Opinion
E074542
08-10-2020
In re S.G., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.A., Defendant and Appellant.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and David Guardado, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J278070) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Juan A. (Mr. A.) appeals a juvenile court order terminating parental rights to his daughter, S.G., under Welfare and Institutions Code section 366.26. S.G., an infant, was removed from her Mother's custody and declared a dependent of the court. Mr. A. contends he was deprived of his due process right to proper notice of the juvenile dependency proceedings before the final permanency planning stage, and that any notice before then was incomplete. Mr. A. also asserts that the juvenile court erred in terminating his parental rights in the absence of a finding he was unfit to parent S.G.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Although initial notice of the dependency proceedings may have been incomplete, we conclude plaintiff and respondent, San Bernardino County Children and Family Services (CFS), made reasonable efforts to notify Mr. A., he ultimately received proper notice, and any deficiency in notice was harmless error. In addition, we conclude the court was not required to make a fitness finding because Mr. A. was not a presumed father. We therefore affirm the order terminating parental rights.
II.
FACTS AND PROCEDURAL BACKGROUND
Mr. A., whose first name is Juan, is the biological father of S.G. (born in 2018). On September 25, 2018, San Bernardino County Children and Family Services (CFS) received a referral regarding S.G., who was four months old and in Mother's sole care. The referral indicated S.G. was at risk because of Mother's history of substance abuse. Also, Mother had an open juvenile dependency case filed in January 2017, involving S.G.'s five older half-siblings (siblings). S.G. was not named in the siblings' case because, when she was born, it was anticipated Mother would reunify with the siblings. However, on September 25, 2018, S.G.'s siblings were removed from Mother's care because Mother had tested positive for amphetamines and had been arrested for possession of syringes and a loaded firearm.
When deputies and CFS went to Mother's home to serve the detention warrant for removal of S.G.'s siblings from Mother, she was not home. Her boyfriend, M.N., told CFS that S.G. had not been in the home with Mother for the past three or four weeks. M.N. believed S.G. was with her father in Mexico visiting family. M.N. said he did not know S.G.'s father's name. S.G.'s sibling, J.E., who was 14 years old, told CFS that S.G. had been with her father in Mexico for "'2-3 days, I don't know.'"
On September 27, 2018, Mother told CFS that S.G. had left with a paternal great aunt (PGA) three weeks before, on September 8, 2018, to visit paternal family in Mexico. Mother further reported that S.G.'s father, "Jose [A.]," and PGA did not want any involvement with CFS. Therefore, they would have someone else return S.G. to Mother in a few days. Mother stated that Mr. A. did not want to take care of S.G. or have anything to do with her. Mother said she could not provide any information regarding Mr. A. or PGA. She explained that she contacted Mr. A. through Facebook and he frequently changed his Facebook account. She had tried to contact him through Facebook but his account had been deleted. Therefore, she had to wait for him to message her or call through Facebook. Mother said she did not have a contact phone number for PGA because PGA called to provide updates on S.G. using a blocked number.
On October 1 and 2, 2018, CFS and deputies attempted to serve Mother with a warrant to detain S.G. but were unable to do so because Mother and S.G. were not home. On October 2, 2018, CFS spoke to Mother by phone. She said S.G. was still with Mr. A. in Mexico but would be returning the next day. Mother stated she would bring S.G. to the CFS office when S.G. returned. On October 3, 2018, Mother called CFS and said she did not have S.G. but was working on getting her home.
A. Detention
On October 4, 2018, CFS filed a juvenile dependency petition under section 300, subdivision (j) (sibling abuse), for removal of S.G. from Mother's custody. Jose A. was named in the petition as S.G.'s father and was listed as an alleged father. Juan A. was not named in the petition. The petition alleged that on September 25, 2018, S.G.'s siblings were removed from Mother's custody because of general neglect and substance abuse by Mother. Mother allegedly had relapsed while receiving family maintenance services, thus placing S.G. at risk of harm and abuse.
CFS reported in the detention report that S.G.'s whereabouts were unknown, but it had been reported that she was possibly "with her father, Jose [A.] in Mexico." Juan A. was not named as an alleged father in the detention report. CFS further reported that Mother had a child welfare history, which included numerous referrals of general neglect, emotional abuse, physical abuse, and caretaker absence/incapacity. At the time of Mother's most recent referral on September 25, 2018, when S.G.'s siblings were detained, Mother was receiving family maintenance services. CFS reported that on September 27, 2018, it attempted to locate S.G.'s father, "Jose [A.]," by talking to Mother and requesting her to provide information to enable CFS to contact family members who could provide information about Mr. A. CFS reportedly initiated an absent parent search on October 3, 2018. CFS reported there were no known relatives to consider for placement.
