Opinion
G058483
04-16-2020
In re S.V., et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. CESAR V., Defendant and Appellant.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 18DP0132 and 18DP0133) OPINION Appeal from a judgment of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
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Cesar V. is the father of a daughter, S.V., and a son, C.V., who were taken into custody by the Orange County Social Services Agency (SSA) in February of 2018, when they were nine and eight years old. Cesar was located by SSA in May 2019. He first appeared in the action after reunification services were terminated and the case had been set for a permanency planning hearing. He then filed a Welfare and Institutions Code section 388 petition seeking modification of that order based on changed circumstances, which the juvenile court denied. The court then ordered termination of Cesar's parental rights pursuant to section 366.26.
All further statutory references are to this code. --------
Cesar appeals from both the order denying his section 388 petition and the judgment terminating his parental rights, but he does not challenge either on the merits. Instead, he claims that SSA failed to make a reasonably diligent effort to provide him with notice of the proceedings earlier in the case. As a consequence, he claims the juvenile court lacked jurisdiction to make any orders affecting his rights pursuant to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638) (Hague Service Convention or Convention). However, Cesar made no such contention below. Instead he made a general appearance in the case without objecting to notice or jurisdiction. By doing so, he consented to the juvenile court's jurisdiction. We therefore affirm the judgment.
FACTS
S.V. and her brother, C.V., were taken into protective custody on February 1, 2018, after S.V. disclosed that their caretaker for the past two years had struck her in the face with a hairbrush. According to S.V., the children's mother had dropped them off with the caretaker and never came back. The caretaker reported the children's mother had a drug problem and lived on the street, and their father had been deported to Mexico five years earlier.
SSA located the children's mother in jail; she was incarcerated due to a probation violation in connection with earlier drug offenses. A referral was sent to the Absent Parent Search Unit to commence efforts to locate Cesar. Meanwhile, the children were placed with their maternal great aunt.
SSA's efforts to locate Cesar included a search of California and Federal databases, using all known variations of his name. SSA found a last-known address for Cesar in Perris, California, as of 2007. Notice of the jurisdiction hearing was sent to Cesar at that address. SSA also sent an inquiry to the Consulate of Mexico in an effort to obtain a last known address within that country, but received no response.
At the jurisdiction hearing on April 10, 2018, the court found that SSA had exercised due diligence in its efforts to find Cesar and entered his default. The children's mother submitted on SSA's report, and the court found the allegations of the jurisdictional petition to be true. The court ordered SSA to inform Cesar of the proceedings if it was able to locate him.
The children's mother visited with them during the initial six-month reunification period, but then lost touch in May 2018, and her whereabouts became unknown. In October 2018, SSA recommended that reunification services continue for an additional six months and that the case be set for a twelve-month permanency review hearing. In follow-up reports, SSA informed the court that maternal relatives who were currently living in the home of the children's caretaker had expressed an interest in adopting them.
In December 2018, the children's mother submitted on SSA's proposed orders. The court adopted its recommendation and set the case for a twelve-month review hearing in March 2019.
In January 2019, the caretaker reported Cesar was living in Tijuana. The caretaker said the children had spoken by telephone and FaceTime with Cesar and that S.V. wanted to see him. The caretaker later denied knowing where in Tijuana Cesar lived.
In March 2019, the court held the twelve-month permanency review hearing, terminated reunification services for the children's mother, and set the case for a section 366.26 permanency planning hearing. The court ordered SSA to give notice to the parties. SSA once again conducted a database search in an effort to locate Cesar, again contacted the Consulate of Mexico, and asked the children's caretaker if she knew where he was. The caretaker stated Cesar lived in Tijuana, but she did not know where. On May 15, 2019, the court concluded SSA had exercised due diligence it its efforts to locate Cesar.
The following week SSA received e-mails from the Consulate of Mexico, stating Cesar had been located in Tijuana and providing his phone number. On June 7, 2019, a consular assistant informed the social worker that Cesar wanted reunification services. SSA contacted Cesar by telephone, and he reported he had been in regular telephone contact with the children for about five months, and wanted them to live with him in Tijuana, where he had been living for the past six months with his wife and her two children.
