In re S.M. CA3

Filed 6/10/22 In re S.M. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
In re S.M., a Person Coming Under the Juvenile Court C093415
Law.
YOLO COUNTY HEALTH AND HUMAN (Super. Ct. No. JV2017564)
SERVICES AGENCY,
Plaintiff and Respondent,
v.
S.M.,
Plaintiff and Appellant.
Appellant S.M., Sr., (father) contends the efforts by the Yolo County Health and
Human Services Agency (Agency) to provide father with notice of this dependency case
did not constitute reasonable due diligence. Father says he heard about the case eight
months after the Welfare and Institutions Code section 366.261 hearing.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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We will affirm the trial court’s findings that a reasonable search for father was
conducted and that it was not in the minor’s best interests to return to the jurisdictional
phase.
BACKGROUND
In November 2017, the Agency filed a section 300 petition with respect to minor
S.M. (then five years old) and his minor half-sibling (then two years old). The petition
alleged that S.M. came within section 300, subdivisions (b)(1) [failure to protect] and (g)
[no provision for support]. The petition alleged, among other things, that father’s
whereabouts were unknown.
The November 2017 initial non-detaining report stated that on November 30,
2017, the social worker contacted Yolo County Child Support Services and learned that
Father signed a declaration of paternity at Alta Bates Medical Center in Alameda County
at the time of S.M.’s birth. The report also stated that the social worker submitted a due
diligence search and attempted to contact father by phone and by mail. The report
included Criminal Offender Record Information regarding father, obtained through the
California Law Enforcement Telecommunication System, which listed criminal
convictions for father covering the time period from December 15, 1998 to January 24,
2017, and listed 25 separate convictions. Based upon the dates, five of those cases could
possibly still have been on active probation status on November 15, 2017.
The matter was set for a jurisdiction hearing on December 14, 2017. The original
jurisdiction report documented that mother reported she had not seen father since the year
2013, when the minor was a year old. The report also listed an address for father at
24900 Santa Clara St., Hayward, California. Subsequently, the original disposition report
dated March 15, 2018, stated that father signed a declaration of paternity but failed to
establish a parent-child relationship with the minor. The report included the same Santa
Clara Street address in Hayward and included a phone number. The social worker mailed
letters to father at the last known address and attempted to call him at the number on at
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least five occasions, including December 4, 2017, December 18, 2017, January 11, 2018,
February 7, 2018, and March 1, 2018. The phone number was listed as no longer in
service. At the disposition hearing, the juvenile court noted, “I don’t think we have any
presumed fathers. We have a few alleged dads.” The juvenile court ordered no contact
between the fathers and the minors.
On March 30, 2018, the minors had to be removed from the mother’s care,
resulting in the filing of a section 387 supplemental petition on April 3, 2018. The
petition again alleged under section 300, subdivision (g), that father’s whereabouts were
unknown. The April 4, 2018 detention report again reported father’s criminal history.
The case was set for a jurisdiction hearing, and the section 387 jurisdiction report, dated
April 25, 2018, documented the efforts the social worker made, including multiple
telephone call attempts to contact father between December 2017 and March 2018, and
mirrored the information from the March 15, 2018 disposition report. The section 387
disposition report recommended no reunification services for father, as he did not rise to
presumed father status. After a contested disposition hearing, the juvenile court stated in
its minute order: “The Court orders no services or visitation to either father at this time
as they are only legal at this time.”
Father was sent notice of the six-month section 366.21, subdivision (e) hearing at
the Hayward, California address on Santa Clara Street. The six-month review report
dated December 5, 2018, recommended that services cease to the mother and that a
hearing pursuant to section 366.26 be set. The minor was reported to show
developmental delays, including speech and cognitive delays, and was placed in an
Intensive Services Foster Care placement. An Indian Child Welfare Act (ICWA)
(25 U.S.C.§ 1901, et seq) Notice of Child Custody Proceeding for Indian Child (form
ICWA-30) was sent on January 9, 2019, and included multiple aliases for father along
with a new phone number and address: 24100 Amador St., Hayward, California. The
ICWA-30 notice was mailed to father at the Amador Street address. On January 30,
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2019, the juvenile court held a contested six-month review, ceased services for mother,
and set a hearing pursuant to section 366.26. Notice for the hearing was sent by certified
mail to father at the 24100 Amador St., Hayward, California address, and was returned
signed as delivered on January 10, 2019; however, the signature was not legible. Notice
was also sent via certified mail to father at 901 35th Ave., Apt 7 in Oakland, California,
but was returned unclaimed and unsigned.