During the detention hearing on October 5, 2018, Mother told the court S.G. was with her paternal grandmother (PGM) in Juarez, Mexico. Mother stated that she did not have a contact number for her. Mother said she contacted S.G. using Facebook. In response to the court asking Mother for contact information for family or friends who might have a contact number for PGM, Mother stated S.G. was supposed to be back on Monday and Mother had been in contact with an aunt, who had been trying to contact CFS. The court ordered a warrant for S.G.'s detention. The court asked Mother who was S.G.'s father. Mother replied, "Jose [A.]" and said he lived in Mexico. Mother stated she had never been married, Jose A. was not present at S.G.'s birth, he was not on S.G.'s birth certificate, he had not provided financial support for S.G., and he had not ever lived with S.G. Mother further stated that he had held S.G. out as his own child. Mother noted S.G. was with PGM, who claimed S.G. was her own grandchild.
Mother confirmed as true the detention report statement that S.G.'s father did not want anything to do with S.G. When asked if S.G. had any other potential fathers, Mother named her current boyfriend, M.N., whom she said had raised S.G. as his own since S.G.'s birth, even though he was not S.G.'s biological father. Mother said there were no other potential fathers for S.G. CFS's attorney stated she was concerned about Mother's honesty regarding S.G.'s whereabouts and suspected Mother was concealing the child. CFS's attorney requested that Mother state to whom she physically gave the child because CFS did not know where the S.G. was located and Mother had not provided a phone number for the caregiver. Mother confirmed S.G. was with PGM in Juarez, Mexico, and contact was only possible by Facebook. Mother stated she recently had contact with a paternal aunt, with whom S.G.'s paternal relatives wanted S.G. placed when S.G. returned.
The court noted Mother was well aware that CFS was looking for S.G. The court ordered issuance of a warrant of apprehension to bring S.G. to CFS. The court further ordered S.G. removed from Mother's care, detained in protective custody, and placed in foster care. The court ordered S.G.'s parents to disclose to CFS contact information for their relatives. The court asked Mother if she knew where Mr. A. could be reached. She said no, other than on Facebook. Mother stated that PGA (PGM's sister) had told her that she would go get S.G., who was with PGM, by Monday. Mother said she did not know where Mr. A. was but would get information regarding his location when she talked to PGA that day. The court ordered Mother to give the information to CFS to assist in locating Mr. A. and set the jurisdiction/disposition hearing.
The protective custody warrant for S.G., issued by the court on October 5, 2018, stated that S.G. might be in Mexico with S.G.'s father, "Jose [A.] and/or paternal grandmother." CFS's supporting affidavit stated that on September 25, 2018, Mother's boyfriend said S.G. was in Mexico visiting family. On September 26, 2018, Mother told CFS that S.G. was with her father in Mexico and had been gone for about a month. Mother had also said she had been with Mr. A. for only about a week and he did not want to care for S.G. or have anything to do with her. Mother told CFS she did not have Mr. A.'s phone number and contacted him only through Facebook. The supporting affidavit further stated that on September 27, 2018, Mother said S.G. left on September 8, 2018, and would be back Monday, October 1, 2018. On October 2, 2018, Mother reported that S.G. was still with Mr. A. but should be returning the next day. Mother said she would bring her to CFS when S.G. returned.
B. Jurisdiction/Disposition Hearing
CFS's jurisdiction/disposition report filed on October 23, 2018, stated that S.G. and her father's whereabouts were unknown. Juan A. was not listed in the report as an alleged father. The report further stated Mother had not provided any relative information for relative notification. Mother reportedly did not know the whereabouts of S.G. She claimed to have left S.G. with PGM and was not in touch with PGM. Mother also reportedly said Jose A. was the father of S.G.
The court file on appeal includes a copy of an October 19, 2018 jurisdiction/disposition report, which is not filed stamped and was prepared in the separate dependency case involving S.G.'s five siblings. In the October 19, 2018 report, CFS reported that the whereabouts of two of S.G.'s siblings, J.E. (14 years old) and A.J. (16 years old), were unknown and were reported as runaways at the end of September 2018. Juan A. and Jose A. are not listed as fathers of any of the siblings. The report states that Mother told CFS that S.G. was in Mexico with her father, "Juan [A.]," whom Mother said she met on Facebook and briefly dated. She said she got pregnant and "Juan [A.]" was deported to Mexico. Mother reportedly told CFS that in August 2018, she let S.G. leave with PGM, who lives in Mexico. Mother said S.G. was still there and Mother was having difficulty contacting PGM and S.G.'s father to get her back.
The court continued the jurisdiction/disposition hearing in S.G.'s dependency case several times because S.G. had not been located. During the continued jurisdiction/disposition hearing on April 24, 2019, the court stated that Mother's other children, but not S.G., had been located on April 23, 2019. Therefore, the court once again continued the jurisdiction/disposition hearing.
CFS reported that on January 18, 2019, a CFS investigator from the Child Abduction and Recovery Unit was unable to locate Mother at her last known address, and the whereabouts of S.G.'s "father" were still unknown. The investigator noted that Mother had said he was living in Mexico with his mother. On April 22, 2019, CFS reported that as a result of a minor traffic accident, CFS located A.J. living in Las Vegas. A.J. had said she did not know where Mother or S.G. were.
