In re S.W. CA1/3 ( 2014 )

Filed 4/24/14 In re S.W. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re S.W., a Person Coming Under the
Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES
AGENCY,
Plaintiff and Respondent,
v. A139049, A139594
F.M. et al., (San Francisco County
Defendant and Appellant. Super. Ct. No. JD-123154)
This is an appeal from a decision by the juvenile court to terminate the parental
rights of appellants F.M. (mother) and S.W. (alleged father) to their daughter, also S.W.
(minor), who was born in the fall of 2003. Mother challenges this decision on the ground
that the court lacked subject matter jurisdiction over minor. Alleged father, in turn,
challenges the decision for lack of proper notice. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2012, a petition was filed in San Francisco Juvenile Court pursuant to
Welfare and Institutions Code section 300, subdivisions (b), (c) and (g), based on
allegations that parents had failed to protect minor, failed to offer adequate provision for
her support, and caused or exposed her to significant risk of serious emotional damage
(section 300 petition). According to the section 300 petition, mother was incarcerated in
Texas and subject to a no-contact order with respect to minor for having physically and
1
mentally abused her, and minor’s legal guardian, a maternal great aunt living in
Tennessee, had relinquished the guardianship and was unable to provide for her care.
Specifically, it was alleged the legal guardian had taken minor, who was depressed,
suicidal and required psychotropic medicines, from Tennessee to the home of her
maternal grandmother in California. The maternal grandmother, however, was also
unable to provide care for minor and, thus, had contacted the agency for assistance. The
whereabouts of alleged father were unknown, and both he and mother, who had never
married, had substance abuse problems.
The section 300 petition further alleged minor had been the subject of several prior
referrals to child protective services, including one in Alameda County in 2007 for
physical abuse, which was found inconclusive, and three in Texas between 2008 and
2010 for physical abuse and neglect, at least one of which was substantiated.
The agency thereafter filed a report in anticipation of the June 4, 2012,
detention/jurisdiction hearing that identified an Oakland telephone number for alleged
father, but no address. The report also provided additional information about minor’s
circumstances. In particular, the report noted that, several years ago, maternal
grandmother had been given temporary custody of minor when mother was incarcerated
in Texas for abusing her, but that maternal grandmother had sent minor to live with a
relative in Georgia when she became unable to provide care. The Georgia relative then
sent minor back to maternal grandmother after deciding she, too, was unable to care for
minor, who at that time was depressed and suicidal. A few months later, in November
2011, maternal grandmother sent minor to live with her maternal great aunt in Tennessee,
where she could attend public school and enjoy a rural setting. Shortly thereafter, the
maternal great aunt was appointed legal guardian of minor by the Tennessee juvenile
court. However, as mentioned above, the maternal great aunt ultimately decided she
could not care for minor and, thus, on May 25, 2012, took her back to maternal
grandmother in California without prior notice to maternal grandmother, prompting
commencement of these proceedings.
2
Following the detention hearing, the juvenile court found a prima facie case had
been made pursuant to the identified subdivisions of Welfare and Institutions Code
section 300 and ordered that minor be detained. In doing so, the court first ordered
minor’s temporary detention on an emergency basis and then, two days later following a
continued hearing at which mother made her first appearance, the court ordered her
permanent detention, noting: “Given the history of this case and given how much this
child has been shuttled around over the last however many months, I am most concerned
about her stability at this point.”
The agency prepared another report, file-stamped July 3, 2012, for the
jurisdiction/disposition hearing. This report indicated that alleged father’s whereabouts
remained unknown and that mother was in a Santa Clara jail awaiting extradition to
Texas on probation violations. The report recommended no reunification services for
mother due to her impending incarceration, and declined to assess alleged father’s need
for services due to the agency’s inability to locate him. This report was subsequently
amended to include information that mother had been sentenced to four years in Texas
prison, and that alleged father’s whereabouts remained unknown despite further efforts
by the agency to locate him.1 According to alleged father’s mother, he had not been in
contact with minor for over five years and was reluctant to come forward due to child
support concerns.