On March 29, 2019, the Agency filed an affidavit of inability to serve father, listed
the efforts made by the Agency to locate him, and requested a court order to publish
notice to father. The affidavit stated that on March 15, 2019, an Office Support Specialist
searched Vinelink, Sacramento County Jail Inmate Locator, CalWin, Medi-Cal Eligibility
Data System (MEDS), Facebook, Google, and People Looker, with no viable results from
any of those sources. It was also noted in the section 366.26 report dated May 22, 2019,
that in addition to the attempts listed in the affidavit, the Agency had also searched the
California Department of Corrections and Rehabilitation database and had searched the
County Jail Vinelink for the State of California, Alameda County Jail inmate search,
Sacramento County Jail inmate search, MEDS, and CalWin with no results. The Agency
reported that letters had been sent to all identified addresses and that phone calls had been
made to all identified numbers with no results. The Agency requested a 180-day
continuance of the section 366.26 hearing to address placement of the minor and to
complete publication to the father. The juvenile court ordered publication and continued
the section 366.26 hearing until November 6, 2019, but also set a contested hearing on
the issue of the minor’s adoptability on June 20, 2019. On June 20, 2019, the juvenile
court ordered a permanent plan of adoption and continued the section 366.26 hearing for
180 days. Notice by publication of the November 6, 2019 hearing date was completed in
the Oakland Tribune on August 23, 2019.
The November 6, 2019 section 366.26 report recommended that the juvenile court
order a permanent plan of adoption for the minor without termination of parental rights.
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On December 4, 2019, the juvenile court ordered a plan of adoption for the minor S.M.
and continued the case for 180 days to locate an adoptive home. A post permanency plan
review took place on June 3, 2020. Notice of that hearing was sent by mail to father at
24100 Amador St., Hayward, California.
At the December 2, 2020 permanency review hearing, the Agency asked the
juvenile court to set another permanency planning review in six months as the Agency
continued to work to identify an adoptive home for S.M. The December 2, 2020 report
listed a new address for father: 396 Grove Way, Hayward, California. The report stated
that on August 31, 2020, father contacted the Agency and said he had learned from a
relative of mother that S.M. was in foster care. Father said he had joint custody of S.M.
when the child was an infant but mother did not honor the custody arrangement and
disappeared with the minor. Father also claimed mother had contacted him during the
past year to arrange a visit but never brought the minor.
On September 15, 2020, S.M. was interviewed and reported that he had met father
but does not know him. Father said his original custody orders were signed in 2013 or
2014 and he saw S.M. when the orders issued; he also had a few Facetime contacts. He
denied an earlier report that he had hit S.M. with a belt as he has “never even been
around” S.M. Although he was given joint custody of S.M., he “couldn’t keep going out
to Woodland” to see S.M.
Mother reported that father had been very abusive towards her and was very
dangerous when angry. She also reported that she was a victim of human trafficking at
his hands and that she obtained a restraining order against him when S.M. was a baby.
Father had two other children who had been removed from his care. His parental rights
were terminated in 2015 as to Z.M. Another child of father’s, Sh. M., was placed in
foster care; father declined to participate in her case. The social worker obtained an
updated criminal history report for father dating back to 1998 with charges including
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October 2018, October 2019, and July 2020. In June 2018, father was reportedly arrested
for hitting a man with a metal pipe at a Bay Area Rapid Transit station in San Leandro.
On December 2, 2020, father appeared at the permanency review hearing and was
appointed counsel. The juvenile court set a hearing regarding notice to father. Father’s
counsel requested services and argued that “notice in this case was not entirely proper”
and “the agency did not complete due diligence and a reasonable search for the father at
the time.”
On January 13, 2021, the juvenile court held the hearing on notice and found that
the Agency made reasonable due diligence efforts to locate father. Father’s counsel
indicated he had papers regarding a child support letter from September 2017 and that
father was on probation. Father’s counsel noted the child support records showed a San
Leandro address for father, but there is no indication the Agency was ever provided with
that address when child support was contacted. County counsel replied that the child
support document was from before the dependency case began, and the record shows that
the social worker contacted child support on November 30, 2017. Father’s counsel
acknowledged there was no showing father was physically present at the San Leandro
address, although father stated he used it as a mailing address and had been served there
in person by child support. Neither document was submitted to the juvenile court and
neither is part of the appellate record, although the juvenile court did accept an offer of
proof that there was an address in San Leandro some months before the petition was
filed.
