In re A.H. ( 2022 )

Filed 10/19/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re A.H., a Person Coming
Under the Juvenile Court
Law.
SOLANO COUNTY HEALTH
AND SOCIAL SERVICES
DEPARTMENT,
A163882
Plaintiff and
Respondent, (Solano County
v. Super. Ct. No. J44716)
J.H.,
Defendant and
Appellant.
This is one of those rare juvenile dependency cases in which the
failures on the part of the social service agency and the juvenile court to
comply with the due diligence, notice and parentage inquiry requirements of
the dependency statutes were so pervasive that they denied due process to
the noncustodial alleged father of the child. We reverse the order
terminating parental rights, and remand for further proceedings consistent
with this opinion.
1
BACKGROUND
I.
General Legal Principles
Before turning to the facts, we provide a brief overview of the law
governing the rights of a person claiming to be the parent of a dependent
child.
There are three types of fathers in dependency law: presumed,
biological and alleged.1 (In re Mia M. (2022) 75 Cal.App.5th 792, 806
(Mia M.).) “ ‘A father’s status is significant in dependency cases because it
determines the extent to which the father may participate in the proceedings
and the rights to which he is entitled.’ ” (In re Christopher L. (2020)
56 Cal.App.5th 1172, 1184, affd. (2022) 12 Cal.5th 1063.)
Presumed parent status, which is the equivalent of a legal parent,
“ ‘ “ranks the highest.” ’ ” (Mia M., supra, 75 Cal.App.5th at p. 806.) It
confers “all the rights afforded to parents in dependency proceedings,
including standing, the appointment of counsel, and reunification services.”
(Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2022)
§ 2.60[2][a], p. 2-129 (Seiser & Kumli).) Presumed parentage is determined
under the Uniform Parentage Act (Fam. Code, § 7600 et seq.), a statutory
framework that “ ‘provides for conclusive and rebuttable presumptions of
paternity’ ” on various grounds. (In re P.A. (2011) 198 Cal.App.4th 974, 980;
see also generally Seiser & Kumli, § 2.60[2], pp. 2-129-2-149.) Under that
framework, “[b]iological fatherhood does not, in and of itself, qualify a man
We recognize that an alleged parent can be of either gender and that
1
an alleged mother has the same rights as an alleged father. For convenience,
and because this case involves the more typical situation addressed in the
case law in which the alleged parent is a father, we use the male gender
without meaning to exclude alleged mothers.
2
for presumed father status . . . .”2 (M.M. v. D.V. (2021) 66 Cal.App.5th 733,
741.) The law in the area of presumed parentage is complex and evolving.
(Seiser & Kumli, supra, § 2.60[2][c][iii], p. 2-143.)
Next in order of ranking is a biological father, a man “who has
established his paternity but has not established his qualification as a
presumed parent.” (In re J.W.-P. (2020) 54 Cal.App.5th 298, 301 (JW.-P.).)
“A court may order reunification services for biological fathers if they are in
the child’s best interest . . . .” (Ibid.)
2 Without purporting to be exhaustive, we note that most of the
presumptions of legal parentage arise from various circumstances involving
marriage or attempted marriage (see, e.g., Fam. Code, §§ 7540, subd. (a)
[conclusive presumption], 7611, subds. (b), (c).) Legal parentage also may be
established where “The presumed parent receives the child into their home
and openly holds out the child as their natural child.” (Id., § 7611, subd. (d).)
The latter ground, although it does not require that the child actually live
with a parent, does require proof of “a fully developed parental relationship
with the child,” judged by many factors, none specific. (W.S. v. S.T. (2018)
20 Cal.App.5th 132, 144-145, italics omitted.)
In addition to establishing parentage under the statutory
presumptions, a man may attain legal parent status by co-executing a
voluntary declaration of parentage with a child’s unmarried birth mother,
which must be witnessed by hospital staff, that, when filed with the
Department of Child Support Services, “is equivalent to a judgment of
parentage of the child and confers on the declarant all rights and duties of a
parent.” (Fam. Code, § 7573, subd. (d); see also id., § 7573, subd. (a)(1); id.,
§ 7571, subd. (a).)
There also are circumstances in which an unwed biological father who
has been prevented by a child’s mother from becoming a presumed father
under the statutory presumptions may acquire the rights equivalent to those
of a presumed parent, and whose parental rights thus may not be terminated
without proof of parental unfitness (a “Kelsey father”). (See Adoption of
Kelsey S. (1992) 1 Cal.4th 816, 821, 849-850; W.S. v. S.T., supra,
20 Cal.App.5th at p. 148; Seiser & Kumli, supra, § 2.60[3][b], pp. 2-150–2-
154.)
3
Finally, an alleged father is a man who may be a child’s father but has
not yet established either presumed father status or biological paternity.
(See J.W.-P., supra, 54 Cal.App.5th at p. 301; Seiser & Kumli, supra,
§ 2.60[4], p.2-155.) “Alleged fathers have ‘fewer rights’ and, unlike presumed
fathers, ‘are not entitled to custody, reunification services, or visitation.’ ”
(J.W.-P., at p. 301.) That is the category with which we are concerned here.
“An alleged father has no rights in a dependency case other than the
right to step forward and to seek to establish his paternity of the child”
(Seiser & Kumli, supra, § 2.60[4], pp. 2-155–2-158), a right that is guaranteed
through various constitutional and statutory requirements that, as we
discuss more fully post, were violated time and again in this case.
As we will discuss, an alleged father’s rights (and/or corresponding
duties on the part of the state), fall into essentially four categories: (1) the
right to notice of the proceedings and of certain hearings (see Welf. & Inst.
Code, §§ 290.1, 290.2, 291, 294, subd. (a)(2))3; (2) the right to notice of their
rights as an alleged father and the steps necessary to elevate their status to
that of a presumed father (see § 316.2, subd. (b)); (3) the court’s
corresponding duty to inquire into an individual’s possible parentage through
various extrinsic sources apart from the individual’s own self-reporting (see
§ 316.2, subd. (a)); and (4) if the whereabouts of an alleged father are
unknown, the state’s constitutional duty to exercise reasonable diligence to
find him, so that he may be given proper notice of the proceedings (see
Mia M., supra, 75 Cal.App.5th at pp. 807-808). In addition, and relatedly, if
an alleged father’s parental rights are at stake, he may be entitled to
appointed counsel on request if he cannot afford private counsel. (See § 291,
3All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
4
subds. (a)(2) & (d)(6)(B), (C) [statutory right]; In re O.S. (2002)
102 Cal.App.4th 1402, 1407 [constitutional right].)
At bottom, an alleged father has a constitutionally protected due
process right to “ ‘be given notice and an opportunity to appear, to assert a
position, and to attempt to change [his] paternity status [citation].’ ”
(Mia M., supra, 75 Cal.App.5th at p. 807; accord, In re R.A. (2021)
61 Cal.App.5th 826, 835-836 [“ ‘Due process requires that a parent is entitled
to notice that is reasonably calculated to apprise him or her of the
dependency proceedings and afford him or her an opportunity to object’ ”].)
J.H. was deprived of that opportunity.
II.
The Initiation of This Case and the Detention Hearing
On September 16, 2019, the Department filed a dependency petition
under section 300, subdivisions (b)(1) and (g) and (j), after taking six-year-old
A.H. and her two younger half-siblings into emergency protective custody and
placing them in foster care. Only A.H.’s case is at issue here, and so we
address her two half-siblings only as relevant.
The petition alleged that the children’s mother, C.S. (mother), had
allowed A.H. to have unsupervised contact with an older relative whom
mother suspected of having sexually molested the child (§ 300, subd. (b)); the
father of A.H.’s two half-siblings, B.M., also was aware of the possible sexual
abuse, and he and mother were thereby placing the two half-siblings at risk
(id., subd. (j)); and A.H.’s alleged father, appellant J.H., had failed to provide
care, support or supervision of the six-year-old child for more than a year and
his whereabouts were unknown (§ 300, subd. (g)). Despite the allegations of
J.H.’s “unknown” whereabouts, the petition listed an address for him on
Galbrath Street in Sacramento. There is no information in the record about
the source, currency or nature of that address. There also is no evidence the
5
Department ever served the petition on J.H. at that address. At this point,
the Department had had no contact with J.H.