During a hearing on June 14, 2019, S.G. and her siblings, J.E. and A.J., appeared in court. The court recalled the protective custody warrant issued for S.G. on October 5, 2018, and set the jurisdiction/disposition hearing. The minors' attorney stated that PGM and Mother's friend, A.S., had requested S.G. be placed with them and were told to contact CFS. The court ordered S.G. detained and S.G.'s relatives to be assessed for placement.
On July 26, 2019, CFS filed a first addendum to the jurisdiction/disposition hearing report, stating that the whereabouts of Mother and "Jose [A.]" were unknown. S.G. reportedly was placed in foster care with Ms. B. CFS reported that in June 2019, Mother was located on Facebook using her middle name. Mother had announced on Facebook a birthday party for S.G. in Las Vegas. CFS went to pick up S.G. and her two older siblings, A.J. and J.E., in Las Vegas. J.E. told CFS that Mother had hidden S.G. with PGM in Mexico. J.E. further said that she and A.J. were S.G.'s primary caretakes when they were living in Las Vegas. A.J. disappeared in June 2019. CFS placed J.E. and S.G. in separate foster homes. A.J. and Mother's whereabouts remained unknown. CFS recommended Mother and "Jose [A.]" be denied reunification services.
During the continued contested jurisdiction/disposition hearing on July 29, 2019, it was noted Mother's whereabouts remained unknown. The court found true the petition allegations and found jurisdiction over S.G. under section 300, subdivision (j). The court further found that "Jose [A.]" was S.G.'s alleged father, his whereabouts were unknown, and S.G.'s parents were not entitled to reunification services under section 361.5, subdivisions (b)(7) and (b)(10). The court set a section 366.26 hearing for S.G.
On August 16, 2019, CFS filed an application for an order for publication of citation on Jose A., (abandonment re: adoption). The application stated that S.G.'s father or alleged father could not, after due diligence, be found in California, and his last known address was unknown. Attached to the application was a declaration of due diligence for alleged father, Jose A. The attached declaration of due diligence listed CFS's search efforts for Jose A. The listed search efforts included searching for Jose A.'s criminal history on "CII," on August 9, 2019. The results were too numerous to verify which individual was the correct father, without a Social Security number. CFS also searched "welfare" and "CWS/CMS," with no address found. A prison search, child support division search, "MEDS" search, "Subscription Internet Search Tool" search, DMV search, San Bernardino County jail search, and probation/parole search, all on August 13, 2019, also resulted in "[n]o matching information found for alleged father, Jose [A.], with a DOB . . . ." In addition, no phone numbers or address information was found on "JNET" or other search sources. The due diligence declaration stated search efforts did not reveal any possible addresses or phone numbers for Jose A. Therefore, his whereabouts remained unknown.
According to a proof of service affidavit filed with the court on September 3, 2019, CFS personally served Juan A. in prison on August 22, 2019, with notice of the section 366.26 hearing on November 26, 2019. On September 10, 2019, the court on its own motion appointed counsel for alleged father Juan A. Pursuant to a court order on August 19, 2019, allowing notice by publication, CFS provided notice by publication to alleged father, Jose A., of the section 366.26 hearing on November 26, 2019. At the notice review hearing on September 12, 2019, CFS advised the court that Mother had been served by substitute service and Juan A. had been located in prison and was reportedly served with notice of the proceedings. He was appointed counsel. Jose A. was reportedly served by publication. On November 4, 2019, the court executed an order for prisoner Juan A.'s appearance at the section 366.26 hearing on November 26, 2019.
On November 18, 2019, CFS filed a section 366.26 hearing report stating that on July 29, 2019, the court found that because Jose A. was only an alleged father of S.G., he was not entitled to reunification services. CFS further reported that S.G. was placed with Mr. and Ms. B., who wanted to adopt her. S.G. had been with Mr. and Ms. B. since July 2019, when she was located. CFS noted Mother hid S.G. shortly after S.G.'s birth and remained hidden until located in Las Vegas in July 2019. S.G. reportedly had started bonding with Mr. and Mrs. B. and their daughters. S.A., a friend of Mother, and PGM wanted to adopt S.G., but neither had a significant relationship with S.G. Mother did not want PGM to adopt S.G. because Mother believed PGM would not let her see S.G.
On November 19, 2019, CFS filed a request for a court order for paternity testing for Juan A. The following day, CFS filed a report stating that S.G. had bonded with her current caregivers, the B. family, who wanted to adopt S.G. CFS concluded adoption of S.G. by S.A. or PGM was not in S.G.'s best interest because S.A. was not a relative and had not had a relationship with S.G. Also, when offered visitation with S.G., S.A. participated only minimally, and when offered increased visitation to continue and deepen the relationship, S.A. declined. As to PGM, paternity had not been established as to her son. Therefore, it was unknown if she was a biological relative and PGM, who lived in Adelanto, had not attempted to establish or maintain a relationship with S.G. In addition, PGM recently stated that when her son was released from prison, he would be living with her, which disqualified her from providing protective custody of S.G. CFS recommended termination of parental rights and adoption of S.G. by the B. family.
