Adoption of R.C. CA1/1 ( 2014 )

Filed 12/29/14 Adoption of R.C. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
Adoption of R.C., a Minor.
C.K. et al.,
Plaintiffs and Respondents,
A141582
v.
A.T., (Alameda County
Super. Ct. No. RA13692590)
Defendant and Appellant.
INTRODUCTION
Defendant A.T. appeals from the order terminating his parental rights to the child
that plaintiffs C.K. and J.B. seek to adopt, and allowing the adoption to go forward
without his consent. The trial court reinstated this order after reconsidering and rejecting
its prior order by which it had set aside the default termination order (default order)
pursuant to Code of Civil Procedure section 473, subdivision (b).1 The reinstatement
ruling was based on the court’s conclusion that Family Code section 76692 deprived it of
jurisdiction to set aside the termination order. However, because defendant was not
served with notice of the proceeding in the manner required by statute, the court lacked
personal jurisdiction over him at the time it originally entered the default order.
1
Code of Civil Procedure section 473, subdivision (b), provides that a “court may, upon
any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other
proceeding taken against him or her through his or her mistake, inadvertence, surprise, or
excusable neglect. . . .”
2
All further statutory references are to the Family Code except as otherwise indicated.
1
Concluding the default order is thereby void, we reverse reinstatement of the order
terminating his parental rights.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs are a married couple living in Oakland. R.C., the child who is the
subject of this adoption proceeding, was born in July 2013 in Murray, Utah. The birth
mother is S.C. and the father is defendant.
The birth parents met in March 2012. They lived together from April 2012 to
August 2012. They lived apart for a while and then moved in together again for a period
of one month in December 2012. S.C. became pregnant and informed defendant that he
was the father. He acknowledged paternity but reportedly did not offer to provide any
financial assistance. At the time of R.C.’s birth, defendant was incarcerated.
A pre-placement homestudy prepared by a licensed social worker approved
plaintiffs for adoption placement. Between July 6, 2013 and August 3, 2013, plaintiffs
stayed in Utah to provide S.C. with daily emotional support and transportation to routine
doctor appointments. Reportedly, defendant did not communicate with S.C. despite his
awareness of her pregnancy and his status as the birth father. Plaintiffs’ initial plan was
to complete the adoption through a private adoption agency in Utah. However, they were
informed shortly before R.C.’s birth that the agency could not make a placement with a
same-sexed couple as this conflicted with Utah law, which at that time did not recognize
same-sex marriages.
On July 23, 2013, defendant was personally served with a “Notice of Alleged
Paternity” while incarcerated in a Utah jail. The notice was prepared by plaintiffs’ then-
counsel, and advised defendant that his failure to bring a paternity action within 30 days
after the birth of the child or service of the notice, whichever occurred last, could result in
the child’s adoption and the termination of his parental rights. While the document is
captioned under the heading “Superior Court of the State of California for the County of
Alameda,” the notice was not filed in the superior court and does not bear a case number.
2
On August 5, 2013, S.C. and plaintiffs executed an independent adoption
placement agreement in Oakland, California.
On August 19, 2013, the attorney who prepared the July 23, 2013 notice received
a copy of a handwritten note from defendant stating his objection to the adoption. The
note is dated August 12, 2013, and is addressed to the Alameda County Superior Court.3
In the note, defendant requested that the court appoint legal counsel for him, order
paternity testing, and accept the letter as a “legal document of declaration of parentage
[and] motion to dispense the current motion for adoption to be filed before this court.”
The attorney forwarded the note to plaintiffs’ new counsel.
On August 20, 2013, this action commenced when plaintiffs filed a request for an
independent non-relative adoption in the Superior Court of California, County of
Alameda. Plaintiffs included a request that the court terminate defendant’s parental
rights.
On October 23, 2013, plaintiffs filed substitutions of themselves as attorneys in
pro. per.
On October 31, 2013, plaintiffs filed a petition to dispense with notice and
terminate defendant’s parental rights as an alleged father. The petition included a copy of
the August 12, 2013 letter from defendant. As there is no proof of service in the record,
we may infer defendant was not served with this petition.
On November 8, 2013, the trial court filed its order denying the motion to dispense
with notice and terminate defendant’s parental rights.4
3
The letter did not become a part of the trial court’s file at the outset of this proceeding,
presumably because it arrived before the instant action was commenced.
