Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. EJ2224C, Carol Isackson, Judge.
NARES, J.
Tyrone C. appeals the judgment terminating his parental rights over his daughter R.C. Tyrone contends the San Diego County Health and Human Services Agency (the Agency) and the juvenile court did not give him adequate notice of the continued Welfare and Institutions Code section 366.26 hearing, violating his due process rights and the notice provisions of section 294. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2005 when R.C. was two and one-half years old, Tyrone and R.C.'s mother, S.A., were both incarcerated. R.C. had asthma and neither parent was able to meet her needs. S.A. had a history of drug-related arrests and Tyrone left R.C. with inappropriate caretakers. The Agency accordingly filed a dependency petition. R.C. was detained in foster care and then detained and placed with a relative. In April 2008 R.C. was placed in the home of nonrelative extended family members who wish to adopt her. The section 366.26 hearing took place in December 2008.
BACKGROUND REGARDING NOTICE
Tyrone was released from jail in November 2005. He left a voicemail message for the social worker but did not include his telephone number. The Agency initiated a search. In April 2006 the Agency learned Tyrone was in jail in San Diego after being arrested in Arizona. Tyrone was released in late April and disappeared again. By May he was back in jail and by June he was in prison. Tyrone appeared at a hearing in November and was ordered to return for a May 2007 hearing. At the May hearing he filed a form "Notification of Mailing Address" (Notification) which listed a West Fourth Avenue address in Escondido.
In September 2007 the social worker told Tyrone she planned to ask the court to set a section 366.26 hearing. On October 2 the Agency served Tyrone (by mail to the West Fourth Avenue address) with notice of an October 3118-month review hearing. Tyrone attended the October 31 hearing. The court set a contested review hearing for December 18 and ordered him to return. On November 5 the court clerk mailed a copy of the October 31 minute order to the West Fourth Avenue address.
Tyrone did not return for the December 18, 2007, contested 18-month review hearing. At that hearing the court set a section 366.26 hearing for April 14, 2008. On December 19, 2007, the court clerk mailed a copy of the December 18 minute order to the West Fourth Avenue address. On January 7, 2008, the Agency left notice of the April 14 hearing with Tyrone's girlfriend, Sheila D., at a Bloomfield Road address in San Diego. On January 9 the Agency mailed the notice to Tyrone at the Bloomfield Road address.
In February 2008 the social worker tried to contact Tyrone through R.C.'s caregiver. The caregiver said she would give Tyrone the message. Several days later Tyrone left a message for the social worker. The social worker left a return message but Tyrone did not call back. On March 14 the social worker called Tyrone and set up a March 18 visit. Tyrone did not come to the visit. On March 20 S.A. told the social worker that Tyrone had been arrested. On March 21 the Agency received a referral stating Tyrone had battered Sheila on March 14 at the Bloomfield Road address where they lived.
Tyrone did not appear at the April 14, 2008, section 366.26 hearing. The court made a notice finding and continued the matter to June 10. On April 16 the court clerk mailed a copy of the April 14 minute order to the Bloomfield Road address. On April 23 the court issued an order to produce Tyrone from jail for the June 10 hearing. Tyrone was released from jail sometime before June 10 and appeared at the hearing. The court continued the matter to October 15 and ordered him to return. On June 17 the court clerk mailed a copy of the June 10 minute order to the Bloomfield Road address.
Tyrone did not return to court for the October 15, 2008 hearing. The court made a notice finding and continued the hearing to December 4, then Tyrone's counsel announced she had a new address for him. She recited an address on Aerowood Drive in San Diego and said the social worker had given her the address in June. The court ordered the petition amended to show the new address. A supplemental petition filed in March 2008 was so amended but the original dependency petition does not reflect the amendment.
On October 23, 2008, the court clerk mailed a copy of the October 15 minute order to Tyrone at the Bloomfield Road address and also sent a copy to his attorney. Tyrone did not attend the December 4 section 366.26 hearing. The court found notice was properly given and terminated parental rights.
In his notice of appeal filed one month after the section 366.26 hearing, Tyrone listed his address as the San Diego Central Jail.