On November 26, 2019, Mr. A., who was referred to in court as "Juan [A.]," made his first appearance in S.G.'s dependency case and was represented by counsel. The trial court ordered the section 366.26 hearing continued for the purpose of allowing paternity testing for Mr. A., who remained incarcerated. His attorney informed the court that Mr. A. would like PGM assessed for placement if he was determined to be biologically related to S.G. In addition, Mr. A.'s counsel stated that Mr. A. did not intend to live with PGM when released from prison.
Mr. A.'s attorney further stated that he checked to see if Mr. A. was properly noticed of the jurisdiction/disposition hearing and found that there was no mention of him. Mr. A.'s counsel stated he had assumed that CFS had no reason to know about him. But when he spoke to Mr. A. before the hearing that day, Mr. A. told him "that he did get some kind of notice about this case around the time that the JD hearing would have been heard." Mr. A.'s attorney stated that, "if that's the case then I think he should have been appointed an attorney and should have had an opportunity to participate at the JD stage." The court continued the section 366.26 hearing because Mr. A. was still waiting for the paternity results.
On January 8, 2020, Mother filed a section 388 petition requesting the court to change the order denying her reunification services. The court summarily denied Mother's section 388 petition on the grounds there were no new circumstances or evidence and the proposed change of order was not in S.G.'s best interests. The court also denied J.E.'s section 388 petition requesting the court to change its order setting the section 366.26 hearing for adoption of S.G.
On January 13, 2020, CFS filed a report stating that Juan A.'s paternity test established that he was S.G.'s biological father. On January 16, 2020, CFS filed another report stating that Juan A. had been charged and convicted of kidnapping in 2014, and sentenced to three years in prison.
On January 16, 2020, counsel for "Jose [A.]" filed a section 388 petition requesting the court to recognize that "Jose [A.]" was S.G.'s biological father and to change the court order on July 29, 2019, denying reunification services. The section 388 petition alleged that Mr. A. was not provided notice of the jurisdiction/disposition hearing. The petition further stated that "Mr. [A.] has indicated that he received a letter regarding this dependency case while he was in state prison around the time this court held the J/D hearing. Mr. A. however, was not appointed an attorney or given the opportunity to attend the J/D hearing and assert his rights." The section 388 petition also stated that, "[e]vidently, the department knew of Mr. [A.]'s whereabouts when they sent him a letter in prison but he was not given a chance to be transported to court. Although the record in this matter is unclear as to when the department knew of Mr. [A.]'s whereabouts, Mr. [A.] insists CFS sent him a letter in prison."
At the time of the contested section 366.26 hearing on January 16, 2020, the court heard and denied Mr. A.'s section 388 petition on the grounds the petition did not state new evidence or changed circumstances, the proposed change of order was not in S.G.'s best interest, and the section 361.5, subdivision (b)(12) bypass applied because of Mr. A.'s kidnapping conviction. During the section 366.26 hearing, both Mother and alleged father, Juan A., were present in court and represented by counsel. Mr. A.'s attorney, Mr. Castro, stated he had reviewed the entire record with regard to whether CFS used due diligence to locate Mr. A. and provide him with notice of the proceedings. Mr. Castro concluded Mr. A. was located when noticing the section 366.26 hearing. Mr. Castro stated: "I did review the records myself and I saw that there was a due diligence." (Italics added.) Nevertheless, Mr. A. wanted the chance to participate in S.G.'s life as her father. Therefore, he requested that the court not terminate parental rights and, instead, order legal guardianship. This would enable S.G. to get to know Mr. A. and his side of the family. Mr. A. objected to termination of parental rights.
CFS's attorney, Mr. Bass, responded that Mr. A. received notice of the jurisdiction/disposition hearing and there was a declaration of due diligence, which the court and parties overlooked at the time of the hearing. Mr. Bass asserted that Mr. A. received the Judicial Council form JV-505 entitled "Statement Regarding Paternity," as well as other inquiries, but he never responded or requested counsel. The court concluded that Mr. A. "would have been found mere biological, no relationship with the child, not married to the mother; and the two bypass provisions would have been applied even if he was found to be a presumed father based on his lack of involvement in the child's life and his burden to demonstrate benefit to the child to even get services."