4
We decline plaintiffs’ request to exercise our discretion and to review this ruling under
Code of Civil Procedure section 906, which states in pertinent part: “The respondent . . .
may, without appealing from [the] judgment, request the reviewing court to and it may
review any of the foregoing [described orders or rulings] for the purpose of determining
whether or not the appellant was prejudiced by the error or errors upon which he relies
for reversal or modification of the judgment from which the appeal is taken.” In
particular, we note the record is silent as to the reasons for the denial.
3
On December 19, 2013, plaintiffs filed a notice of hearing to determine whether
defendant was R.C.’s natural father and if he objected to the adoption. The hearing was
set for the following day at 9:30 a.m. Defendant had been personally served with this
notice on November 25, 2013. The notice states, in part: “If you are the natural father
and you object to the adoption, then the purpose of the hearing will also be to determine
whether it is in the best interest of the child that you retain your parental rights, including
the right to object to the adoption, or whether it is in the best interests of the child to be
adopted without your consent, and that your parental rights be terminated.” The notice
advised defendant to seek the advice of an attorney. The notice also stated that if he
failed to appear at the hearing, “any parental rights you may have as to the child will be
terminated,” citing to section 7664, subdivision (a).5 The proof of service indicates the
notice of hearing was not accompanied by a court-issued citation to appear. Nor was
defendant served with the August 20 request for non-relative adoption.
On December 20, 2013, the matter was called for hearing at 10:15 a.m. The
record does not contain a reporter’s transcript. According to the trial court minutes,
plaintiffs were present when the hearing was called but defendant had not appeared.
There is no indication any appointed counsel was present on his behalf. The trial court
signed the “Order Terminating Parental Rights.” After the order was signed, the minutes
indicate: “At 11:30 a.m. [defendant] is present in court. [He] explains that he travelled
from Utah. On the Court’s own motion the Order Terminating Parental Rights is
HEREBY ORDERED SET ASIDE.” Thereafter, the court appointed an attorney for
defendant.
5
Section 7664, subdivision (a) provides, in part: “If . . . the biological father is identified
to the satisfaction of the court . . . notice of the proceeding shall be given in accordance
with Section 7666. If any alleged biological father fails to appear or, if appearing, fails to
claim parental rights, his parental rights with reference to the child shall be terminated.”
4
On January 3, 2014, the Social Services Agency of Alameda County
recommended the proposed adoption be granted, provided that the trial court terminated
defendant’s parental rights.
On January 17, 2014, plaintiffs filed an opposition to the appointment of legal
counsel for defendant.6
On February 14, 2014, plaintiffs filed a motion to strike the order setting aside the
order terminating defendant’s parental rights. The motion asserted the set aside order
was an abuse of discretion because under section 7669, subdivision (b),7 the trial court
lacked jurisdiction to set aside the termination order once it had been entered.
In an opposition filed on March 20, 2014, defendant’s appointed counsel argued
plaintiffs had failed to set forth legal authority permitting the relief requested within a
motion to strike. She further asserted that if the motion was deemed a motion to
reconsider, then it was untimely. She also brought a motion for continuance as her client
was unavailable due to his incarceration for a probation violation.
At a hearing on March 21, 2014, the trial court entered an order reinstating the
December 20, 2013 order terminating defendant’s parental rights and striking the order
setting aside that order. The court indicated it had relied on Code of Civil Procedure
section 473 when it set aside the termination order. The court agreed with plaintiffs that
it had acted without jurisdiction because section 7669 is a specific statute that takes
precedence over the more general provisions in Code of Civil Procedure section 473,
which would have otherwise authorized relief. The trial judge indicated his view that the
set aside order had been “fair and it was in the interest of justice” because, while
defendant was late coming to court, he had driven from Utah “and I think my actions
6
Plaintiffs subsequently withdrew this motion.
7
Section 7669, subdivision (b) provides: “After making the order [requiring or
dispensing with an alleged father’s consent], the court has no power to set aside, change,
or modify that order.” Because we resolve this matter on grounds unrelated to this
statute, we deny defendant’s request for judicial notice of its legislative history.
5
were designed to relieve him of his tardiness in view of a trip of over a thousand miles to
get to court.” Notwithstanding this circumstance, the court struck the set aside order and
reinstated the order terminating defendant’s parental rights. This appeal followed.
