Opinion
F043489.
11-25-2003
In re CHRISTINA T., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. RALPH T., Defendant and Appellant.
David Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT
Ralph T. appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his daughter, Christina. He contends his due process rights were violated because he did not receive notice of the proceedings. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Respondent Kern County Department of Human Services (the department) initiated the underlying dependency proceedings in April 2002 after the mother of two-year-old Christina was arrested for being under the influence of a controlled substance. In its investigation, the department learned from the mother and maternal grandmother that appellant was Christinas father and he may be living in Nevada, possibly in Las Vegas.
Both women expressed considerable fear of appellant because he allegedly broke into the maternal grandmothers Bakersfield home in November 2001 and raped Christinas mother. On another occasion, he grabbed Christina in an attempt to take the child from her mother and ran down a street in traffic with Christina under his arm. The mother claimed there was a history of domestic violence between her and the father and that she had no contact with him. An initial search of criminal justice records confirmed the father had been arrested in November 2001 on rape and burglary charges. This arrest fell on the heels of his jail release following his no contest plea on assault charges. A later search would reveal an even greater domestic violence history.
Between late April and May 2002, the department attempted to ascertain appellants whereabouts to give him notice of the dependency proceedings. Having determined appellants date of birth and social security number, the department unsuccessfully searched a wide variety of local, state and federal government records, three Internet website search services, telephone directories and directory assistance for Bakersfield, Lamont, and Las Vegas, and a Bakersfield area Polk Directory. Contact with the Kern County Child Support Services and the Criminal Justice Information System (CJIS), on the other hand, led to a last known address and telephone number for appellant as of August 2001 in Las Vegas. A department employee called the telephone number on five different dates without success. The employee also mailed a letter notifying appellant of the proceedings to the Las Vegas address. The department, however, received no response.
The CJIS search also revealed appellants criminal record dating back to July 1998 in Bakersfield and identified his mother as Virginia T. This information led the department employee to discover a Las Vegas telephone listing for Virginia T. The employee called the Las Vegas number and spoke to a female who identified herself as "Violet." After the employee identified herself and requested any information pertaining to Virginia T. or Ralph T., "Violet" said she know no one by those names.
At a May 23, 2002, hearing, the court exercised its jurisdiction over Christina pursuant to section 300, subdivisions (b) and (j). Relevant to this appeal, the court also found the fathers whereabouts were unknown and "[r]easonable efforts to locate [him] have been unsuccessful." The court reiterated these findings in this regard at a June 2002 dispositional hearing. The department had reported to the court that no new information had come to light regarding the father since the jurisdictional hearing.
In the meantime, questions arose about the mothers mental health and whether she could benefit from services. Although she appeared cooperative, she did not appear to remember some conversations that had occurred while at the same time, she "remembered" nonexistent conversations. She would contradict herself as well without any apparent realization that she had done so. She also spoke in fragments and made reference to things that did not exist. As a result, the court ordered two psychological assessments of the mother as part of a reunification plan.
The doctors eventually would reach differing diagnoses. Ones impression was that the mothers primary problems were alcohol dependence, cannibus abuse and anxiety disorder. The other doctor diagnosed her with post-traumatic stress disorder and attention deficit disorder as well alcohol and cannabis abuse in remission.
Despite reunification services, the mother made little progress. Consequently, by November 2002 the department recommended, in light of Christinas young age, that the court terminate services and move on to permanent planning. In preparation for the courts review hearing, the department submitted a declaration of diligent search for Christinas father. Once again in November 2002, the department searched a wide variety of local, state, and federal government records and online search services. Neither was the father in local, state, or federal custody nor were there any current address or telephone listings for him or his mother in the State of California or Nevada. At best, according to the state welfare system and county human services records, appellant and his mother might be living in Las Vegas, Nevada.
