Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK25027. Randolph M. Hammock, Juvenile Court Referee.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, Acting P. J.
R.S., Sr. (father), an incarcerated parent, appeals the juvenile court’s orders denying his petition under section 388 of the Welfare and Institutions Code and terminating his parental rights to his 10-year-old son, R.S. On appeal, father contends that the juvenile court erred in (1) failing to ensure proper notice was given under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.); (2) failing to consider his request for relative placement preference; (3) denying his section 388 petition seeking reunification services; and (4) terminating his parental rights and denying him his due process right to examine his son in court. We find no error and affirm.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2005, when R.S. was seven years old, respondent Los Angeles County Department of Children and Family Services (the department) filed a petition pursuant to section 300 on behalf of R.S. and his three half-siblings alleging their mother had engaged in physical abuse, alcohol abuse and domestic violence with her boyfriend. Since February 2004, R.S. and his half-siblings had been living with a maternal aunt until her death and thereafter with a maternal great-aunt. Father was incarcerated in state prison and according to mother had not seen R.S. since he was about two years old.
The half-siblings are not father’s children and are not parties to this appeal.
Father was present at a mediation hearing on February 7, 2006, during which the court sustained some of the allegations in the section 300 petition against mother. That same day the department filed a petition against father pursuant to section 342, alleging that his criminal history of assault with a deadly weapon, battery, robbery and kidnapping placed R.S. at risk of harm. The court set a jurisdiction/disposition hearing on father’s petition for April 24, 2006.
In preparation for the hearing, the social worker interviewed father, who stated that his criminal record spoke for itself and that he had never harmed his son, whom he had not seen since 2000. Father’s criminal behavior had begun when he was 15 years old. He was sentenced in April 2002 to nine years in prison and his release date was May 4, 2009. Father was currently in administrative segregation for behavioral issues and was not allowed any privileges. Mother and the paternal grandmother reported that father was a good father to R.S. when he was with him. The social worker recommended that father be denied reunification services because he was going to be incarcerated longer than the reunification period.
On April 24, 2006, the court sustained the section 342 petition against father and denied him reunification services under section 361.5, subdivisions (b)(12) and (e) on the grounds that he had been convicted of a violent felony and would be in custody for longer than the reunification period. At a subsequent hearing on August 22, 2006, father was present and his attorney informed the court that father was seeking visitation between R.S. and the paternal relatives. The court instructed father to have his relatives contact the social worker to arrange visits and gave the department discretion to make them unmonitored. The court admonished father to stop writing the court because father had sent “a million letters.” The court also allowed father an after-court visit with R.S. The court set the 12-month hearing for February 2007, which was later continued to April 23, 2007.
In the meantime, the department reported that R.S. and his half-siblings continued to reside with their maternal great-aunt, who was doing an “exceptional” job caring for the children, meeting their needs and providing them with a stable home. When the social worker visited the home of the great-aunt’s respite caregiver, R.S. stated that he liked staying with the aunt and did not want to be removed from her. The great-aunt was willing to provide a permanent home for the children, stating: “I’m all they know. I would not have any problems adopting the children if I have too. I’ve just been doing what I think is the right thing to do.”
Father and his attorney were present at the April 23, 2007 hearing. His attorney represented that father was perplexed as to why R.S. had not been placed with his paternal family. The court explained that it was important to keep siblings together, and father replied that he understood. The court set a selection and implementation hearing pursuant to section 366.26 for September 11, 2007. At the April 23, 2007 hearing, the parents were personally served with notice of the section 366.26 hearing. On April 27, 2007, the clerk mailed to the parents and their attorneys copies of the court’s minute order, notice of intent to file a writ petition and request for records and an advisement of rights.
Prior to filing in the juvenile court a notice of intent to file a writ petition, father filed a writ petition directly with this court, which we summarily denied on May 22, 2007. On June 3, 2007, father attempted to file in the juvenile court a notice of intent to file a writ petition, which was rejected as untimely.
We grant father’s motions to augment the record on appeal and to take judicial notice of documents received by the juvenile court on December 30, 2005 and his petition for extraordinary relief filed on May 21, 2007.
