In re Amanda M. CA2/7 ( 2014 )

Filed 1/21/14 In re Amanda M. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re AMANDA M. et al., Persons Coming B246246
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK89927)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
P.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Rudolph Diaz, Juvenile Court Referee. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for
Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County
Counsel, and Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and
Respondent.
_________________________
Joann H. (Mother) and P.M. (appellant) are the parents of Amanda M. (born 1996)
and C.M. (born 1998). Mother has two other children with a different father, Jason G.,
who are not parties to these proceedings. Appellant appeals from orders of the juvenile
court denying his Welfare and Institutions Code1 section 388 petition contending he was
not given adequate notice of the dependency proceedings.
FACTUAL & PROCEDURAL BACKGROUND
This family was the subject of a prior appeal, case No. B240480, brought by
Mother and Jason G., the father of her two other children (J.G.-1 and J.G.-2). In that
opinion, filed March 11, 2013, we set forth the tragic circumstances of this family.
Mother and her five children were living with Jason G. in July 2011 when one of the
children (Jalyn, then 3 years old) died from a cerebral palsy seizure. Mother and Jason
G. had left Amanda and C.M. at home alone to watch Jalyn the evening before she died.
Amanda and C.M. had severe pre-existing emotional problems which were exacerbated
by the death of Jalyn. Amanda and C.M. cut themselves, and alleged that Mother and
Jason G. severely physically and emotionally abused all the children and engaged in
domestic violence against each other.
In November 2011, when the Department of Children and Family Services (the
Department) filed a dependency petition pursuant to section 300, subdivisions (a), (b),
(c), and (j), Mother identified appellant as the father of Amanda and C.M. and provided
the Department his full name and birth date. She said she had not seen him for 10 years.
On the petition, appellant was listed as “whereabouts unknown.”
After a due diligence search was completed, the Department located appellant in
March 2012. He had been incarcerated from 2000 until 2011 for false imprisonment and
taking a vehicle without permission, and was on parole until March 2013. He did not
have a permanent address but the Department investigator was able to reach him by
telephone and on two occasions told him about the adjudication hearing of March 22,
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All subsequent undesignated statutory references shall be to the Welfare and
Institutions Code.
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2012. Appellant admitted to the social worker he had used drugs in the past, had been a
gang member, had verbally and emotionally abused Mother, was suicidal, and had been
diagnosed as bi-polar, depressed, and schizophrenic. He said he currently was staying in
Los Angeles but had no permanent residence.
At the March 22, 2012 hearing, the juvenile court removed all four children from
Mother and Jason G.’s custody. Amanda and C.M. were placed in foster care. The court
found notice was given to all appropriate parties. Appellant did not appear at the hearing.
He was ordered to participate in parenting classes and family counseling and awarded
monitored visitation.
In June 2012, the social worker reported that after a due diligence search,
appellant was found residing in a sober living home in Los Angeles. Appellant had
apparently been enrolled in the program since April 2012. Appellant told the Department
that he would like to participate in counseling and visits as soon as he received day passes
from the program. However, in July 2012, the social worker attempted to contact
appellant by telephone, and twice received a “fax tone.” She stated she then gave notice
of the hearing via telephone and fax on July 6, 2012. The Department sent appellant a
written notice of the September 6, 2012 hearing to an address on South Grand Avenue in
Los Angeles.
In July 2012 Amanda and C.M. alleged they were sexually abused by Jason G.
On September 6, 2012, appellant appeared in dependency court for the first time
and was appointed counsel. The matter had been set for a section 342 hearing.
Appointed counsel indicated that she was making a “special appearance” for appellant so
she could check the file with respect to notice. The court confirmed with appellant the
South Grand address was accurate. The court then advised him that he was obligated to
keep the social worker and attorney advised regarding his address and telephone numbers
and that the court could make decisions regarding his parental rights, including
termination of parental rights. Appellant stated he understood. The matter was continued
until September 21, 2012 for trial.