In December 2002, the court conducted its review hearing at which time it terminated services for the mother and set a section 366.26 hearing. Noting the declaration of diligent search in its file, the court found the fathers whereabouts were unknown and reasonable efforts to locate him had been unsuccessful. Given the departments authorization to publish notice to the father, the court also asked the mother "one more time" as well as the maternal grandmother and an uncle whether they had any contact with the father or any idea where he was. The mother and the others replied "No."
Despite the authorization to publish notice for the father, the department repeatedly attempted to serve the father by both certified mail and first-class mail at the last known address in Las Vegas. A third party signed for one notice mailed in December. The notice sent by first-class mail in February 2003 was returned with two notations on the envelope. The word "moved" was handwritten to the left side of the fathers name and address and in the bottom left-hand corner was stamped the words "RETURN TO SENDER ATTEMPTED NOT KNOWN." In turn, the department successfully sought a continuance of the section 366.26 hearing to publish notice in a timely fashion, as previously authorized.
In the meantime, the department secured a certified copy of Christinas birth certificate. It listed the fathers name and showed his birthplace as Arizona.
The department thereafter published notice in March 2003 of the continued section 366.26 hearing date pursuant to section 294 in a Bakersfield newspaper of general circulation. Nevertheless, the department still tried to mail notice to appellant of the hearing. Another notice mailed in late April 2003 to the last known Las Vegas address came back with a label listing the fathers last name and another street address in Las Vegas. This led the department in early May 2003 to send notice by both certified mail and first-class mail to the forwarding address. Yet another third party received and signed for the certified mail notice.
The court finally conducted the section 366.26 hearing on May 15, 2003. As was the case in the preceding hearings, the father did not appear. Having found Christina adoptable, the court terminated parental rights. In the process, the court found proper notice was provided to the father. The father filed a notice of appeal on July 3, 2003, from the termination order. On the form notice, appellant listed a Superior, Arizona, address.
DISCUSSION
In claiming he did not receive proper notice of the underlying proceedings, appellant essentially makes three arguments. One, he contends the department failed to conduct a diligent search by not making detailed inquiries of the mother and maternal grandmother about how to best locate him and not making a further inquiry once it received Christinas birth certificate, showing Arizona as his birthplace. Two, he criticizes the court for not inquiring of the mother, pursuant to section 316.2, as to the identity and address of all presumed or alleged fathers. Third, appellant challenges the notice by publication because there was no reasonably diligent search and the notice was futile, having been published in Bakersfield. Having reviewed the record as summarized above, we find no merit in appellants claims.
Appellant interweaves into these arguments his complaint that the department referred to him as an alleged father when the mother told the department she was married to him. Assuming for sake of argument that appellant was the childs presumed father, this may strengthen his claim to due process but we fail to see how it impacts the question of whether there was due diligence.
Appellants interest in the companionship, care, custody, and management of Christina is a compelling one, ranked among the most basic of civil rights. The state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard. (In re B. G. (1974) 11 Cal.3d 679, 688-689.) The means employed to give notice must be such as one, desirous of actually informing the absentee, might reasonably adopt to accomplish it. (In re Antonio F. (1978) 78 Cal.App.3d 440, 450.)
In order for the juvenile courts orders leading up to the section 366.26 hearing to be accorded finality, there is a "fundamental requirement of due process;" that is, 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. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1351; citing Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314.)
Where, as in this case, the department alleged appellants whereabouts to be unknown, the issue becomes whether due diligence was used to locate him. (In re Emily R., supra, 80 Cal.App.4th at p. 1352; citing Mullane v. Central Hanover Tr. Co., supra, 339 U.S. at pp. 317 & 319.) The term reasonable or due diligence, as used to justify service by publication, denotes a thorough, systematic investigation and inquiry conducted in good faith. If a 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. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598.)
In this case, the court, on more than one occasion, found that the department exercised reasonable or due diligence to locate appellant. Thus, it is appellants burden to establish the courts findings were not supported by substantial evidence. (In re Amy M. (1991) 232 Cal.App.3d 849, 859; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72.) On review, we conclude appellant has failed to satisfy his appellate burden.