DISCUSSION
I. Uniform Parentage Act
The Uniform Parentage Act (UPA; § 7600 et seq.) provides the statutory
framework for making parentage determinations in California, which in turn determines
the procedures and findings necessary when a child is placed for adoption. California
enacted the UPA in 1975, as former Civil Code sections 7000–7018. (Stats. 1975, ch.
1244, sec. 11.) At that time, California largely adopted the provisions of the Uniform
Parentage Act of 1973, promulgated by the National Conference of Commissioners on
Uniform State Laws. (Note The Uniform Parentage Act: What It Will Mean For the
Putative Father In California (1976) 28 Hastings L.J. 191, 192, 205-206.) In 1992,
California’s UPA provisions were moved to the newly created Family Code, and re-
enacted without substantive change at sections 7600–7670. (Stats. 1992, ch. 162, § 10.)
The procedures for terminating the parental rights of a father who is not a presumed
father when the child’s mother consents to an adoption are contained in chapter five of
the UPA. (§ 7600 et seq.)
II. Status of Biological Fathers in Adoption Proceedings
The parental rights of an alleged or biological father depend on whether he is
presumed to be the natural parent of the child under section 7611. (See § 7660 [consent
of mother and presumed father required for adoption]; Adoption of Arthur M. (2007) 149
Cal. App. 4th 704, 718.) To be a presumed father, a man must fall within one of several
categories enumerated in section 7611. If he has neither legally married nor attempted to
legally marry the child’s natural mother (§ 7611, subds. (a)–(c)), he cannot become a
presumed father unless he “receives the child into his . . . home and openly holds the
child out as his . . . natural child.” (§ 7611, subd. (d); Francisco G. v. Superior Court
6
(2001) 91 Cal. App. 4th 586, 595-596.) An action to determine the existence of a parent-
child relationship, and presumed-father status, may be brought under section 7630 by any
man alleged to be or alleging himself to be the father. (V.S. v. M.L. (2013) 222
Cal. App. 4th 730, 734-735.)
“Under California law, an unwed biological father has a right to withhold consent
to adoption of a child only if he meets the definition of a ‘presumed father.’ ” (Adoption
of A.S. (2012) 212 Cal. App. 4th 188, 202.) “ ‘If a man is the presumed father of a child,
the child cannot be adopted without his consent [citation], unless the trial court finds, on
statutorily specified grounds, that he is unfit. [Citation.] If, however, he is not a
presumed father of a child, the child can be adopted without his consent, and his parental
rights can be terminated, unless the court determines it is in the child’s best interest for
him to retain his parental rights. [Citation.]’ ” (Adoption of H.R. (2012) 205 Cal. App. 4th
455, 465.)
III. The Trial Court Lacked Jurisdiction to Issue a Default Order Terminating
Defendant’s Parental Rights
Defendant contends he did not receive proper notice of the proceedings as directed
by section 7666 and Code of Civil Procedure section 410.50 because he was not served
with a copy of the petition. He argues, because service was inadequate, the trial court did
not obtain personal jurisdiction over him and could not terminate his parental rights. He
asserts his August 12, 2013 letter addressed to the court was not a general appearance and
therefore the court had no basis on which to exercise jurisdiction over him with regard to
his child when it terminated his parental rights on December 20. He also asserts the
notice of the December 20 hearing that he was served with did not constitute proper
notice under the Code of Civil Procedure because the notice was not accompanied by a
petition or a court-issued citation to appear.
The interest of a parent in the companionship, care, custody, and management of
his children is a compelling one, ranked among the most basic of civil rights. Before
7
depriving a parent of this interest, the state must afford the parent adequate notice and an
opportunity to be heard. (Lassiter v. Department of Social Services (1981) 452 U.S. 18,
37-39 (Lassiter); Santosky v. Kramer (1982) 455 U.S. 745, 753; In re B.G. (1974) 11
Cal. 3d 679, 688-689.) However, the state may accord fewer constitutional rights to a
natural (biological) father who has never established a relationship with his child than it
accords the child’s presumed father or a natural father who has demonstrated a full
commitment to his parental responsibilities. (Adoption of Kelsey S. (1992) 1 Cal. 4th 816,
823-825, 836-837, 849 (Kelsey S.), citing Lehr v. Robertson (1983) 463 U.S. 248, 256; cf.
Lassiter, supra, at p. 37 [“due process allows for the adoption of different rules to address
different situations or contexts”].) Here, whether defendant qualifies as a presumed
father is an issue that has not yet been adjudicated. Regardless, even natural fathers are
entitled a measure of due process.
