Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Terry Truong, Referee. Reversed in part and remanded and otherwise affirmed. Los Angeles County Super. Ct. No. CK33925.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Byron G. Shibata, Associate County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
Appellant T. W. (hereafter, father) appeals an order terminating his parental rights as to his daughters K. C. and S.W. (Welf. & Inst. Code, § 366.26.)
The order is appealable. (Welf. & Inst. Code, § 395.)
Father contends the juvenile court violated his right to due process by denying his request to call seven-year-old S.W. as a witness. Father challenges the sufficiency of the evidence to support the finding that K. C. and S.W. would not benefit from a continued relationship with him. Father also asserts the juvenile court failed to ensure compliance with the Indian Child Welfare Act (ICWA).
We conclude the ICWA notice was deficient and reject father’s other contentions. We reverse and remand for the sole purpose of ensuring compliance with ICWA. In all other respects, the order terminating father’s parental rights is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Events preceding the 366.26 hearing.
On May 4, 2005, a section 300 petition was filed alleging K. C. (born April 1999), S.W. (born September 2000) and two siblings came within the jurisdiction of the juvenile court under, inter alia, subdivision (b) [failure to protect]. The following allegations appeared under subdivision (b): b-1, there were incidents of domestic violence between the mother and father; b-2, a sibling was born positive for amphetamine; and b-3, mother had a seven-year history of drug abuse, was currently abusing drugs, had used drugs during her pregnancy and continued to use after a court-ordered rehabilitation program.
On July 20, 2005, the juvenile court sustained an amended petition, finding the children came within the jurisdiction of the juvenile court under section 300, subdivision (b). The court ordered the four children placed with father, with family maintenance services, and ordered reunification services for the mother. While the children were in his care, father and the children were living in the home of the paternal grandmother.
On December 15, 2005, the Department filed a section 342 subsequent petition alleging a failure to protect under section 300, subdivision (b) because father had failed to notify the social worker when he was arrested on December 3 and incarcerated for nine days. Father said he had arranged for the grandmother to care for the children while he was in custody and did not realize it was necessary to tell the social worker.
On February 6, 2006, the section 342 petition was sustained. The children were ordered removed and father was granted reunification services.
By the time of the April 11, 2006 hearing, father was having overnight visits with all four children. The court ordered the two siblings returned to father’s care and that overnight visits with K. C. and S.W. continue.
The report for the 12-month review hearing indicated father was in partial compliance with his case plan, he was caring for the two siblings full time, and was having regular weekend visits with K. C. and S. W.
At the 12-month review hearing held on July 10, 2006, the court found a substantial probability that K. C. and S.W. would be returned to father by the 18-month review hearing to be held on November 6, 2006.
On August 17, 2006, the court terminated mother’s reunification services.
A second section 342 subsequent petition was filed on September 12, 2006, containing allegations of alcohol abuse by father and domestic violence between him and paternal grandmother.
On November 6, 2006, at the combined 18-month review and hearing on the section 342 petition, the section 342 petition was sustained. The two siblings were ordered removed from father’s care and he was ordered to have monitored visits with all four children. Father was denied reunification services as to the two siblings and services were terminated as to K. C. and S.W. The matter was set for a section 366.26 hearing.
On March 6, 2007, father filed a section 388 modification petition, stating he had fully complied with the family reunification plans and requesting the return of all four children to his care.
On April 6, 2007, K. C. and S.W. were placed in a prospective adoptive home. The prospective adoptive parents said they were committed to preserving the girls’ relationship with the two siblings.
At the hearing held May 7, 2007, the court denied father’s modification petition, continued the section 366.26 hearing as to K. C. and S.W. and proceeded with the contested section 366.26 hearing as to the two siblings.
On May 10, 2007, the court terminated parental rights as to the two siblings.
The status review report filed August 1, 2007, reported that father had a single visit since the last hearing. The report indicated both girls were highly adoptable and that they wanted their foster parents to be their “forever family.”
On August 1, 2007, the court terminated mother’s visits with K. C. and S. W., finding they were detrimental to the girls. The section 366.26 hearing was continued to allow father, who was incarcerated, to be brought to court and because the home study for the prospective adoptive parents had not been completed.
An addendum report filed October 1, 2007, indicated father had been in jail from June 7 to August 13, 2007, and resumed visitation on September 12, 2007. The worker felt the visit was detrimental because father was late and because the girls became upset at something he said. Because father did not confirm the next visit scheduled for September 19, 2007, that visit was cancelled.