At the September 11, 2007 hearing, father requested that his family members be considered as placement for R.S. The court responded that R.S. was placed with his half-siblings with his maternal great-aunt and that there was no basis for moving him. The court also stated that it would consider the paternal relatives if R.S. needed to be replaced in the future. The court allowed an after-court visit between father and R.S. to be monitored by father’s attorney. Over the next year, the court continued the section 366.26 hearing several times, in part because of difficulties transporting father to court.
Meanwhile, the department reported that the children had resided with their maternal great-aunt since November 2005, they had a close and loving bond with her and with each other, and that she was committed to pursuing adoption and hoped that nothing would interfere with that plan. She was providing the children with a safe, loving and stable home, was doing an excellent job of caring for their needs and was a good role model. R.S. and the other children were thriving in her care and R.S. informed the social worker on several occasions that he was happy to be with her and wanted to continue to live with her. The adoption home study was approved.
The court terminated parental rights with respect to R.S.’s half-siblings, and found father to be the legally presumed father of R.S. At a hearing on September 3, 2008, father requested that R.S. be present at the next hearing. R.S.’s attorney objected, and the court granted father’s request that R.S. be interviewed before the next hearing on his wishes and his visitation with his father.
On September 23, 2008, father filed a petition pursuant to section 388 seeking reunification services on the grounds that he and R.S. had bonded through letters and telephone contact, and father had completed anger management, conflict resolution and parenting education programs, as well as classes toward certification and training in vocational sheet metal trade school.
In October 2008, the department reported that it had interviewed R.S., who stated that he wanted to continue to live with his half-siblings and his maternal great-aunt. He understood what adoption meant and wanted to be adopted by his maternal great-aunt. R.S. loved his father and would not mind visiting with him when he was released from prison, but he did not want to live with him. While R.S. wanted to write to his father, sometimes he was too busy playing and going places with his half-siblings and did not feel like writing. He loved his maternal great-aunt, who was good to him and his half-siblings. The maternal great-aunt stated that she loved R.S. and the other children, that she wanted to adopt them all and that she thought R.S. would be devastated if he could not remain with his half-siblings. She had no problem helping R.S. maintain communication with his father.
The department also reported that while still incarcerated, father was convicted on May 23, 2006 of felony possession of a controlled substance in prison and sentenced to four years.
At the next three hearings, father again requested that R.S. be present and available to testify at future hearings. R.S.’s attorney again objected because R.S. needed to be in school. Father’s attorney made the offer of proof that he would ask R.S. what kind of relationship and communication he had been having with father and would make sure R.S. understood what adoption and termination of parental rights meant. An attorney who was appearing on behalf of R.S.’s regular counsel stated that she had spoken to R.S. who said he wanted to be adopted. The court ordered R.S. to be available on a two-hour call, but stated that if it became clear that R.S.’s testimony was necessary, the court would trail the matter and have R.S. brought to court.
The department subsequently reported that the adoptions of R.S.’s half-siblings were on schedule to be finalized and that R.S. was upset about not being adopted with his siblings and wanted his maternal great-aunt to be his adoptive parent as well. The department also reported that, based on a letter dated January 15, 2009 from the Department of Corrections and Rehabilitation, father’s earliest possible release date was October 25, 2012.
On January 20, 2009, the court conducted the combined sections 388 and 366.26 hearings. Father testified that he believed his release date was July 25, 2009 and that he was appealing the 2012 release date. He testified that he had participated in parenting, anger management and substance abuse classes in prison, and that he had been communicating with R.S. through letters and telephone calls. Before he was incarcerated, father had a “beautiful” relationship with R.S., buying him diapers, providing for him, putting a roof over his head. Father again requested that R.S. be present to testify. His attorney’s offer of proof was that R.S. would testify regarding “his wishes as to adoption.” The court did not find the offer of proof sufficient to warrant the presence of R.S. The court denied the section 388 petition, finding that even if father were released in July 2009, granting reunification services would not be in the best interest of R.S., who was in a stable and permanent placement. The court also terminated parental rights, finding no applicable exception and that R.S. was adoptable. This appeal followed.