The detention report, filed the same date as the petition
(September 16, 2019), shed further light on J.H.’s relationship to the six-year-
old girl but none about his whereabouts, and very little about the
Department’s efforts to learn them. It stated mother had reported that J.H.
is A.H.’s father, was present for her birth, was listed on her birth certificate
and had not been involved in her life for approximately a year. Given the
child’s age, that statement attributed to mother implied J.H. had been
“involved in her life” until around age five. The detention report did not
disclose any prior child welfare referrals concerning J.H., but recounted a
significant history of child welfare interventions for mother dating back to
2016, some of which also involved the father of the other two children, B.M.
Like the petition, the detention report identified J.H. as the alleged father
and referred to the Galbrath Street address for him. The Department also
reported that it had “not had contact with” J.H. Although it had provided
notice of the detention hearing to mother and B.M. by telephone, it had
attempted unsuccessfully to reach J.H. by telephone at two different phone
numbers (about which no information was provided) and had been unable to
leave a message. So, it had sent an email to J.H. at an email address (about
which no information was provided) requesting a return phone call.
At the detention hearing, held on September 17, 2019, mother and B.M.
were present with counsel and J.H. was not present. An attorney asked
whether the court was inclined to appoint her to represent J.H. The court
declined to do so at that juncture, directed the Department to continue to try
to contact him, and indicated that it would appoint her as his counsel if he
came forward and requested to be a participant. The court made no inquiry
6
about the Department’s efforts to ascertain J.H.’s whereabouts, including the
significance or source of the Galbrath Street address that it listed for him or
the email address the Department had used to reach out to him. The court
also conducted no inquiry of mother into J.H.’s possible paternity, as required
by section 316.2.
The children were ordered detained, the Department was directed to
provide various services to mother and B.M. as well as supervised visitation,
and the joint jurisdiction and disposition hearing was calendared for
October 29, 2019.
The detention hearing findings and orders were served by the court on
counsel for mother, B.M., the children and on the Department, but not on
J.H.
III.
Jurisdiction and Disposition
Due to a number of continuances and other circumstances, the
contested jurisdiction/disposition hearing eventually took place about eight
months after the detention hearing, on May 11, 2020. In the interim, four
court hearings took place, and the Department filed two amended petitions
and two written reports. The record does not show J.H. was given notice of
any of those proceedings (and he made no appearance), nor that during this
eight-month period he was served with anything but an ICWA notice. In
addition, very early on during this period, J.H. spoke by telephone with the
Department; yet there is no evidence the Department did anything to
ascertain his current contact information, much less to apprise him of his
rights as an alleged father and of the steps necessary for him to try to elevate
his status to that of a presumed parent.
7
That phone call, which was the Department’s first and only contact
with J.H. during the eight months that preceded the jurisdiction/disposition
hearing, took place several weeks after the detention hearing, on
October 8, 2019, when, according to one of the Department’s addendum
reports, a social worker spoke with J.H. Another social worker would later
testify at the jurisdiction/disposition hearing that J.H. had “reached out to
the ER [social] worker,” which in context appears to refer to this telephone
contact. J.H. reportedly told the social worker he had learned from mother
about the allegations and the children being removed, had not been aware of
any previous concerns, and visited with A.H. once or twice a month. The
social worker inquired about Indian ancestry, which he denied having. There
is no indication the conversation addressed any other subject, including any
of the subjects encompassed by section 316.2.
Two days later, on October 10, 2019, the Department served an ICWA-
030 form (Notice of Child Custody Proceedings for Indian Child) on J.H.,
either by first class mail (proof of service) or by certified or registered mail
(certificate of mailing) to an address on “Walegra” Road4 in Sacramento,
although it also continued to list the Galbrath Drive address in Sacramento
for J.H. As noted, this is the only document ever purportedly served on J.H.
up to and through the contested jurisdiction/disposition hearing, and it also is
one of only two documents ever purportedly served on him at all during the
case. The ICWA notice stated the petition was included with the form.5 It
4 Later references to this address spell the road name as “Walerga”
rather than “Walegra” but use the same zip code.
5 The petition stated that A.H. was within the jurisdiction of the
juvenile court, had been detained on September 12, 2019, and was in a
shelter or foster care. It also warned that parental rights could be
terminated, and that to protect them the parent had to appear in court and
answer the petition.
8
also listed the date, time and location for the jurisdiction/disposition hearing
regarding A.H. (then calendared for October 29, 2019), but it provided no
information about the nature of the hearing and did not advise J.H. of his
right to attend the hearing. Although the record contains a certified mail
receipt for another recipient of the ICWA notice (the Bureau of Indian
Affairs), the record contains no certified mail receipt or other information
showing the ICWA form and petition were actually delivered to J.H. at either
of the two addresses it listed.
After that, the Department served by mail on mother and B.M. but not
J.H. (at any address): (1) notice of the October 29, 2019
jurisdiction/disposition hearing (on October 25, 2019) and advised both
mother and B.M. they had a right to be present and to be represented by
counsel if they could not afford counsel; and (2) a request (on
October 28, 2019) to continue the October 29, 2019 hearing.
On October 29, 2019, mother, B.M. and their counsel appeared in the
juvenile court, and the court continued the combined jurisdiction and
disposition hearing to November 19, 2019. There was no mention of J.H.,
who was not present. B.M., who was represented by counsel, submitted a JV-
505 form seeking to have his status elevated to that of A.H’s presumed
father.
Next, the Department served on mother and B.M. but not J.H. (at any
address) (1) a first amended petition (filed on November 8, 2019), adding new
allegations concerning mother’s abuse of one of A.H.’s half-siblings which
allegedly put A.H. at risk too; and, shortly after that, (2) a lengthy
jurisdiction/disposition report (filed November 15, 2019) recommending,
among other things, the court sustain the allegations concerning mother,
9
B.M. and J.H. and that J.H. remain an alleged father and not receive any
services.
The November 15, 2019 jurisdiction/disposition report addressed,
among other subjects, the Department’s efforts to contact J.H. and what it
had learned about him, including some information (albeit conflicting)
suggesting J.H. had been more than just an absent figure in his biological
daughter’s life.
To begin, the Department asserted it had had limited engagement with
J.H. On that subject, it reported the social worker’s phone call with J.H. the
prior month on October 8, and also reported that about a month later, on
November 13, 2019, a different social worker had called J.H. at the phone
number provided by the prior social worker, left him a message asking him to
return her call and had not yet heard back. The report did not state what
other efforts, if any, the Department made to find and communicate with J.H.
Nor did it indicate whether the Department had requested or obtained a
mailing address for J.H. during the October 8 phone call, or confirmed he was
receiving mail at the Walerga Road, Sacramento address.
The November 15, 2019 report also contained some new information
bearing on J.H.’s parentage but in several respects was vague. First, mother
reportedly had identified J.H. as A.H.’s biological father. Second, the
Department had done a database search and learned that a default judgment
for child support had been entered against J.H. in December 2016. The
Department reported nothing else about child support, such as whether and
for how long J.H. had paid support, or whether and to what extent the
Department had investigated the subject any further. Third, the Department
reported that J.H. had not engaged in visitation, but also did not state
whether it had offered J.H. visitation or informed him how to go about
10
visiting A.H., who had been placed in foster care. And finally, the report
relayed additional, and somewhat conflicting, information about the extent of
J.H.’s role in the child’s life. J.H. reportedly had told the social worker he
had seen A.H. in August 2019 (i.e., the month before this case was initiated)
and had visited her at least once or twice this month.6 Mother reportedly
said J.H. had had “limited interaction” with A.H. for several years, was “in
and out” of their lives and “does not see or talk to [A.H.]”; and that when they
saw him in August 2019, it was after they ran into each other at a store. She
said J.H. was not ready to be a father and had told her it was too painful for
him to see A.H. The Department reported that the child herself, in a
“multidisciplinary” interview, had said she has “two Daddy’s, B and [J.H.],”
that B. tries to keep her safe from J.H. because she lives with B. and doesn’t
live with J.H., but that she “misses [J.H.] every day.” She reported feeling
safe with mother and B.M., but when asked whether she felt safe with J.H.,
she said, “I don’t know yet. Mommy has to think about it, so I don’t know.”
Asked how she feels when she is with J.H., she said she felt “happy with
[J.H.].” And according to what mother told the social worker, A.H. began
wetting her bed three years earlier when J.H. left, and also verbally acted out
with B.M. because she blamed him for J.H. leaving.
As noted, the November 15, 2019 report recommended J.H. remain an
alleged father and not receive any services. The Department stated that
because J.H. “had not been in consistent contact” with the Department, it
was unaware of his biopsychosocial background, his parenting strengths, his
needs and his views regarding disposition. The report acknowledged that
6 In one place, the report says he reported visiting A.H. once or twice a
month, whereas in another it said he told the social worker he visited her
once or twice this month.