Cesar had contacted the caretaker after his sister, who lives in Hemet, reached out to the caretaker's family members via Facebook. The caretaker then set up telephone contact between Cesar and the children, and she provided Cesar with the social worker's contact information.
The social worker also learned, after the fact, that on June 8, 2019, the caretaker had taken the children to Tijuana to visit Cesar. The caretaker claimed she discussed a possible visit with previous social workers, and she was never told it might be a problem. She reported the visit went well.
On June 20, 2019, the court appointed counsel to represent Cesar, and authorized the children to have continued telephone contact and additional border visits with Cesar. Cesar's counsel waived a reading of the petition, requested that SSA do a home evaluation and background check for Cesar, and inquire whether the children wished to reside with him.
On July 1, 2019, SSA filed a citation for publication, establishing that Cesar had been provided notice of the section 366.26 hearing by publication in a newspaper of general circulation.
The section 366.26 hearing was scheduled for July 23, 2019. Cesar appeared through counsel, the court accepted into the evidence SSA's proposed orders and findings, and then continued the hearing until August 20 to allow for settlement negotiations. On August 20, Cesar again appeared through counsel, and the hearing was continued to September 4 for further settlement discussions.
On September 4, 2019, Cesar filed his section 388 petition, seeking a modification in the court's prior order setting the matter for a section 366.26 hearing. He claimed circumstances had changed significantly because he had been located, had engaged in positive contact with his children, and would like to have them placed with him. He argued that a modification of the prior order setting the section 366.26 hearing was in the children's best interests because it would be beneficial for the children to maintain a positive relationship with their biological father, and because he loves them very much.
The court concluded Cesar had established a prima facie case for a modification of the prior order, and scheduled an evidentiary hearing on the petition, to be heard concurrently with a continued section 366.26 hearing. The court ordered Cesar to appear telephonically at the continued hearing. Cesar appeared by telephone and testified at the hearing over two days. The court also heard the testimony of S.V. and C.V.
Cesar failed to appear by telephone on the final two days of the hearing without explanation. The court denied his counsel's request for a continuance in light of his absence.
In his closing argument, Cesar's counsel asserted the fact that Cesar had been located after the court ordered termination of reunification services created a "fairly straightforward . . . change in circumstances" that warranted a modification of the earlier order. He stated Cesar was requesting that the order be modified to either place the children in his custody or provide him with a period of reunification services.
The court denied Cesar's section 388 petition, emphasizing that the children's testimony demonstrated it would not be in their best interests to modify the order terminating reunification services. After denying Cesar's section 388 petition, the court heard further arguments related to the section 366.26 issue. The court then found the children were adoptable and none of the exceptions to termination of parental rights were applicable. As a result, the court ordered that parental rights be terminated.
DISCUSSION
Although Cesar contends both the order denying his section 388 petition and the judgment terminating his parental rights must be reversed, he challenges neither order on the merits. Instead, he claims that SSA failed to make a reasonably diligent effort to locate him and to provide him with notice of the proceedings earlier in the case. As a consequence, Cesar claims the juvenile court lacked jurisdiction to make any orders affecting his rights.
Cesar is correct when he argues a parent's interest in the "companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights," and thus it is imperative that a parent be given adequate notice and an opportunity to be heard before a he or she can be deprived of that interest. (In re B. G. (1974) 11 Cal.3d 679, 688.) Consequently, a judgment in a juvenile dependency case is void for lack of personal jurisdiction when there is no proper service of process on or appearance by a party to the proceedings. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.) 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.)
What due process requires 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 Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) Hence, SSA was required to exercise '"reasonable diligence"' as it attempted to locate, Cesar, an alleged parent, or otherwise provide Cesar with notice. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.) That means SSA was required to conduct a "'thorough, systematic investigation and inquiry conducted in good faith,'" and to utilize the most likely means of finding the object of its search. (Ibid.)