At the conclusion of the July 11, 2012, jurisdiction/disposition hearing, the
juvenile court sustained the allegations in the section 300 petition,2 declined to order
1
As we will discuss later in our discussion of the lack-of-notice issue raised on
appeal by alleged father, the agency submitted several due diligence statements
describing its efforts to locate alleged father. (Pp. 13-15.) Also reserved for later is
discussion of the juvenile court’s contacts with the Tennessee juvenile court that had
established the maternal great aunt’s legal guardianship over minor, facts relevant to
mother’s jurisdictional challenge. (Pp. 10.)
2
At a subsequent September 18, 2012 hearing, the agency amended the section 300
petition in certain respects, and added the following language to the subdivision (g)
allegations: “[t]he legal guardian is no longer willing to provide care for the child and
has relinquished her legal guardianship.”
3
reunification services for parents, declared minor a dependent, and set a permanency
planning hearing pursuant to Welfare and Institutions Code section 366.26. In
anticipation of the permanency planning hearing, the agency submitted a report indicating
that minor had been placed with a Bay Area foster family that had indicated a desire to
adopt her. Further, although continuing to exhibit emotional and behavioral
shortcomings (including lying, stealing and disrupting her class at school), minor was
making improvements in other respects. Among other things, minor appeared bonded
with her foster/prospective adoptive family, including a foster sibling around the same
age, and was being treated by a psychiatrist for several mental health concerns stemming
from her past abuse, including ADHD and PTSD. While the adoptive home study had
not yet been completed, the agency nonetheless recommended terminating parental
rights.
On June 26, 2013, following the permanency planning hearing at which argument
was heard from counsel for both parents and minor, the juvenile court, among other
things, found by clear and convincing evidence minor was likely to be adopted and
adopted the agency’s recommendation to terminate parental rights. The court then set a
six-month postpermanency review hearing for October 7, 2013. Both parents timely
appealed.
DISCUSSION
Mother and alleged father challenge the order terminating their parental rights on
distinct grounds. Mother contends the juvenile court lacked subject matter jurisdiction or
emergency temporary jurisdiction to issue the challenged order. Alleged father, in turn,
contends the agency failed to employ reasonable diligence in searching for him prior to
disposition, such that he lacked proper notice of the dispositional/ jurisdictional
proceedings, requiring remand for a new hearing. We address each contention in turn
below.
I. Did the juvenile court have jurisdiction over minor?
The UCCJEA, formerly the UCCJA, was adopted in California effective
January 1, 2000, and is now codified in Family Code section 3400 et seq (the Act or
4
UCCJEA).3 “The Act is the exclusive method of determining the proper forum in
custody disputes involving other jurisdictions and governs juvenile dependency
proceedings. (§§ 3402, subd. (c), 3421, 3423, 3424, subd. (a); In re Nada R. (2001) 89
Cal. App. 4th 1166, 1173 [108 Cal. Rptr. 2d 493].)” (In re C.T. (2002) 100 Cal. App. 4th
101, 106; In re Marriage of Fernandez-Abin & Sanchez (2011) 191 Cal. App. 4th 1015,
1037, fn. 18.)
“ ‘[S]ubject matter jurisdiction [under the UCCJEA] either exists or does not exist
at the time the action is commenced’ [citations], which is when the first pleading is filed.
(§ 3402, subd. (e).) ‘There is no provision in the UCCJEA for jurisdiction by reason of
the presence of the parties or by stipulation, consent, waiver, or estoppel.’ ([Citation];
see § 3421, subd. (c) [‘Physical presence of, or personal jurisdiction over, a party or a
child is not necessary or sufficient to make a child custody determination.’].)” (In re
Marriage of Fernandez-Abin & Sanchez, supra, 191 Cal.App.4th at p. 1040.)
However, even when UCCJEA jurisdiction already rests with another state (here,
Tennessee, where the legal guardianship had been ordered), the California juvenile court
may exercise temporary jurisdiction if the child is present in this state and, as relevant
here, “the child has been abandoned or it is necessary in an emergency to protect the
child because the child . . . is subjected to, or threatened with, mistreatment or abuse.”
(§ 3424, subd. (a).) “The courts have interpreted ‘emergency’ as a situation in which a
child is in immediate risk of danger if returned to a parent’s care. (See In re Stephanie M.