11
there were no “non-reunification” issues as to J.H. if he were elevated to
presumed father status. However, it did not recommend currently placing
A.H. with J.H. as her noncustodial father, because it had not been able to
assess his living environment or capacity to care for A.H. and also because
J.H. “previously had little interaction and relationship with [A.H.] prior to
the Department’s involvement,” an observation at odds with the child’s own
expressed views and at least aspects of mother’s account of J.H.’s
involvement in A.H.’s life.
Two very brief hearings took place after that, largely confined to
scheduling. No mention was made of J.H. at either one.
The subject of J.H. did not arise again until a trial management
conference on January 14, 2020, at which B.M. (the half-siblings’ father) was
elevated to the status of A.H.’s presumed father. At that court appearance,
counsel for B.M. reminded the court of B.M.’s pending request to be
recognized as her presumed father. During the colloquy this precipitated,
counsel for B.M. asserted that B.M. had raised A.H. but was not her
biological father. The court asked where J.H. was; mother (not under oath)
and her counsel made various statements about J.H.’s role in A.H.’s life that
were inconsistent with other earlier statements made by mother to the
Department7; and both the Department and the children’s counsel indicated
they had no objection to presumed father status for B.M.
The court then inquired about whether J.H. had ever paid child support
for A.H., which led to more unanswered questions. In the ensuing colloquy,
mother asserted J.H. had started paying child support two years earlier,
7 Specifically, mother asserted, “he hasn’t been in her life since she was
born.” Mother’s counsel asserted, “Mother does feel that [B.M.] is the father
in this case. He’s acted as [A.H.’s] father since she was nine months old.”
12
which had been collected through the Department of Child Support Services
(DCSS) because, she asserted, “we were on Welfare.” She told the court she
was no longer on welfare and that, “They’re trying to go after me for child
support for my kids, so they closed his case.” Counsel for the children, who
explained the state’s practice of collecting child support from parents to pay
for the care of a dependent child removed from parental custody,
hypothesized that DCSS would no longer collect child support for A.H. from
J.H. if it was presently seeking child support for her from mother and B.M.,
but also indicated it was possible that J.H. was still paying child support.
Counsel for the Department then conceded the possibility J.H. was a “legal”
parent under the law: she asserted that, “if there’s an order for him to pay
child support, then there would be an order—there’s some kind of paternity
order in family law, which would make him a legal father.”8
That was the extent of the child support discussion, and the court did
not direct any further inquiry into the matter. After being assured by
counsel there could be more than one presumed father, the court granted
B.M.’s request to be elevated to presumed father status as to A.H. The
hearing was adjourned shortly after that, without further mention of J.H.
The contested jurisdiction and disposition hearing finally took place
about four months later, as noted on May 11, 2020. The Department’s most
recent addendum report, filed January 31, 2020, continued to recommend
J.H. receive no reunification services because he “remains an alleged father”
of A.H. Mother, B.M., their counsel, and counsel for the children and the
Department were present. J.H., who had not been informed of it, was not.
8 It is not entirely clear but it appears the Department used “legal
father” as a shorthand for “biological father” and not necessarily to mean
“presumed father.” Nonetheless, as we have discussed, biological fathers
have greater rights in dependency proceedings than “alleged fathers.”
13
Several witnesses testified, including mother and B.M. As relevant
here, B.M. testified that he had lived with the children’s mother for six or
seven years, that A.H. was with them for that entire time, that he played a
parental role in her life, and that he had two children with mother, K.M. and
P.M. The sole evidence about J.H. was from a dependency investigator, who
testified about his whereabouts in response to any inquiry from the court
(“you still do not know where he is?”). The investigator testified, “We have
not had contact with him.” The court then asked, “What have you done to try
to contact him?” The investigator replied, “We have an Absent Parent
search.· I’ve attempted to contact him at the number he originally reached
out to the ER worker at but have not received any response.” No information
was requested or provided as to what the “Absent Parent” search consisted of,
or what results it yielded, if any; nor does the record contain any other
evidence of or information about that search. No inquiry was made of the
investigator (or any other witness) about the email address for J.H. the
Department had obtained and used at the start of the case, prior to the
detention hearing. And no inquiry was made of mother concerning any of
these subjects.
At the conclusion of the hearing, the court sustained various
jurisdictional allegations including under section 300, subdivision (g) that the
whereabouts of J.H. and his ability to provide care for A.H. were “unknown”
and that he had not provided care, support or supervision of her for the last
year, placing her at substantial risk of serious physical harm or illness. It
made dispositional findings supporting the children’s continued out-of-home
placement in foster care, and ordered family reunification services for mother
and B.M.
14
The court also made various findings at the jurisdiction/disposition
hearing, and declined to make others, that give us pause. Despite the
absence of any proof J.H. had been given notice of the hearing, the court
found that “Notice of the date, time, and location of the hearing was given as
required by law.” The court also declined to make findings (by checking the
appropriate boxes) that it had “inquired of the child’s parents present at the
hearing and other appropriate persons as to the identity and addresses of all
presumed or alleged parents of the child” (italics added) and also had
“informed and advised the . . . biological father [or] . . . alleged father” of
various rights (paragraph 13).9 (The court declined to make similar findings
9 Those rights included: “a. The right of the child and each parent,
legal guardian, and Indian custodian to be present and to be represented by
counsel at every stage of the proceedings. The court may appoint counsel
subject to the court’s right to seek reimbursement if an individual is entitled
to appointed counsel and the individual is financially unable to retain
counsel.
“b. The right to be informed by the court of the following:
“• the contents of the petition;
“• the nature of and possible consequences of juvenile court
proceedings;
“• the reasons for the initial detention and the purpose and scope of
the detention hearing if the child is detained;
“• the right to have a child who is detained immediately returned to
the home of the parent, legal guardian, or Indian custodian if the petition is
not sustained;
“• that if the petition is sustained and the child is removed from the
care of the parent, legal guardian, or Indian custodian, the time for services
will commence on the date the petition is sustained or 60 days from the date
of the initial removal, whichever is earlier;
“• that the time for services will not exceed 12 months for a child
aged three years or over at the time of the initial removal; and
“• that the time for services will not exceed 6 months for a child
under the age of three years at the time of the initial removal or for the
member of a sibling group that includes such a child if the parent, legal
15
in the disposition order, also entered on May 28, 2020.) The court declined to
order the clerk to “provide the notice required by Welf. & Inst. Code, § 316.2
to [¶] (1) alleged parent (name) : . . .” , notice that would have required
transmission of the JV-505 Statement Regarding Parentage form to J.H. at
whatever address(es) the Department had ascertained for him. (§ 316.2,
subd. (b).) The court did not order the Department to engage in any further
efforts to locate or contact J.H. And in the disposition order, it made a
finding that “[t]he county agency has exercised due diligence to identify,
locate, and contact the child’s relatives.” It also found the biological father
“does not desire custody of the child,” and that “[b]y clear and convincing
evidence, placement with the [biological father] would be detrimental to the
safety, protection or physical or emotional well-being of the child.”
There is no indication in the record that J.H. was advised of these
adverse findings against him or of his right to appeal. (See § 395; In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [right to appeal from
disposition ruling].) And the clerk did not serve either order on J.H.
IV.
Reunification Period
After the jurisdiction/disposition hearing, mother and B.M. received
reunification services for another 10 months, until they were terminated on
guardian, or Indian custodian fails to participate regularly and make
substantive progress in any court-ordered treatment program.
“c. The right to a hearing by the court on the issues presented by the
petition.
“d. The right to assert the privilege against self-incrimination; to
confront and cross-examine the persons who prepared reports or documents
submitted to the court by the petitioner and the witnesses called to testify
against the parent, legal guardian; or Indian custodian; to subpoena
witnesses; and to present evidence on his or her own behalf.”
16
March 21, 2021. Twice during this period, the Department actually spoke
with J.H. (to give him notice of incidental matters), but again made no effort
to or advise him of his rights as required by section 316.2 or apprise the court
of where he was actually residing (or, conversely, explain why the
Department was unable to establish and/or maintain contact with him).
The first indication the Department had contacted J.H. was on
July 30, 2020, when it filed an ex parte application for an order authorizing
dental treatment for A.H. The application indicated it had notified J.H. of
this by telephone at a specified telephone number, and also continued to list
the address on Walerga Road in Sacramento.10 The resulting order was
served on counsel for the represented parties but not on J.H.
