Opinion
A164597
05-09-2022
J.M. Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JD21-3145
MAYFIELD, J. [*]
Alleged father J.M. (Father) seeks extraordinary relief from the juvenile court's order setting a hearing under Welfare and Institutions Code section to 366.26, to adopt a permanent plan for A.M. (Minor). Father contends that the San Francisco Human Services Agency (Agency) failed to exercise reasonable diligence in its efforts to locate and provide notice to Father of the dependency proceedings, and that the juvenile court violated Father's due process rights when it denied Father's oral motion to continue the six-month review hearing so that Father could explore elevating his paternity status from alleged father to presumed father. Finding no error, we deny Father's request for an extraordinary writ.
Further undesignated statutory references are to the Welfare and Institutions Code.
Factual and Procedural Background
The summary of facts is limited to issues pertinent to Father's petition for extraordinary writ.
In June 2021, Mother, after testing positive for fentanyl, gave birth to Minor, a baby boy who exhibited symptoms of opiate withdrawal. On June 10, 2021, social workers from the Agency responded to Zuckerberg San Francisco General Hospital to investigate a child welfare referral. Mother told the social workers that "she had no prenatal care during her entire pregnancy and that she used drugs [fentanyl and methamphetamine] during her pregnancy." Mother said her partner J.M. was the baby's father, and that she and Father "are homeless and couch surfing with friends." Mother was unable to provide the social workers with the names or addresses of the people she and Father had been staying with. A hospital social worker told the social workers on June 10, 2021, that Father had been at the hospital daily since the baby's birth. Minor's maternal grandmother, who had legal guardianship of Mother's second child, told the social workers that "she does not know who the alleged father of this newborn baby is but suspects he and [Mother] have been using together this past year."
Unless otherwise specified, references to "social worker[s]" means social workers employed by the Agency.
Mother reported that Minor is her third child. Mother's husband is the father of Mother's older children. As of June 2021, Mother had had no contact with her husband for approximately one year. At all times relevant hereto, husband was incarcerated in state prison and, according to Mother, unaware of Mother's third pregnancy.
Prior to filing the dependency petition, the social worker attempted to contact Father so that she could assess his ability to care for Minor. The social worker called Father on six different dates in June 2021 and left voicemail messages; Father did not return any of her calls. When notified by the hospital social worker on June 24, 2021, that Father had showed up at the hospital to visit Minor, the social worker provided the hospital social worker with her contact information and asked the hospital social worker to have Father contact her; he did not. The social worker sent a text message to Father's phone on June 25, 2021; he did not respond. The social worker e-mailed Father notice of a scheduled Children and Family Team (CFT) meeting; Father did not attend.
On June 28, 2021, the Agency filed a dependency petition alleging, inter alia, that Minor was at risk of abuse or neglect due to the parents' failure or inability to care for Minor because the parents had chronic substance abuse problems and lacked stable housing, and because Father has "failed to establish his paternity" and "not made himself available to parent the infant." The face of the petition identified Father as Minor's alleged father and stated that Father is homeless, with a last known address in Pacifica, California.
Mother and Father appeared by telephone at the initial hearing on June 29, 2021, and were appointed counsel. The court made a temporary detention order and directed the parents to return to court on June 30, 2021, for a continued detention hearing. Neither parent appeared at the continued detention hearing on June 30, 2021. The court detained Minor and set the matter for a settlement conference on August 5, 2021, and a jurisdiction and disposition hearing on September 1, 2021.
The minutes of the June 30, 2021, continued detention hearing are not part of the record provided for our review.
Mother and Father appeared through counsel at a status hearing on July 13, 2021. At that hearing, the Agency presented a "Declaration of Due Diligence," which explained the Agency's efforts to locate and serve Father with notice. Using Father's name, social security number, and date of birth, the Agency determined that Father was not in the local jail, prison, or on parole, however, he was on probation. Father's probation officer gave the Agency the phone number of Father's sister, which was the only number she had. Child Support Services had no record for Father, but gave the Agency the number they had for Father's sister; the phone number was no longer working. Father was not receiving aid and did not have an open case in Child Welfare Services Case Management System (CWS/CMS). Father's last known address was "General Delivery Mailbox." The court's attempt to serve Father with a copy of the detention findings at the address in Pacifica, was returned as undeliverable. Although Agency staff suspected that Mother "may know where [Father] is," Mother did not provide any new or additional information regarding Father's whereabouts.
