In re I.M. CA2/8 ( 2023 )

Filed 12/28/23 In re I.M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re I.M., a Person Coming B326193
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP06413A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Mary E. Kelly, Judge. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
A.M. (Mother), the mother of three-year-old I.M., appeals
from the juvenile court’s order terminating parental rights and
freeing the child for adoption under Welfare and Institutions
Code1 section 366.26. Mother contends the order terminating
parental rights must be reversed because the Los Angeles County
Department of Children and Family Services (DCFS) failed to
exercise reasonable diligence in attempting to locate the alleged
father of I.M., and to provide him with notice of the dependency
proceedings. We conclude Mother forfeited her claim by failing to
raise any objection in the juvenile court. We accordingly affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Dependency petition
In November 2020, Mother gave birth to I.M. outside a
convenience store. When officers responded to the scene, Mother
stated she knew she was pregnant and planned to flush the baby
down the toilet, but the store clerk did not allow her into the
restroom. Mother also admitted she smoked methamphetamines
and drank several shots of vodka prior to giving birth. I.M. was
transported to the hospital for life-saving treatment, and Mother
was arrested for child endangerment. Both Mother and I.M.
tested positive for methamphetamine.
On December 4, 2020, DCFS filed a dependency petition for
I.M. under section 300, subdivision (b)(1). The petition alleged
I.M. had suffered, or was at substantial risk of suffering, serious
physical harm based on Mother’s substance abuse. On December
9, 2020, the juvenile court held the detention hearing. The court
1 Unless otherwise stated, all further undesignated statutory
references are to the Welfare and Institutions Code.
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detained I.M. from Mother, and deferred making any paternity
findings pending the parents’ appearance. Following I.M.’s
discharge from the hospital, DCFS placed the child in the foster
home of Mr. and Mrs. V.
II. Jurisdictional and dispositional hearing
In February 2021, DCFS interviewed Mother for its
jurisdictional and dispositional report. At the time, Mother was
participating in a residential substance abuse program. Mother
reported that I.M.’s father was named Marcos. She did not know
his last name, but thought it might be “R[].” She also did not
know his date of birth, but believed he was about 37 years old.
Mother met Marcos through Facebook and had known him for
about a year and a half. She did not know him well, however,
and did not have a telephone number or other contact
information for him. Mother believed Marcos was homeless and
slept in a tent under a bridge by a riverbed. He used to live with
his mother in Pico Rivera, but she did not know the names of his
parents and had never met his family. His last job was as a
sander or welder. According to Mother, the maternal
grandmother told her Marcos came to her home looking for
Mother after he learned she was in an inpatient drug program.
Mother did not know how Marcos found out she was attending a
program.
At a May 19, 2021 arraignment hearing, Mother made her
first appearance in the case and was appointed counsel. Mother
submitted a parentage questionnaire for I.M. in which she
identified Marcos R. as I.M.’s father. She indicated that Marcos
was not present at the child’s birth, did not sign the birth
certificate, was not married to or residing with Mother at the
time of the birth, and never held himself out as the child’s father.
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She listed Marcos’s birthdate as unknown, and stated that he
could possibly be located on Facebook because that was where
they met.
After reviewing the parentage questionnaire, the juvenile
court inquired if Mother knew Marcos’s age. Mother’s counsel
replied that Marcos “might be in his 30’s, perhaps 37, but she
can’t be sure.” The court also asked if Mother had a Facebook
address for Marcos. Following a pause in the proceedings, the
court ordered Mother to provide DCFS with “whatever
information she has regarding contact with [Marcos] on
Facebook,” including any names or account numbers. The court
ordered DCFS to “discuss that with Mother and then complete
the due diligence with a Facebook search, if any of those are
current.” The court found Marcos to be an alleged father based
on the information provided by Mother.
On June 11, 2021, DCFS completed a due diligence search
using Marcos’s first and last name, but was unable to locate him.
In its declaration of due diligence, DCFS reported that it
searched certain computer databases, which yielded no results
because it lacked sufficient identifying information for Marcos,
such as his date of birth and social security number. The record
does not disclose whether DCFS searched Facebook or other
social media platforms as part of its due diligence, or whether it
followed up with Mother regarding her contact with Marcos on
Facebook. There is also no indication that DCFS asked the
maternal grandmother if Marcos left his contact information
when he visited her home looking for Mother.
On July 22, 2021, the juvenile court held a combined
jurisdictional and dispositional hearing. The court began by
asking Mother’s counsel whether she had any objection to finding
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that notice was proper. Counsel stated she did not. The court
found that notice of the proceedings had been properly provided.
