Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County.Ct. No. CK59092 Emily Stevens, Judge.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Mother appeals from the order terminating her parental rights to her son, M.A. She contends she was denied due process as a result of the failure of the Department of Children and Family Services (the department) to give her adequate notice of the Welfare and Institutions Code section 366.26 hearing. We affirm.
Because the single issue on appeal is the sufficiency of statutory notice, we set out only essential facts related to jurisdictional findings and reunification services. All future undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
M.A. was four years old in May 2005, when he was detained and a section 300 petition was filed after his then eight-year-old half-sister, K.H., reported that M.A.’s father had sexually abused K.H. As eventually sustained, the petition alleged mother’s alcohol abuse rendered her incapable of caring for the children (§ 300, subd. (b)); mother failed to cooperate with a prior voluntary maintenance contract (ibid.); mother’s failure to protect K.H. from sexual abuse endangered both children (id., subd. (d)); and the sexual abuse of a sibling endangered the children (id., subd. (j)).
K.H. was eventually reunited with her biological father and this appeal does not concern any orders relating to K.H.
Mother appeared and was appointed counsel at the detention hearing on May 16, 2005, at which time the dependency court advised mother that it was her responsibility to notify the court and the department in writing of any change of address and that notices would be sent to her last known address – Van Nuys Blvd. in Pacoima – until she had done so. Mother was ordered back for a June 2005 adjudication hearing.
The report for the adjudication hearing gave an address on Woodman Ave. in Arleta for mother. But the telephone number mother gave to the department was found to be disconnected and mother did not provide a new number. Mother appeared at the hearing, the petition was sustained and the matter was continued to December 2005 for a review hearing (§ 366.21).
In the months that followed, mother only partially complied with the case plan. The report for the December 2005 hearing gave mother’s address as Blythe Street in Panorama City for mother. Notice of the hearing was sent to mother by first-class mail at this address. Mother did not appear at the hearing but was represented by counsel, who did not object to the notice. The matter was set for a June 2006 permanency hearing (§ 366.21, subd. (f)).
In February 2006, the department learned that mother had been arrested under an alias. In March 2006, mother informed the department that she had been hospitalized.
The social worker personally served mother with notice of the June 6, 2006 hearing at a meeting at the department office on May 3, 2006. Notice of the hearing was also mailed to mother on May 22, 2006, at an address on Venice Blvd. in Los Angeles. Although the report for the hearing listed that as mother’s address, the body of the report stated that mother had been evicted the previous October and had been unable to establish a new residence; since May 17, mother’s whereabouts had been unknown. Mother did not appear at the June hearing; her counsel objected that notice was one day short. (§ 294, subd. (c) [notice of review hearings must be served not earlier than 30 days and not later than 15 days before the hearing].) The hearing was continued to July to perfect notice.
Although the report for the July hearing gave the Blythe St., Panorama City address for mother (the address listed on the report for the December 2005 hearing), the report stated that mother’s whereabouts were still unknown and due diligence had been initiated. Because mother was not given notice of the hearing, the matter was continued to August for a due diligence report.
For the continued hearing on August 2, 2006, the department filed a due diligence report listing the various sources the department had searched and the results of those searches. The report for that hearing gave the Blythe St., Panorama City address for mother and notice of the hearing was mailed to mother by certified mail both at that address and at the address on Venice Blvd. Mother did not appear at the hearing; her counsel confirmed that mother’s whereabouts were unknown and did not object to notice. Finding notice had been given to all parties, the dependency court terminated mother’s reunification services; it set the matter for a September 2006 hearing on the efforts to place M.A. with relatives. Thereafter, mother visited half-sibling, K.H., sporadically, including once on August 18, 2006, but did not visit M.A.
The report for the September 2006 hearing listed the address on Venice Blvd. in Los Angeles for mother. Although mother’s counsel appeared at the hearing, the hearing dealt with issues relating to K.H., not M.A. The matter was continued to November.