After that, the court twice rescheduled the status review hearing (once
at the Department’s request), and neither the scheduling orders nor the
Department’s application, were served on J.H.
Then in December 2020, the Department filed an ex parte application
for an order authorizing release of A.H.’s social security number to the foster
parents and stated that J.H. had been notified “In Person.” It said nothing
about where J.H. was served or how the Department had found him. The
application again listed the address for J.H. on Walerga Road in Sacramento
and a phone number.
Then, in a January 19, 2021 status report for a review hearing
scheduled for the same date (which recommended termination of
reunification services), the Department provided conflicting information
about J.H.’s whereabouts. The report stated, on the one hand, that notice
had been given to J.H. by mail on January 15, 2021, but provided no
10The Department did not provide any information about whether the
telephone number was new nor its source.
17
information about the address at which it had purportedly served him.11 It
also stated that “the whereabouts of the alleged father, [J.H.], are known to
the Department” (italics added) and that “A JV 140, Notification of Mailing
Address with the current whereabouts of the alleged father, will be mailed to
[J.H.] and filed separately”, and indicated (by checking a box) that “[t]here
are unresolved paternity issues.”12 (Italics added.) On the other hand, the
report stated the social worker “has not been able to contact [J.H.] to get an
update on his current circumstances.” The report further stated that A.H.
recently informed the social worker “that she would like to speak with her
biological father, [J.H.], so she can see how he is doing,” but that the social
worker was “unable to reach him or leave a message” and that the “last
known number” for him was “now no longer in service.” The report stated the
Department had sent him an email and would “continue to make efforts to
contact [J.H.] to encourage a relationship with [A.H.].” In addition, contrary
to the report’s statement that notice had been given by mail to J.H. at an
unspecified address, the attached proof of service has a check in the boxes
indicating service only for counsel, mother and B.M. but not J.H.
The January 19, 2021 review hearing was attended by mother and
B.M., their counsel and counsel for the children but not J.H. The matter was
reset for a contested status review hearing, and then twice continued after
that, with no record of any notice to J.H. The contested review hearing
11The report again listed J.H. as A.H.’s alleged father with the address
on Walerga Road in Sacramento and a phone number
12 The report also confusingly indicated that A.H.’s father’s name was
J.H., that his status was “presumed,” that such a finding was made on
January 14, 2020. But it also stated that “[o]n January 14, 2020, [B.M.] was
elevated to Presumed status for [A.H.],” and elsewhere refers to J.H. merely
as “the alleged father.” We presume the characterization of J.H. as having
been elevated to presumed father status was an inadvertent error.
18
eventually took place on March 22, 2021, at which time the court terminated
reunification services for each child and set a section 366.26 hearing. J.H.
was not given notice of this ruling nor of his right to challenge this ruling by
writ petition.
V.
Post-Reunification Period and the Termination of Parental Rights
Six months later, on September 13, 2021, the juvenile court terminated
parental rights concerning A.H. of mother, B.M. and J.H.
J.H. was not present at that hearing, and there is no record he was
notified of it. According to a sworn proof of service, written notice of the
originally scheduled date for the section 366.26 hearing (July 20, 2021) was
personally served on J.H. (on May 1, 2021, at a new address in Sacramento,
on Valley Green Drive, although the text of the written notice itself listed the
Walerga Road address for him); but on appeal his counsel questions the proof
of service’s accuracy because of a discrepancy in the document’s physical
description of the person served.13 Regardless, the hearing was twice
continued (on July 20, 2021, after mother requested a bonding study, and
then on August 10, 2021, after she withdrew her request and asked for a
contested evidentiary hearing), and there is no indication J.H. was notified of
either rescheduled hearing date, including the September 13, 2021 hearing at
which his rights were actually adjudicated. Nor did the Department serve
J.H. with its section 366.26 report or with a subsequent addendum report it
filed.14
13Counsel for J.H. suggests the notice may have been served on
someone else, because the description indicates the person served was “Age:
25” and J.H. at the time was 31.
14He also had not been notified that the Department had changed
A.H.’s foster care placement in April 2021.
19
In the months preceding the termination of J.H.’s parental rights, the
Department had contact with him, but the record contains no explanation as
to why he was not served with anything but, at most, written notice of the
originally scheduled hearing date. Specifically, according to the July 2, 2021
section 366.26 report, at some unspecified time and under unexplained
circumstances, J.H. asked the Department to consider his mother as a
potential permanent home for A.H., and, in May 2021, the Department
assessed her, determined she was not appropriate and denied a relative
placement with her. The record also reflects that by May 12, when the
Department filed a notice that it had changed A.H.’s foster care placement,
the Department had a new telephone number for him.
Whatever the circumstances, the record is clear that, by this point, J.H.
had not been in contact with A.H. The Department reported in an addendum
report (filed July 16, 2021) that the foster family agency that had been
involved in supervising visitation for A.H.’s half-siblings had “made attempts
to set up visitation with alleged father [J.H.], but [J.H.] does not respond to
make those arrangements.”15 It also reported that A.H. “has consistently told
many of the adults around her, and continues to say, that she believes she is
a ‘wolf cub’ and her parents are dead.”
At the September 13, 2021 hearing, the court terminated J.H.’s
parental rights after receiving unsworn assurances he had been given notice
of unspecified substance about the hearing that date. Specifically, the court
asked counsel for the Department whether it had previously terminated the
parental rights of J.H., and counsel responded that the Department was
asking the court to “do that today.” She further informed the court, “[J.H.]
15No information was provided about the contact information the
agency had attempted to utilize.
20
remains an alleged father. He has been served. He’s been in contact with the
department. He spoke with Ms. Wagstaff and advised her that he was
planning to come to court, but he’s not here.” The court made various
findings including that “notice has been given as required by law,” ordered
adoption as A.H.’s permanent plan and terminated the parental rights of
mother, B.M. and J.H.
The superior court clerk served J.H. with a notice of his appellate
rights. He then filed a timely notice of appeal from the court’s termination of
his parental rights, and we appointed counsel to represent him on appeal.
DISCUSSION
J.H. argues that the court and the Department violated his right to due
process in ways that “infected the entire proceedings as to [him].” As a
result, he contends, “his parental rights were terminated without affording
him any voice on the matter.” First, he contends the Department failed to
provide him notice of dependency proceedings, and the court never appointed
him counsel despite evidence that he was A.H.’s father. Second, he contends
the court failed to conduct its duty to inquire about his address and facts
relating to his parentage of A.H. and failed to require the department or the
court clerk to provide him notice of the proceedings and the potential
termination of his parental rights by certified mail at the address listed for
him in the record. Third, he argues the court failed to direct the clerk to
provide him notice of any of the hearings or orders, including information
about the nature of the hearing and the consequences of failing to attend.
Finally, he contends that the Department failed to perform any due diligence
to locate him, notify him of hearings and address his parentage status, even
though it was aware he had provided support for A.H. pursuant to a court
order.
21
The Department concedes there were “noticing errors” but contends it
“exercised reasonably due diligent search efforts for J.H.,” that when it knew
his whereabouts it gave him notice of “key proceedings,” and that in any
event, “any error was harmless.”16
I.
The Juvenile Court Violated J.H.’s Statutory and Due Process Rights
As an Alleged Father.17
Necessary to protecting the parental rights of an alleged father who
does not have custody of a child is that the juvenile court inquire both about
his existence and his whereabouts, so that he will receive notice of the
proceedings as well as notice of his rights. Notice is, of course, the most basic
and fundamental of an alleged father’s rights, for without it he will be
uninformed of his right to participate and thus unable to elevate his status to
presumed parent, to be afforded the opportunity to visit with his child, to
16 The Department does not contend J.H. forfeited his contentions of
notice errors by failing in the juvenile court to challenge any rulings and/or
by failing to file a section 388 petition. And for good reason. Until the court
terminated his parental rights, J.H. was not even served with the orders to
which he would have objected and/or sought to modify. On the first and only
occasion J.H. was notified of a right to appellate review, he filed a notice of
appeal from the order terminating his parental rights. This court then
appointed him counsel, who raised the notice deficiencies in the opening brief.
We have no hesitation considering his appellate arguments on their merits.
(See In re Christopher L., supra, 56 Cal.App.5th at p. 1183, fn.4 [rejecting
forfeiture argument based on father’s failure to raise denial of right to
counsel and ability to participate in jurisdiction hearing in section 388
motion, exercising discretion to consider issues on appeal].)