Even appellant admits in his opening brief that the department made "substantial efforts to locate [him]." While appellant condemns the department for ignoring the most likely means of finding him, his argument is speculative. There is nothing in the record to suggest either woman had more information or that either woman was withholding information about his whereabouts. Indeed, the information that the mother did provide was confirmed by the departments subsequent search. In addition, the departments inquiry appears reasonable given that each woman expressed fear of the father based on his propensity for domestic violence and the increasing difficulty the department had in communicating with the mother.
As for the departments late discovery that appellant was born in Arizona 44 years earlier, we fail to see how that should have prompted a further inquiry on the departments part. Given todays mobile society, it was not reasonable to require the department to initiate a further inquiry or a search of Arizona records merely because, more than 40 years earlier, the father was allegedly born in Arizona. On this record, we conclude the department acted in good faith in its attempts to locate appellant.
As for the juvenile court, it is true the court did not conduct the inquiry required by section 316.2. Although the record discloses no such inquiry by the court, we fail to see how the error was prejudicial in this case. According to the record, all the mother knew was that the father might be in Las Vegas. The department still made a diligent search for him, as the court twice found. Further, we note the court did ask the mother, the maternal grandmother, and even an uncle at the hearing in December 2002 whether they had any contact with the father or any idea where he was and they had no information to provide.
That section provides in relevant part:
"(a) At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers. The presence at the hearing of a man claiming to be the father shall not relieve the court of its duty of inquiry. The inquiry shall include at least all of the following, as the court deems appropriate:
"(1) Whether a judgment of paternity already exists.
"(2) Whether the mother was married or believed she was married at the time of conception of the child or at any time thereafter.
"(3) Whether the mother was cohabiting with a man at the time of conception or birth of the child.
"(4) Whether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy.
"(5) Whether any man has formally or informally acknowledged or declared his possible paternity of the child, including by signing a voluntary declaration of paternity.
"(6) Whether paternity tests have been administered and the results, if any.
"(7) Whether any man otherwise qualifies as a presumed father pursuant to Section 7611, or any other provision, of the Family Code."
Finally, as for the departments publication in Bakersfield, it is questionable why, since the last known address for the father was in Nevada, the department did not publish notice in that state or, more specifically, in Las Vegas. Nevertheless, appellant concedes in his opening brief that he was living in Arizona at the time of the departments publication. Thus, any error in this regard was harmless beyond a reasonable doubt.
In conclusion, appellant has failed to establish that his due process rights were violated in this case.
Expansion Of Appointment
During the pendency of this appeal, appellate counsel twice applied to expand his appointment to file a petition for writ of habeas corpus. He claimed he had uncovered evidence outside the appellate record which would cast doubt on the courts due diligence findings. This court denied without prejudice counsels first application on the theory the direct appeal might resolve the matter. Counsel in turn filed a second application urging expansion because appellant could not show he did not receive the notices the department mailed to him and further he would lose on appeal.
By this opinion, we deny counsels second application. Notwithstanding this courts rejection of habeas petitions following orders terminating parental rights (In re Meranda P. (1997) 56 Cal.App.4th 1143), counsels offer of proof in favor of expanding his appointment in fact supports a contrary conclusion.
Counsels declarations in support of his expansion application purportedly focus on appellants claim on this appeal that the department should have inquired of the mother and maternal grandmother about his relatives and friends and that the mother intentionally withheld information. Yet, we note counsels declarations also confirm that in fact a relative of appellant received at least one of the departments mailed notices prior to the section 366.26 hearing and yet the relative made no effort to contact or track down appellant. Thus, such an offer of proof casts doubt on appellants claim that a further inquiry would have led to discovery of his whereabouts. We further deem the balance of counsels declarations too attenuated to undermine the result in this case.
DISPOSITION
The order terminating parental rights is affirmed.