DISCUSSION
I. ICWA.
Father contends that the juvenile court erred by failing to insure compliance with the notice provisions of the ICWA and by failing to make any finding as to whether the ICWA applied. We find no error.
By way of background, at the initial detention hearing R.S.’s mother stated she might have Native American Indian ancestry, but was unaware of any particular tribe. The maternal grandmother, who was also present at the hearing, stated she believed her grandparents, Lucille and Freeman W., might have Cherokee heritage. The court ordered the department to do a full investigation of Cherokee heritage. The social worker interviewed the maternal grandmother, who stated that she did not know any of her relatives and doubted that any of them were registered with any tribes or claimed any Indian ancestry and she did not think they were eligible to do so. She did not understand why the department was investigating the issue and she was only willing to provide the name and telephone number of her own mother. The social worker then interviewed the maternal great grandmother, who stated that no one in her family claimed Indian heritage, that her mother stated that she was told someone in their family was “Blackfeet and Blackhawk,” but no one was registered or claimed such heritage and she did not have any information about them.
The department asserts, and father does not dispute, that there is no Blackhawk tribe.
The department provided notice of involuntary child custody proceedings for an Indian child to the Eastern Band of Cherokee Indians of North Carolina, the Cherokee Nation of Oklahoma, the United Keetowah Band of Cherokee Indians in Oklahoma and the Bureau of Indian Affairs (BIA). The notices identified the names of the mother, maternal grandmother and maternal great grandmother. Each of the three bands of the Cherokee tribe responded that R.S. was not eligible for membership and that they would not intervene in the matter. The BIA responded that notice had been proper. After the subsequent section 342 petition was filed against father, the department sent additional notices to all three bands of the Cherokee tribe and the BIA. No notices were ever sent to the Blackfeet tribe.
In general, the ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)–(c), 1912–1921.) “Indian child” is defined as a child who is either (1) “a member of an Indian tribe” or (2) “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).) “Indian tribe” is defined so as to include only federally recognized Indian tribes. (25 U.S.C. § 1903(8).)
Concerning notice, the ICWA provides: “[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify... the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of... the tribe cannot be determined, such notice shall be given to the [BIA] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by... the tribe or the [BIA]....” (25 U.S.C. § 1912(a); see also 25 U.S.C. §§ 1a, 1903(11).)
The ICWA further provides that “[a]ny Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section[]... 1912... of this [title].” (25 U.S.C. § 1914.) (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 339 [concluding that the mother, although not Indian, had standing to assert an ICWA notice violation on appeal].)
The circumstances under which a juvenile court has reason to believe that a child is an Indian child include, but are not limited to, the following: “‘(i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child. [¶] (ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child. [¶] (iii) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child. [¶] (iv) The residence or the domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community. [¶] (v) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.’” (In re O.K. (2003) 106 Cal.App.4th 152, 156 (citing Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979)); Cal. Rules of Court, rule 5.481(a)(5).)
All further references to rules are to the California Rules of Court.
Father argues that the notices sent to the three bands of the Cherokee tribe and the BIA were inadequate because they did not include the names of the grandparents mentioned by the maternal grandmother in court. But when the social worker later interviewed the maternal grandmother, she stated that she did not know any of her relatives, she doubted that any of them were registered or claimed Indian heritage and she did not think that any of them were eligible for membership. Under these circumstances, we cannot conclude that the failure to name the grandparents rendered the notices deficient.
Father also argues that notice should have been given to the Blackfeet tribe. But the statement by the maternal great grandmother, who was not a party to the proceedings, that her mother stated that she was told someone in their family was “Blackfeet and Blackhawk,” was not sufficient to give the juvenile court reason to believe that R.S. was a member of an Indian tribe or eligible for membership and the biological child of a member of an Indian tribe. This is particularly true when the maternal great grandmother added that no one in her family claimed Blackfeet heritage or was registered with the tribe. We therefore find no error in the lack of notice to the Blackfeet tribe. Finally, father claims the juvenile court failed to make a finding as to whether the ICWA applied with respect to the mother’s family. At the conclusion of the combined sections 388 and 366.26 hearings, the court inquired of father if he had any Indian heritage. Father responded that his grandmother was from the West Indies, Caribbean. The court then stated, “this is not an ICWA case.” But the court did not limit its finding to the father’s family.