17 By referring to J.H. as an “alleged father,” we refer only to the status
he was accorded by the juvenile court. We do not mean to suggest that he
was not entitled to and would not have established he was A.H.’s presumed
father if the Department and the juvenile court had fully and timely complied
with their statutory obligations to inquire about and address the issue of his
paternity.
22
receive any services needed to reunify and to protect his rights to custody or
an ongoing relationship with his child.
In juvenile dependency proceedings, “ ‘[n]otice is both a constitutional
and statutory imperative,’ ” with the constitutional dimension requiring
“ ‘notice that is reasonably calculated to advise them an action is pending and
afford them an opportunity to defend.’ ” (Mia M., supra, 75 Cal.App.5th at
p. 807; accord, In re J.R. (2022) 82 Cal.App.5th 569, 588 (J.R.).) “ ‘ “A
parent’s fundamental right to adequate notice and the opportunity to be
heard in dependency matters involving potential deprivation of the parental
interest [citation] has little, if any, value unless that parent is advised of the
nature of the hearing giving rise to that opportunity, including what will be
decided therein. Only with adequate notice can one choose to appear or not,
prepare or not, and to defend, or not.” [Citation.]’ ” (Mia M., at p. 807.)
Here, the juvenile court failed at multiple junctures and in multiple
ways to afford proper notice to J.H. of these proceedings and his rights as an
alleged father as required by law. The court violated both his statutory
rights and, ultimately, his due process rights, and this cumulatively resulted
in a process that was fundamentally unfair.
1. Duty to Determine Parentage
To begin, juvenile courts have a duty to determine a child’s parentage
at the earliest opportunity, imposed both by statute and under the Rules of
Court.
Section 316.2 states that “[a]t the detention hearing, or as soon
thereafter as practicable, the court shall inquire of the mother and any other
appropriate person as to the identity and address of all presumed or alleged
fathers” and, further, requires the court to ask very specific questions
concerning that subject. (§ 316.2, subd. (a).) It states that “The inquiry shall
23
include at least all of the following, as the court deems appropriate: [¶] (1)
Whether a judgment of paternity already exists. [¶] (2) Whether the mother
was married or believed she was married at the time of conception of the
child or at any time thereafter. [¶] (3) Whether the mother was cohabiting
with a man at the time of conception or birth of the child. [¶] (4) Whether the
mother has received support payments or promises of support with respect to
the child or in connection with her pregnancy. [¶] (5) Whether any man has
formally or informally acknowledged or declared his possible paternity of the
child, including by signing a voluntary declaration of paternity. [¶] (6)
Whether paternity tests have been administered and the results, if any. [¶]
(7) Whether any man otherwise qualifies as a presumed father pursuant to
Section 7611, or any other provision, of the Family Code.” (Ibid.)
The Rules of Court go even further. Rule 5.635 imposes a continuing
duty on the juvenile court to inquire about parentage at every hearing from
the very beginning of a dependency case until the question of parentage has
been resolved; it specifies steps the court must take to address the issue of
parentage with every person present at each hearing and with local child
support authorities; and, if there has been no prior determination of
parentage, it requires the court to make such a determination.18 (See Cal.
Rules of Court, rule 5.635.)
18 Specifically, rule 5.635 in relevant part requires the court to inquire
about “the identity and address of any and all presumed or alleged parents of
the child” “[a]t the initial hearing on a petition filed under section 300 . . . and
at hearings thereafter until or unless parentage has been established.” (Cal.
Rules of Court, rule 5.635(b).) The inquiry must be made to “the child’s
parents present at the hearing and of any other appropriate person present,”
and the rule specifies various questions the court may ask, in its discretion,
“that may provide information regarding parentage.” (Ibid.) The rule also
provides that “[i]f, at any proceeding regarding the child, the issue of
parentage is addressed by the court,” the court must: (1) ask any person
24
In this case, the juvenile court all but ignored its duty to inquire about
J.H.’s possible legal paternity. The only inquiry the court made about
paternity at the detention hearing was to ask whether, besides J.H. (who it
acknowledged “appears to be an alleged father as to [A.H.]”), there was
“anybody else around” who might come forward and claim paternity of any of
the children. It asked nothing about J.H., his relationship with A.H., facts
that might indicate he was a presumed father, or of the Department’s efforts
to ascertain his whereabouts. In addition, at subsequent hearings although
occasionally it inquired about the Department’s efforts to locate J.H., only
once did it ever inquire about J.H.’s possible paternity (at the case
management hearing on January 14, 2020, held several months before the
contested jurisdiction/disposition hearing). And even then, the court’s
questions were quite limited. Not once did it ever ask mother (or anyone else
for that matter, such as counsel) whether there had been any prior
present at the hearing “whether any parentage finding has been made, and, if
so, what court made it, or whether a voluntary declaration has been executed
and filed under the Family Code”; and (2) “direct the court clerk to prepare
and transmit Parentage Inquiry–Juvenile (form JV-500) to the local child
support agency requesting an inquiry regarding whether parentage has been
established through any superior court order or judgment or through the
execution and filing of a voluntary declaration under the Family Code.” (Id.,
rule 5.635(d)(1), (2).) If the local child support agency provides any order or
judgment of parentage or voluntary declaration of parentage, the juvenile
court “must take judicial notice of the prior determination of parentage.” (Id.,
rule 5.635(d)(4).) The rule also directs that “[i]f the local child support agency
states, or if the court determines through statements of the parties or other
evidence, that there has been no prior determination of parentage of the
child, the juvenile court must take appropriate steps to make such a
determination,” and goes on to specify how such a determination may be
made, including through an alleged father’s submission of a Statement
Regarding Parentage (Juvenile) (form JV-505) which we discuss post, the use
of genetic testing, as well as “based on the testimony, declarations, or
statements of the alleged parents.” (Id., rule 5.635(e)).
25
declaration or determination of paternity or genetic test results or whether
mother and J.H. had been cohabiting at the time of A.H.’s conception or birth
(see § 316.2, subd. (a); Cal. Rules of Court, rule 5.635(d).) Not even after the
Department disclosed in a report (in November 2019) that mother said J.H. is
A.H.’s biological father, or during the reunification phase when the
Department told the court (in a January 2021 report) “[t]here are unresolved
paternity issues.” Likewise, it did not ever direct the clerk to contact the
local child support agency (Cal. Rules of Court, rule 5.635(d)(2))—not even
after the Department disclosed the existence of a default judgment for child
support in the November 15, 2019 jurisdiction/disposition report, nor after
mother told the court at the January 14, 2020 case management hearing that
took place months before the jurisdiction/disposition hearing that J.H. had
paid child support in the past and counsel for the Department conceded that
the existence of a child support order would likely mean there had been a
paternity determination, “which would make him a legal father.”
2. Alleged Parent’s Statutory Right to Notice of the
Proceedings and to Be Advised of His Rights to Establish
Paternity
Quite apart from the court’s independent duty of inquiry, an alleged
father is entitled at the earliest possible point to be informed of the
importance of, and apprised of the statutory method for, seeking presumed
parent status.
Specifically, section 316.2 requires the court to give to all men who are
identified as an alleged father a statutorily prescribed notice and a
statutorily prescribed form containing various advisements that enables
them to exercise their rights as an alleged father to assert a claim to
parentage. This procedure mandated by section 316.2 is the statutory means
of protecting an alleged father’s limited due process to notice and an
26
opportunity to appear in the case to assert a position and attempt to change
his paternity status. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.)
In relevant part, subdivision (b) states: “If, after the court inquiry, one
or more men are identified as an alleged father, each alleged father shall be
provided notice at his last and usual place of abode by certified mail return
receipt requested alleging that he is or could be the father of the child. The
notice shall state that the child is the subject of proceedings under Section 300
and that the proceedings could result in the termination of parental rights and
adoption of the child. Judicial Council form Paternity–Waiver of Rights
(JV 505) shall be included with the notice.” (Italics added; see also Cal. Rules
of Court, rule 5.635(g); In re Daniel F. (2021) 64 Cal.App.5th 701, 714
(Daniel F.) [“diligent efforts to locate and serve notice and form JV-505 on
alleged fathers must likewise occur from the earliest stages of the
proceedings”].)
“Form JV-505 explains that an alleged parent will not receive
reunification services and will not ‘automatically get the child to live with you
or your relatives.’ [Citations.] Further, the form provides notice that if the
alleged parent wants the court to decide if he is the minor’s parent, he should
fill out form JV-505, and it provides options to request that the court make a
determination concerning parentage. [Citations.]” (J.W.-P., supra,
54 Cal.App.5th 298, 306.) The form notifies the alleged father of his rights to
a trial to establish parentage and to free counsel if he cannot afford a lawyer.