The court also found that DCFS had completed a due diligence
search for Marcos and his whereabouts were unknown. The court
sustained the section 300 petition as amended, declared I.M. a
dependent of the court, and removed the child from Mother’s
custody. The court granted reunification services to Mother, but
not to Marcos because he was an alleged father.
III. Supplemental petition
On January 19, 2022, the juvenile court held the six-month
review hearing. Without objection, the court found that notice of
the hearing was proper. The court found that Mother was in
substantial compliance with her case plan, and that returning
I.M. to her care would not be detrimental to the child. The court
released I.M. to Mother under supervision of DCFS on the
condition that Mother reside in DCFS-approved housing.
At the time of the six-month review hearing, Mother was
residing in a sober living facility. However, less than a month
later, Mother left the facility with I.M., and DCFS could not
locate them. On February 9, 2022, the police found Mother
pushing I.M. in a broken stroller, with child not dressed
appropriately for the cold weather. Mother claimed she was on
her way to Pomona, which was 20 miles away, and admitted to
using methamphetamines. Following her arrest for child
endangerment, Mother told DCFS there were no relatives who
could care for I.M. She also said Marcos had not been involved in
I.M.’s life, she had not had any contact with Marcos for the past
two years, and she did not know his whereabouts.
On February 14, 2022, DCFS filed a supplemental petition
for I.M. under section 387 based on Mother’s continued substance
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abuse. At a February 16, 2022 detention hearing, the juvenile
court ordered I.M. detained from Mother. DCFS placed I.M. back
in the home of Mr. and Mrs. V. with whom he had previously
resided.
On April 14, 2022, the juvenile court sustained the section
387 petition. At a May 16, 2022 dispositional hearing, the court
removed I.M. from Mother’s custody and ordered the child be
suitably placed by DCFS. The court bypassed reunification
services for Mother based on her chronic and extensive substance
abuse and resistance to treatment. The court set the matter for a
section 366.26 permanency planning hearing.
IV. Permanency planning hearing
On June 6, 2022, DCFS submitted a second declaration of
due diligence regarding its search for Marcos. DCFS again
reported that it had conducted a limited search of certain
computerized databases, which yielded no results. DCFS further
reported that it had not attempted to locate Marcos using social
media because it lacked identifying information for him,
specifically his date of birth and social security number. DCFS
asked the court to order that notice of the permanency planning
hearing be served on Marcos by publication under section 294.
At a June 13, 2022 progress report hearing, the juvenile
court found that DCFS completed a proper due diligence search
for Marcos. The court ordered DCFS to proceed with notice by
publication in a newspaper of general circulation. The minute
order for the hearing does not show any objections to the court’s
ruling.
In its section 366.26 report filed on September 12, 2022,
DCFS advised the court that it had served Marcos with notice of
the permanency planning hearing by publication in the Daily
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Commerce. DCFS originally posted the notice on various dates in
July 2022. However, due to a misspelling in I.M.’s name, DCFS
reposted the notice with the correct spelling and updated hearing
date on September 15, 22, and 29, 2022, and October 6, 2022.
In an interim review report filed on December 8, 2022, DCFS
indicated Marcos’s whereabouts remained unknown. DCFS also
reported that Mr. and Mrs. V., who had been I.M.’s primary
caregivers since his birth, were committed to adopting the child
and providing him with a permanent home.
On December 12, 2022, the juvenile court held the section
366.26 permanency planning hearing. Mother appeared and was
represented by counsel. At the start of the hearing, the court
asked whether there was any objection to notice. Mother’s
counsel stated that there was “no objection to notice,” but that
Mother was seeking a continuance to file a section 388 petition
based on her progress in her programs. The court denied
Mother’s request for a continuance and found that notice of the
hearing was proper.
Mother’s counsel asked the court not to terminate parental
rights based on the beneficial parent-child relationship exception.
Counsel for I.M. and counsel for DCFS joined in arguing that the
exception did not apply. The court found, by clear and convincing
evidence, that I.M. was adoptable and that no exception to the
termination of parental rights applied in this case. The court
terminated the parental rights of Mother, Marcos, and any other
person who claimed to be a parent of I.M., and declared the child
free for adoption. The court designated Mr. and Mrs. V. as I.M.’s
prospective adoptive parents.
Mother filed a timely appeal.
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DISCUSSION
On appeal, Mother seeks reversal of the order terminating
both her and Marcos’s parental rights over I.M. Mother’s appeal,
however, is predicated solely on the claim that DCFS violated
Marcos’s due process rights by failing to conduct a reasonable due
diligence search to locate Marcos and provide him with notice of
the dependency proceedings. Mother also contends that she has
standing to challenge the lack of proper notice to Marcos because
their interests are sufficiently intertwined.
