In re D.R.

Filed 8/30/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re D.R. et al., Persons Coming B293330
Under the Juvenile Court Law.
________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK13555A-B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
P.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Kim L. Nguyen, Judge. Reversed and
remanded with directions.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Stephanie Jo Reagan, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Father, P.R., appeals the denial of his motion to modify
judgment, made pursuant to Welfare and Institutions Code
Section 388.1 Father claims the Los Angeles County Department
of Children and Family Services (DCFS) failed to give him
adequate notice of dependency proceedings involving his two
children. DCFS had served him by publication only. The
juvenile court found notice through publication was adequate,
because DCFS had exercised reasonable due diligence to find him
when his whereabouts were unknown. We conclude the court
erred in finding reasonable due diligence. We also find the
Hague Service Convention applies because Father is a resident of
Mexico. The lack of reasonable due diligence and DCFS’s failure
to comply with the Hague Service Convention warrants reversal
of the judgment and remand to the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Dependency Matters
In July 2001, Father’s eldest three children were subjects of
dependency petitions. In September 2002, family reunification
services were terminated due to the parents’ “non-compliance”
and in January 2004 the children were placed with maternal
grandmother. In April 2009, Father’s female companion struck
one of the older children on the leg with a belt. In August 2009,
due to Father’s failure to provide care and supervision for the
children, the court ordered permanent placement for two of the
older still-minor siblings.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
B. Petition and Detention
On September 29, 2015, DCFS filed a petition alleging Z.R.
and D.R., then ages 4 and 6 respectively, came within the
jurisdiction of the juvenile court under section 300. Count (a)(1)
of the petition alleged mother burned Z.R. with a hot spoon on
the arm and mouth, and also struck Z.R. on the face with a belt.
Count (b)(1) of the petition alleged the Z.R. faced substantial risk
of suffering serious physical harm because of mother’s inability to
supervise or protect the child. Count (j)(1) alleged mother’s abuse
of Z.R. showed there was potential for abuse of Z.R.’s sibling, D.R.
Mother told DCFS Z.R. and D.R.’s biological Father, P.R.,
had been deported to Mexico in 2014. P.R. was named as the
presumed father on the DCFS petition. This was confirmed at
the detention hearing. During the detention hearing on
September 29, 2015, the juvenile court removed the children from
mother’s care and ordered reunification services for her. The
court continued the arraignment hearing for Father to October
2015. The court ordered DCFS to follow up on contact
information they had for Father and to attempt to retrieve a
mailing address for him. At the next hearing, in October, no
contact had been made with Father and the hearing was
continued to January 2016.
C. Combined Jurisdictional and Disposition Hearing
January 7, 2016
At the combined jurisdictional and disposition hearing, the
court found DCFS had shown “due diligence” in attempting to
find Father, whose whereabouts were still unknown. The court
found notice had been given as mandated by law. The court then
declared Z.R. and D.R. dependent children under sections
300(a)(b) and 300(a)(b)(j), respectively, and removed them from
3
mother’s custody. The court also limited mother’s right to make
educational decisions. Even though the court had just made a
due diligence finding, the court continued the disposition hearing
as to Father, directing DCFS to follow up on his telephone
number in Mexico and on the “Facebook information,” referring
to information obtained from adult son Joel about Father’s
Facebook account.
D. Father’s Disposition Hearing February 23, 2016
The dependency investigator “followed up” with Z.R. and
D.R.’s older half-sibling Joel. Joel told the investigator he had
had no contact with Father for “about 4-5 months” and the last
contact he had was through Facebook. Joel also reported
relatives in Riverside had told him they did not have any
information as to Father’s whereabouts. The investigator
conducted a Facebook search with the “available information,”
that is, Father’s name and birthdate, and was unable to
accurately identify Father’s Facebook profile because there were
“too many [people with the name ‘P.R.’] to identify.” The
investigator also talked to a staff member at Joel’s group home
who stated Joel had reported no contact with Father. At the
continued hearing the court ordered that Z.R. and D.R. remain
dependents, ordered no reunification services for Father, and
permitted only monitored visitation if and when Father made
contact with DCFS.
E. Twelve-Month Status Review Hearing and Continuances
For the 12-month status review hearing in February 2017,
DCFS submitted a due diligence report as to Father. The due
diligence report revealed searches of 21 sources including
governmental agencies, military agencies, and three previous
local addresses. However, it had no mention of any attempt to
4
locate Father through social media or to ask for the help of adult
son Joel.