A report filed November 7, 2007, indicated father had improved his consistency with respect to visitation. He visited on October 3, 10, 17, and 24, with the October 31 visit postponed to allow the girls to celebrate Halloween with their friends. The worker indicated the quality of the visits was “somewhat okay” and that the girls were comfortable with the monitor present.
An addendum report indicated the home study for the girls’ prospective adoptive parents was approved on October 24, 2007. The prospective adoptive parents reportedly had a good relationship with the two siblings’ prospective adoptive parents and the worker felt the placement would be highly beneficial for the girls because they would continue to have contact with their siblings.
2. The 366.26 hearing.
At the contested section 366.26 hearing on November 7, 2007, K. C., who was eight-and-a-half years old at the time, testified in chambers. K. C. said she wanted to be adopted by W. and R., and if she could live with anybody in the world, she would want to live with W. and R. When asked about visiting her father, K. C. said she visited him once a week, and that she felt comfortable and safe with the monitor there. She said her father “used to sometimes, like, hit me. [¶] . . . [¶] And yell at me.” K. C. liked visiting her father “a little bit.” During visits, they usually eat, play games, talk about how the weekend or the day was, pets, hobbies, school. She sometimes brought homework to the visits.
K. C. said she was in third grade and was last living with father when she began first grade. K. C. said she sees her father once a week. K. C. said it is okay if she visits or doesn’t visit. She doesn’t think she would miss her father if she did not see him.
Following K. C.’s testimony, father’s attorney requested S.W. be allowed to testify. The minors’ attorney objected that her testimony would be cumulative. Father’s attorney asserted S. W.’s testimony would be quite different from K. C.’s, that father believes he has a strong bonded relationship with S. W., S.W. has strong emotional feelings for him, and her testimony was important to a beneficial parental relationship argument.
The minors’ attorney said that morning, S.W. had given a “thumbs-up” sign when asked if she likes visiting father. She said that meant “good.” When asked how she would feel if she did not see her father any more, S.W. made a side to side waving motion, as if she did not care or if it did not matter either way. The attorney asserted S.W. was younger and less mature than K. C., and that the facts of the case did not justify having her testify, given the time she had been out of father’s custody, the fact that visits are monitored, and her desire to be adopted.
The court ruled it did not need to hear from S. W., and that there was enough information in exhibits Nos. 1 through 6 regarding how S.W. feels about her father.
The trial court considered the following exhibits at the section 366.26 hearing: (1) November 7, 2007 last minute information with attachments; (2) November 7, 2007 addendum report with attachments; (3) October 1, 2007 addendum report with attachments; (4) August 1, 2007 section 366.26 report with attachments; (5) May 7, 2007 addendum report with attachments; and (6) March 15, 2007 section 366.26 report with attachments.
The court noted exhibit No. 4, the August 1, 2007 section 366.26 report, at page 10, states the children have not mentioned any wishes to end visits with father; and exhibit No. 5, the May 7, 2007 report, at page four, described father’s visits; that information was no different from what S.W. told her attorney that morning. Therefore, S. W.’s testimony would be “redundant.” Over father’s objection, the court denied the request to have S.W. testify.
Father’s attorney argued the beneficial parental relationship exception should be applied, that there is a strong emotional bond between the children and father and that termination of parental rights would be detrimental to the girls.
The court found the girls were adoptable and there was not sufficient evidence the parents had maintained sufficient visitation with K. C. and S.W. or that the children would benefit from continuing their relationship with their birth parents. The court then terminated parental rights.
On November 19, 2007, father filed notice of appeal from the November 7, 2007 order terminating parental rights.
CONTENTIONS
Father contends: the juvenile court violated his right to due process by denying his request to call S.W. as a witness; there is insufficient evidence to support the finding that K. C. and S.W. would not benefit from a continued relationship with him; and the juvenile court failed to ensure compliance with ICWA.
DISCUSSION
1. Juvenile court acted within its discretion in denying father’s request to call S.W. as a witness; no merit to claim of violation of due process.
Father contends the juvenile court deprived him of his due process right to present a defense by denying his request to call his daughter S.W. as a witness. Father argues he had a due process right to present a defense, said right outweighed any concerns S. W.’s testimony would be repetitive or unduly time-consuming, any concerns that testifying would be emotionally harmful to S.W. could have been resolved by having S.W. testify in chambers outside the parents’ presence, and the error was prejudicial.
a. General principles.