It provides boxes to check and spaces for writing that enable the alleged
father easily to: request counsel; and inform the court if he has already
established parentage by voluntary declaration or judgment. “California
Rules of Court, rule 5.635(h), in turn provides that ‘[i]f a person appears at a
hearing in [a] dependency matter . . . and requests a judgment of parentage
27
on form JV-505, the court must determine’ whether an alleged parent should
be elevated to a higher status—either a biological parent or presumed
parent.” (J.W.-P., at p. 306.)
Our colleagues in Division 5 discussed the due process aspect of the
juvenile court’s obligations under section 316.2. (J.W.-P., supra,
54 Cal.App.5th at pp. 306-307.) “ ‘Section 316.2 is designed to protect the
alleged father’s limited due process rights.’ [Citations.] The notice required
in section 316.2 provides an alleged father with critical information about an
alleged parent’s limited rights and explains the procedure he must follow to
establish his paternity status: complete form JV-505. The court’s ‘[f]ailure to
provide the statutory notice denie[s]’ an alleged father ‘adequate notice of his
rights and the ability to access the procedure for establishing paternity,
obtaining reunification services and ultimately seeking placement of his
[child] in his home or with one of his relatives.’ [Citations.]” (Id. at p. 306.)
The Department failed to comply with either of the requirements of
section 316.2, subdivision (b), and on appeal it concedes these errors. Despite
the petition’s allegation of J.H.’s alleged father status and the record
suggesting he might well be eligible to attain presumed father status, the
Department sent no paternity notice or form JV-505 to J.H., or even
attempted to send them or otherwise to communicate with him about his
parentage and how to establish it. Despite several opportunities—including
a telephone call with J.H. three weeks after the case began; another
conversation with him much later on about the suitability of assessing his
mother as potential permanent placement; access to an email address for
him; and even one purported attempt at personal service of other
documents—it appears never to have occurred to the Department to do
whatever it could at least to substantially comply with the statute, even if at
28
various junctures it did not have a reliable mailing address for J.H. (a fact
that is not at all apparent from the record, which raises more questions than
it answers).
Nor did the juvenile court ensure that J.H. was provided this critical
notice and parentage form as quickly as possible, and by whatever means
were reasonably practicable if indeed his actual address could not be
determined. Neither at the detention hearing nor thereafter did it ever
inquire whether the Department had sent the JV-500 form to J.H. or direct
the clerk of court to do so. Nor, as we have discussed, did it ask any of the
many questions it should have asked under section 316.2 and Rule of Court,
rule 5.635.
The importance of this step cannot be overstated. Without it, there was
simply no assurance of protecting J.H.’s right to participate in the
proceedings if indeed he was A.H.’s biological father (as mother would later
reveal) or had a basis to demonstrate presumed father status. (See Daniel F.,
supra, 64 Cal.App.5th at p. 714 [agency’s “failure to provide [alleged father]
with the statutorily required materials [under section 316.2] denied him
adequate notice of his rights and the ability to access procedures for
establishing paternity and obtaining reunification services”].) Even in cases
where alleged fathers have actually appeared in a dependency case, appellate
courts have reversed orders entered late in the dependency case—including
orders terminating parental rights—for the juvenile court’s failure to give an
alleged father the statutorily required notice and form under section 316.2.
(See J.W.-P., supra, 54 Cal.App.5th at pp. 306-308 [vacating orders
establishing permanent plan of guardianship and dismissing the dependency,
even though alleged father had been represented by counsel; “[t]he notice
provided by section 316.2 is a failsafe mechanism that would have told father
29
directly the steps he himself could take—without relying on an attorney—to
establish his paternity status and protect his rights. It could have made all
the difference to father in this case”]; In re Paul H., supra, 111 Cal.App.4th
753, 761, 762 [reversing order terminating parental rights of alleged father
who had appeared and made “extensive” but unsuccessful attempts to obtain
paternity testing, without assistance of social services agency or appointed
counsel].)
3. Alleged Parent’s Statutory Right to Notice of
Specific Hearings
By statute, an alleged father also is entitled to notice of the proceedings
and certain hearings. Upon a social worker’s determination to detain a child
or upon the filing of a dependency petition, notice of the initial petition
hearing (including its time, date and place and a copy of the petition) shall be
given to an alleged father if his whereabouts are known. (See §§ 290.1,
subds. (a)(2), (d); 290.2, subds. (a)(2), (d).) An alleged father also is
statutorily entitled to notice of the jurisdiction and disposition hearings,
accompanied by an advisement of various rights and a copy of the petition.19
19 Specifically, after the initial petition hearing, and as soon as
possible after a child has been detained, an alleged father must be given
notice of the jurisdictional hearing that specifies the nature of the hearing,
identifies the sections and subdivisions under which the proceeding was
initiated, states the date, time and place of the hearing, the name of the child
on whose behalf the petition was brought and explains that if the person fails
to appear, the court may proceed without him. (§ 291, subds. (a), (c), (d).)
The notice must also inform the alleged father that he is entitled to have an
attorney present at the hearing and if he is indigent and desires counsel, he
should promptly notify the court clerk. (Id., subd. (d)(6)(B), (C).) The notice
must include a copy of the petition, and if the child is detained and the
alleged father was not present at the initial petition hearing, must be served
by personal service or certified mail, return receipt requested. (Id.,
subds. (d)(7), (e)(1).)
30
(See § 291, subds. (a)(2), (d), (e)(1); In re Jennifer O. (2010) 184 Cal.App.4th
539, 546 [“If parents were not present at the detention hearing, they must be
personally served with a copy of the petition and notice of the jurisdictional
and dispositional hearings served by certified mail, return receipt requested.”
(§ 291, subd. (e)(1).)”].) And an alleged father is statutorily entitled to notice
of the section 366.26 hearing (unless he has denied paternity and executed a
waiver of the right to notice of further proceedings) (see § 294, subds. (a)(2),
(b)(2)) but not periodic review hearings unless he is receiving services (see
§ 293, subd. (a)(2)). There are statutorily prescribed methods for serving
notice of the section 366.26 hearing, including when a parent’s whereabouts
are unknown (see § 294, subd. (f)), and the notice must conform to statutorily
prescribed contents (see § 294, subd. (e).)
Here, J.H. received notice of none of these hearings by means of the
statutorily prescribed methods. The record reflects no notice to him of the
initial hearing (i.e., the detention hearing), even though the petition listed an
address for him (although it also alleged his whereabouts were unknown).
(See § 290.2, subd. (a) [notice of initial hearing required to be given to, inter
alia, alleged father if “address is known or becomes known prior to the initial
petition hearing”].) Had he been given such notice, as mother and B.M. were,
he would have been advised of the rights to be present at the hearing, to
present evidence and to have court-appointed counsel if unable to afford an
attorney; and would have been provided with a telephone number to contact
the social worker with any questions. The Department also concedes he was
not given statutorily required notice of the jurisdiction/disposition hearing.20
20 The Department does point out that the ICWA notice apprised J.H.
of the date, time and location of the jurisdiction and disposition hearing. But
it rightly does not argue the ICWA notice satisfied all of the statutory notice
requirements pertaining to the jurisdiction hearing, or even substantially
31
And the record does not reflect he was given notice of the section 366.26
hearing either.
4. Due Process Requirement of a Diligent Search to Locate
an Alleged Parent
Because a parent is constitutionally entitled to “ ‘notice that is
reasonably calculated to apprise him or her of the dependency proceedings
and afford him or her an opportunity to object’ ” (In re R.A., supra,
61 Cal.App.5th 826, 835), the state has a constitutional duty to exercise
reasonable diligence to locate an alleged father if his whereabouts are
unknown, so that he may be given proper notice. (See Mia M., supra,
75 Cal.App.5th at pp. 807-810; Daniel F., supra, 64 Cal.App.5th 701, 711-716
[error to deny evidentiary hearing as to whether due diligence was exercised
to locate alleged father].) Despite its serious and admitted lapses in notice,
the Department contends it “conducted a thorough search for J.H. despite
being given very little information by C.S., or anyone else.” To begin with, we
question its premise that, at least for a time early on, J.H.’s whereabouts
were unknown such that it could not have him given notice under
section 316.2 of his rights to participate in the case, because the Department
spoke with him three weeks after the detention hearing. At that point, his
whereabouts were known (or, at least, they were quite readily ascertainable—
complied with them. Of course, it didn’t. For example, the ICWA notice
didn’t advise him of the hearing’s purpose or his right to representation by
counsel, including potentially appointed counsel (see footnote 20, ante,
page 31). Furthermore, the record is devoid of evidence that the Department
ever attempted to inform J.H. of the many continuances of the jurisdiction
and disposition hearing which eventually was conducted in May 2020. He
thus never received notice of the actual date on which the contested
jurisdiction and disposition hearing was held. Thus, the Department’s
concession that it failed to give J.H. proper notice of the jurisdiction hearing
is entirely well-taken.