The court further continued the 12-month review hearing
to March 2017 for proper notice to Father. In preparation for this
hearing, DCFS sent a letter to an address for Father in La
Puente, California that was returned “Return to Sender-
Attempted-Not-Known-Unable to Forward.” DCFS also
attempted to visit the address in La Puente, to no avail. Again,
DCFS made no mention of attempts to locate Father on social
media or to ask for Joel’s help in that regard. The court then set
a section 366.26 permanency and placement plan hearing.
F. Section 366.26 Hearing July 2017 and September 2017
DCFS prepared a report for the section 366.26 hearing with
the two prior due diligence reports that had found four local
addresses. DCFS attached an application to notice Father by
publication, which the court granted. The court continued the
section 366.26 hearing to find adequate placement for the
children.
At the September 2017 section 366.26 permanent plan
hearing, Father’s whereabouts were still unknown to the court.
However, older half-sister Blanca appeared and DCFS was
ordered to assess her for placement and visitation. DCFS
attached a last minute information report showing notice to
Father by publication in the Los Angeles Bulletin.
At an unmonitored visit On September 18, 2017 with
Blanca, Z.R. talked with Father by cell phone. Blanca also told
DCFS, as had her brother Joel, she had contact with Father via
Facebook. DCFS asked Blanca for and received Father’s
telephone number in Mexico. But when DCFS tried the number
a recording stated the call “could not be completed as dialed.”
5
Blanca was then asked by DCFS to provide a mailing address for
Father. By the time of the status review hearing in March 2018,
however, she had failed to do so. DCFS then conducted another
due diligence search that brought about addresses located in
California only. Again, as with Joel, DCFS never asked Blanca
about Father’s Facebook profile nor did DCFS research his
whereabouts in Mexico after being given a Mexican telephone
number.
G. Father’s Whereabouts Become Known
At the hearing on June 14, 2018, the court announced
Father’s whereabouts had become known. Father had emailed
minor’s counsel on May 8, 2018 about the possibility of “ ‘getting
the children.’ ” A new social worker contacted Father at his
telephone number in Mexico, different than any previously
provided number, and Father said he was interested in custody.
Father stated he had heard from Blanca that the children were
being moved towards adoption and he had trusted her to “take
care of things.” He provided his address in Tijuana and stated he
was “disappointed in his daughter Blanca” because she had not
taken care of things.
The court ordered counsel to reach out to Father and
determine if he wished to be represented. On July 2, 2018,
counsel advised the court he was able to make contact with
Father who wished to be represented. Counsel asked the court to
allow him to specially appear and allow him time to research any
potential Ansley or Hague Service Convention issues.
6
H. Father’s section 388 petition
On July 18, 2018, Father filed a section 388 petition. The
section 388 petition asked the court to vacate the jurisdictional
and dispositional orders as they pertained to Father for lack of
notice. At the continued hearing on August 16, 2018, the court
denied the petition for failing to state “even a prima facie
showing that relief is warranted.” Counsel was also appointed for
Father. The court stated it was unreasonable to ask the
department to attempt to locate Father in Mexico “with no
further information as to his whereabouts.” The court
emphasized Father had no contact with the children Z.R. and
D.R. a year before the dependency hearings and no contact for
the two years since the hearings began.
Father timely appealed.
DISCUSSION
Father contends the court violated his right to notice
because DCFS could have found him through Facebook or by
questioning the mother. He argues all orders pertaining to him
must be reversed. He further argues all orders pertaining to him
should be reversed for failure to comply with the Hague Service
Convention in order to acquire personal jurisdiction over him.
A. DCFS’s efforts did not constitute reasonable due diligence.
A judgment is void for lack of personal jurisdiction over the
person where there is no proper service of process on or
appearance by a party to the proceedings. This fundamental
principle of jurisdiction applies to juvenile dependency
proceedings. (David B. v. Superior Court (1994) 21 Cal. App. 4th
1010, 1016 (David).) A section 388 petition is the correct method
for raising a “due process challenge based on lack of notice.”
(In re Justice P. (2004) 123 Cal. App. 4th 181, 189 (Justice).)
7
A parent’s interests in the “companionship, care, custody,
and management of his or her children” are one of the most
fundamental recognized civil rights. (Stanley v. Illinois (1972)
405 U.S. 645, 651.) Therefore, before depriving a parent of those
interests the parent must be given adequate notice and an
opportunity to be heard. (In re B. G. (1974) 11 Cal. 3d 679, 688–
689.) Due process notice is “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.” (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S.
306, 314 (Mullane).) Here, DCFS did not give reasonably
calculated notice.
In re B. G. is a good starting point. There, mother was a
Czech national living in Czechoslovakia when her children in
California were placed in foster care after their father’s death.