[(1994)] 7 Cal. 4th 295 [court asserted emergency jurisdiction over an abused child
diagnosed as suffering from battered child syndrome]; In re Joseph D. (1993) 19
Cal. App. 4th 678 [23 Cal. Rptr. 2d 574] [emergency jurisdiction was proper based on
reported incidents involving sexual abuse by child’s stepbrother and father].) Aside from
the necessity of protecting a child from immediate harm, presence of the child in the state
is the only prerequisite. (19 Cal.App.4th at p. 688.) [¶] . . . In cases where the validity of
the allegations are uncertain, the very possibility the allegations of immediate harm might
3
Unless otherwise stated, all statutory citations herein are to the Family Code.
5
be true is sufficient for the court to assume emergency jurisdiction in the best interests of
the children. (In re Joseph D., supra, 19 Cal.App.4th at p. 688.)” (In re Nada R., supra,
89 Cal.App.4th at p. 1174. See also In re Angel L. (2008) 159 Cal. App. 4th 1127, 1138
[recognizing the Legislature’s intent “to ‘afford all children found in California the
protection of California’s juvenile court[s] in exigent circumstances’ ”], citing § 3424,
subd. (e).)4
“The finding of an emergency ‘should not be made “in a rush to judgment” but
rather “after a full and fair evidentiary hearing.” [Citation.]’ [Citations.] Unsubstantiated
allegations are insufficient to invoke emergency jurisdiction. [Citations.]” (In re C.T.,
supra, 100 Cal.App.4th at pp. 107-108.) Under the Act, the jurisdictional finding is one
4
Section 3424, as relevant here, provides:
“(a) A court of this state has temporary emergency jurisdiction if the child is present in
this state and the child has been abandoned or it is necessary in an emergency to protect
the child because the child . . . is subjected to, or threatened with, mistreatment or abuse.
[¶] . . . [¶]
“(c) If there is a previous child custody determination that is entitled to be enforced under
this part . . . any order issued by a court of this state under this section must specify in the
order a period that the court considers adequate to allow the person seeking an order to
obtain an order from the state having jurisdiction . . . . The order issued in this state
remains in effect until an order is obtained from the other state within the period specified
or the period expires.
“(d) A court of this state that has been asked to make a child custody determination under
this section, upon being informed that a child custody proceeding has been commenced
in, or a child custody determination has been made by, a court of a state having
jurisdiction under Sections 3421 to 3423, inclusive, shall immediately communicate with
the other court. A court of this state which is exercising jurisdiction pursuant to Sections
3421 to 3423, inclusive, upon being informed that a child custody proceeding has been
commenced in, or a child custody determination has been made by, a court of another
state under a statute similar to this section shall immediately communicate with the court
of that state to resolve the emergency, protect the safety of the parties and the child, and
determine a period for the duration of the temporary order.
“(e) It is the intent of the Legislature in enacting subdivision (a) that the grounds on
which a court may exercise temporary emergency jurisdiction be expanded. It is further
the intent of the Legislature that these grounds include those that existed under Section
3403 of the Family Code as that section read on December 31, 1999, particularly
including cases involving domestic violence.”
6
of necessity in an emergency to protect a child who has been abandoned or faces the
threat of mistreatment or abuse. (In re Jorge G. (2008) 164 Cal. App. 4th 125, 131-132; In
re C.T., supra, 100 Cal.App.4th at pp. 108-109.)
Further, “[a]ssumption of emergency jurisdiction is an assumption of temporary
jurisdiction only. [Citation.] Therefore, while the court [may] properly exercise[]
jurisdiction when . . . conduct[ing] a plenary hearing to determine whether an emergency
existed, an emergency is not necessarily coextensive with the dependency.” (In re Nada
R., supra, 89 Cal.App.4th at p. 1175.) As explained by our appellate colleagues in the
Fourth Appellate District, Division Three, “emergency jurisdiction is short-term and
limited.” (Id.) However, by the same token, “an emergency can exist so long as the
reasons underlying the dependency exist.” (In re Nada R., supra, 89 Cal.App.4th at
p. 1175. See also In re Angel L., supra, 159 Cal.App.4th at p. 1139 [“[e]ven though
emergency jurisdiction ordinarily is intended to be short term and limited, [the court] may
continue to exercise its authority as long as the risk of harm creating the emergency is
ongoing”].)