The Legislature has enacted a statutory framework for family law adoption
proceedings that establishes different notice requirements for mothers and presumed
fathers, on the one hand, and natural fathers who are not presumed fathers and possible
natural fathers, on the other. (§ 7666; see Kelsey S., supra, 1 Cal.4th at pp. 823-825
[mothers and presumed fathers have far greater rights].) This framework provides the
natural father with an opportunity to appear and to assert his interests with respect to the
child. (Kelsey S., supra, at p. 838; cf. In re Karla C. (2003) 113 Cal. App. 4th 166, 179
[alleged biological father has limited rights, but is entitled to notice of dependency
proceedings and an opportunity to appear and assert a position].) In California family
law adoption proceedings, when a mother relinquishes for or consents to, or proposes to
relinquish for or consent to, the adoption of a child who does not have a presumed father
under section 7611, the court must cause an inquiry to be made into the identity of the
child’s natural father. (§§ 7662, subd. (a), 7663.) If the natural father is identified to the
satisfaction of the court, or if more than one man is identified as a possible natural father,
8
each shall be given notice of the proceeding in accordance with section 7666. (§ 7666,
subd. (a).)
When notice to an alleged or biological father is required under the UPA, it must
be given “in accordance with the Code of Civil Procedure for the service of process in a
civil action in this state at least 10 days before the date of the proceeding, except that
publication or posting of the notice of the proceeding is not required. Proof of giving the
notice shall be filed with the court before the petition is heard.” (§ 7666, subd. (a).) The
Code of Civil Procedure allows for service of a person outside California “in any manner
provided by [article 3 of title 5, chapter 4 (article 3)] or by sending a copy of the
summons and of the complaint to the person to be served by first-class mail, postage
prepaid, requiring a return receipt.” (Code Civ. Proc., § 415.40; see also Code Civ. Proc.,
§ 413.10, subd. (b) [summons may be served on a person outside the state “as provided in
this chapter or as prescribed by the law of the place where the person is served”].) Four
methods of service are listed in article 3: personal delivery, substitute service, service by
mail with acknowledgement of receipt, or service by publication. (Code of Civ. Proc.,
§§ 415.10, 415.20, 415.30, 415.50.)
With respect to personal service, “A summons may be served by personal delivery
of a copy of the summons and of the complaint to the person to be served. Service of a
summons in this manner is deemed complete at the time of such delivery.” (Code Civ.
Proc., § 415.10, italics added.) When the facts are not disputed, the effect or legal
significance of those facts is a question of law, and the appellate court is free to draw its
own conclusions, independent of the ruling by the trial court. (Ghirardo v. Antonioli
(1994) 8 Cal. 4th 791, 799; Community Youth Athletic Center v. City of National City
(2009) 170 Cal. App. 4th 416, 427.)
As noted above, defendant was personally served with the July 23, 2013 notice of
pending adoption and the notice of the December 20, 2013 hearing. The record on appeal
indicates he was never served with a copy of the petition (the request for adoption) or a
9
summons as required by Code of Civil Procedure section 415.10. The trial court
thereafter terminated his parental rights by default when he failed to appear on time for
the hearing. “[C]ompliance with the statutory procedures for service of process is
essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered
against a defendant who was not served with a summons in the manner prescribed by
statute is void.” (Dill v. Berquist Construction Co. (1994) 24 Cal. App. 4th 1426, 1444.)
Because defendant was not properly served, the default termination order entered against
him was void at the time it was made. Therefore, the court did not have the authority to
reinstate the order after it revoked the order setting aside the termination order.
IV. Defendant Did Not Generally Appear Prior to His Default
Plaintiffs contend the trial court had jurisdiction because defendant had already
made a general appearance. Defendant argues the August 2013 letter he mailed to the
court in response to the notice he received on July 23, 2013 from plaintiffs’ then-attorney
did not constitute a general appearance because the instant proceeding had not yet been
filed. We agree with defendant.
Defective service is not fatal to personal jurisdiction if the defendant consents to
jurisdiction over him or her by making a general appearance in the action. (See In re
Jennifer O. (2010) 184 Cal. App. 4th 539, 548 [a “ ‘general appearance by a party is
equivalent to personal service of summons on such party’ ”]; Fireman’s Fund Ins. Co. v.