DCFS failed to ask the grandparents about mother’s whereabouts
when it was aware they were in contact with her over the
previous two years and had her address. (In re B. G., supra,
11 Cal.3d at p. 689.) Neither did DCFS request help from the
“Czech Embassy or through international organizations” to send
notice to mother. (Ibid.) Our Supreme Court held “total absence
of notice in any form cannot comport with the requirements of
due process.” (Ibid.; see Mullane, supra, 339 U.S. at pp. 314-315.)
Similarly, in In re Arlyne A. (2000) 85 Cal. App. 4th 591
(Arlyne), DCFS filed a dependency petition on behalf of five
minors. Father could not be located. One of the minors stated
the Colton police knew where father worked and grandmother
told the court the Colton police department had father’s
“ ‘address, his Social Security number, his work address, and
everything . . . .’ ” (Id. at p. 595.) Moreover, more timely
8
information supplied by both Arlyne’s attorney and the child
indicated both parents were living in Rialto. (Id. at p. 598.)
The court ordered DCFS to follow up on the information and
continued the hearing. DCFS did not produce the Colton police
report. The juvenile court found due diligence. (Id. at p. 595.)
In holding the juvenile court’s finding of due diligence was
not supported by the record, the appellate court emphasized that
DCFS had searched standard avenues available to help locate a
missing parent, but failed to search the “specific ones most likely,
under the unique facts known to the Department, to yield
appellant’s address.” (Arlyne, supra, 85 Cal.App.4th at p. 599.)
DCFS had failed to follow the simplest step of calling directory
assistance in Rialto. (Id. at pp. 598–599.) It also failed to
“thoroughly and systematically” follow through on the child’s tip
by asking the Colton police for its report. (Id. at p. 599.) The
court also determined it was “unreasonable” to limit the search to
a five-year old Fontana address when DCFS knew the last
address was in Colton. (Ibid.)
Here, although DCFS did not know for sure it could obtain
Father’s address from his eldest son Joel, there was an actual
possibility DCFS could have located Father or valid contact
information had it asked for help from Joel in accessing Father’s
Facebook account. Moreover, Blanca had the same Facebook
information which DCFS inexplicably failed to pursue. Both of
Father’s older children were cooperative and available, yet DCFS
did not take advantage of their Facebook access to Father to
provide notice reasonably calculated to apprise him of the
proceedings.
9
Instead, rather than work through Joel and Blanca, DCFS
searched almost two dozen United States government databases,
well aware Father had been deported to Mexico. Not once did
DCFS follow the most likely means of being able to actually
identify Father and gain his contact information to notify him.
(Arlyne, supra, 85 Cal.App.4th at p. 599.)
The trial court found it was unreasonable to ask the
department to locate Father in Mexico “with no further
information as to his whereabouts.” We disagree. It was not
unreasonable to ask DCFS to locate father in Mexico because
DCFS simply could have asked Joel or Blanca to show it the
correct Facebook profile of Father. This is not a case where we
have no information as to Father’s whereabouts. This is a case
where there were leads from cooperative family members. The
lack of reasonable due diligence by DCFS during its investigation
is the reason there was no “further information as to his
whereabouts.”
Significantly, the use of social media to contact parents
whose whereabouts are unknown was not a new concept to DCFS
as it had already attempted its own unassisted Facebook search
using only Father’s name and birthdate. Following up with Joel
and Blanca would have been the most likely avenue of success in
locating father under the circumstances. (Arlyne, supra, 85
Cal.App.4th at p. 599.)2
2 It is also unexplained why DCFS did not follow up with
mother when she told the juvenile court she had taken the
children to visit Father in Tijuana, where he was living after
being deported.
10
B. Notice through publication is invalid because we determine
there was no due diligence inquiry.
Service by publication is sufficient to meet the
requirements of jurisdiction only when a person’s whereabouts
remain unknown despite reasonably diligent inquiry. (David,
supra, 21 Cal.App.4th at p. 1016; Donel, Inc. v. Badalian (1978)
87 Cal. App. 3d 327, 332.) “The term ‘reasonable diligence’ as used
to justify service by publication ‘denotes a thorough, systematic
investigation and inquiry conducted in good faith . . . .’ ” (David,
supra, 21 Cal.App.4th at p. 1016.) Where the party conducting
the investigation ignores the most likely means of finding the
defendant, the service is invalid, even if the affidavit of diligence
is sufficient. (Ibid.; see also Kott v. Superior Court (1996)
45 Cal. App. 4th 1126, 1137–1139 [same].)
As we have found, DCFS ignored the most likely means of
finding Father. DCFS facially complied with the requirements of
searching government databases, mailing notice to previous
known addresses, and following up at said addresses. However,
DCFS did not take steps a reasonable person would have if it
were truly trying to give notice, such as asking for help from the
half-sibling(s) who told the department they were in contact with
Father through social media. Service by publication was invalid.
