filed4/10/14 In re Isaiah G. CA2/25 Filed ( 2014 )

Filed4/10/14 In re Isaiah G. CA2/25
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
In re ISAIAH G., a Person Coming Under B251078
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK92330)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
CESAR L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Rudolph A.
Diaz, Judge. Dismissed.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
I. INTRODUCTION
Cesar L., an alleged biological father of Isaiah G., appeals from a juvenile court
order terminating parental rights. Parental rights were terminated as to Isaiah and his
half-sister, K.A. K.A. is not a subject of this appeal. Cesar L. never appeared in any
juvenile court proceeding. Nor was Cesar L. ever identified in any documents filed with
the juvenile court. He contends he was not notified of the dependency proceedings.
Cesar L. maintains the failure to notify him violated his due process rights. We find
Cesar L. lacks standing to appeal.
II. BACKGROUND
A. Procedural Background
On February 29, 2012, the Department of Children and Family Services (the
department) filed a Welfare and Institutions Code1 section 300 petition on behalf of
Isaiah and K.A. The petition alleges J.A., the children’s mother, placed the children in a
detrimental and endangering situation. On February 23, 2012, K.A. was diagnosed and
hospitalized with pneumonia. The mother allegedly removed the nasal cannula from
K.A.’s face, preventing the child from receiving oxygen. The mother also ripped the
intravenous needle from K.A.’s right hand. Also, the mother removed the monitor leads
from K.A. The section 300 petition alleges the mother attempted to remove K.A. from
the hospital against medical advice. The petition also alleges the mother and the father
currently and for the last five years abused methamphetamines.
On February 29, 2012, the juvenile court found a prima facie case for detaining the
children as persons under section 300. R.H. was identified as K.A.’s father. Isaiah’s
father was not identified. The juvenile court ruled the prior identification of R.H. as
1
Future statutory references are to the Welfare and Institutions Code unless
otherwise noted.
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Isaiah’s father was an error. The juvenile court ordered the children detained and made
monitored visits available to the mother.
On March 27, 2012, the department submitted proof of conducting searches for
Isaiah’s father without success. On April 9, 2012, the juvenile court adjudicated the
section 300 petition, sustained it and proceeded to disposition. The children were
removed from the mother’s custody. The juvenile court ordered family reunifications
services be provided to the mother and children. No services were provided to R.H.
At the contested six-month review hearing on November 9, 2012, the juvenile
court found the mother was not in compliance with her case plan and terminated family
reunification services. The juvenile court scheduled a section 366.26 hearing to select a
permanent plan for the children.
At the March 8, 2013 section 366.26 hearing, the department submitted proof of
conducting a search for Isaiah’s father without success. The children’s foster parents
wanted to adopt the youngsters. On July 8, 2013, at the continued section 366.26
hearing, the foster parents’ home study was approved. No parents appeared at the
hearing. The juvenile court found by clear and convincing evidence the children were
adoptable. Parental rights were terminated regarding Isaiah and K.A. The foster mother
and father were designated as the prospective adoptive parents. On August 19, 2013,
Cesar L. appealed the juvenile court’s July 8, 2013 orders.
B. Factual Background
1. Detention Report
On February 29, 2012, the social worker submitted her detention report. K.A. was
two months old and Isaiah was two years old at the time of the incident. On February 23,
2012, just before midnight, K.A. was brought to St. Francis Hospital. K.A. had
pneumonia and difficulty breathing. She was also blue. K.A. was put on an intravenous
drip and oxygen. The hospital planned to take K.A. to Miller’s Children’s Hospital. The
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mother removed K.A.’s intravenous drip and oxygen. The social worker, Tanya Francis-
Russell, described what happened thereafter: “[I] conducted a telephone interview with
Dr. Kiplouski with St. Francis Hospital she informed [me] that the staff informed mother
of her baby’s medical condition, still mother wanted to leave the hospital and transport
the baby herself. Dr. Kiplouski stated [everyone] was explaining to the mother what was
going to on hoping to calm mother down but mother still insisted on taking her baby from
the hospital. [Dr. Kiplouski] stated that mother had to be removed from the baby’s room
to insure the baby remain safe.” Eventually, sheriff deputies became involved.
The mother admitted using methamphetamine a week prior to the incident because
of stress. An anonymous person familiar with the mother spoke to Ms. Francis-Russell.