However, the law recognizes "[i]t is not always possible to litigate a dependency case with all parties present." (In re Justice P. (2004) 123 Cal.App.4th 181, 191.) "Where reasonable efforts have been made, a dependency case properly proceeds. If a missing parent later surfaces, it does not automatically follow that the best interests of the child will be promoted by going back to square one and relitigating the case." (Ibid.) Consequently, "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 the majority of the proceedings." (Id. at p. 188.)
As Cesar points out, the Hague Service Convention governs service of process on a party who is a citizen of a different signatory country; Mexico is a signatory to that Convention. But, as Cesar concedes, the Hague Service Convention does not apply if the person's whereabouts are unknown after a reasonably diligent search. (In re R.L. (2016) 4 Cal.App.5th 125, 147.)
In addition, Cesar acknowledges that a party's voluntary general appearance in a case confers jurisdiction because it "'is equivalent to personal service of summons on such party.'" (Quoting In re Jennifer O. (2010) 184 Cal.App.4th 539, 548.) That is what occurred here. When Cesar appeared in the case without ever objecting to jurisdiction, and he then affirmatively invoked the court's jurisdiction by petitioning for a modification of its prior order that would either award him custody of the children or award him a period of reunification services, he made a general appearance.
Although Cesar relies on In re D.R. (2019) 39 Cal.App.5th 583 (D.R.), to suggest that his filing of a section 388 petition operated as a special appearance to contest jurisdiction, rather than as a general appearance, the case does not support his position. While it is true that in D.R., as here, the father's first substantive appearance was for the purpose of filing a section 388 motion, the similarity ends there.
In D.R., the sole basis for the father's requested section 388 relief was the assertion that efforts to locate and notify him of the proceedings had been insufficient. The appellate court reasoned that an appearance made for the explicit purpose of challenging the court's jurisdiction was by its very nature a special appearance. As the court explained, "A general appearance occurs when the party takes part in the action and '"in some manner recognizes the authority of the court to proceed."'" (D.R., supra, 39 Cal.App.5th at p. 593.) Because the father in D.R. had appeared for the specific purpose of challenging the court's authority over him, the appellate court concluded "[he] in no way acquiesced to the court's personal jurisdiction over him." (Id. at p. 594.)
In this case, by contrast, Cesar's section 388 petition not only recognized the court's jurisdiction to proceed, it urged the court to exercise that jurisdiction to make new orders in his favor—either by awarding him custody of the children or awarding him a period of reunification services. That affirmative invocation of the court's jurisdiction operated as a general, rather than special, appearance. (Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1037 [if moving party "seeks relief on any basis other than lack of personal jurisdiction, he or she makes a general appearance"].) It consequently reflected Cesar's consent to jurisdiction. (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145 ['"[a] general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service"'].)
In his reply brief, Cesar contends that even if he failed to object to jurisdiction below, this court has discretion to excuse that failure, and he urges us to do so. He relies on In re M.S. (2019) 41 Cal.App.5th 568, 589 (M.S.), for the proposition that "[a]n appellate court has discretion to excuse forfeiture in cases involving important legal issues." The case is inapposite.
In M.S., there was no question of the juvenile court's jurisdiction over the appellant mother, who had appeared in the action from its inception. Instead, the issue in M.S. was whether the mother could challenge the juvenile court's interpretation of a statute it relied upon in denying her reunification services, even though she had not objected to the court's interpretation below. It is well-settled that appellate courts have discretion to consider pure issues of law, affecting the merits of the ruling under review, even if raised for the first time on appeal. (See Ward v. Taggart (1959) 51 Cal.2d 736, 742.)
Jurisdiction is different, however. Jurisdiction addresses the court's authority to rule, rather than the merits of its decision. Once jurisdiction attaches, either because notice was properly served or the parties have consented to the court's adjudication of an issue, the court is empowered to make its ruling. We cannot pretend the court had no such authority because a consenting party regrets his decision after an adverse ruling. That is what happened here. Cesar voluntarily appeared in the case and invoked the court's jurisdiction in an effort to obtain affirmative relief—seeking either an order awarding him custody of the children or awarding him reunification services. The fact he did not prevail in that effort cannot create a justification for denying the jurisdiction he invoked.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.