In this case, we conclude as an initial matter upon review of the relevant record the
juvenile court properly invoked temporary emergency jurisdiction at the commencement
of the California proceedings because minor came within the statutory definition of
“abandoned,” meaning she had been “left without provision for reasonable and necessary
care or supervision.” (§ 3402, subd. (a).) Undisputedly, minor’s maternal great aunt
effectively relinquished her Tennessee-ordered legal guardianship over minor by taking
minor to California and handing her off to minor’s maternal grandmother after deciding
she could no longer care for minor. Minor’s grandmother, in turn, prompted the filing of
the section 300 petition in this case by notifying the agency that minor had been
abandoned to her care, but that she, too, was unable to take her in. Mother, for her part,
admitted she was not a viable placement for minor. Among other issues, mother, at the
time the proceedings commenced, was facing extradition to Texas as a result of her
myriad probation violations. And, finally, alleged father had not had contact with minor
in at least five years and could not even be located for purposes of these proceedings until
7
April 2013, approximately 10 months after their commencement. Under these
circumstances, we have no doubt minor’s situation met the statutory requirements for the
court’s exercise of emergency jurisdiction on abandonment grounds. Quite simply, had
the juvenile court declined to assert temporary emergency jurisdiction, minor would have
been left in this State without any readily-apparent source of protection and care, the very
situation our Legislature sought to avoid when enacting section 3424. (In re Jaheim B.
(2008) 169 Cal. App. 4th 1343, 1351 [“Because the risk of harm creating the emergency
was ongoing and [minor] could not immediately be returned to [mother], the court had
subject matter jurisdiction under section 3424 to conduct the dependency proceeding and
issue its jurisdictional and dispositional orders”]; see also § 3424, subd. (e).)
However, as explained above, the juvenile court’s assumption of emergency
jurisdiction is of limited duration and “does not confer upon the state exercising
emergency jurisdiction the authority to make a permanent custody disposition.” (In re
C.T., supra, 100 Cal.App.4th at p. 108.) As such, we now must determine whether the
juvenile court had a valid basis for continuing jurisdiction over minor, such that it was
authorized to make the order challenged herein to terminate parental rights, which
effectively modified the Tennessee dependency order. We conclude for reasons that
follow the juvenile court was warranted in exercising such jurisdiction.
As stated above, when the juvenile court took emergency jurisdiction over minor,
she was already subject to juvenile court jurisdiction in Tennessee. Accordingly, the
juvenile court was required under section 3424, subdivision (d), to immediately contact
the Tennessee court before continuing the proceedings. The juvenile court complied with
this rule, thereby triggering additional jurisdictional rules. Specifically, as all parties
recognize, where, as here, a court of another state has exercised jurisdiction over a child
by making a child custody determination, a California court may not exercise jurisdiction
to modify the other court’s determination unless it has first met the statutory requirements
of section 3423. This statute provides in relevant part that, except as otherwise provided
in section 3424, a California court may not modify another State’s child custody
determination “unless [the California court] has jurisdiction to make an initial
8
determination under paragraph (1) or (2) of subdivision (a) of Section 3421 and either of
the following determinations is made: (a) The court of the other state determines it no
longer has exclusive, continuing jurisdiction under Section 3422 or that a court of this
state would be a more convenient forum under Section 3427. [¶] (b) A court of this state
or a court of the other state determines that the child, the child’s parents, and any person
acting as a parent do not presently reside in the other state.”5 (§ 3423.) Here, the agency
contends the California juvenile court had jurisdiction to make an initial determination
under section 3421, subdivision (a)(2), and also made the required determination under
section 3424, subdivision (a). We thus turn to these provisions to determine whether our
court had authority to modify the Tennessee court order.
Turning first to the statutory requirement that the California court possess
jurisdiction to make an initial determination under section 3421, subdivision (a)(2), the
relevant language is as follows: “(a) Except as otherwise provided in Section 3424, a
court of this state has jurisdiction to make an initial child custody determination only if
any of the following are true: [¶] . . . [¶] (2) . . . a court of the home state of the child has
declined to exercise jurisdiction on the grounds that this state is the more appropriate
forum under Section 3427 or 3428, and both of the following are true: [¶] (A) The child
and the child’s parents, or the child and at least one parent or a person acting as a parent,
have a significant connection with this state other than mere physical presence. [¶]
(B) Substantial evidence is available in this state concerning the child’s care, protection,
training, and personal relationships.”6
5
“Initial child custody determination” is defined by the Family Code as the first
child custody determination with respect to the minor. (§ 3402, subd. (h).)