C. Because the Hague Service Convention applies and its
requirements have not been met, automatic reversal is
required.
Error in dependency proceedings is typically subject to
harmless error review. (Justice P., supra, 123 Cal.App.4th at
p. 193; In re A.D. (2011) 196 Cal. App. 4th 1319, 1325–1326.)
However, because Father is a resident of Mexico, DCFS was
obligated to comply with the requirements of the Hague Service
11
Convention. (Volkswagenwerk Aktiengesellschaft v. Schlunk
(1988) 486 U.S. 694, 698.) The Hague Service Convention is
intended to provide a simpler way to serve process abroad, to
assure that defendants sued in foreign jurisdictions would receive
actual and timely notice of suit, and to facilitate proof of service
abroad. (Ibid.) It requires each participating country to
designate a “Central Authority” for receipt of or requests for
service of process. (In re Alyssa F. (2003) 112 Cal. App. 4th
846, 852 (Alyssa).)
The United States and Mexico are both signatories to the
Hague Service Convention. (In re Vanessa Q. (2010)
187 Cal. App. 4th 128, 134 (Vanessa).) The Hague Service
Convention applies to service on a resident of Mexico of a civil
complaint filed within the United States, including petitions
“brought under family law or juvenile dependency law.” (Ibid.;
see also Code Civ. Proc., § 413.10, subd. (c).) Notice of
jurisdictional and disposition hearings must be served according
to the Convention’s guidelines. (In re Jennifer O. (2010)
184 Cal. App. 4th 539, 547; In re Jorge G. (2008) 164 Cal. App. 4th
125, 134–135.) Notice is required to acquire “personal
jurisdiction” over the nonresident parent. (Alyssa, supra,
112 Cal.App.4th at pp. 851–852.) Failure to comply with the
Hague Service Convention would invalidate all proceedings with
respect to Father, unless an exception applies. (Ibid.)
Here, it is undisputed that there was no compliance with
the Convention as to notice for the jurisdictional and disposition
hearings. DCFS proffers two exceptions to the requirements of
the Hague Service Convention, none of which apply here. First,
the Hague Service Convention does not apply when the
whereabouts of the person in question are unknown, despite a
12
reasonable due diligence search. (In re R.L. (2016) 4 Cal.App.5th
125, 147.) Here, we have determined DCFS failed to conduct a
reasonable due diligence search that was a “ ‘thorough,
systematic investigation and inquiry conducted in good
faith . . . .’ ” (David, supra, 21 Cal.App.4th at p. 1016; In re R.L.,
at p. 147.) Without reasonable due diligence, service is governed
by the Hague Service Convention. (Ibid.; Lebel v. Mai (2012)
210 Cal. App. 4th 1154, 1160–1161.)
Second, a general appearance by a party is equivalent to
personal service of summons on such party and jurisdiction of the
court can be acquired by way of a general appearance. (Vanessa,
supra, 187 Cal.App.4th at p. 135; In re Jennifer O., supra,
184 Cal.App.4th at p. 548.) The determination of special
appearance versus general appearance is based on the “character
of the relief sought,” not by statements of intention of the party.
(Slaybaugh v. Superior Court (1977) 70 Cal. App. 3d 216, 221.)
A general appearance occurs when the party takes part in the
action and “ ‘in some manner recognizes the authority of the court
to proceed.’ ” (Vanessa, at p. 135.)
The record shows counsel first appeared for Father on July
2, 2018 as “special counsel” and requested a continuance to
review the files to determine whether to file a section 388 petition
or other petition related to notice issues. On July 18, 2018,
counsel then filed a motion pursuant to section 388, asking the
court to: “void and vacate all findings and orders pertaining to
the adjudication hearing on January 7, 2016 and the disposition
hearing on February 23, 2016 as to Father and start de novo with
arraignment on the petition with counsel appointed for Father,
helping him navigate the complexities of dependency court and
advocating for him to regain custody.”
13
DCFS argues counsel’s July 2 appearance constitutes a
general appearance and thus cures any claim of lack of personal
jurisdiction or defective service of process. We do not agree.
Counsel could not have been clearer that he was making a special
appearance and requesting a continuance on behalf of father to
investigate and pursue notice issues. Father in no way
acquiesced to the court’s personal jurisdiction over him.
DISPOSITION
We reverse all orders as to Father only and remand with
instructions to commence de novo with arraignment and
adjudication after providing Father with proper notice.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, ACTING P. J.
WILEY, J.
14