During the court's consideration of Mother's parental rights, J.E., who was 16 years old, testified that Mother ran away with S.G. and J.E., when S.G. was a couple of months old. They lived in an apartment in Las Vegas. J.E. helped take care of S.G. They returned around the end of May in 2019, when S.G. was one year old. J.E. testified that when she, her mom, and S.G. went to Las Vegas, Mother was avoiding CFS taking S.G. away from Mother, and J.E. was helping Mother with S.G. A.J., who was 18 years old, testified that she helped take care of S.G. in Las Vegas. A.J. was aware that Mother had absconded with S.G. and was hiding from CFS. A.J., Mother, S.G., and J.E. all returned to California in May 2019.
Mother testified that S.G. was in her care until June 2019. S.G. was removed from mother when S.G. was a year and one month old. The court found S.G. adoptable and terminated the parental rights of Mother and alleged fathers, Jose A. and Juan A. The court found the parental bond exception to adoption did not apply, particularly since Mother had absconded with S.G. The court also found the sibling bond exception did not apply.
III.
CFS'S REQUEST FOR JUDICIAL NOTICE
Under California Rules of Court, rule 8.155(a)(1)(A), CFS requests this court to judicially notice its declaration of due diligence signed on October 15, 2018, stating that "Juan" A. was sent notice of the October 26, 2018 jurisdiction/disposition hearing. The declaration states that the notice was sent by certified mail to Mr. A. in prison, along with copies of the "300 Original, JV 140, JV 505 and ICWA 020." The declaration further states that "Search efforts revealed that alleged father Juan [A.] is currently in custody . . . . Certified mail was sent out along with JV 140, ICWA 020, and JV 505. Notice is complete. Complies with WIC291/WIC316.1."
Attached to the declaration of due diligence is a copy of a "NOTICE OF HEARING ON PETITION, 300 original, JV 140, JV 505 & ICWA 020." The notice of the October 26, 2018 jurisdiction/disposition hearing further states that a copy of the petition was attached to the notice. Attached to the declaration of due diligence are copies of inmate search results for Juan A., showing he was incarcerated on August 23, 2018. There is also an attached copy of the certified mail receipt postmarked October 15, 2018.
Mr. A. opposes judicial notice of the declaration of due diligence and attached documents on the grounds they were not authenticated. The submitted documents appear not to have been filed, lodged, or considered in the trial court. Mr. A. argues that, under In re Zeth S. (2003) 31 Cal.4th 396, 405, this court should not consider the declaration. Also, he argues the declaration does not resolve the notice issue because copies of the documents that were required to be provided with the notice are not attached and the critical hearing that should have been noticed was the continued jurisdiction/disposition hearing on July 29, 2019.
Under Evidence Code section 459, this court may take judicial notice of any matter specified in Evidence Code section 452 that is relevant to a material issue. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135.) Evidence Code section 452, subdivision (d) provides that judicial notice may be taken of "Records of (1) any court of this state or (2) any court of record of the United States or any state of the United States." Rule 8.155(a)(1)(A) states: "(a) Augmentation [¶] (1) At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: [¶] (A) Any document filed or lodged in the case in superior court." (Italics added.)
As stated in In re Zeth S. (2003) 31 Cal.4th 396, 405, "It has long been the general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.] This rule reflects an 'essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .' [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal."
CFS requests this court to judicially notice documents that appear not to have been filed or lodged in this case in the trial court. The copy of the declaration and attached hearing notice are not file stamped by the trial court and CFS has not provided a conformed copy of the document. Furthermore, an affidavit by the trial court clerk, filed in this court, states that Mr. A.'s attorney requested the superior court to provide copies of (1) the notice and proof of service of the jurisdiction/disposition hearing and (2) an affidavit or proof that a reasonably diligent search failed to locate Mr. A. before the July 29, 2019 jurisdiction/disposition hearing. The court clerk's affidavit states that the clerk of the superior court was unable to locate the requested documents within the court file or locate any documents regarding Juan A. before the September 10, 2019 minute order appointing counsel for him.
Because there is no evidence that the declaration of due diligence and attached notice of hearing were lodged or filed in the superior court, CFS's request for judicial notice of the declaration and notice is denied.
IV.
SUFFICIENCY OF NOTICE
Mr. A. contends he did not receive timely, mandatory notice of the dependency proceedings until the final permanency planning stage, when it was too late for him to meaningfully participate in the proceedings. He argues he was prejudiced by this inadequate notice by being deprived of the opportunity to establish presumed father status, receive reunification services, and have S.G. placed with him or his relatives. Citing In re Kobe A. (2007) 146 Cal.App.4th 1113 (Kobe A.), CFS argues that any error in notice constitutes harmless error. We agree.
A. Whether There Was Timely, Proper Notice
As explained in Kobe A., "'Dependency law recognizes three types of fathers: presumed, alleged and biological.' [Citation.] A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the child's presumed father under Family Code section 7611. [Citation.] 'A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an "alleged" father.' [Citation.]" (Kobe A., supra, 146 Cal.App.4th at p. 1120.)