DISCUSSION
Tyrone contends the court clerk mailed the October 15, 2008, minute order to his old address (Bloomfield Road) rather than to his new address (Aerowood Drive) and there is no evidence the Agency notified him of the continued December 4 hearing or attempted to confirm the Aerowood Drive address was current. The record reflects, however, that Tyrone was properly notified of the section 366.26 hearing.
The Notification Tyrone filed in May 2007 listed the West Fourth Avenue address. He never filed a new Notification listing the Bloomfield Road address, the Aerowood Drive address or any other address, although the Notification clearly stated his obligation to do so if his mailing address changed. The Notification stated: "YOU ARE REQUIRED TO PROVIDE YOUR PERMANENT MAILING ADDRESS TO THE COURT. The court, the clerk and the [Agency] will send all documents and notices to the mailing address provided, until and unless you notify the court or the social worker... of your new mailing address. Notice of the new mailing address must be provided in writing." (§ 316.1; Cal. Rules of Court, rule 5.534(m).) Furthermore, Tyrone's May Notification was the second one he had filed. His first Notification, filed in September 2005, listed an address on 33rd Street. Thus, he was clearly aware of the procedure for filing a new Notification when his address changed.
It is unclear how the Bloomfield Road address came to be accepted as Tyrone's mailing address. As Tyrone acknowledges that it was his address, at least until his alleged move to Aerowood Drive, we need not delve into that question.
Although not mandatory (In re Rashad B. (1999) 76 Cal.App.4th 442, 449, fn. 4), the Notification "(form JV-140) is the preferred method of informing the court and the social services agency of the mailing address of the parent... and change of mailing address." (Cal. Rules of Court, rule 5.534(m)(3).) While Tyrone's counsel orally stated at the October 15, 2008, hearing that the social worker had given her the Aerowood Drive address in June, there is no reference to that address in the Agency's reports or anywhere else in the record. Counsel did not file a new Notification although "[t]he form must be available in the courtroom." (Cal. Rules of Court, rule 5.534(m)(3)(B).)
Moreover, Tyrone received proper notice of the original April 14, 2008, section 366.26 hearing date. When he failed to appear, the court correctly made a notice finding. Tyrone appeared at the continued hearing on June 10, and the court ordered him to return on October 15. He did not do so, and the court properly made a notice finding at the continued October 15 hearing. Had Tyrone obeyed the court's order to return, he would have learned that the hearing was continued to December 4. Thus, his failure to attend the December 4 hearing was ultimately due to his own disobedience of the court's June 10 order to return to court on October 15.
Section 294 provides, in pertinent part, "once 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 circumstance, to provide notice of the continued hearing." (§ 294, subd. (d), italics added.) The court clerk mailed a copy of the October 15 minute order to the Bloomfield Road address and sent a copy to Tyrone's counsel. Aside from counsel's statement on October 15 regarding the Aerowood Drive address, there was every indication Tyrone was living at the Bloomfield Road address. In March the Agency received a referral stating he lived there. He appeared at the April hearing after notice was sent to the Bloomfield Road address. When he appeared in court in June he said nothing about a new address. Under these circumstances, sending copies of the minute order to the Bloomfield Road address and to counsel was reasonably calculated to provide notice of the December 4 hearing date, thus satisfying section 294.
The record does not reflect whether counsel notified Tyrone of the December 4 hearing date.
In light of counsel's oral representation that Tyrone had a new address, it would have been preferable for the court clerk to have mailed a copy of the October 15, 2008, minute order to the Aerowood Drive address in addition to the Bloomfield Road address. The failure to do so, however, did not amount to a due process violation. Due process requires notice reasonably calculated to apprise a parent of the dependency proceedings and allow him an opportunity to object. (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) "[T]here is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings." (Ibid.) "Once a parent has been located, it becomes the obligation of the parent to communicate with the [Agency]...." (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.) Tyrone disappeared and reappeared throughout this case. He never formally updated his mailing address although he knew of his obligation to do so and had done so before. He knew how to contact the Agency and the court. He was at all times represented by counsel.
There was no error regarding notice of the continued section 366.26 hearing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDonald, J.