6
Section 3421, subdivision (a)(1), in turn, requires that California “is the home state
of the child on the date of the commencement of the proceeding, or was the home state of
the child within six months before the commencement of the proceeding and the child is
absent from this state but a parent or person acting as a parent continues to live in this
state.” Here, there is no dispute that minor resided in Tennessee for much of the two-year
period from 2010 to 2012, before commencement of the proceeding in California, making
Tennessee, not California, her home state for purposes of this statutory scheme. (§ 3402,
subd. (g).)
9
Based upon our own review of this record, we agree with the agency the juvenile
court’s exercise of jurisdiction over minor comported with the UCCJEA. (See In re
Jaheim B., supra, 169 Cal.App.4th at p. 1348 [reviewing court may independently
reweigh the jurisdictional facts].) Specifically, consistent with sections 3423 and 3421,
subdivision (a)(2), the record confirms that the court in minor’s home state of Tennessee
declined to exercise jurisdiction on the grounds that this state is the more appropriate
forum under Section 3427 or 3428, and that both of the following are true: (A) minor and
at least one parent have a “significant connection” with California beyond mere physical
presence, and (B) substantial evidence is available in California concerning minor’s need
for dependency. We will explain.
First, with respect to the Tennessee juvenile court’s disinclination to continue
jurisdiction, the record reflects that, upon receiving a message regarding this case from
Judge Linda Colfax of the San Francisco County Superior Court, Juvenile Division, a
return call was placed by Judge Donna Davenport of the Rutherford County Superior
Court in Tennessee. During this call, Judge Davenport spoke to Judge Colfax’s
colleague, Judge Hitchens, advising the judge that the Tennessee court would step aside
to permit the California court to exercise jurisdiction on forum non conveniens grounds
and, more specifically, “because moving the child again at this point would be
detrimental, particularly because there are no relatives in Tennessee available for
placement.” This finding that California is the more convenient forum is amply
supported by the relevant facts, including the lack of persons in Tennessee capable or
available to provide long-term care for minor, the agreement among counsel for all
parties (including mother) that California jurisdiction is preferable, and the presence of
key interested parties (including mother, grandmother, and minor) and of current
information regarding this case in California and already before the California court.
(See § 3427, subds. (b)(5), (6), (8).)7
7
Section 3427, subdivision (b), sets forth the following eight factors for the court to
consider in determining which forum is more convenient: (1) whether domestic violence
has occurred or likely will occur and which state could best protect the parties and the
10
Further, we agree with the agency that the fact that the parties were not present for
the conversation between Judge Hitchens and Judge Davenport and that the conversation
was not recorded or transcribed are of no moment. The relevant provision, section 3410,
subdivision (b), provides that the court “may” allow the parties to participate in
conversations or communications between the two courts; this provision does not require
such participation. Moreover, case law holds that the record must include “an account of
events” between the California and non-California courts, but not necessarily “tape
recordings or reporter’s transcripts” of specific conversations. (In re C.T., supra, 100
Cal.App.4th at pp. 111-112 [concluding the statutory requirements were met where the
conversations between the courts were described in memoranda and/or described by the
court on the record during the next hearing].) Here, the requisite account of events exists
in the form of Judge Colfax’s description on the record of the conversation between
Judge Davenport of Tennessee and Judge Hitchens of California shortly after the actual
conversation took place.8
child; (2) the length of time the child has resided outside this state; (3) the distance
between the two courts considering jurisdiction; (4) any financial hardship to the parties
due to litigating in one or the other forum; (5) any agreement regarding jurisdiction
among the parties; (6) the nature and location of relevant evidence; (7) each court’s
ability to fairly and expeditiously decide issues and hear evidence; and (8) each court’s
familiarity with the particular matter. (§ 3427, subd. (b).) As the agency notes, the
statute requires the court to consider these factors but does not require it to make factual
findings on the record as to the applicability of specific factors. (See id. [“[b]efore
determining whether it is an inconvenient forum, a court of this state shall consider
whether it is appropriate for a court of another state to exercise jurisdiction. For this
purpose, the court shall allow the parties to submit information and shall consider all
relevant factors”] [Italics added].)