In response, DCFS argues that Mother does not have
standing to assert a claim of error based on Marcos’s right to
notice, and that even if Mother has standing, she forfeited the
claim by failing to raise any objection in the juvenile court.
DCFS further asserts that Mother’s claim fails on the merits
because it exercised reasonable diligence in attempting to locate
Marcos and notify him of the proceedings, and any alleged error
in failing to provide him with proper notice was harmless.
We conclude Mother forfeited her due process claim based
on DCFS’s alleged lack of proper notice to Marcos, because she
failed to object to notice at any time before the juvenile court.
I. Assuming Mother has standing to assert a claim
based on Marcos’s right to notice, she forfeited the
claim by failing to object in the juvenile court
As a general rule, “ ‘ “[w]here the interests of two parties
interweave, either party has standing to litigate issues that have
a[n] impact upon the related interests.” ’ ” (In re J.R. (2022)
82 Cal.App.5th 569, 581 (J.R.).) However, “[i]n the absence of
such intertwined interests, ‘a parent is precluded from raising
issues on appeal which did not affect his or her own rights.’ ”
(In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193 (Caitlin B.).)
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In Caitlin B., the appellate court held that a mother appealing an
order terminating parental rights lacked standing to assert that
an alleged father did not receive proper notice of the section
366.26 hearing. (Id. at p. 1193.) More recently, the appellate
court in J.R. reached a contrary conclusion, holding that a father
had standing to challenge the termination of his parental rights
based on an alleged violation of the mother’s right to notice.
(J.R., at p. 573.) Under the “unique circumstances” of that case,
the court decided to “exercise [its] broad remedial discretion to
reverse the order terminating both parents’ rights . . . thereby
conferring standing on father to maintain [his] appeal.” (Ibid.)
In this case, however, we need not decide whether Mother
has standing to challenge the order terminating parental rights
over I.M. based on the alleged lack of proper notice to Marcos.
Even assuming Mother has standing to assert this claim, we
conclude she forfeited the claim on appeal because she failed to
raise any objection to notice in the juvenile court, despite having
repeated opportunities to do so.
Under the rule of forfeiture, “a reviewing court ordinarily
will not consider a challenge to a ruling if an objection could have
been but was not made in the trial court. [Citation.] The purpose
of this rule is to encourage parties to bring errors to the attention
of the trial court, so that they may be corrected.” (In re S.B.
(2004) 32 Cal.4th 1287, 1293, fn. omitted, superseded by statute
on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th
953, 962; accord, In re Sheena K. (2007) 40 Cal.4th 875, 881.)
While “application of the forfeiture rule is not automatic,” the
appellate court’s “discretion to excuse forfeiture should be
exercised rarely and only in cases presenting an important legal
issue.” (In re S.B., at p. 1293.) Moreover, such discretion “must
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be exercised with special care” in dependency matters. (Ibid.)
“Because these proceedings involve the well-being of children,
considerations such as permanency and stability are of
paramount importance.” (Ibid.)
Due process requires child welfare agencies to exercise
reasonable diligence in attempting to locate parents and notify
them of dependency proceedings. (J.R., supra, 82 Cal.App.5th at
p. 571.) A defect in notice to a parent “is a most serious issue,
potentially jeopardizing the integrity of the entire judicial
process.” (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
“However, when a parent had the opportunity to present that
issue to the juvenile court and failed to do so, appellate courts
routinely refuse to exercise their limited discretion to consider
the matter on appeal. This is precisely because defective notice
and the consequences flowing from it may easily be corrected if
promptly raised in the juvenile court.” (Ibid.) A parent forfeits a
claim on appeal based on improper notice when he or she fails to
make a timely objection, and thus “deprive[s] the juvenile court of
the opportunity to correct the mistake.” (Ibid.; accord, In re P.A.
(2007) 155 Cal.App.4th 1197, 1209–1210.)
Here, the record reflects Mother had multiple opportunities
to raise an objection based on the alleged lack of proper notice to
Marcos, but she failed to present that issue to the juvenile court.
At the July 22, 2021 jurisdictional and dispositional hearing, the
juvenile court found that DCFS completed a proper due diligence
search for Marcos and his whereabouts were unknown. The court
asked Mother’s counsel if she had any objection to finding that
notice was proper, and counsel replied she did not. At the
January 19, 2022 six-month review hearing, the court again
found that notice was proper without any objection from Mother’s
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counsel. At a June 13, 2022 nonappearance progress report
hearing, the court found that DCFS’s second due diligence search
for Marcos was proper, and ordered notice by publication in a
newspaper of general circulation. There is no indication in the
record that Mother’s counsel objected to that notice finding and
order. DCFS proceeded to provide Marcos with notice of the
section 366.26 hearing by publication in a Los Angeles-based
newspaper. At the December 12, 2022 section 366.26 hearing,
the court began by asking if there was any objection to notice.