The report for the November 2006 hearing gave mother’s address as Cayuga Ave. in Pacoima, and notice of the hearing was mailed to mother at that address. According to the report, in October 2006, mother provided the department with the address and telephone number of a friend with whom she was staying. Mother did not appear at the hearing and her counsel did not object to the finding that notice had been given. Counsel stated: “[Mother] is not present at 10:32. I do not know why she is not present.” The matter was continued to March 2007 for a section 366.26 hearing (.26 hearing). A copy of the minute order and advisement of rights form were mailed to mother at the same Cayuga Ave. address to which notice of the hearing had been sent.
The report for the March 2007.26 hearing gave an address on Columbus Ave. in North Hills for mother. According to the report, mother had not visited M.A. since November 2006. Although no adoptive family had been identified, the department recommended adoption and termination of parental rights as the permanent placement plan. Because mother had not been given notice of the hearing, it was continued to May 2007.
The report for the May 2007 hearing gave the Columbus Ave., North Hills address for mother, but stated that mother’s whereabouts were unknown. Although notice was mailed to the North Hills address, it was not timely. Accordingly, the hearing was continued to November 2007 for proper notice.
Section 294, subdivision (c)(1) requires notice of a.26 hearing to be completed at least 45 days before the hearing; notice is complete at the time of personal service or 10 days after the notice is placed in the mail, or at the expiration of the time prescribed by the order for publication.
The report for the continued.26 hearing in November listed mother’s whereabouts as unknown. According to the report, the department had been “unable to locate mother. Mother had several addresses and different names. [The department] was able to rule out all the addresses listed in the Due Diligence. However, mother was not able to be found at any of the listed addresses.” The Due Diligence Report for the November 2007 hearing indicated the department searched for mother using the CWS/CMS index, Prison/Parole index, Probation/Parole index, WCMIS/Single index, Lexis/Nexis, Federal Bureau of Prisons, U.S. Department of Defense’s data center, County Jail, DMV, Parent Locator, Postal Service/Last Known Address for each of mother’s known addresses, Voter Registration, CYA, and Latinos En Accion. At the department’s request, the matter was continued to February 2008, and the department ordered to publish notice to mother in the Daily Commerce and Hoy (a Spanish language newspaper). (See § 294, subd. (f).) This was done in November and December 2007.
A report for a status review hearing in December 2007 lists the Venice Blvd., Los Angeles address for mother and notice of the hearing was mailed to mother at that address, but the report states that mother’s whereabouts are unknown. Although the minute order for the hearing indicates that mother was represented by counsel at the hearing, the reporter’s transcript of the hearing does not include an express appearance by the mother’s counsel. The dependency court observed that mother’s whereabouts were unknown.
The report for the continued.26 hearing in February 8, 2008 listed mother’s address as “[w]hereabouts [u]nknown” and stated that she was given notice of the hearing by publication. Notice to mother was also sent in care of her counsel. At the hearing, mother’s counsel stated: “[S]he’s not present. It’s 9:52. And I’m ready to proceed. Her whereabouts are unknown.” Counsel did not object to the dependency court’s finding that “notice [was] proper.” The dependency court continued the.26 hearing to June 2008 for the department to find a new adoptive family for M.A.
The report for the continued.26 hearing in June 2008 listed the Venice Blvd., Los Angeles address as mother’s address. The record did not include any notice to mother of the June 2008.26 hearing, but she was represented by counsel at the hearing. Mother’s counsel confirmed that mother’s whereabouts were unknown and reminded the dependency court that it had found all parties were properly noticed of the February 2008.26 hearing; counsel stated that she was ready to proceed and was submitting on behalf of mother. The dependency court found notice was proper but continued the.26 hearing to September 2008 to give M.A. additional time in his new placement; it ordered “courtesy notice.”