8
In light of this record, we also reject mother’s contention that the juvenile court
erred by failing to stay or dismiss these proceedings “pending investigation and
consultation with Tennessee” regarding the more appropriate forum. In particular, the
record reflects that, upon taking emergency jurisdiction over minor on abandonment
grounds and upon learning of the ongoing Tennessee dependency, the California court
first continued the matter to confirm the existence of the other state’s proceeding, and
then stayed the proceeding for two weeks to actually communicate with the Tennessee
court regarding jurisdiction. As discussed above, that is exactly what the court was
required to do: “A court of this state that has been asked to make a child custody
11
Second, with respect to the significant connections that minor and one or both
parents have with California, the record reflects minor was born in California and did not
move away until she was four years-old. In addition, a referral was received by the
agency regarding minor in August 2007 alleging physical abuse by mother, although the
allegations were unsubstantiated and the referral was closed. While minor spent most of
the next four or so years of her life elsewhere, she did return to California for two months
in 2010 to live with her maternal grandmother in the Bay Area, before returning for good
in May 2012, just days before these proceedings commenced, when her legal guardian
flew with her from Tennessee and again left her in maternal grandmother’s care after
deciding she was unable or unwilling to herself provide care. Since that time, minor has
been placed in a California foster home, has been enrolled in a California school, and has
received medical (including mental health and dental) treatment from California
practitioners. Although still struggling at times with behavioral and emotional issues,
minor is beginning to show signs of flourishing in her California environment and her
foster mother has verbally committed to adopting her. These connections, we conclude,
are indeed significant. (See In re Marriage of Nurie (2009) 176 Cal. App. 4th 478, 510
[“assessment of a state’s ‘significant connections’ with a child is made at the time the
jurisdictional determination is made, rather than at the time of commencement of the
proceeding”].)
Moreover, there is also evidence mother has returned to California from Texas
after serving her sentence for probation violations,9 and alleged father appears to live in
Oakland or Berkeley. Maternal grandmother also continues to live in the Bay Area and
has become an important and stable person in minor’s life, taking her on vacation and
otherwise maintaining familial ties. Finally, another relative living in Palo Alto at some
determination under this section, upon being informed that a child custody proceeding
has been commenced in, or a child custody determination has been made by, a court of a
state having jurisdiction under Sections 3421 to 3423, inclusive, shall immediately
communicate with the other court.” (§ 3424, subd. (d).)
9
Mother’s probation condition permits her to have supervised visitation with minor,
about which she is enthusiastic.
12
point expressed interest in caring for minor, although, given her criminal background, she
does not appear to be a viable placement candidate. Regardless, we have no doubt based
on the record as a whole that the requisite “significant connection” for purposes of
section 3421, subdivision (a)(2)(A), has been established.
And finally, with respect to the remaining requirement that substantial evidence be
available in California concerning the minor’s need for dependency, we have identified,
at minimum, the following material facts: the presence of minor, mother, maternal
grandmother and alleged father in California, all key witnesses with respect to minor’s
need for dependency; the additional presence in this State of minor’s foster/prospective
adoptive family, her doctors and therapist, and her child welfare representatives, among
others; and the many up-to-date reports and other documents prepared and submitted by
the agency’s social workers involved in this matter detailing the circumstances of minor’s
dependency, including her past abuse, mental health struggles, and frequent changes of
residence and caregivers. On this record, we have no doubt the substantial evidence
standard under section 3421, subdivision (a)(2)(B), has been met.
Accordingly, for the reasons stated, we agree with the agency the juvenile court’s
exercise of subject matter jurisdiction over minor was appropriate.
II. Did the agency exercise due diligence in attempting to locate alleged father?
Alleged father contends the agency failed to act with due diligence in its efforts to
provide him with proper notice of these proceedings. As such, he reasons, this matter
must be remanded for a new hearing on jurisdiction and disposition. We disagree.
The relevant law is not in dispute. “Parents are entitled to due process notice of
juvenile court proceedings affecting the care and custody of their children, and the
absence of due process notice to a parent is a ‘fatal defect’ in the juvenile court’s
jurisdiction. [Citation.] Due process requires ‘notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.’ [Citation.] The means employed to give a
party notice for due process purposes must be such as one, desirous of actually informing
the party, might reasonably adopt to accomplish it. [Citations.]” (In re Claudia S. (2005)
13
131 Cal. App. 4th 236, 247.)
“If the whereabouts of a parent are unknown, the issue becomes whether due
diligence was used to locate the parent. [Citations.] The term ‘reasonable or due
diligence’ ‘ “ ‘denotes a thorough, systematic investigation and inquiry conducted in
good faith.’ ” [Citation.]’ Due process notice requirements are deemed satisfied where a
parent cannot be located despite a reasonable search effort and the failure to give actual
notice will not render the proceedings invalid.” (In re Claudia S., supra, 131 Cal.App.4th
at p. 247.)