The person stated the mother was in a “zombie” state half of the time. A physician
identified only as Dr. Africa of the Miller’s Children’s Hospital stated K.A. had
bronchiolitis. The mother admitted to removing K.A.’s intravenous drip and oxygen.
The mother felt the hospital was not attending to K.A. The hospital had poked K.A. with
a needle in her back and taken fluids and the child was crying. The mother stated she
was under stress because she could not find money received from her income tax. The
mother stated her children have different fathers. She stated a person identified only as
R.H. was Isaiah’s father. In an addendum report, the social worker noted she was unable
to submit a request to the parent locator for the fathers because she lacked any identifying
information.
2. Pre-release investigation and hearing
The social worker recommended the children not be released to the custody of the
maternal grandmother. On March 7, 2012, the juvenile court ordered the children
detained in shelter care pending the next hearing.
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3. Jurisdiction Report
On March 27, 2012, the social worker submitted a jurisdiction report. The social
worker concluded the children’s mother lacked basic parenting skills and sound judgment
to safely and appropriately parent them. The social worker noted the mother’s illicit drug
use history and current methamphetamine use. The social worker recommended family
reunification services that included: random drug testing; certified parenting classes; and
individual counseling. The mother maintained she had no identifying or contact
information regarding Isaiah’s father.
4. Due diligence declaration
The social worker submitted a due diligence declaration on March 27, 2012
regarding Isaiah’s unknown father. The social worker noted various searches that could
not be done because the mother provided no identifying information. The social worker
submitted a similar due diligence declaration regarding R.H.
5. Status review report
On October 4, 2012, the social worker submitted a status review report. The
social worker noted the mother tested positive for methamphetamines on May 30, June
27, and August 21, 2012. The mother had attended only 39 of 79 treatment days from
May 8 to September 10, 2012. Of the 40 absences, only 8 were excused. The mother
missed most of the dates she was supposed to drug test. The mother’s attendance in the
substance abuse program was inconsistent and she had not made significant progress in
her parenting classes. The mother had indicated she was going to stop attending the drug
and alcohol program until she was reminded it was necessary in order to reunify with her
children. The mother had wanted to get a job and an apartment instead.
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During visits, the mother overfed the children. The mother used inappropriate
language in front of the children on one visit. The mother failed to visit the children for
approximately four weeks. The social worker recommended family reunification
services be terminated for the mother.
6. Section 366.26 report
On March 8, 2013, the social worker submitted the section 366.26 report. The
social worker found an applicant family who were willing and able to provide a safe and
permanent home for the children. No father was listed on the birth certificates for either
child. No father visited the children. The department again submitted due diligence
declarations for Isaiah and K.A.’s fathers. The fathers for both children could not be
found or identified.
7. May 10, 2013 status report
The social worker noted the children remained in the foster home. The children
were doing well and appeared very comfortable. The mother had been incarcerated on
March 5, 2013, on felony charges. She was later released on March 28, 2013, as these
charges were dismissed. The mother had not participated in court-ordered services and
would often not attend visits. The social worker reported, “Children Isaiah [G.] and
[K.A.] ha[d] visited once or twice with paternal cousins and godparents to child Isaiah,
[S.G. and R.G.].” The social worker noted the foster parents had: provided for the
children’s medical needs; kept them clean and well dressed; engaged the children in
activities promoting development and learning; and continued to cooperate with the case
plan. The social worker recommended adoption for the children by the foster parents.
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III. DISCUSSION
The department moved to dismiss the appeal contending Cesar L. lacked standing.
We have previously set forth the general rule in dependency cases for standing on appeal:
“As a general rule, a parent may appeal from the termination of parental rights. (§ 395;
Cal. Rules of Court, rule [5.585].) However, only parties of record may appeal. (County
of Alameda v. Carleson (1971) 5 Cal. 3d 730.) A party of record is a person named as a
party to the proceedings or one who takes appropriate steps to become a party of record
in the proceedings. (Eggert v. Pac. States S. & L. Co. (1942) 20 Cal. 2d 199, 201.) A
person does not become a party of record merely because his or her name and interest
appear in documents filed with the court or are referenced in the judgment. (Ibid.)” (In
re Joseph G. (2000) 83 Cal. App. 4th 712, 715, fns. omitted.) We further explained in the
context of an alleged biological father, “[A]n alleged biological father who is not a party
of record in the dependency court has no standing to appeal an order terminating parental
rights.” (In re Joseph G., supra, 83 Cal.App.4th at p. 716; In re Paul W. (2007) 151
Cal. App. 4th 37, 56-58; accord In re Baby Boy V. (2006) 140 Cal. App. 4th 1108, 1117; In
re Miguel E. (2004) 120 Cal. App. 4th 521, 539.) Here, Cesar L. never appeared in the
juvenile court nor took steps to do so. Thus, he has no standing to appeal.