Here, the record shows that Mother led CFS to believe S.G.'s father was named Jose A. and he was in Mexico. Although Juan A. was served with notice of the dependency proceedings in October 2018, the record shows that he did not respond, and CFS and the court did nothing further to notify Juan A. of the proceedings until CFS personally served Juan in August 2019, with notice of the section 366.26 hearing. Mr. A. thus remained an alleged father until he was appointed counsel in September 2019 and obtained paternity testing in December 2019, at which point it was established that Mr. A. was a biological father.
Mr. A.'s status as an alleged, biological, or presumed father was significant because it determined the extent to which he could participate in the proceedings and the rights to which he was entitled. (Kobe A., supra, 146 Cal.App.4th at p. 1120.) "'Presumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan. [Citations.]' [Citation.] The court may provide reunification services to a biological father, if it determines that the provision of services will benefit the child. (§ 361.5, subd. (a).) Due process for an alleged father requires only that he be given notice and an opportunity to appear and assert a position and attempt to change his paternity status, in accordance with procedures set out in section 316.2. [Citation.] He is not entitled to appointed counsel or to reunification services." (Kobe A., supra, at p. 1120; original italics, italics added.)
Here, unlike in Kobe A., there is evidence CFS diligently searched for S.G.'s father and provided him with notice of the dependency proceedings in compliance with section 316.2. Although CFS's October 19, 2018 jurisdiction/disposition report filed in S.G.'s siblings' separate juvenile dependency case indicates that, in October 2018, someone at CFS may have been aware that Mr. A.'s first name was Juan, not Jose, there is substantial evidence that Mother misled CFS and the court in S.G.' case into believing Mr. A.'s first name was Jose. The evidence shows this led to CFS focusing on searching only for Jose A. and only naming him initially as an alleged father.
The record further demonstrates that when CFS realized that S.G.'s father's first name might be Juan and he was located in prison, he received notice of the dependency proceedings before the July 2019 jurisdiction/disposition hearing, and Mr. A. did not respond. As an alleged father, this was all he was entitled to. During the November 26, 2019 hearing, Mr. A.'s attorney told the court that, when he spoke to Mr. A. before the hearing that day, Mr. A. told him "that he did get some kind of notice about this case around the time that the JD hearing would have been heard." During the section 366.26 hearing on January 16, 2020, Mr. A.'s attorney told the court that he had reviewed the entire record regarding whether CFS used due diligence to locate Mr. A. and provided him with notice of the proceedings and stated, "I did review the records myself and I saw that there was a due diligence." There is also evidence that, even if he did not receive complete statutory notice before the July 2019, he was personally served with proper notice of the dependency proceedings in August 2019, and appointed counsel.
Mr. A. argues that, prior to notice in August 2019, he did not receive notice in compliance with section 316.2, subdivision (b). That statute provides: "If . . . 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. The notice shall state that the child is the subject of proceedings under [s]ection 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice."
California Rules of Court, rule 5.635(g) (formerly rule 1413(g)), which implements section 316.2, provides: "If, after inquiry by the court or through other information obtained by the county welfare department or probation department, one or more persons are identified as alleged parents of a child for whom a petition under section 300, 601, or 602 has been filed, the clerk must provide to each named alleged parent, at the last known address, by certified mail, return receipt requested, a copy of the petition, notice of the next scheduled hearing, and Statement Regarding Parentage (Juvenile) (form JV-505) unless: [¶] (1) The petition has been dismissed; [¶] (2) Dependency or wardship has been terminated; [¶] (3) The alleged parent has previously filed a form JV-505 denying parentage and waiving further notice; or [¶] (4) The alleged parent has relinquished custody of the child to the county welfare department." (italics added, original italics.) None of these exceptions applied in this case.
B. Harmless Error
Even assuming Mr. A. did not receive timely, proper notice of the dependency proceedings in compliance with section 316.2 and California Rules of Court, rule 5.635(g), any such error was harmless.
In Kobe A., supra, 146 Cal.App.4th 1113, the court held that deficient notice of the father was harmless error, where the court clerk failed to serve the father with form JV-505. In addition, the notices CFS served the father did not provide him with notice about seeking an adjudication of his paternity or offer him the opportunity to seek appointment of counsel to assist him in that process. The court in Kobe A. concluded that this failure to provide statutory notice denied the father "adequate notice of his rights and the ability to access the procedure for establishing paternity, obtaining reunification services, and ultimately seeking placement of his son in his home or with one of his relatives." (Id. at p. 1122.)
In considering whether such notice deficiency constituted harmless error, the Kobe A. court stated: "'We typically apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se. This practice derives from article VI, section 13 of the California Constitution, which provides: "No judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."'" (Kobe A., supra, 146 Cal.App.4th at p. 1122, quoting In re Jesusa V. (2004) 32 Cal.4th 588, 624.)
The Kobe A. court rejected CFS's argument that the father suffered no prejudice from the lack of proper notice because he expressly waived his appearance at the jurisdiction/disposition hearing, indicating his disinterest. Nevertheless, the Kobe A. court concluded that the lack of proper notice was harmless error. (Kobe A., supra, 146 Cal.App.4th at pp. 1122-1123.)