Having considered the agency’s efforts in this case to locate alleged father to
provide him notice of the dependency proceedings, we conclude they meet the above-
stated standard of due diligence. Specifically, the agency filed a due diligence report on
June 28, 2012, indicating that, between June 7 and June 19, agency representatives
searched for information regarding alleged father’s whereabouts in public and
governmental sources in Texas and California. In doing so, the agency relied on the only
identifying information it had for alleged father, which consisted of his name and last
known address in Texas. Shortly after this report was filed, the agency was able to obtain
from mother a new Bay Area phone number for alleged father, which the social worker
called without success on June 14, 15, 18, 20 and 22.
On January 22, 2103, the agency executed a declaration of due diligence to inform
the court of its more recent efforts to locate alleged father. Specifically, using two
recently-discovered former addresses for alleged father, the agency had searched multiple
California sources, and had also attempted unsuccessfully to contact him with two
recently-obtained phone numbers. The court then ordered the agency to publish a citation
and summons in the San Francisco Chronicle once weekly for four consecutive weeks,
which order the agency complied with, albeit without success.
In the report filed February 21, 2013 pursuant to Welfare and Institutions Code
section 366.26, the social worker stated that she had been in contact with alleged father’s
mother (aka, paternal grandmother), who told the social worker alleged father “has never
demonstrated interest in [minor’s] case. She last saw him approximately five years ago.
14
According to an Email sent to [the social worker] by the paternal grandmother, [he] is
reluctant to come forward and to make his whereabouts known, as he does not want to
have to pay child support.” Nonetheless, despite this report and without making contact
with the agency, alleged father appeared for the section 366.26 hearing on April 15, 2013,
and was appointed counsel. The juvenile court also continued the section 366.26 hearing
until June 14, 2013, and, in the meantime, set a presumed paternity hearing for May 9,
2013. However, the presumed paternity hearing was subsequently taken off calendar
pursuant to an agreement between counsel for the agency and alleged father, at which
time counsel informed the court the hearing would be added back on calendar once
alleged father and his counsel so decided.
When alleged father’s counsel thereafter appeared at the June 14 permanency
planning hearing, she requested a continuance on the ground that “during the period from
the last court date to this date I have not had any contact with my client. And when I saw
him in court today he informed me that he never received the letter that I sent him, nor
had he – he had lost my information so he didn’t have any way of contacting me.” The
court denied this request, noting alleged father’s choice to take the presumed paternity
hearing off calendar and that he “has not even cooperated to the point of contacting the
department or continu[ing] to locate his attorney. If he couldn’t find your information
certainly people in the court could have assisted him in that regard. There really is no
good cause for a continuance.”
On this record, we agree with the agency that its efforts to locate alleged father –
including its numerous searches of public and governmental sources, its four-week
publication of his summons and citation in the local newspaper, and its efforts to obtain
information as to his whereabouts from mother and other family members – sufficed to
meet the due diligence standard. The agency’s lack of success in this regard does not
undermine the consistency and meaningfulness of its efforts. Nothing more was required,
and, even if it were, we can conceive of no harm that could have resulted given the
undeniable fact alleged father was informed of the permanency planning hearing, as both
he and his counsel were present. In addition, the juvenile court made efforts to set a
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presumed paternity hearing on his behalf before the selection and implementation
hearing, which would have occurred but for his own choice to take it off calendar and not
add it back. Under these circumstances, we reject his due process challenge. (In re Kobe
A. (2007) 146 Cal. App. 4th 1113, 1124 [affirming order terminating parental rights where
father suffered no prejudice from inadequate notice].)
Finally, given our conclusion neither parent’s challenge on appeal withstands
scrutiny, we need not consider their additional arguments that reversal of the judgment as
to one parent requires reversal as to the other.
DISPOSITION
The June 26, 2013, order to terminate parental rights is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
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