We find no basis for reversing the case under the ICWA.
II. Relative Placement Preference.
Father next contends that the juvenile court abused its discretion when it failed to consider his request that R.S. be placed with paternal relatives.
As an initial matter, the department contends that father has waived the issue by failing to include it in a timely petition for writ review from the April 23, 2007 hearing at which the court set the section 366.26 hearing. “An aggrieved party may seek review of the setting order by appeal from the order subsequently made at the section 366.26 hearing, but only if: (1) the party filed a timely petition for extraordinary writ review of the setting order; (2) the petition substantively addressed the specific issues to be challenged and supported the challenge by an adequate record; and (3) the appellate court summarily denied or otherwise did not decide the petition on the merits. (§ 366.26, subd. (l)(1).” (In re Cathina W. (1998) 68 Cal.App.4th 716, 720.) The writ proceeding is initiated by the filing with the juvenile clerk of a notice of intent to file a writ petition and request for record, which must be filed within seven days of the setting hearing if the party was present at the hearing. (Rule 8.450(e)(4)(A); In re Cathina W., supra, at p. 720.)
As noted above, father was present at the April 23, 2007 setting hearing during which he raised the issue of relative placement preference. On May 21, 2007, he filed a petition for extraordinary writ directly with this court which did not raise the issue and which we summarily denied. Thereafter, he attempted to file in the juvenile court a notice of intent to file a writ petition, which was rejected as untimely.
But the problem here is that while father was present at the setting hearing, the juvenile court did not orally advise him of the necessity of filing a writ petition to protect the issue for appeal. Section 366.26, subdivision (l)(1)(3)(A) provides: “A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order.” (Italics added.) Likewise, rule 5.695(f)(18) states that “[w]hen the court orders a hearing under section 366.26, the court must advise orally all parties present, and by first-class mail for parties not present, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under section 366.26, the party must seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record (California Rules of Court, Rule 8.450) (form JV-820) or other notice of intent to file a writ petition and request for record and a Petition for Extraordinary Writ ( California Rules of Court, Rules 8.452, 8.456 ) (form JV-825) or other petition for extraordinary writ.” (First italics added.)
At the setting hearing, father was only provided with a written notice of the section 366.26 hearing date, which did not advise him of the requirement of filing a writ petition, nor the deadline for doing so. We conclude that the juvenile court’s failure to discharge its duty to orally advise father at the setting hearing of the requirement for filing a writ petition preserved the issue for review in this appeal from the order terminating parental rights. (See In re Cathina W., supra, 68 Cal.App.4th at p. 722 [the mother was found to have shown good cause for the failure to file a writ petition when the juvenile court failed to discharge its duty to give her timely, correct notice].)
The department also contends that father lacks standing to raise the issue because he was not aggrieved by the court’s decision to leave R.S. placed with the maternal great-aunt. “‘Whether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened.’” (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034, quoting Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751; In re Carissa G. (1999) 76 Cal.App.4th 731, 734 [issue of standing focuses on whether the person has “a legally cognizable immediate and substantial interest which is injuriously affected by the court’s decision”].) The department does not further elaborate as to how father was not aggrieved by having R.S. placed with the maternal great-aunt. Father, on the other hand, argues that he had an interest in having R.S. placed with paternal relatives because it was more likely that the court would have ordered guardianship as the permanent plan, leaving father’s parental rights intact, or, alternatively, that if R.S. had been adopted by paternal relatives it was more likely that father would have more opportunities for contact with his son than if R.S. had been adopted by a maternal relative. While father’s arguments are largely speculative, we cannot conclude that he had no interest in R.S.’s placement or that his interests were unaffected by R.S.’s placement.