The report for the September 2008 hearing listed mother’s address as unknown. Notice of the hearing was sent to mother by certified mail at the following addresses: (1) in care of her counsel; (2) Venice Blvd., Los Angeles; (3) Blythe St., Panorama City; (4) Woodman Ave., Arleta (with an apartment number and without an apartment number); (5) Filmore St., Pacoima; (6) Glenbush Ave., Palmdale; (7) Van Nuys Blvd., Pacoima; (8) Bromwich St., Pacoima; and (9) Judd St., Pacoima. Mother did not appear at the hearing. Her counsel informed the dependency court: “[Mother’s] whereabouts are unknown and have been unknown. I’m unable to tell the court why she’s not present.” Counsel submitted on the department’s recommendation of adoption and termination of parental rights. Finding by clear and convincing evidence that M.A. was likely to be adopted, appropriate reunification services had been provided and no exception applied; the dependency court terminated all parental rights.
Mother filed a notice of appeal on November 12, 2008.
DISCUSSION
Mother contends the order terminating her parental rights must be reversed because the department failed to exercise due diligence to notify her of the September 2008.26 hearing. She argues that the department’s efforts were inadequate because there is no evidence the department asked mother’s sister, sister-in-law, or the fathers of M.A. and K.H. about mother’s whereabouts. In addition to opposing the appeal, the department filed a motion to dismiss mother’s appeal on the grounds that she has waived or forfeited her right to appeal the issue of notice. We deny the motion to dismiss, and affirm the order terminating parental rights.
A. The Motion to Dismiss
The department urges two separate grounds for dismissal: (1) mother has abandoned her appeal from all orders prior to the September 2008 order terminating parental rights, and (2) mother has waived or forfeited the right to appeal the order terminating her parental rights because her attorney did not object to notice.
As to the first ground, mother appeals only from the order terminating her parental rights, not from any prior orders. Since there is no appeal from any prior order, there is nothing to dismiss.
As to the second ground, dependency matters are subject to the rule that a failure to object in the trial court constitutes a forfeiture of a claim on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) This includes a claim of inadequate notice. (In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1200 [incarcerated father waived failure to give him notice of petition commencing dependency proceedings as a result of his appearance by appointed counsel at subsequent review hearing and counsel’s failure to object to notice].) But while waiver and/or forfeiture of notice may be grounds to affirm a dependency order, we are aware of no authority, and the department has cited none, that stands for the proposition that waiver and/or forfeiture is grounds to dismiss an appeal from that order. Accordingly, we deny the motion to dismiss.
B. The Appeal
Before depriving a parent of the care, custody, and management of a child, the state must give the parent notice and an adequate opportunity to be heard. (In re B. G. (1974) 11 Cal.3d 679, 688-689; In re Steven H. (2001) 86 Cal.App.4th 1023, 1031 [discussing former § 366.23, from which current § 294 is derived]; cf. In re DeJohn B. (2000) 84 Cal.App.4th 100, 106 (DeJohn B.) [discussing former § 366.21, subd. (b) (notice of status review hearings), currently § 293].) To comport with due process, notice must be “ ‘reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citation.]’ [Citation.]” (DeJohn B., at p. 106.) Where, as here, the historical facts are undisputed, we independently review a lower court’s due diligence determination. (Cf. People v. Cromer (2001) 24 Cal.4th 889, 900 [whether prosecution’s efforts to locate absent witness justified exception to the constitutional right of confrontation].)
Section 294 prescribes the notice requirements for a.26 hearing. If a parent’s whereabouts are unknown and the parent cannot, “with reasonable diligence,” be served with notice in the manner prescribed, the department must file an affidavit at least 75 days before the hearing date describing the efforts made to locate and serve the parent. (§ 294, subd. (f)(7).) “If the court determines that there has been due diligence in attempting to locate and serve the parent and the probation officer or social worker recommends adoption, service shall be to that parent’s attorney of record, if any, by certified mail, return receipt requested. If the parent does not have an attorney of record, the court shall order that service be made by publication....” (Id., subd. (f)(7)(A).) “The court may order publication notice if, on the basis of all information before the court, the court determines that notice by publication is likely to lead to actual notice to the parent....” (Id., subd. (g)(2).)