Sparks Construction, Inc. (2004) 114 Cal. App. 4th 1135, 1145 [a “ ‘general appearance
operates as a consent to jurisdiction of the person, dispensing with the requirement of
service of process, and curing defects in service’ ”]; accord, Dial 800 v. Fesbinder (2004)
118 Cal. App. 4th 32, 52.) A general appearance occurs when the defendant takes part in
the action and “ ‘in some manner recognizes the authority of the court to proceed.’ ”
(Hamilton v. Asbestos Corp. (2000) 22 Cal. 4th 1127, 1147; see Greener v. Workers’
Comp. Appeals Bd. (1993) 6 Cal. 4th 1028, 1037 [if moving party “seeks relief on any
basis other than lack of personal jurisdiction, he or she makes a general appearance”];
10
accord, Mt. Holyoke Homes, LP v. California Coastal Com. (2008) 167 Cal. App. 4th 830,
844 [general appearance occurs when party, either directly or through counsel,
participates in action in some manner that recognizes authority of the court to proceed].)
The instant action was commenced on August 20, 2013, when plaintiffs filed their
request for adoption in the trial court. The notification of a pending adoption proceeding
prepared by plaintiffs’ counsel was served on him on July 23, 2013, before this action
was filed. His responsive letter was also mailed before this action was filed.8 The letter
itself was not made a part of the record until plaintiffs later attached it as an exhibit to
their ex parte October 31, 2013 motion to dispense with notice. Thus, the defendant did
nothing to affirmatively avail himself of the court’s jurisdiction or otherwise consent to
jurisdiction prior to the issuance of the order terminating his parental rights. The court
could not have acquired personal jurisdiction over him based on his response to the July
23, 2013 notice as there was no proceeding before it when that document was served.9
Defendant also contends he was not validly served with process on November 25,
2013 because he was served with a notice of hearing unaccompanied by any petition or
court-issued citation to appear. Plaintiffs counter that he forfeited the right to raise these
objections because he did not raise them below. They also assert he is now estopped
from raising any personal jurisdiction argument because he waived the defense when he
8
We observe that, while the letter indicates that it was mailed to the superior court, the
letter in the record on appeal is a copy of the copy received by plaintiffs’ former attorney.
It does not bear a stamp showing that it was received by the court.
9
The fact that a defendant has generally appeared in this court does not retroactively cure
the defects in service. (Bank of America Nat. Trust& Savings Assn. v. Carr (1956) 138
Cal. App. 2d 727, 735.) The effect of the general appearance in this court is that, on
remand, the trial court will have personal jurisdiction over defendant without further
service being required. (Id. at p. 739.) However, defendant’s general appearance here
does not impact the merits of his argument that he is entitled to a new hearing on
termination of his parental rights because he was improperly served; it simply means that
if we conclude service was in fact improper, the court will have personal jurisdiction over
him to conduct a new hearing on plaintiffs’ motion.
11
gave express and implied consent to the court’s jurisdiction by accepting the order setting
aside the default termination order and accepting appointment of counsel for him.
We observe defendant would have had no reason to raise the issue of personal
jurisdiction on December 20, 2013 because the trial court, on its own motion,
immediately decided to set aside the default order. There is also nothing in the record
indicating that he requested appointed counsel when he appeared in court. In fact, the
record does not contain an order appointing counsel for him. Thus, we have no way of
determining if he did request counsel or if the trial court appointed counsel for him on its
own motion. Again, a general appearance by a party will generally cure any defect in
service and forfeits any objection based on a lack of personal jurisdiction. (In re
Marriage of Torres (1998) 62 Cal. App. 4th 1367, 1381 (Torres).) However, in the
present case the default order terminating defendant’s parental rights was issued before
he arrived at the hearing and before counsel was appointed for him. (See Code Civ.
Proc., § 410.50, subd. (b) [once jurisdiction is obtained, “[it] continues throughout
subsequent proceedings in the action.” (Italics added.)]; see also In re Marriage of Smith
(1982) 135 Cal. App. 3d 543, 546 [defendant who was defectively served with summons
did not make that service retroactively valid by entering a general appearance after
default judgment was entered].)