That being said, we find no merit to father’s contention that the juvenile court abused its discretion by failing to consider his request to have R.S. placed with paternal relatives. Section 361.3, subdivision (a) provides that “[i]n any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” “‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated” and preferential consideration shall be given only to “an adult who is a grandparent, aunt, uncle or sibling.” (§ 361.3, subd. (c)(1) & (2).)
Father fails to identify any paternal relative who actually sought the placement of R.S. Moreover, contrary to father’s assertion, the court did not fail to consider his request that R.S. be placed with paternal relatives. When father raised the issue at the April 23, 2007 setting hearing, the court explained to father that it was important to keep R.S. with his half-siblings, and father said he understood. By that time, R.S. had already indicated that he did not want to be removed from the home of his maternal great-aunt. When father subsequently raised the issue again, the court responded that there was no basis for removing R.S. from his placement, but that if he needed to be replaced in the future, the court would consider father’s relatives. Thereafter, the department repeatedly reported that R.S. was happy and thriving in a stable, loving home with his maternal great-aunt and half-siblings, and that he very much wanted to be adopted by the aunt and that she was committed to adopting him. In short, “[t]he relative placement preference, however, is not a relative placement guarantee [citations], and the record contains ample evidence that the preference was overridden in this case.” (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)
III. Section 388 Petition.
Under section 388, a parent may petition the court to change, modify or set aside a previous court order. The parent has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence and the proposed modification is in the child’s best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) “This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been terminated or never ordered.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
“The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O., supra, 8 Cal.4th at p. 415; In re Stephanie M. (1994) 7 Cal.4th 295, 318.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” (In re Stephanie M., supra, at pp. 318–319.) “The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M., supra, 103 Cal.App.4th at pp. 685–686; In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Father’s section 388 petition sought reunification services. Father argues that he demonstrated a change of circumstances because he completed two creative conflict resolution programs, a parenting education program and a sheet metal program and attended AA and NA meetings, all while in prison. We agree with the department that this evidence amounted only to “changing” circumstances rather than “changed” circumstances. Under section 388, “the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) “‘“[C]hildhood does not wait for the parent to become adequate.”’” (Ibid.) Moreover, father ignores that the most significant change that had occurred during the juvenile court’s supervision of the family was that father was sentenced to an additional four years for felony possession of drugs while in prison. This was clearly a change of circumstances for the worse.
Nor has father demonstrated that granting him reunification services would be in R.S.’s best interest. After the termination of reunification services, the focus of dependency proceedings “‘shifts to the needs of the child for permanency and stability.’” (In re Stephanie M., supra, 7 Cal.4th at p. 317.) By the time father filed his section 388 petition, he had not seen or provided for R.S. for approximately eight years. Meanwhile, R.S. had been thriving in a stable, loving home with his half-siblings and his maternal great-aunt, who was committed to adopting all four children and who was doing an “exceptional” job meeting their needs. While R.S. loved his father, he wanted to be adopted by his maternal great-aunt and live with his half-siblings. Although father largely blames the dependency jurisdiction on the children’s mother and somewhat downplays his own criminal history, father’s criminal lifestyle “evidenced a lack of interest in [R.S.] because his incarceration precluded a full commitment to his parental responsibilities.” (In re Justice P. (2004) 123 Cal.App.4th 181, 192.) In short, granting father’s section 388 petition would have meant delaying R.S.’s permanency and stability, something that would not have been in R.S.’s best interest. We therefore find no abuse of discretion in the juvenile court’s denial of father’s section 388 petition.
IV. Termination of Parental Rights.
Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that it is likely the dependent child will be adopted, “the court shall terminate parental rights and order the child placed for adoption.” A finding that the court has continued to remove the child from the custody of the parent and has terminated reunification services “shall constitute a sufficient basis for termination of parental rights” unless the court finds a compelling reason for determining that termination would be detrimental to the child because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
It is well established that a parent bears the burden of proving that termination would be detrimental to the child under section 366.26, subdivision (c)(1)(B)(i). (Cal. Rules of Court, rule 5.725(e)(3); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826–827; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343–1344.) This is not an easy burden to meet. “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, at p. 1350.)