After Mother’s counsel expressly advised the court that there was
“no objection to notice,” the court found that notice of the hearing
was proper. On this record, Mother forfeited her claim that
DCFS failed to provide Marcos with proper notice of the
proceedings.
Citing J.R., supra, 82 Cal.App.5th 569, Mother argues that
we should reach the merits of her claim despite her failure to
object because it raises a pure question of law. J.R., however, is
distinguishable. In that case, the undisputed record showed that
DCFS knew the mother was not residing in the United States,
but nevertheless limited its due diligence search to federal and
California databases, and then purported to serve the mother
with notice by publication in a Los Angeles-based newspaper.
(Id. at p. 575.) Although the mother later contacted DCFS,
disclosed her cell phone number and address in El Salvador, and
expressed a desire to reunify with her son, the agency did not use
any of that known contact information to provide her with notice
of the proceedings. (Id. at p. 576.) In exercising its discretion to
reach the merits of the claim that the mother was denied proper
notice, the appellate court stated that whether DCFS violated the
mother’s right to due process was “a pure question of law.” (Id. at
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p. 587.) The court also noted that “the public’s interest in the due
administration of justice weighs in favor of adjudicating this
claim of error because [the] mother lacks any meaningful
opportunity to present this claim on her own.” (Ibid.)
In this case, the question of whether DCFS violated
Marcos’s due process rights by failing to exercise reasonable
diligence in its efforts to locate Marcos and provide him with
notice is not a pure question of law. Mother’s due process claim
is largely premised on DCFS’s failure to consult with her about
Marcos’s Facebook account despite being ordered to do so. Yet
because Mother never raised this issue in the juvenile court, the
record is silent as to whether DCFS ever attempted to follow up
with Mother regarding the extent of her Facebook contact with
Marcos, whether Mother still had the ability to contact Marcos
through Facebook or other social media, and whether DCFS could
utilize any social media contact that Mother might have to find
Marcos and serve him with notice of the proceedings. Because
this is a fact-specific inquiry into whether DCFS failed to pursue
the most likely avenues for locating Marcos, it would have been
more appropriately developed before the juvenile court. Indeed,
if Mother had asserted this claim at any of the hearings where
the court found that notice was proper, then the court could have
addressed the issue by ordering DCFS to either complete a social
media search for Marcos or explain why it was unable to do so.
Instead, Mother waited until after her parental rights were
terminated to raise the issue for the first time on appeal.
In deciding whether to exercise our discretion to address
the merits of Mother’s due process claim, we also must consider
I.M.’s interest in a stable and permanent placement. (In re S.B.,
supra, 32 Cal.4th at p. 1293.) I.M. is three years old, and apart
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from a few weeks in Mother’s care, he has spent all of his life in
the home of his prospective adoptive parents, Mr. and Mrs. V.
The record reflects that I.M. is closely bonded to Mr. and Mrs. V.,
and that they are committed to providing the child with stability
and permanency through adoption. Moreover, unlike the mother
in J.R. who had the right to seek reunification with her child,
Marcos is an alleged father with limited due process and
statutory rights. An alleged father is not entitled to reunification
services. (In re H.R. (2016) 245 Cal.App.4th 1277, 1283.) Rather,
“ ‘[d]ue process for an alleged father requires only that he be
given notice and an opportunity to appear and assert a position
and attempt to change his paternity status.’ ” (Ibid.) While a
biological father also is not entitled to reunification services, he
may receive such services if the court finds it is in the best
interests of the child. (Ibid.) Here, even if we were to reach the
merits of Mother’s claim and find reversible error, it is unclear
whether a more diligent search by DCFS would be likely to locate
Marcos; whether, if located, Marcos would appear in the case and
attempt to elevate his paternity status; and whether, if found to
be I.M.’s biological father, Marcos would be granted reunification
services at this late stage based on the child’s best interests.
Considering the totality of the record, we decline to exercise
our discretion to reach the merits of Mother’s claim that DCFS
failed to conduct a reasonably diligent search for Marcos and to
provide him with proper notice of the dependency proceedings.
Because Mother had ample opportunity to raise an objection to
notice in the juvenile court but failed to do so, she forfeited her
right to assert such claim on appeal.
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DISPOSITION
The order terminating parental rights over I.M. is affirmed.
VIRAMONTES, J.
WE CONCUR:
GRIMES, Acting P. J.
WILEY, J.
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