As in Kobe A., here, CFS argued there was no prejudicial error because Mr. A. failed to respond in any way to the initial notice of the dependency proceedings provided before the July 2019 jurisdiction/disposition hearing. But there is no indication in the record on appeal that the initial notice provided him with adequate notice of his rights and procedures for establishing paternity, obtaining reunification services, and ultimately seeking placement of S.G. in his home or with one of his relatives.
The court in Kobe A. explained the notice error was nevertheless harmless because, "[e]ven if he had received the Judicial Council form advising him of the actions to take to establish his paternity status, appellant would not have been able to meet the statutory elements to be declared a presumed father under Family Code section 7611. He was not married to Kobe's mother, nor is there evidence or even a claim that he attempted to marry her, so he could not establish presumed status under subdivisions (a), (b) or (c). Under subdivision (d), a man can be a presumed father if '[h]e receives the child into his home and openly holds out the child as his natural child.' In an offer of proof, appellant's attorney stated appellant would testify that he 'has held himself out to be the father of Kobe. He will always hold himself out to be the father.' Appellant was incarcerated just two days after Kobe was born and remained incarcerated until four months before the section 366.26 hearing. He did not receive the child into his home within the meaning of Family Code section 7611, subdivision (d)." (Kobe A., supra, 146 Cal.App.4th at p. 1123.)
The Kobe A. court further noted that, "[m]ore importantly, whether appellant was an alleged or presumed father, his criminal history left the court with limited discretion to provide him with reunification services. Section 361.5, subdivision (b) provides that reunification services need not be provided to a parent when the court finds '(12) [t]hat the parent or guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of [s]ection 667.5 of the Penal Code.' We have taken judicial notice of appellant's criminal record provided by the California Department of Justice, which shows that he had been convicted of second degree robbery with use of a firearm. That is a violent felony under Penal Code section 667.5, subdivision (c)(9). Section 361.5, subdivision (c) prohibits the court from ordering reunification for a parent who, like appellant, is described in paragraph (12) of subdivision (b) 'unless the court finds, by clear and convincing evidence, that reunification is in the best interests of the child.'" (Kobe A., supra, 146 Cal.App.4th at p. 1123.)
The court in Kobe A. concluded that the undisputed facts precluded "any realistic possibility that the court would have found by clear and convincing evidence that reunification was in Kobe's best interests." (Kobe A., supra, 146 Cal.App.4th at p. 1123.) The Kobe A. court noted that the father was incarcerated two days after Kobe's birth, and was not scheduled for release from prison until after the maximum 18-month period for reunification would have ended under section 361.5, subdivision (a). (Kobe A., supra, at p. 1123.)
Kobe A. is factually on point here, with the exception that, in the instant case, Mr. A. eventually received proper statutory notice in August 2019, during the final permanency planning stage, after the matter had been set for a section 366.26 hearing. The facts in the instant case support the same result reached in Kobe A. that any deficiency in notice was harmless error. As in Kobe A., there was evidence CFS provided Mr. A. with notice of the dependency proceedings before the July 2019 jurisdiction/disposition hearing, but the record does not establish that, when such notice was provided, "adequate notice of his rights and the ability to access the procedure for establishing paternity, obtaining reunification services, and ultimately seeking placement of [S.G.] in his home or with one of his relatives." (Kobe A., supra, 146 Cal.App.4th at p. 1122.) Nevertheless, as in Kobe A., any such deficiency in notice was harmless error. As in Kobe A., Mr. A. was not married to S.G.'s mother, nor was there evidence or a claim that he attempted to marry her. Therefore, he could not establish presumed status under Family Code section 7611, subdivisions (a), (b) or (c).
There was also no evidence of presumed status under subdivision (d), in which a man can be a presumed father if he "receives the child into [hi]s home and openly holds out the child as [his] natural child." Mr. A. had been continuously incarcerated throughout the dependency proceedings, since August 23, 2018, three months after S.G.'s birth, and remained incarcerated at the time of the January 16, 2020, section 366.26 hearing. His anticipated release date was in July 2020, after the statutory 18-month reunification period would have ended in April 2020. Mr. A. was unable to provide a home for S.G. during the dependency proceedings and had not done so before his incarceration. The record demonstrates that Mr. A. had not had any contact with S.G. or any relationship with S.G. during the three month period after S.G.'s birth, before Mr. A. was incarcerated. There was thus no evidence he received S.G. into his home within the meaning of Family Code section 7611, subdivision (d). There also is no evidence that Mr. A. ever supported S.G. financially or made any effort to contact her, even before he was incarcerated.