But, Cesar L. contends he was not provided notice of the dependency proceedings
and this violated his due process rights. None of his due process contentions resolve the
standing issue. Cesar L. has no standing on appeal, to assert a deprivation of his due
process rights. In any event, no due process violation has occurred. Our colleagues in
the Fourth Appellate District have held: “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.] The child welfare agency
must act with diligence to locate a missing parent. [Citation.] Reasonable diligence
denotes a thorough, systematic investigation and an inquiry conducted in good faith.
[Citation.] [¶] However, there 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
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unknown for the majority of the proceedings. [Citations.]” (In re Justice P. (2004) 123
Cal. App. 4th 181, 188; In re Melinda J. (1991) 234 Cal. App. 3d 1413, 1418-1419.)
Here, it is undisputed Cesar L. never received notice of dependency proceedings
concerning Isaiah. However, the department demonstrated it acted with diligence. The
mother provided no identifying information regarding Isaiah’s paternity. Isaiah’s birth
certificate failed to identify a father. Cesar L. made no appearance nor was he ever
mentioned at any point during the dependency proceedings prior to parental rights
termination. There is no record that Cesar L. ever visited Isaiah while the child was in
foster care. The department thus had no reasonable means of notifying any alleged father
for Isaiah.
Cesar L. also contends the juvenile court failed to speak with S.G. and R.G. in an
effort to determine who fathered Isaiah. All of his arguments in this regard are mere
speculation. Cesar L. argues S.G. and R.G. are Isaiah’s paternal cousins. It is unclear
from the record whether S.G. and R.G. are paternally related to Isaiah. The relevant
sentence appears in the May 10, 2013 status review report. The social worker wrote,
“Children Isaiah and [K.A.] ha[d] visited once or twice with paternal cousins and
godparents to child Isaiah, [S.G. and R.G.].” As noted, Isaiah’s father was unknown to
the department and the juvenile court. The only paternal relationship listed is for K.A.
Thus, S.G. and R.G. may be paternal cousins to K.A. and not Isaiah. Additionally, there
is no evidence S.G. and R.G. would have been able to locate Cesar L. We are
unpersuaded that the department failed to act with diligence to identify Isaiah’s father.
Nor does any of the authority cited by Cesar L. give him standing. Cesar L. relies
on In re Paul H. (2003) 111 Cal. App. 4th 753, 759. In Paul H., an alleged biological
father sought reversal of a court order terminating parental rights. (Ibid.) The appellate
court found the alleged biological father had standing because he took immediate steps to
become a party once notified of the dependency proceedings. (Ibid.) The Court of
Appeal found, “He contacted the social worker, appeared at the next court hearing,
communicated to the court that he might be the minor’s father and attempted to complete
paternity testing.” (Ibid.) Paul H. is inapplicable. Unlike the alleged father in In re Paul
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H., Cesar L. did not appear in the dependency proceeding in any manner. His first act
was to file a notice of appeal. He was not a party of record during the dependency
proceeding at any point. (In re Joseph G., supra, 83 Cal.App.4th at p. 715; see In re
Baby Boy V., supra, 140 Cal.App.4th at pp. 1113, 1116-1117 [alleged father had standing
to appeal when he appeared in dependency proceeding at earliest practical point prior to
termination of parental rights and attempted to join].)
Cesar L. also cites to In re Alyssa F. (2003) 112 Cal. App. 4th 846, 855, arguing as
an alleged biological father he is entitled to notice to change his paternity status. Alyssa
F. concerned a father living in Mexico who did not receive notice of dependency
proceedings concerning his daughter. (Id. at p. 850.) The mother identified the father as
the biological father. (Ibid.) Alyssa F. is also inapplicable. As noted, Cesar L. was never
identified in any submission or proceeding to the juvenile court as a possible biological
father. The first time his name appears is on the notice of appeal. Accordingly, Cesar L.
lacks standing to appeal the juvenile court’s order terminating parental rights as to Isaiah
and no due process violation has occurred.
IV. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
MOSK, J. MINK, J.*
*
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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