Reviewing courts have traditionally applied a substantial evidence test to a juvenile court’s finding of whether an exception to termination of parental rights under section 366.26 has been established. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Some courts have concluded that abuse of discretion is the appropriate standard of review, but noted that the practical differences between the two standards are not significant. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) “‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’...”’” (Ibid.)
Although father argues that he maintained regular contact with R.S. through letters and telephone calls from prison, father did not maintain regular visitation with R.S. Aside from a few after-court monitored visits, father had not seen R.S. for approximately eight years. Nor has father met his burden of demonstrating that R.S. would benefit from continuing their relationship. (§ 366.26, subd. (c)(1)(B)(i).)
The “‘benefit from continuing the [parent/child] relationship’” exception in section 366.26, subd. (c)(1)(B)(i) has been defined to mean that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Ibid.)
“The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.” (In re Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted; In re Helen W. (2007) 150 Cal.App.4th 71, 81.)
Applying these factors here, we find they do not support an exception to termination of parental rights. R.S., who was 10 years old at the time of the section 366.26 hearing, had spent only a tiny portion of his life with father. R.S. had formed significant bonds with his prospective adoptive parent and half-siblings. There was no evidence that R.S. had any particular needs that could only be met by father and not by his maternal great-aunt, who was committed to adopting him and his half-siblings.
Father points out that R.S. loved him and wanted to visit with him after his release from custody. But even frequent and loving contact between a parent and child is not sufficient by itself to establish that the exception applies. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) Interaction between a natural parent and child will always confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent.” (In re Angel B., supra, 97 Cal.App.4th at p. 466.) “[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.” (Id. at p. 468; see also In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 [“We do agree... that a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one”].)
Father nevertheless argues that he was prevented from establishing the exception to termination of parental rights in section 366.26, subdivision (c)(1)(B)(i), because the court denied him due process by precluding him from examining R.S. in court. We disagree.
“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.’” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146.) Given the state’s strong interest in the expeditious resolution of dependency proceedings, due process is a flexible concept that requires a balance and permits the nonarbitrary exclusion of evidence, such as when the presentation of evidence would result in undue consumption of time. (Ibid.; 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.” (Maricela C. v. Superior Court, supra, at p. 1147.) It therefore “does not violate due process for a trial court to require an offer of proof before conducting a contested hearing on one of the statutory exceptions to termination of parental rights.” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122; see also In re Earl L. (2004) 121 Cal.App.4th 1050, 1051 [finding that offer of proof procedure applies to the sibling exception to termination of parental rights].)
When asked for an offer of proof as to R.S.’s testimony, father’s attorney stated that he would ask R.S. about his relationship with father and his understanding of adoption and termination of parental rights. Later, after father had testified, when the court again asked for an offer of proof, father’s attorney stated, “[R.S.’s] wishes as to adoption.” Father’s attorney pointed out that such testimony was relevant pursuant to section 366.26, subdivision (h)(1), which requires the court to “consider the wishes of the child” and to “act in the best interests of the child.” While evidence of a child’s wishes may take the form of direct formal testimony in court, it may also consist of informal direct communication with the court in chambers, reports prepared for the hearing, letters, telephone calls to the court or electronic recordings. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.)
Here, R.S.’s consistent wish to be adopted by his maternal great-aunt, with whom he had been living for several years, was made known during numerous interviews with the social worker and was reflected in the reports prepared for the court. At least one report stated that R.S. understood what adoption meant. At a previous hearing, R.S.’s attorney represented to the court that she had spoken to R.S. and that he had stated he wanted to be adopted by his maternal great-aunt. There was nothing in father’s offer of proof to suggest that R.S.’s testimony would contradict his long-expressed wish to be adopted. In short, there was nothing in the offer of proof to show that R.S.’s testimony would establish that severing father’s parental relationship would greatly harm R.S.
DISPOSITION
The orders denying father’s section 388 petition and terminating his parental rights to R.S. are affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.