the [minors] and the [juvenile court] has no reason to not accept [father’s] testimony . . . that [they] enjoy their visits with [father]. [¶] However, counsel, you are aware that in order to show an exception more than just a bond has to exist . . . and the evidence fails with respect to that portion, so the [juvenile court] finds that there is no exception. [¶] The [juvenile court] finds by clear and convincing evidence that the [minors] are adoptable. [¶] The [juvenile court] finds that it would be detrimental to the [minors] to be returned to the [mother and father].”
The juvenile court concluded that the exception did not apply before it commented that returning the minors to father would be detrimental. That comment was unnecessary to the ruling. Further, an order can be affirmed based on implied findings. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109.) The record supports an implied finding that the minors did not have such substantial, positive emotional attachment to father that terminating parental rights would be harmful.
In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.), cited by father, does not call for a different conclusion. In that case, the juvenile court did not enforce its visitation orders, which denied the parent visits. When the parent filed a section 388 petition to obtain custody of her child, the juvenile court denied it on the grounds that the child wanted nothing to do with the parent. The appellate court reversed, finding: “By not enforcing its visitation order and delegating the discretion as to whether any visits occurred to others, the court effectively denied [the parent] any postreunification opportunity to repair her relationship with her [child]. The court then pointed to [the parent’s] absence from [the child’s] life to explain the lack of a parental relationship, during a period in which he had become closer to and felt more secure with [the caretaker]. This development, in turn, was used to justify the court’s finding that it was not in [the child’s] best interest to grant the petition because there was no chance [the parent] could regain custody.” (Hunter S., supra, at p. 1507.) According to the appellate court, “[t]he juvenile court applied the incorrect test.” (Ibid.) Instead of focusing on the lack of contact, the juvenile court abused its discretion by not granting the petition, reopening reunification services, and giving the parent a final chance to see if her relationship with the child was salvageable. (Ibid.)
Hunter S. requires reversal of a section 388 petition when a juvenile court’s neglect or indifference thwarted a parent’s attempt to reconnect with her child. It is factually and procedurally distinguishable. Father is challenging a ruling at a section 366.26 hearing, and the legal issues were different. Further, the Department did not interfere with father’s substance abuse treatment. And though the visitation schedule at times created difficulty for father, he was the one who chose to live in San Diego and limit his visitation options.
c. It was not error to exclude paternal grandmother’s testimony.
In connection with the section 388 hearing, the parties stipulated to the contents of paternal grandmother’s testimony. At the section 366.26 portion of the hearing, the juvenile court ruled that her testimony would be compound. According to father, this was prejudicial error.
We disagree.
When father’s counsel proposed to call paternal grandmother, he was asked for an offer of proof. He stated: “My offer of proof is that she will testify that she is the monitor of the visits with [father] and [the minors.]; that when [the minors] are in father’s care they’re properly cared for and in a structured environment that is established by the father; that he helps them teach and learn; that he goes over the alphabet and numbers and changes the diapers if necessary; that he helps potty train and he helps keep them clean and he ensures that they’re properly clothed and have clean clothes; that they have naps, if needed, and he discusses the school with them. If they have any kind of school work, he will go over this with them. He is affectionate with [the minors]. That he is proper with [the minors] and that [the minors] have . . . expressed an interest in returning to [father’s] care.”
The juvenile court stated: “So, essentially, [counsel,] she would just be corroborating the father’s testimony and would not be adding additional information.” Counsel replied: “Yes and no, your honor. She would be corroborating, yes, but also providing another perspective on a more objective point of view regarding [father’s] care of [the minors].” Thereafter, the juvenile court sustained an objection from the Department that paternal grandmother’s testimony would be compound.
Evidence Code section 352 grants a court the discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time. We conclude that the juvenile court ruled within its discretion. The juvenile court had already received all the information in the offer of proof from the stipulation regarding paternal grandmother’s testimony in the section 388 portion of the hearing, and from father’s testimony. Paternal grandmother’s testimony would not have provided the juvenile court with additional information, and it would have unduly consumed time.
4. The violation of ICWA requires a limited remand.
Father argues that this matter must be remanded so that the Choctaw tribes can be sent proper ICWA notice. The Department concedes that there was error but contends that it was harmless.
We agree with father.
The Department relies on In re Rebecca R. (2006) 143 Cal.App.4th 1426 (Rebecca R.). There, the parent was not asked if he had Indian heritage. On appeal, he argued that the juvenile court erred. But because father did not make an offer of proof on appeal, the appellate court found that he failed to establish a miscarriage of justice. Rebecca R. is distinguishable. Here, the juvenile court asked if father had Indian ancestry and he said he was raised Choctaw. Though father later allegedly denied making this statement, this denial is in a hearsay statement and, at most, it creates uncertainty. The ICWA “notice requirement applies even if the Indian status of the child is uncertain.” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549.)
The case must be remanded so that the Choctaw tribes can be given proper notice.
DISPOSITION
The order terminating father’s parental rights is reversed. If the minors are determined not to be Indian children after proper ICWA notice is given to the Choctaw tribes, the order terminating parental rights shall be reinstated. Conversely, the order denying father’s section 388 petition is affirmed. If, after proper ICWA notice, the minors are determined to be Indian children, then father is then entitled to petition the juvenile court to invalidate the order denying his section 388 petition. (Cal. Rules of Court, rule 5.486.)
We concur: BOREN, P. J., CHAVEZ, J.