“While a parent in a juvenile dependency proceeding has a due process right to a meaningful hearing with the opportunity to present evidence [citation], parents in dependency proceedings ‘are not entitled to full confrontation and cross-examination.’ (In re Sade C. (1996) 13 Cal.4th 952, 992.) Due process requires a balance. (Id. at pp. 986-991.) The state’s strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence (see Washington v. Texas (1967) 388 U.S. 14, 22-25 [18 L.Ed.2d 1019]), such as when the presentation of the evidence will ‘necessitate undue consumption of time.’ (Evid. Code, § 352.) The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.]” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147.)
We review a trial court’s exclusion of evidence pursuant to Evidence Code section 352 for an abuse of discretion. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
b. Trial court’s ruling.
In requesting that S.W. be called as a witness, father’s attorney made an offer of proof that “[S. W.’s] testimony would be quite different from [K. C.’s] testimony. He believes he has a strong, bonded relationship with [S. W.] [S. W.] has very strong emotional feelings for him. And he . . . feels . . . that would be important for the Court to hear . . . .”
S. W.’s testimony would have been relevant to whether father had maintained regular visitation and contact with S.W. and whether S.W. would benefit from continuing the relationship with her father. (§ 366.26, subd. (c)(1)(B)(i).)
Minors’ counsel then represented to the court that she spoke to S.W. that morning and S. W.’s testimony would be “substantially similar to what [K. C.] said to us in court.”
The trial court ruled “I do not need to hear from [S. W.] with regards to the father’s .26 contest today. There is sufficient information in the Petitioner’s Exhibits 1 through 6 in order for the Court to have information with regards to how [S. W.] feels about visitation with her father.” The court specifically cited exhibit No. 4, the August 1, 2007 section 366.26 report, at page 10 “where it does indicate that the children have not mentioned any wishes to end visits with the father,” and exhibit No. 5, the May 7, 2007 report, at page 4, which “describes the father’s visitation with the children.”
The trial court found: “I do not believe that the information in the report is any different than what [minors’ counsel] is asserting that [S. W.] has indicated to her today. [¶] So at this time the Court finds that it would be redundant information in order to make [ S. W.] go through having to testify for this hearing today. So I’m going to deny the father’s request to have [S. W.] testify.” (Italics added.)
c. No abuse of discretion in trial court’s exclusion of S. W.’s testimony as redundant.
As set forth above, K. C. testified she was in third grade and was last living with father when she began first grade. K. C. said she sees her father once a week. K. C. said it is okay if she visits or doesn’t visit. She doesn’t think she would miss her father if she did not see him.
According to minors’ counsel, she had spoken to S.W. that morning and had asked “substantially the same questions that were asked by all counsel of [K. C.] in testimony.” Minors’ counsel represented that S. W.’s testimony would be “substantially similar to what [K. C.] said to us in court.”
In addition to K. C.’s testimony, the trial court had before it documentary evidence in the form of exhibits Nos. 1 through 6. Section 366.26, subdivision (h)(1) provides: “At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.” (Italics added.) In re Diana G. (1992) 10 Cal.App.4th 1468, interpreted this provision “to require the juvenile court to receive direct evidence of the children’s wishes regarding termination and adoption . . . .” (Id. at p. 1480.) At the same time, Diana G. described witness testimony as but one of several forms of “direct evidence.” (Ibid.) Such “evidence may take the form of direct formal testimony in court; informal direct communication with the court in chambers, on or off the record; reports prepared for the hearing; letters; telephone calls to the court; or electronic recordings.” (Ibid.)
With respect to the documentary evidence, the juvenile court specifically cited page 10 of the August 1, 2007 report, which indicated “The children have not mentioned any wishes to end visits with father . . . .” That report further stated, at page 13: “The children have stated that they would like to live with the prospective adoptive caregivers forever.”
The juvenile court also cited page 4 of the May 7, 2007 addendum report, which described a one-hour monitored visitation session between father and the four children, to wit: “Father bought gifts for the children and some clothes. Father played and interacted appropriately with the children. The child, [K. C.] appeared disinterested in taking the clothes home with her. The child, [S. W.] would often seek attention and comfort from foster mother. All children were observed to play well independently and to enjoy contact with their siblings. When the children, [K. C.] and [S. W.] left, they gave father a hug goodbye. The children, [K. C.] and [S. W.] did not appear upset as the visit ended.”