32
from the most reliable source of all: J.H. himself). But even leaving that
aside, the record does not show the Department conducted a constitutionally
adequate search for him.
“ ‘[T]here is no due process violation when there has been a good faith
attempt to provide notice to a parent who is transient and whose
whereabouts are unknown for a majority of the proceedings.’ ” (In re R.A.,
supra, 61 Cal.App.5th at pp. 835-836.) But as our colleagues in
Division Three recently opined in Daniel F., “ ‘[s]ocial services agencies,
invested with a public trust and acting as temporary custodians of dependent
minors, are bound by law to make every reasonable effort in attempting to
inform parents of all hearings. They must leave no stone unturned.’
[Citation.]” (Daniel F., supra, 64 Cal.App.5th at pp. 711-712.) They
explained, moreover, what this entails: “[R]easonable diligence ‘denotes a
thorough, systematic investigation and an inquiry conducted in good faith.’
[Citation.] It includes searching not only ‘standard avenues available to help
locate a missing parent,’ but ‘ “specific ones most likely, under the unique
facts known to the [Agency], to yield [a parent’s] address.” ’ ([In re] D.R.
[(2019)] 39 Cal.App.5th [583,] 591 [(D.R.)], citing In re Arlyne A. (2000)
85 Cal.App.4th 591, 599 [agency failed to search ‘most likely’ avenues, e.g.,
calling directory assistance of city where parents reportedly lived and
obtaining police report that showed where father worked]; see also Ansley v.
Superior Court (1986) 185 Cal.App.3d 477, 481 (Ansley) [no evidence in record
that agency attempted to serve father with notice of proceedings].) Thus,
in D.R., the court found a violation of due process where the child welfare
services agency ‘searched almost two dozen United States
government databases, well aware Father had been deported to Mexico,’ but
ignored the ‘most likely means of being able to actually identify Father and
33
gain his contact information to notify him,’ such as asking for help from his
children who were in contact with him through social media. (D.R., supra,
39 Cal.App.5th at pp. 591–592.)” (Daniel F., at p. 712; see also J.R., supra,
82 Cal.App.5th at pp. 587-591.)
Here, the Department did not report it knew J.H.’s whereabouts until
January 2021, about eight months after the jurisdiction/disposition hearing
and two months before the court terminated mother’s reunification services
and set a section 366.26 hearing. Even then, of course, as discussed, the
record does not show the Department gave him notice under section 316.2 of
his rights, nor afterwards did it give him notice of the section 366.26 hearing.
Equally problematic, the record is inadequate to support a finding the
Department exercised reasonable diligence to locate J.H., either before that
juncture or after.
The only record of the Department’s efforts to find J.H. during the
entire two years of proceedings was testimony by the Department’s
investigator at the May 11, 2020 jurisdiction/disposition hearing, held about
eight months into the case, about his attempt to contact J.H. using “the
number he originally reached out to the ER worker at” and that “[w]e have
an Absent Parent search.” There was no information about what the absent
parent search encompassed, or even whether it had been completed or was
merely underway.
That vague testimony, such as it was, by no means supports a finding
the Department had done all that it reasonably could have done to find J.H.
before then, or that it did so afterwards. Nowhere in the record is there any
description of any search the Department conducted for J.H. There is no
evidence that it searched any databases or other sources to obtain
information about his whereabouts. It identified three different addresses for
34
him in its various reports but the record contains no information about where
or how it obtained these addresses, whether it confirmed any of them with
J.H. and whether they were residence addresses or mailing addresses. There
is not even any evidence that it asked mother where to find him, or where to
find any of his relatives who might know where he was (such as his mother).
Most remarkably, there is no evidence that in any of the handful of
telephone calls it made to or received from J.H.—including the
October 8, 2019 phone call with him three weeks after the detention hearing—
the Department inquired of him where he was living, or how he could reliably
be reached. (See, e.g., J.R., supra, 82 Cal.App.5th at p. 590.) There also is no
evidence the Department ever provided him the JV-140 form that advises an
alleged parent to provide a permanent mailing address and notify the
Department of any changes. The fact that the telephone numbers it obtained
were repeatedly disconnected or out of service suggested J.H. may have had
limited resources and that determining how to reach him should have been a
higher priority. Yet, although it apparently obtained an email address for
him early in the case, there is no evidence it ever sent him by email the
notices required by sections 291 and 316.2. On this record, there are just as
many unanswered questions about J.H.’s actual living situation as there are
about the Department’s efforts to ascertain them; we cannot tell whether J.H.
had a stable home at any juncture, whether he moved frequently or whether
he was homeless or transient.
The record of the Department’s efforts to find J.H. is practically non-
existent. It is even thinner (by far) than in other cases where the record of
search efforts to find an absent parent have been held insufficient. The
documented record of the Department’s search efforts does not show that it
complied with due process. (See Mia M., supra, 75 Cal.App.5th at pp. 807-
35
810 [concluding record was “woefully inadequate” to support a finding agency
exercised reasonable diligence to locate alleged father despite having
interviewed mother and the minor, including because agency “failed to
investigate the most likely avenues for locating father”]; Daniel F., supra,
64 Cal.App.5th at pp. 713-714 [questioning agency’s efforts, particularly in
light of its early contact with alleged father’s sister a few weeks after
jurisdiction/disposition hearing with no indication it asked her about his
whereabouts until six months later]; see also J.R., supra, 82 Cal.App.5th at
pp. 587-591 [constitutionally inadequate search to find mother].)
In sum, from the outset of the dependency proceedings through the
jurisdiction and dispositional hearing, the Department’s efforts to locate J.H.
and provide him notice requirements fell far short of the statutory
requirements and left him in the dark about his parental status, how to
assert his parental rights and how to participate in the proceedings. The
record refutes its contention that it conducted a reasonable, systematic or
thorough search for him or any engaged in any consistent effort to provide
him notice. While its efforts may have improved later in the case (as
evidenced by its report asserting his whereabouts were now known to it), the
Department never rectified its earlier failures by advising J.H. of his right to
request counsel and his need to elevate his status to presumed parent to
assert his parental rights.
Because J.H. was deprived of critical information about his rights and
ability to participate in the dependency proceeding, the Department violated
his right to due process.
36
II.
The Errors Are Prejudicial.
The Department contends the defects in notice in this case were
harmless. However, it does not address the harmless error standard that
applies, instead conflating the state law Watson standard of whether there
was a reasonable probability of a different outcome with the more stringent
federal harmless-beyond-a-reasonable-doubt standard under Chapman.
J.H. argues we should treat the errors here as structural, applying our
Supreme Court’s analysis in Christopher L., supra, 12 Cal.5th 1063.
We need not decide whether the error is structural under
Christopher L. or resolve the question of which prejudice standard applies—
an issue on which the appellate courts are divided (compare J.R., supra,
82 Cal.App.5th at p. 591; Mia M., supra, 75 Cal.App.5th at p. 806; In re
Marcos G. (2010) 182 Cal.App.4th 369, 387; In re J.H. (2007) 158 Cal.App.4th
174, 183-184; and In re Justice P. (2004) 123 Cal.App.4th 181, 193, applying
Chapman standard, with In re A.J. (2019) 44 Cal.App.5th 652, 665-666;
Daniel F., supra, 64 Cal.App.5th 701, 716, applying Watson standard) and
which our Supreme Court has left open. (Christopher L., supra, 12 Cal.5th at
pp. 1076, 1083.) Under either standard, the statutory errors and due process
violations here were so systemic that we cannot conclude they were harmless.
To demonstrate prejudice, the record does not need to show that an
alleged father would be elevated to presumed father status, “because a
biological father may get services if doing so is in the child’s best interest.
(§ 361.5, subd. (a).) . . . Further, such a man may take the child into his home
to establish presumed father status.” (In re O.S., supra, 102 Cal.App.4th
1402, 1411.) Here, at a minimum, it is reasonably probable that had J.H.
been located sooner and advised of his rights as an alleged father, he would
37
have stepped forward, obtained counsel and demonstrated a basis to obtain
services as at least a biological father.