The juvenile court noted the Agency’s efforts had to be reasonable, not perfect,
and need not be successful. The juvenile court found that the Agency made many
attempts to locate father. Relying on In re Justice P. (2004) 123 Cal.App.4th 181(Justice P.), the juvenile court said that when a child has not seen the father in a number
of years and where reasonable efforts have been made to locate a parent, the dependency
process can proceed. The juvenile court observed that if a parent later surfaces, it does
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not automatically follow that the best interests of the child would be promoted by re-
litigating the case. The juvenile court found that the Agency’s efforts to locate and give
notice to father were reasonable and it was not in the minor’s best interests to return the
case back to the jurisdictional phase.
Father filed a timely notice of appeal.
DISCUSSION
Father argues the Agency failed to exercise reasonable due diligence in attempting
to locate him and notify him of the dependency case. Specifically, he asserts that “for the
entirety of the dependency proceedings, [father] was on probation, and the Agency never
contacted any probation agencies.”
“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.” (In re Claudia S. (2005)
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. [Citation]. The term
‘reasonable or due diligence’ ‘ “denotes a thorough, systematic investigation and inquiry
conducted in good faith.” ’ ” (Ibid.) Nevertheless, due diligence requires “a reasonable
search effort” -- not a Herculean one. (Ibid.) A search effort is reasonable if it is the type
of effort that a person “desirous of actually informing the [parent], might reasonably
adopt to accomplish it. (Ibid.) A search effort is not reasonable if it “ ‘ignores the most
likely means of finding the [parent].’ ” (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598.)
We review the juvenile court’s factual finding that the Agency acted with due diligence
for substantial evidence. (In re S.K. (2018) 22 Cal.App.5th 29, 37.)
Substantial evidence supports the juvenile court’s finding that the Agency acted
with due diligence in trying to locate and notify father about the pending dependency
proceeding. As discussed above, the Agency made extensive efforts to locate father,
serving notice at several possible addresses and searching a variety of databases for any
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available information about him. Although the Agency’s efforts to locate father were
unsuccessful, we agree that the efforts were reasonable and satisfy due process.
Father faults the Agency for failing to contact the probation department when
there was information he might have been on probation. It is not apparent from the
record, however, that contacting probation would have revealed any information about
father’s whereabouts. Father failed to make a showing in the juvenile court that the
Agency would have been able to locate his Grove Way address in Hayward, California,
by any reasonably available legal means.
Additionally, it is not clear from the record that the child support records would
have shown the San Leandro, California address for father during the time of the
dependency case. Father claimed in the juvenile court that the address was ascertainable.
The record contains an offer of proof that he had an address in San Leandro known to
child support months before the petition was filed, but father did not provide the juvenile
court with evidence that the San Leandro address was reasonably ascertainable at the
time the social worker contacted child support or that father could have been found at that
address after the dependency began. Nor was there any evidence that father had updated
his address with child support in the interim. The November 2017 initial non-detaining
report and the December 2017 jurisdiction report stated that on November 30, 2017, the
social worker contacted the Yolo County Superior Court and the Yolo County Child
Support Services as part of its efforts to locate father. The San Leandro address was not
obtained from either source during those contacts.
Father has not established that his address was reasonably ascertainable. (In re
Emily R. (2000) 80 Cal.App.4th 1344, 1352.) On this record it was appropriate for the
juvenile court to conclude that the Agency’s attempts to locate father were reasonable.
The juvenile court also properly found that it was not in the minor’s best interests
to return the case to the jurisdictional phase. Father has failed to establish otherwise.
(Justice P., supra, 123 Cal.App.4th at p. 188.) There is no automatic return to
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jurisdiction based on a lack of notice, especially here where father would not qualify as a
presumed father and would not be entitled to services. (Id. at p. 191.) When
reunification is no longer an issue, the focus is on the child’s interest in a permanent and
stable placement. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309).) In essence, father
sought to begin the dependency proceedings over again, even though it was highly
unlikely he could obtain custody of S.M. He had very little contact with S.M. after his
birth, failing to communicate with him or support him. He had no parental bond with
S.M. He had a lengthy violent criminal history, including allegations of abuse against
S.M. and his mother, human trafficking of the mother, and had two other children
removed from his care and his parental rights terminated as to one of them. Under these
circumstances, substantial evidence supports the juvenile court’s finding that it was not in
S.M.’s best interests to return to the jurisdictional phase of the dependency proceedings.
DISPOSITION
The orders of the juvenile court are affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
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