On July 22, 2021, the Agency attempted to serve Father with notice of the jurisdiction and disposition hearing via certified mail at his last known address, "General Delivery," in San Francisco. In the jurisdiction/disposition report filed on August 3, 2021, the Agency noted that "[a]s of the writing of the report, the parents have not contacted the Agency expressing interest in contact/visit with the minor." The report further documented the Agency's ongoing efforts to contact Father, including calling and texting Father on at least five different occasions throughout the month of July 2021. The social worker attempted a second contact with Father's probation officer on July 30, 2021, but did not reach her.
Neither parent was personally present at the jurisdiction and disposition hearing on September 1, 2021. The court received the Agency's reports. Parents' counsel offered cross-examination testimony of the social worker. The court sustained the jurisdictional allegations, declared Minor a dependent of the juvenile court, ordered that Minor be placed in foster care, and ordered that Mother participate in family reunification services. As an alleged father, Father was not offered family reunification services or visitation. (§ 361.5, subd. (a).) The juvenile court relieved Father's appointed counsel. The six-month review pursuant to section 366.21, subd. (e) was set for February 22, 2022.
The Agency undertook further efforts to locate Father prior to the six-month review hearing. The Agency located Father at the Maple Street Correctional Facility in San Mateo County. Father thereafter made contact with the Agency. The Agency sent Father a letter which informed him of the upcoming court date and provided him with the social worker's phone number. The Agency served Father with formal notice of the six-month review on February 1, 2022. At the Agency's request, the court re-appointed counsel for Father on February 9, 2022.
Father and his counsel appeared via BlueJeans at the six-month review hearing on February 22, 2022. Father was in custody. Father's unopposed request for paternity testing was granted.
Father's counsel made an oral motion to continue the six-month review to give her time to investigate whether the parents had signed a voluntary declaration of paternity or whether Father was named on Minor's birth certificate. Counsel indicated that a continuance was necessary to allow the social worker to locate Minor's paternal relatives. The juvenile court denied Father's motion to continue, expressly reserving Father's right to intervene and request other orders once the paternity test results were known:
"[T]he other request by [Father's counsel] to continue the matter is going to be denied. If [Father] is the presumed father and recognized legally, then he will intervene, and we will make further orders and findings, but in terms of the mom I am going to go forward today. [¶] I am not going to set a date. All parties will continue to exercise their due diligence, and once we get to paternity testing or the birth certificate appears or a VDOP [voluntary declaration of paternity] appears somehow to make [Father] the presumed father, that will move things forward."
At the six-month review hearing, the juvenile court terminated Mother's reunification services and set a hearing under section 366.26 for June 15, 2022, to select a permanent plan for Minor. The court served the parties with "Notice of Intent to File a Writ Petition." Father timely filed this petition on February 25, 2022.
DISCUSSION
Father Failed to File a Section 388 Petition to Address the Adequacy of Notice in the Juvenile Court
"When an alleged father claims that a lack of notice of the proceedings caused him to fail to achieve presumed father status prior to the expiration of the reunification period, his remedy is to file a section 388 petition." (In re Daniel F. (2021) 64 Cal.App.5th 701, 712 (Daniel F.); In re Zacharia D. (1993) 6 Cal.4th 435, 453.) A section 388 petition asks the juvenile court to reconsider its earlier rulings based on new evidence or changed circumstances. (In re Zacharia D., at pp. 454-455.) Unlike the alleged fathers in the cases he relies upon, Father failed to file a section 388 petition to bring to the juvenile court's attention that an alleged lack of notice caused him to fail to achieve presumed father status prior to the expiration of the reunification period. (See Daniel F., at pp. 704, 714; In re Justice P. (2004) 123 Cal.App.4th 181, 190.) In fact, Father's counsel made only brief mention of the notice issue at the six-month review hearing.
"So I don't know that [Father] had notice of all of these different dates. When I go through the file, it looks like he was homeless or no one was able to find him for the majority of everything, so that is my thought on that."
The Court's Failure to Serve Father With the JV-505 Form Was Harmless Error
Although he did not raise this issue in the juvenile court, Father alleges that he was prejudiced by the court's failure to provide him with Judicial Council form JV-505 as required by section 316.2, subdivision (b)."Form JV-505 specifically informs an alleged father that he can compel the court to determine his paternity, and gives him the means to request appointment of counsel, state his belief that he is the father of the child, and ask that the court enter judgment of paternity." (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1121.) A failure to provide the JV-505 form is subject to a harmless error analysis. (Id. at p. 1122.)
Section 316.2, subdivision (b) provides in pertinent part: "If, after court inquiry, one or more men are identified as an alleged father, each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. . . . Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice."