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On September 20, 2012, appellant filed a section 388 petition requesting the
dependency court to vacate all prior adjudication and dispositional orders because he had
not been properly noticed.
At the trial date on September 21, 2012, appellant’s counsel and appellant
appeared, and his counsel again stated she was “specially appearing.” Appellant’s
counsel then informed the court that he was having trouble setting up visitation, and the
court indicated it would order the Department to set up a visitation schedule.
The section 388 petition was heard on October 5, 2012, and the court denied it. At
the time, appellant had been in telephone contact with but had still not visited Amanda
and C.M. because they were not ready.
CONTENTIONS ON APPEAL
Appellant contends the Department did not properly notice him until eight months
after the dependency proceedings commenced, violating his due process rights and
prejudicially affecting his reunification with his daughters. He also contends that the
failure to notify him resulted in a jurisdictional defect in the judgment of the juvenile
court, and requests to vacate all orders issued after the detention hearing.
DISCUSSION
1. Notice
The court is required, at its earliest opportunity, to inquire of the identity of any
alleged father and provide notice to that man that he is or could be the father of a child
who is the subject of proceedings under section 300 and that the proceedings could result
in termination of parental rights and adoption of the child. (§ 316.2, subds. (a), (b).)
Even if his paternity has not yet been established, he is entitled to notice of the
proceedings. (§ 316.2, subd. (b); In re Joseph G. (2000) 83 Cal. App. 4th 712, 715.)
Section 291, subdivision (e) provides that if a child is detained, notice to parents
not present at the initial petition hearing should be by personal service or by first-class
mail. “At each hearing under section 300 et seq., the court must determine whether
notice has been given as required by law and must make an appropriate finding noted in
the minutes.” (Cal. Rules of Court, rule 5.534(k).) The notice must give an alleged
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father an opportunity to appear and assert a position. It must afford him a reasonable
time to make his appearance so that he may establish himself as a presumed or biological
father and seek services. (In re Joseph G., supra, 83 Cal.App.4th at p. 715; In re Emily
R. (2000) 80 Cal. App. 4th 1344, 1351.)
Clearly, the statutory requirements were not met in this case since appellant did
not receive written notice of the March 22, 2012 hearing. Despite this statutory violation,
however, we cannot conclude that appellant’s due process rights were violated.
“[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 the
majority of the proceedings. [Citations.]” (In re Justice P. (2004) 123 Cal. App. 4th 181,
188.)
The Department is required to act “with diligence” to locate a missing parent. (In
re Justice P., supra, 123 Cal.App.4th at p. 188.) “Reasonable diligence denotes a
thorough, systematic investigation and an inquiry conducted in good faith. [Citation.]”
(Ibid.)
“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. [Citation.]” (In re Justice P., supra, 123 Cal.App.4th at p. 188.) If
the Department employs a method of notice which is reasonably aimed to actually inform
the parent, it is sufficient. (In re J.H. (2007) 158 Cal. App. 4th 174, 183.)
Here, the Department had little information upon which to proceed. When the
children were detained, Mother only provided appellant’s name and birthday and his
whereabouts were unknown. Appellant was released from custody sometime in 2011
(the record does not disclose when), presumably before the petition was filed. Once the
Department located him, the adjudication hearing had not yet taken place. The social
worker did a search and located him in March 2012. Once they located him, she talked to
him over the telephone and told him about the March 22nd hearing. Appellant admits he
had no permanent residence in March 2012. In this situation, oral notice was clearly
reasonable and the best way to make sure he actually received the information.
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Appellant then moved in April to a sober living house and apparently did not
inform the Department. Nevertheless, the social worker located him again in July 2012
and after unsuccessfully attempting to reach him by telephone, she sent him written
notice of the September 6, 2012 hearing. Appellant later confirmed that the address she
used was accurate.
We conclude the Department acted with diligence to locate him, particularly since
they had very little information to work with and because he was transient. The notice by
telephone in March was the best way of ensuring that he received the information about
the hearing.