The undisputed facts thus precluded any realistic possibility the court would have found that reunification was in S.G.'s best interests. (Kobe A., supra, 146 Cal.App.4th at p. 1123.) Also, because Mr. A. had no relationship with S.G., it is highly unlikely the court would have removed S.G. from her stable foster-pre-adoptive placement to place her with Mr. A., whom S.G. did not know. (Id. at p. 1124; see In re Jesusa V., supra, 32 Cal.4th at p. 601: [father's rape conviction "rendered it improbable the court would have ordered reunification services (. . . § 361.5, subds. (b)(12), (c)) and his incarceration made successful reunification all but impossible. (Id., § 361.5, subds. (a)(2), (e)(1); see In re Maria S. (1997) 60 Cal.App.4th 1309, 1313.)"].)
In Kobe A., the court concluded that, "[w]hether or not appellant sought to change his paternity status, the course of his relationship with Kobe and of the dependency case would not have been different." (Kobe A., supra, 146 Cal.App.4th at p. 1123.) The Kobe A. court therefore held that the father was not prejudiced by the juvenile court's failure to comply with the notice requirements of section 316.2 and California Rules of Court, rule 1413. (Kobe A., supra, at p. 1124.) Likewise, here, we conclude that, even though Mr. A. changed his paternity status to that of biological father near the end of the proceedings, rather than early on, it is not reasonably probable the result would have been any different had he received statutory notice of the proceedings sooner, before the final permanency planning stage. It is not likely he would have received reunification services or succeeded in achieving presumed father status. It is also not reasonably probable that S.G. would have been placed with PGM. We thus conclude Mr. A. was not prejudiced by any failure by CFS or the court to provide him with complete statutory notice of the dependency proceedings under section 316.2 and California Rules of Court, rule 5.635, before the final permanency planning stage.
V.
PARENT FITNESS DETERMINATION
Citing In re Gladys L. (2006) 141 Cal.App.4th 845, Mr. A. contends termination of his parental rights violated his due process rights because there was no finding he was unfit to parent S.G. Mr. A. argues that because there was no finding of his unfitness to parent, this court must reverse termination of his parental rights.
"Parents have a fundamental interest in the care, companionship, and custody of their children. . . . '[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.'" (In re Gladys L.. supra, 141 Cal.App.4th at p. 848, quoting Santosky v. Kramer (1982) 455 U.S. 745, 760.)
During the jurisdiction/disposition hearing on July 29, 2019, the juvenile court indicated that it was adopting the findings in the addendum to the July 29, 2019 jurisdiction/disposition report, which stated that "clear and convincing evidence shows that child . . . should be removed from the physical custody of parents. . . in that . . . [¶] . . . [t]here is a substantial danger" to S.G. if returned home. Mr. A. argues that this finding was insufficient to establish detriment to S.G. against him and there was no evidence to support a finding of implied detriment.
A finding of detriment or unfitness to parent S.G. was not required because Mr. A. was not a presumed father. His status was initially that of an alleged father and later elevated to a biological father. The record further shows that he could not establish presumed father status. (In re A.S. (2009) 180 Cal.App.4th 351, 362.) "California dependency law distinguishes between a presumed father, a biological father and a biological father who came forward early in the dependency case and displayed a full commitment to the child (Kelsey S. father). [Citations.] This court has consistently held that a biological father's rights are limited to establishing his right to presumed father status, and the court does not err by terminating a biological father's parental rights when he has had the opportunity to show presumed father status and has not done so. [Citations.]" (Ibid.)
"[A] biological father's 'desire to establish a personal relationship with a child, without more, is not a fundamental liberty interest protected by the due process clause.' [Citation.]" (In re Christopher M. (2003) 113 Cal.App.4th 155, 160; see In re Jason J. (2009) 175 Cal.App.4th 922, 933.) "'"Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring." [Citation.]'" In re Christopher M., supra, at p. 160; see also In re Jason J., supra, at p. 933.) A biological father's "'parental rights may be terminated based solely upon the child's best interest and without any requirement for a finding of detriment or unfitness.'" (In re Jason J., supra, at p. 934, quoting Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2009) § 2.60[3][c], p. 2-130.)
The record shows that Mr. A. had the opportunity to demonstrate presumed father status during the final permanency planning stage of the proceedings but failed to do so. Furthermore, the evidence supported a reasonable finding he would not be able to establish presumed father status before expiration of the statutory 18-month reunification period and termination of Mr. A.'s parental rights was in S.G.'s best interest. He had been incarcerated throughout most of S.G.'s life; he had no relationship with S.G.; he remained incarcerated throughout the dependency proceedings; he was not entitled to reunification services under section 361.5, subdivisions (b)(7) and (b)(10); and he had not provided support for S.G. Based on these circumstances, the court did not err in terminating Mr. A.'s parental rights to S.G. even though the court did not make an express finding that Mr. A. was unfit to parent S.G. (In re A.S., supra, 180 Cal.App.4th at p. 362.)
VI.
DISPOSITION
The order terminating parental rights and selecting adoption as a permanent plan is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.