The cases which Father relies upon for the proposition that failure to serve the JV-505 form is not harmless error are distinguishable. In Daniel F., the juvenile court's decision to summarily deny an alleged father's section 388 petition without a hearing, even though the alleged father had "made a prima facie showing that the Agency made little to no effort to give him notice until it was poised to terminate parental rights," was reversed. (Daniel F., supra, 64 Cal.App.5th at p. 715.) In In re J.W.-P. (2020) 54 Cal.App.5th 298, 307, the court held that the failure to provide the JV-505 form to an alleged father who had "consistently maintained that he wanted custody of his daughter" and who the agency conceded "likely would have qualified as a presumed parent" was not harmless error.
In contrast, Father, who was aware of Minor's birth and appeared at the initial hearing, neither filed a section 388 petition nor requested custody of Minor. Unlike Daniel F., where the court faulted the Agency for limiting its search for the alleged father to California despite information that the alleged father was actually in Mexico (Daniel F., supra, 64 Cal.App.5th at pp. 713, 715), the record in this case demonstrates that the Agency used all information at its disposal to attempt to locate Father. Under these circumstances, it was incumbent on Father to demonstrate the likelihood of a more favorable result absent the error. This he has not done. We therefore conclude that the failure to provide Father with the JV-505 form was harmless error. (In re Kobe, supra, 146 Cal.App.4th at pp. 1122-1123.)
The Agency Used Reasonable Diligence in Attempting to Locate and Notice Father
" 'The county has a constitutional responsibility to use due diligence to notify absent parents before depriving them of that "most basic of civil rights"-the care, custody, and companionship of their children.'" (In re DeJohn B. (2000) 84 Cal.App.4th 100, 109-110; County of Orange v. Carl D. (1999) 76 Cal.App.4th 429, 439.)" 'Due process requires that a parent is entitled to notice that is reasonably calculated to apprise him or her of the dependency proceedings and afford him or her an opportunity to object. [Citation.] The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith.'" (In re R.A. (2021) 61 Cal.App.5th 826, 836.) "It is settled beyond dispute that if a parent proves the absence of due process notice to him in juvenile dependency proceedings, a 'fatal defect' exists in the jurisdiction of the juvenile court . . . ." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 483.) If the agency "fails even to make an effort to provide [a parent] the procedural safeguard of notice, reversal is mandated." (In re DeJohn B., at p. 110.)
On the other hand, "there 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 a majority of the proceedings." (In re Justice P., supra, 123 Cal.App.4th at p. 188.) The agency exercises reasonable diligence when its search includes "not only 'standard avenues available to help locate a missing parent,' but' "specific ones most likely, under the unique facts known to the [Agency], to yield [a parent's] address." '" (Daniel F., supra, 64 Cal.App.5th at p. 712.)
In In re Melinda J. (1991) 234 Cal.App.3d 1413, 1416, 1418, the following search was found to be reasonable: the child welfare agency "sent a certified letter to [the mother's] last known address, contacted the post office to determine a forwarding address, and mailed a letter to the grandparents asking for help in locating [the mother]," searched various local and state databases and sent letters to the resulting addresses, "called [the mother's] last known telephone number, attempted to find a current telephone number through directory assistance, and searched the central incarceration index."
"Although alleged fathers, as distinguished from presumed fathers, have fewer rights in dependency proceedings and are not entitled to custody, reunification services, or visitation (In re J.W.-P.[, supra, ] 54 Cal.App.5th [at p.] 301 . . .), they nonetheless possess due process rights to be given notice and an opportunity to appear, to assert a position, and to attempt to change their paternity status." (Daniel F., supra, 64 Cal.App.5th at p. 712.) We find that Father was afforded due process based on the record in this case.
The Agency commenced its efforts to contact Father by phone, text and e-mail prior to filing the dependency petition. On June 18, 2021, the Agency investigated whether Father was in the San Francisco Jail or state prison and attempted to locate contact information for Father through the Department of Child Support Services, probation, and CWS/CSM databases.
The Agency successfully noticed Father regarding the initial detention hearing which took place on June 28, 2021. Father appeared at the hearing. At the initial hearing, the juvenile court was required to make a parentage inquiry and ascertain a mailing address for each parent. Father did not provide this court with a transcript of the initial hearing. In the absence of an affirmative showing of error supported by citation to the record, we presume that the juvenile court regularly performed its duty to make such inquiry and orders. (Evid. Code, § 664.) Thus, we presume that at the initial hearing the juvenile court advised Father of the need to keep the Agency apprised of his mailing address and conducted an initial parentage inquiry.
"[T]he inquiry into alleged fathers must occur '[a]t the detention hearing, or as soon thereafter as practicable.' (§ 316.2, subd. (a).)" (Daniel F., supra, 64 Cal.App.5th at p. 714.)