Even if telephonic notice did constitute a due process violation, reversal of the
orders is not required. In dependency proceedings, due process violations are subject to
the harmless beyond a reasonable doubt standard. (In re J.H., supra, 158 Cal.App.4th at
p. 183; In re Justice P., supra, 123 Cal.App.4th at p. 193.)
Despite being told of the March 22, 2012 adjudication hearing appellant did not
appear. He does not argue that he would have appeared if he had been given written
notice. Furthermore, there was nothing which appellant could have argued at the hearing
which would have caused a different result. The court’s assertion of jurisdiction over and
removal of the children from Mother and Jason G.’s custody was clearly warranted. At
that point in time, appellant could not have been awarded custody with no permanent
residence and his recent release from prison. And even in absentia, appellant was
awarded reunification services.
As far as the September 6 hearing held pursuant to section 342, the social worker
sent notice by fax, and a written notice to appellant’s last known address, which appellant
later confirmed as accurate.
“It is not always possible to litigate a dependency case with all parties present.
The law recognizes this and requires only reasonable efforts to search for and notice
missing parents. Where reasonable efforts have been made, a dependency case properly
proceeds. If a missing parent later surfaces, it does not automatically follow that the best
interests of the child will be promoted by going back to square one and relitigating the
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case. Children need stability and permanence in their lives, not protracted legal
proceedings that prolong uncertainty for them.” (In re Justice P., supra, 123 Cal.App.4th
at p. 191.) Here, in light of the traumatic events which had affected Amanda and C.M.,
their age, and their lack of a relationship with appellant, any notice violation was
harmless beyond a reasonable doubt. (In re J.H., supra, 158 Cal.App.4th at pp. 184-185.)
2. Section 388 petition
Section 388 permits a parent to petition the court to change, modify, or set aside a
previous court order on the grounds of changed circumstances or new evidence. A court
may order a hearing if the parent can demonstrate why “the best interests of the child
. . . may be promoted by the proposed change of order. (§ 388, subd. (c).) If there is no
showing of a change of circumstances or new evidence or that the requested change
would promote the bests interests of the child, the court may summarily deny the petition.
(In re Elizabeth M. (1997) 52 Cal. App. 4th 318, 322-323.) The court may consider the
entire factual and procedural history of the case in determining whether that showing has
been met. (In re Justice P., supra, 123 Cal.App.4th at pp. 188-189.)
We review a determination to deny a section 388 hearing under the abuse of
discretion standard. (In re Zachary G. (1999) 77 Cal. App. 4th 799, 808.)
“The presumption favoring natural parents by itself does not satisfy the best
interests prong of section 388. The cases that state a child may be better off with his or
her biological parent rather than with strangers do so when the biological parent has
shown a sustained commitment to the child and parenting responsibilities. “ (In re
Justice P., supra, 123 Cal.App.4th at p. 192.)
“[A] child in the dependency system requires a . . . time-critical response. Once a
child is placed in that system, the father’s failure to ascertain the child’s existence and
develop a parental relationship with that child must necessarily occur at the risk of
ultimately losing any ‘opportunity to develop that biological connection into a full and
enduring relationship.’ (Adoption of Kelsey S. [(1992)] 1 Cal.4th [816], 838.)” (In re
Zacharia D. (1993) 6 Cal. 4th 435, 452.)
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In this case, the best interests of Amanda and C.M. would be met by providing
them with a stable safe environment so they can heal their emotional wounds and receive
constant safe supervision. Appellant had unresolved substance abuse issues and no
permanent home. To vacate the proceedings now and to start over would be fraught with
peril as the girls are in such fragile emotional states. We find the court did not abuse its
discretion in denying the section 388 petition.
DISPOSITION
The October 5, 2012 orders of the juvenile court as they relate to appellant P.M.
are affirmed.
WOODS, J.
We concur:
PERLUSS, P. J.
ZELON, J.
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