In sum, given K. C.’s testimony, the offer of proof by minor’s counsel that S. W.’s testimony would be substantially the same, as well as the extensive documentary evidence with which the juvenile court had familiarized itself, we perceive no abuse of discretion in the trial court’s exclusion of S. W.’s testimony as redundant. On this record, we cannot say the trial court’s evidentiary ruling “exceeded the bounds of reason.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
2. Substantial evidence supports trial court’s finding that K. C. and S.W. would not benefit from a continued relationship with him.
Section 366.26 provides in relevant part: “(c)(1) If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, 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. . . . Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Italics added.)
Father argues sufficient evidence existed to qualify for a section 366.26, subdivision (c)(1)(B)(i) exception to termination of parental rights. Father contends the evidence was insufficient to establish S.W. and K. C. would not benefit from a continued relationship with their birth father. The contention fails. As explained, the record fully supports the juvenile court’s determination that (1) father failed to maintain regular visitation and contact with K. C. and S.W. and (2) the girls would not benefit from continuing the relationship with him.
a. Father failed to maintain regular visitation and contact.
The report for the March 5, 2007 hearing states: “Father’s visits are inconsistent and often last about 30 minutes – 1 hour. An arrangement has now been made for father to confirm his visits 24 hours in advance, due to frequent no shows. The father does not take advantage of the opportunity to visit with the children for the full time allowed.”
Between May 2007 and August 2007, father had one visit with S.W. and K. C. (He was incarcerated from June 7, 2007 to August 13, 2007.) After father was released from jail, from mid-August through the end of September, he had a single visit, on September 12, 2007. In other words, over the five-month period spanning May through September of 2007, father had a total of two visits with K. C. and S.W. In October 2007, in advance of the section 366.26 hearing, father saw the girls weekly.
This record provides substantial support for the juvenile court’s determination that father failed to maintain regular visitation and contact with K. C. and S. W.
b. Record supports trial court’s determination that K. C. and S.W. would not benefit from continuing the relationship with father.
By the time of the section 366.26 hearing, father no longer had a significant parent-child bond with either K. C. or S.W.
K. C. testified she liked visiting father only a “little bit.” K. C. stated she was comfortable visiting father with her social workers present, but uncomfortable without them. K. C. indicated she was “okay” with continuing or discontinuing visits with father, and that she did not think she would miss father if visits were discontinued.
According to minors’ counsel, S. W.’s testimony would have been substantially the same.
This record provides substantial support for the trial court’s determination that K. C. and S.W. would not benefit from continuing a relationship with father.
In sum, the trial court properly found the section 366.26, subdivision (c)(1)(B)(i) exception to termination of parental rights was inapplicable.
3. ICWA error requires limited reversal and remand.
At the detention hearing on May 4, 2005, father indicated he had Blackfoot Indian heritage on his father’s side and Cherokee or Navajo heritage on his mother’s side. ICWA notices were sent and the tribes indicated no Indian heritage for the children.
Nonetheless, father contends other relevant information about paternal family history was easily obtainable not only from father but also from paternal grandmother and uncle, who both lived at the same address as father.
The Department concedes the ICWA notice was inadequate because it had a duty to interview the paternal grandparent and paternal uncle regarding Indian heritage in order to have ascertained the information required for the relevant notice form. Therefore, the Department does not oppose a limited reversal and remand for this purpose. We accept the Department’s concession.
California Rules of Court, rule 5.481 provides in relevant part at subdivision (a)(4): “If the social worker, probation officer, licensed adoption agency, adoption service provider, investigator, or petitioner knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry as soon as practicable by: [¶] (A) Interviewing the parents, Indian custodian, and ‘extended family members’ as defined in 25 United States Code sections 1901 and 1903(2), to gather the information listed in Welfare and Institutions Code section 224.2(a)(5), Family Code section 180(b)(5), or Probate Code section 1460.2(b)(5), which is required to complete the Notice of Child Custody Proceeding for Indian Child (form ICWA-030).” (First italics added.)
DISPOSITION
The November 7, 2007 order of the juvenile court terminating father’s parental rights is conditionally reversed, solely for the purpose of ensuring compliance with ICWA. The matter is remanded to the juvenile court with directions to order the Department to conduct a full investigation into father’s claimed Indian heritage and to provide proper notice of the proceedings under the ICWA to each of the relevant tribes and to the Bureau of Indian Affairs. If, after receiving notice, no tribe indicates that the child falls within the meaning of ICWA, or if no response is received within the prescribed time indicating that a child is an Indian child, the juvenile court shall reinstate the order terminating father’s parental rights. In all other respects, the order is affirmed.
We concur: KITCHING, J., ALDRICH, J.
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.