"At the first appearance by a parent or guardian in proceedings under section 300 et seq., the court must order each parent or guardian to provide a mailing address. [¶] (1) The court must advise that the mailing address provided will be used by the court, the clerk, and the social services agency for the purposes of notice of hearings and the mailing of all documents related to the proceedings. [¶] (2) The court must advise that until and unless the parent or guardian, or the attorney of record for the parent or guardian, submits written notification of a change of mailing address, the address provided will be used, and notice requirements will be satisfied by appropriate service at that address." (Cal. Rules of Court, rule 5.534(i)(1), (2).)
It is Father's burden to provide this court with a record which is adequate to permit review of his petition for extraordinary writ. (Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1506.) "Failure to provide an adequate record on an issue requires that the issue be resolved against [the petitioner]." (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
Well before the jurisdiction/disposition hearing, the Agency conducted a thorough and systematic search for Father. The Agency checked local and state databases, investigated whether Father was incarcerated, locally or in state prison, or on probation or parole; attempted to contact Mother, Father's sister, and Father's probation officer seeking information about how to locate Father; and checked for Father's last known address or forwarding address. The social worker sent text messages and left voicemail messages on Father's last known phone number on numerous occasions in July 2021. The Agency mailed notice of the jurisdiction/disposition hearing to Father at General Delivery, in San Francisco, to the last known address disclosed by the Agency's search.
In late January 2022, the Agency renewed its efforts to locate Father. This search was successful: Father was located at the Maple Street Correctional Center in San Mateo County. The Agency immediately sent Father a letter with information about the dependency case, asked the court to re-appoint counsel to represent Father, and mailed Father timely notice of the six-month review hearing. On this record, Father has failed to show first, that the Agency failed to exercise due diligence, and second, even if it had, that he suffered from a miscarriage of justice which mandates reversal. (In re Celine R. (2003) 31 Cal.4th 45, 59.)
Father was in custody pending numerous felony charges, including burglary, vehicle theft, identity theft, possession for sale of a controlled substance, and evading a peace officer.
The Juvenile Court Did Not Abuse Its Discretion in Denying Father's Oral Motion to Continue the Six-Month Review Hearing
A continuance of a dependency hearing "shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance." (§ 352, subd. (a)(2); Cal. Rules of Court, rule 5.550(a)(2).) Written notice of a motion for continuance "shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance." (§ 352, subd. (a)(3).) In this case, Father's counsel offered the juvenile court no explanation for his failure to file a timely written motion to continue the six-month review. Father's petition is silent on this point.
We review the trial court's denial of Father's oral continuance motion for abuse of discretion. (In re F.A. (2015) 241 Cal.App.4th 107, 117.) Continuances in dependency cases are discouraged. (In re Karla C. (2003) 113 Cal.App.4th 166, 179.) The trial court's decision must be affirmed unless it was "arbitrary, capricious, or patently absurd and result[ed] in a manifest miscarriage of justice." (Id. at p. 180.)
Here, Father's counsel asked to continue the six-month review "for a few weeks" to enable counsel to conduct additional investigation in the hope of "elevat[ing] his [Father's] status and get[ting] some attention for his relatives [as possible placements]." The Agency and Minor's counsel opposed the request. The record established that Father had taken no steps in the seven months since the initial hearing to request a further parentage inquiry, contact the Agency, or attempt to establish a relationship with Minor. Given that Father was detained on pending criminal charges, he was not in a position to request custody of Minor. In deciding whether to grant Father's request for continuance, the juvenile court was required to give substantial weight to Minor's needs for stability and prompt resolution of custody status. (§ 352, subd. (a)(1); Cal. Rules of Court, rule 5.550(a)(1).) The record established that Minor was "thriving in the care of . . . foster parents [who] are committed to permanency by way of adoption for the child and ha[ve] been the only home that [Minor] has known since his birth." The juvenile court's decision to deny Father's oral motion to continue the six-month review, while leaving the door open to re-visiting its prior findings and orders if Father established presumed father status, was not an abuse of discretion.
Finally, we reject Father's contention that a continuance was mandated to allow the Agency to assess Father's relatives for placement of Minor. As the Agency points out, until paternity is established, Father's relatives do not meet the statutory definition of "relatives." (See., e.g., In re Zacharia D., supra, 6 Cal.4th at p. 451 [only a presumed father is a "parent"; § 361.3, subd. (c)(1): definition of "relative"].)
DISPOSITION
The petition for extraordinary writ is denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
We concur: Richman, Acting P.J., Stewart, J.
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.