Further, there were significant indicia that he met other factors
relevant to the presumed parent determination. For one, barely two months
into the case, in November 2019 (and long before the jurisdiction/disposition
hearing), the Department was reporting that A.H. regards J.H. as her daddy
and that she missed him every day. Mother stated that when J.H. left three
years earlier, A.H. had been so upset that she began wetting the bed and
blamed B.M. for his leaving. These statements by mother and A.H.
contribute to the likelihood of J.H.’s being able to show he received A.H. into
his home and established a parental relationship with her. In addition, J.H.
has shown he was listed on A.H.’s birth certificate, which is prima facie
evidence that he completed a voluntary declaration of paternity. If not
rebutted, this, at minimum, trumped B.M.’s presumed father status (see In re
Levi. H. (2011) 197 Cal.App.4th 1279, 1288-1289 [voluntary declaration of
paternity rebuts presumption of paternity under section 7611])21 and alone,
or at least in combination with other factors, entitles him to presumed father
status. (In re Christopher M. (2003) 113 Cal.App.4th 155, 163); In re Liam L.
21 The Department engages in a lengthy factual analysis to support its
position that it would not be detrimental to A.H. not to award third presumed
parent status to J.H. (see Fam. Code, § 7612, subd. (c)). We disagree. If the
Department does not rebut J.H.’s showing that he signed a voluntary
declaration, B.M.’s elevation to presumed father will have been improper and
cannot prevent father from becoming A.H.’s presumed parent. Moreover,
even if that were not the case, J.H. was precluded from—and is now entitled
to—an attempt to show it would be detrimental to A.H., i.e., that there was
“an ‘existing, rather than potential, relationship between [J.H.] and [A.H.],
such that “recognizing only two parents would be detrimental to the child” ’ ”
(M.M. v. D.V., supra, 66 Cal.App.5th 733, 746), and there was certainly
evidence of that in this case. In any event, we will not prejudge the issue.
38
(2000) 84 Cal.App.4th 739, 745-747; In re Raphael P. (2002) 97 Cal.App.4th
716, 738; Cal. Code Regs., tit. 22, § 35108, subd. (e)(3); but see In re Jovanni
B. (2013) 221 Cal.App.4th 1482, 1490-1494.) Another factor that, while not
dispositive, weighs in J.H.’s favor is that he paid child support for A.H.
Finally, with regard to the question of presumptive parenthood, we are
confident the record is incomplete given the nature of all of the collective
errors involved here—not just all the notice violations and the violation of
J.H.’s rights under section 316.2, but also the juvenile court’s violation of its
own independent duty to inquire into J.H.’s possible parentage. Thus, like
other appellate courts before us in similar circumstances, we decline to deem
these errors harmless when the poor state of the record is the result of the
very errors themselves. (See In re Paul H., supra, 111 Cal.App.4th at p. 762
[“We cannot assume, based on this dearth of information, that had appellant
established his paternity and been appointed counsel, he would not have
received reunification services. [Citations.] Consequently, we conclude
appellant was prejudiced by the juvenile court’s failure to follow the
procedures contained in section 316.2, subdivision (b), and rule 1413”];
accord, Daniel F., supra, 64 Cal.App.5th at p. 716; Mia M., supra,
75 Cal.App.5th at p. 813 [rejecting argument that father’s lack of
involvement in case since learning of the proceedings rendered error in
exercising diligence to find him harmless; “considered against the absence of
any documentary evidence showing that the Department timely provided
father a copy of the petition or required notices about how to assert paternity
and request appointment of counsel, we find prejudicial error”].)
Nor do the Department’s arguments persuade us that the deficiencies it
attributes to J.H.—his failure to attend hearings, to seek visitation, to seek a
determination of his status as a presumed father—mean the juvenile court
39
would not have granted him presumed father status “under any standard.”
The evidence in favor of him being A.H.’s presumed father was substantial,
and if the Department had inquired of him, it could well have learned that he
was present and participated in raising her for a significant part or even all,
of her life. When mother moved on to B.M. as her romantic partner and he
moved into the home, J.H. did not lose his parental rights simply because he
moved out of the family home. The question is whether he established a
parent-child relationship with A.H. and was committed to his parental
responsibilities. Moreover, while the Department asserts that J.H.’s failure
to contest the child support proceeding brought against him when mother
was receiving public assistance shows a lack of interest in his child, it is
equally possible that he did not contest it because he accepted parental
responsibility for A.H. and saw no purpose in denying it even if he had known
how to do so. Of course, there is no indication in the record that the
Department asked any questions of J.H. that were relevant to parentage or
sought to determine his status. Hence, there is no basis to assess whether
J.H. would have been elevated to presumed father status had he been
provided the means to do so. The Department’s selective use of information
provided by mother (and in some instances also contradicted by her)—
information J.H. had no opportunity to rebut—is not only speculative but
unreliable and unfair.
On the other hand, we do not agree with J.H. that he was entitled to
presumed father status based on the record in this case. But we do not agree
with the Department that it is not reasonably probable, much less beyond a
reasonable doubt, that if the court and the Department had fulfilled their
obligations J.H. would not have been elevated to presumed father status,
provided counsel and successfully advocated for either custody or an ongoing
40
beneficial relationship with A.H. In short, because of the errors the record is
sparse, and we will not speculate about what the outcome would have been
had J.H. been afforded the information, notice and opportunity to participate
that he was entitled, as an alleged father and possible presumed father, to
receive.
III.
Conclusion
The errors in this case, as we have explained, were frequent and
numerous. All were serious, and none we condone. We are not insensitive to
the challenges posed by a parent’s itinerancy, indigence or homelessness (if,
indeed, those were factors here). But the state is entrusted with a grave
responsibility when it seeks to adjudge a child and her possible parent legal
strangers to each other, and no matter how difficult it may be to fulfill the
task of providing constitutionally adequate notice to the child’s possible
parent, it must be undertaken with a level of care befitting its seriousness.
That was not done here.
On this record, moreover, it bears noting that the error that most
infected the course of this case is the failure to make any attempt to supply
the notice to J.H. required by section 316.2 and the required form JV-505,
which would have apprised him of the significance of the case, his right to
attempt to prevent the court from severing all legal ties between him and the
child he claims as his daughter, and the steps he needed to take to pursue
that course, including with the benefit of counsel if he could not afford one.
What is perhaps most troubling about this case is that the court
countenanced this lapse despite evidence in the detention report filed the
same day this case began that would support a bid for presumed parentage
status; admitted phone contact with J.H. three weeks after the detention
41
hearing; and evidence, no less, in a report filed two months after the
detention hearing (and six months before the combined jurisdiction and
disposition hearing) that the child regards him as her father. Equally
troubling, the juvenile court continued to countenance this lapse even after
(a) the Department stated in various filings during the reunification phase
that it had spoken with J.H. two more times (once by phone about A.H.’s need
for dental work (in July 2020) and then in person about her social security
number (in December 2020)), and then (b) reported (in January 2021, still
during the reunification phase) that J.H.’s whereabouts were known and the
child missed him and wanted to have contact with him.
The impact of that notice error was, of course, related to and, inevitably
compounded the impact of, all the others. As we have explained, the juvenile
court passed up numerous opportunities to proactively require a more
forceful search for J.H.’s whereabouts, as it was statutorily and
constitutionally required to do, and numerous opportunities to require a
thorough investigation into his possible parentage, including to ascertain,
with or without him, complete information about whether there had been
prior determinations of his paternity.
DISPOSITION
The order of the juvenile court terminating J.H.’s parental rights is
vacated and the matter is remanded to the juvenile court to comply with the
provisions set forth in section 316.2 and Rule of Court, rule 5.635 and to
determine whether J.H. is A.H.’s presumed parent if he so requests. Our
decision is without prejudice to J.H. filing an appropriate motion(s) pursuant
to section 388 on remand to challenge any additional orders and/or findings
previously entered against him, including but not limited to the jurisdictional
findings and orders, dispositional findings and orders, and prior
42
determinations of parentage. In view of the errors earlier in the case with
respect to J.H., the juvenile court should appoint counsel to represent him in
any such proceedings.
STEWART, J., Acting P.J.
We concur.
MILLER, J.
MAYFIELD, J. *
In re A.H. (A163882)
*Judge of the Mendocino Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
43
Trial Court: Solano County Superior Court
Trial Judge: Hon. D. Scott Daniels
Counsel:
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bernadette S. Curry, County Counsel, Carrie Scarlata, Assistant County
Counsel, Clarisa Sudarma, Deputy County Counsel, for Plaintiff and
Respondent.
44