Notice must also be given to the grandparents. (§ 294, subds. (a)(5), (f)(7)(B).) Here, the grandparents were dead. Mother’s criticism that “the [d]epartment somehow found it more important to ask mother’s sister the whereabouts of mother’s parents than those of mother herself,” is unfounded, since the department was endeavoring to comply with the statute.
“[O]nce the court has made the initial finding that notice has properly been given to the parent... subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address... or by any other means that the court determines is reasonably calculated, under any circumstances, to provide notice of the continued hearing.” (§ 294, subd. (d).) In In re Angela C. (2002) 99 Cal.App.4th 389, 391, 394-395 (Angela C.), the court held that failure to give proper notice of a.26 hearing is reviewable under the Chapman v. California (1967) 386 U.S. 18, 24“harmless beyond a reasonable doubt” standard.
“ ‘The term “reasonable diligence” as used to justify service by publication “denotes a thorough, systematic investigation and inquiry conducted in good faith....” [Citation.] 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. [Citations.]’ [Citation.]” (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598 (Arlyne A.).) Mother relies on three cases to support her contention that the department did not use reasonable diligence to locate her: Arlyne A.; In Re Megan P. (2002) 102 Cal.App.4th 480 (Megan P.); and DeJohn B. As we shall explain, that reliance is misplaced.
In Arlyne A., supra, 85 Cal.App.4th 591, the mother and father were separated in the summer of 1998; the children were living with the mother at the maternal grandmother’s home and the father was living with his own parents in Rialto. That summer, the department filed a petition alleging that the father sexually abused one of the children but, because the father was not living with the children, the case was closed. In September 1998, the mother left one of the children with the maternal grandmother and moved with the other children to a new location; because the mother did not make provisions for the support or care of the child left behind, a new dependency petition was filed in November 1998, which included the sexual abuse allegations that were subject of the prior petition. The petition listed the father’s address as the family’s last known address – not the paternal grandparents’ address in Rialto. At the detention hearing, the dependency court ordered the department to provide due diligence reports for both parents. The department continued to list the father as whereabouts unknown and did not follow-up on information provided by the maternal grandmother that the father was living with his parents in Rialto. In April 1999, the dependency court found the department had used due diligence to locate the father and sustained the petition. (Id. at p. 595.) The father appeared for the first time at a hearing in May 1999; his motion to set aside the adjudicatory findings because the department had not used reasonable diligence to find him was later denied. (Id. at p. 597.) The appellate court reversed, reasoning that, although the due diligence reports demonstrated a reasonable degree of diligence in trying to locate the father, the department ignored more timely information supplied by the child’s attorney and the maternal grandmother. (Id. at p. 598.)
In Megan P., supra, 102 Cal.App.4th 480, the father of four children was living in Indiana (where the family had lived off and on) when the mother was arrested in Los Angeles and the children detained in 1996. Shortly thereafter, the Child Support Division of the Los Angeles County District Attorney’s Office (Child Support Services) located the father at his mother’s home in Indiana to demand that he pay child support, which the father did and continued to do for the next several years. Meanwhile, father’s whereabouts remained unknown to the department, which searched for him only in California, using an incorrect spelling of his last name, and never contacted Child Support Services. Over the next several years, the department failed to act on information that the father was living in Indiana. Five years later, after two of the four children had already been adopted, the department contacted Child Support Services for the first time to inquire about father’s location; that agency provided the department with the father’s Indiana address. Two days after receiving notice of the dependency proceedings, the father contacted the department and told the social worker that he had believed the children were with the mother. The appellate court reversed the order terminating the father’s parental rights.
In DeJohn B., supra, 84 Cal.App.4th 100, twin boys were detained from a day care facility when no one came to pick them up; the father was located in jail but the department made no effort to ask him about the mother’s friends or relatives who might know her whereabouts. No attempt was made to notify the mother of the hearing at which both parents’ reunification services were terminated. One month later, the department located the maternal grandmother, who provided an address for the mother. The mother immediately made contact with the social worker and explained that the father had taken the twins from a maternal uncle with whom the mother left them while she looked for work. At a continued hearing.26 hearing, the dependency court terminated parental rights. The appellate court reversed.