Plaintiffs also claim the court had the power to rule on their motion under the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (§ 3400 et seq.;
formerly, Uniform Child Custody Jurisdiction Act (UCCJA)). The UCCJEA is the
exclusive method of determining the proper forum for custody disputes involving other
jurisdictions. (In re Angel L. (2008) 159 Cal. App. 4th 1127, 1136 (Angel L.).) It applies
to any “child custody proceeding,” which it defines to include a “proceeding for . . .
termination of parental rights.” (§ 3402, subd. (d); see Angel L., supra, 159 Cal.App.4th
at p. 1136.)
12
While the UCCJEA arguably afforded the trial court subject matter jurisdiction
over R.C.,10 proper notice to defendant was still required to comport with standards of
due process: “The requirements of due process of law are met in a child custody
proceeding when, in a court having subject matter jurisdiction over the dispute, the out-
of-state parent is given notice and an opportunity to be heard. Personal jurisdiction over
the parents is not required to make a binding custody determination, and a custody
decision made in conformity with due process requirements is entitled to recognition by
other states . . . .” (Torres, supra, 62 Cal. App. 4th 1367 at p. 1378, italics added.) The act
itself states: “Notice required for the exercise of jurisdiction [under the UCCJEA] when a
person is outside this state must be given in a manner prescribed by the law of this state
for service of process or by the law of the state in which service is made.” (§ 3408,
subd. (a), italics added.) As we have already explained, defendant was not properly
served with notice of the proceedings.
Although the notice of the December 20, 2013 hearing was personally served, this
service could not overcome the failure to serve a copy of the underlying petition (the
adoption request) as required by statute. Knowledge by a defendant of a plaintiff’s action
does not satisfy the requirement of adequate service of a summons and complaint.
(Waller v. Weston (1899) 125 Cal. 201, 203; Honda Motor Co. v. Superior Court (1992)
10 Cal. App. 4th 1043, 1048; Kappel v. Bartlett (1988) 200 Cal. App. 3d 1457, 1466-1467.)
“[N]o California appellate court has gone so far as to uphold a service of process solely
10
Under the UCCJEA, “Except as otherwise provided in Section 3424 [temporary
emergency jurisdiction], a court of this state has jurisdiction to make an initial child
custody determination only if any of the following are true: [¶] (1) This state is the home
state of the child on the date of the commencement of the proceeding . . . . [¶] (2) A court
of another state does not have jurisdiction under paragraph (1) . . . .” (§ 3421, subd. (a).)
With respect to a child such as the minor who is under six months of age when the
proceeding was commenced, “home state” is defined as “the state in which a child lived
[from birth] with a parent or a person acting as a parent . . . .” (§ 3402, subd. (g).)
Because the minor had not lived with a parent in any one state since his birth, he did not
have a home state under the UCCJEA and California could exercise jurisdiction under
section 3421, subdivision (a)(2).
13
on the ground the defendant received actual notice when there has been a complete
failure to comply with the statutory requirements for service.” (Summers v. McClanahan
(2006) 140 Cal. App. 4th 403, 414; see In re Claudia S. (2005) 131 Cal. App. 4th 236, 247
[court obtains personal jurisdiction over a parent when the individual is properly
noticed].)
V. Conclusion
We conclude defendant did not receive notice of this adoption proceeding as
required by section 7666 and the applicable provisions of the Code of Civil Procedure
prior to the issuance of the default order terminating his parental rights. Because we
resolve this case on statutory grounds, we do not reach the remaining constitutional issues
raised in this appeal. (Santa Clara County Local Transportation Authority v. Guardino
(1995) 11 Cal. 4th 220, 230-231.) Nor need we address defendant’s alternative statutory
arguments. While the trial court indicated that it set aside the termination order based on
Code of Civil Procedure section 473, the termination order is void in any event for failure
to effect proper service. In striking the set aside order, the court ordered the
reinstatement of the December 20, 2013 order. Because that order is void, it cannot be
reinstated.11 Accordingly, we reverse that reinstatement.
DISPOSITION
The March 21, 2014 order striking the order setting aside the termination of
defendant’s parental rights and reinstating the order issued on December 20, 2013 is
reversed.
11
(See County of San Diego v. Gorham (2010) 186 Cal. App. 4th 1215, 1229 [“where it is
shown that there has been a complete failure of service of process upon a defendant, he
generally has no duty to take affirmative action to preserve his right to challenge the
judgment or order even if he later obtains actual knowledge of it because ‘[w]hat is
initially void is ever void and life may not be breathed into it by lapse of time.’
[Citation.]”].)
14
_________________________
Dondero, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Banke, J.
15