The court in DeJohn B., supra, 84 Cal.App.4th 100, distinguished that case from In re Melinda J. (1991) 234 Cal.App.3d 1413 (Melinda J.). (DeJohn B., at pp. 107-108.) In Melinda J., the mother (a heroin addict and prostitute) left her child with a casual acquaintance. The department sent a certified letter to the mother’s last known address; contacted the post office to determine a forwarding address; mailed a letter to the grandparents asking for help in locating the mother; and undertook a comprehensive search which uncovered several more addresses to which the department sent additional certified letters with copies of the petition. A few days after the mother’s default was taken, the social worker found the mother in jail; the social worker visited the mother in jail and provided her with referrals. But when the mother was released, she disappeared again. The department conducted another absent parent search and sent certified letters regarding the next review hearing to all addresses. The mother finally signed an acknowledgment of receipt of notice of the permanency hearing at which her parental rights were terminated. (Melinda J., at pp. 1416-1417.) Rejecting the mother’s due process challenge to notice, the appellate court noted that the department “made sincere and extensive efforts to locate [the mother]; even with the benefit of hindsight, we see nothing else that should have been done. ‘[I]t has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights.’ [Citation.]” (Id. at p. 1419.) Regarding the fact that the two hearing notices were mailed with a shorter lead time than the prescribed statutory period, the court observed the mother did not show any prejudice in as much as she did not “suggest that timely mailing to her last known address would have secured her presence at the hearings.” (Ibid.) We find Melinda J. more helpful than the cases cited by mother.
Here, the initial.26 hearing in March 2007 was continued several times because of notice problems. It was not until the continued.26 hearing in February 2008 – for which mother was noticed by publication – that the dependency court found mother had been properly noticed. Mother’s counsel did not object to the court’s finding of proper notice at this hearing, nor did counsel object to the notice given mother of the continued.26 hearings in June and September 2008. Counsel’s failure to object to notice constitutes a waiver of the issue on appeal. (In re Gilberto M., supra, 6 Cal.App.4th at p. 1200.)
Assuming for the sake of argument that the issue of notice was not waived, we conclude that the dependency court did not err in finding the department used reasonable diligence to locate and notice mother. Mother argues that, under Arlyne A., Megan P., and DeJohn B., the department did not exercise due diligence because there is no evidence that it solicited information about mother’s whereabouts from mother’s sister, sister-in-law, or the fathers of M.A. and K.H., all of whom were in contact with the department. But in each of those cases the absent parent was unaware that dependency proceedings had been initiated and the department ignored information which would have led it to locate that parent – the maternal grandmother’s information in Arlyne A.; information that the father in Megan P. lived in Indiana; and information from the maternal grandmother in DeJohn B. Here, by contrast, mother knew that dependency proceedings had been initiated. Moreover, unlike the cases relied upon by mother, nothing in the record indicates that mother’s sister, sister-in-law or the father of either child had information that could lead to mother’s whereabouts, much less that they communicated this information to the department and the department failed to follow-up. On the contrary, notice was sent to mother at each of the last known addresses the department had for her, the department sought information about mother’s whereabouts from various sources including the Parent Locator, Postal Service and Latinos En Accion; notice was sent to mother’s counsel and published in Daily Commerce and Hoy. As in Melinda J., the record reflects that the department made sincere and extensive efforts to locate mother and, even with the benefit of hindsight, we see nothing else that should have been done.
Finally, even assuming the department could have done more to locate mother, any error is harmless beyond a reasonable doubt. (Angela C., supra, 99 Cal.App.4th 389.) Mother had failed to comply with the case plan and had not visited M.A. in many months (although she was visiting his half-sister, K.H.). Even at this late date, mother has offered nothing to suggest parental rights should not have been terminated, a statutory exception applies, or there is basis for section 388 relief. Under the circumstances, the trial court’s ruling is correct.
DISPOSITION
The order terminating parental rights is affirmed.
WE CONCUR:
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.