Opinion
F080306
07-06-2020
In re A.G., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. SALVADOR P., Defendant and Appellant.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 518075)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Salvador P., recently determined biological father of A.G., contends that the juvenile court erred when it denied his Welfare and Institutions Code section 388 "Ansley" petition asserting a violation of his due process rights to proper notice of the dependency proceedings. We find the petition filed was not an Ansley motion and that the juvenile court did not abuse its discretion in denying an evidentiary hearing on the petition. The judgment is affirmed.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Ansley v. Superior Court (1986) 185 Cal.App.3d 477 (Ansley). --------
STATEMENT OF THE FACTS AND PROCEDURE
A.G. came to the attention of the Stanislaus County Community Services Agency (agency) at his birth in August of 2017. At the time, A.G.'s five-year-old half sister was a dependent of the juvenile court and placed in foster care. When A.G. was born, Evelyn G. (mother) was residing at a sober living facility, due to a long-standing methamphetamine addiction. Both she and A.G. tested negative at his birth. The agency filed a non-detained petition under section 300, subdivisions (b) and (g). Under section 300, subdivision (g), it was alleged that A.G.'s father's name and whereabouts were unknown. Mother had told the social worker that she only knew father by a nickname and had therefore not put him on the birth certificate. She said father was not claiming A.G. as his child and did not want to be involved.
At the initial detention hearing on September 15, 2017, the juvenile court questioned mother regarding her knowledge of father. Mother said she knew father only as "Dreamer," had no idea of his real name, but "somebody" told her he might be in jail. Mother agreed that this "somebody" might know his real name, and that she "just got to ask." The juvenile court ordered mother to ask and let the juvenile court, the social worker, and her attorney know within five days. Mother stated that she understood the order and that there was no reason she could not comply. Jurisdiction was set for October 25, 2017, with an October 4, 2017 hearing to ensure that mother provided the parentage information.
At the October 4, 2017 hearing, mother stated she had not called her girlfriend to ask for the information, as she did not have permission from the sober living facility to do so. The social worker interjected that mother did have permission. The juvenile court admonished mother, reminding her that it was an order, and that she was expected to comply with it. Mother was ordered to get the information by "Friday," as the child's father had to be notified.
Prior to the scheduled jurisdiction/disposition hearing set for October 25, 2017, the agency filed a request for a continuance, as mother had a criminal case set for that date, in which it was possible that she would be incarcerated. Mother did not appear at the October 25, 2017 hearing. The agency reported that mother had provided a name for father, Salvador P., but not a birthdate. Noting Salvador P. was a fairly common name, the juvenile court told the agency it would have to exercise due diligence in an attempt to locate him. Salvador P.'s name was added to the calendar and the matter continued to November 7, 2017.
The November 2, 2017 report prepared in anticipation of jurisdiction/disposition recommended that A.G. remain with mother at the sober living facility under a family maintenance plan. The report recommended that Salvador P. be denied services as a merely alleged father.
The report chronicled the search results for Salvador P., indicating that mother left a voicemail on October 6, 2017, in which she provided both a name and address for him. A letter was mailed to that address on October 10, 2017. An October 24, 2017, Youth Connection Search resulted in an address in Salida and three phone numbers; a call to all three numbers was unsuccessful in reaching Salvador P. A notice letter was sent to the address provided by the Youth Connection Search. A subsequent Absent Parent Search revealed two additional phone numbers, but the numbers again were unsuccessful in reaching Salvador P. The social worker continued to seek further information from mother to determine if they were searching for the right Salvador P. Mother was unable to provide a birthdate or middle name, but stated that he is a "Jr." This was consistent with the information found via the Youth Connection Search.
At the November 7, 2017 hearing, mother submitted on the report and recommendation. A.G. was declared a dependent, but left in mother's custody with family maintenance services. Services were denied Salvador P. pursuant to section 361.5, subdivision (a), as he was only an alleged father. The petition was amended to include Salvador P.'s name, but that his whereabouts was unknown.
On January 8, 2018, the agency filed a section 387 supplemental petition, alleging mother was required to turn herself into custody for a one to two year sentence on a 2015 stabbing conviction. She had no one to care for now four-month-old A.G. and he was placed in foster care. Salvador P. was listed as the alleged father with address unknown. A new Absent Parent Search had been initiated, but had not yet been completed. At the detention hearing held the following day, the juvenile court noted that the agency had exercised due diligence in attempting to locate and notify Salvador P.
The Absent Parent Search dated January 10, 2018, indicated the address in Salida was located on several data bases as Salvador P.'s address, and his mother's as well. His mother's and father's names and phone numbers were listed. The probation department indicated Salvador P. was on active probation for spousal abuse and had an active bench warrant. The Department of Corrections Identification and Warrants Division had no record of Salvador P.
The report prepared for the February 28, 2018 jurisdiction/disposition hearing indicated that all efforts to locate and contact Salvador P. through the Absent Parent Search had been unsuccessful. On January 25, 2018, the social worker had attempted to contact Salvador P. via the search results. A voice mail was left at the first number. At the second number, which was listed as Salvador P.'s mother's number, a woman answered who only spoke Spanish. As there were no Spanish-speaking social workers available at the time, she did not call the other two numbers.
On February 1, 2018, a Spanish-speaking placement specialist called the two numbers listed for Salvador P.'s parents. At the first number, the specialist was told the recipient was unaware of who Salvador P. was; a voice message was left in both English and Spanish at the second number.
Through the Youth Connection Report, a letter was sent January 4, 2018, to Salvador P. at the address located, but no reply received. Connection letters alerting relatives to the need of placement for A.G. were sent to a paternal grandmother, paternal aunt, paternal uncle, and paternal grandfather. None of these individuals contacted the agency regarding placement.
At the February 28, 2018 hearing, the juvenile court found the supplemental petition true, removed A.G. from mother's custody, granted her reunification services, and denied Salvador P. services pursuant to section 361.5, subdivision (a).
The report prepared for the August 22, 2018 six-month review indicated that a new Absent Parent Search was conducted for Salvador P. on April 3, 2018, and again on July 24, 2018. Both searches revealed the Salida address, as well as a second address in Salida. Notice of hearing was sent to both addresses; the notice sent to the second Salida address was returned with "no such number unable to forward" on it. Notice sent to the first Salida address was not returned.
The social worker attempted to call the two phone numbers found on the April 3, 2018, search. The first number was disconnected; a voicemail was left on the second, but no call back was received. The social worker called both numbers again on July 25, 2018. This time the first number was still disconnected; someone answered the second number, but stated it was a wrong number. The April and July 2018 Absent Parent Search summary reports indicated that the phone numbers came from the Stanislaus County Probation Department and jail. The first Salida address continued to appear in multiple public agency databases. The Department of Corrections Identification and Warrants Division still had no record of Salvador P.
On August 22, 2018, mother, who had just been released from jail, was granted six months additional services.
The 12-month review report, filed January 30, 2019, indicated that notice was sent to Salvador P. at the first Salida address on January 23, 2019. The social worker called the three reported telephone numbers on January 25, 2019 - voicemails were left on two of the numbers; on the third, a man answered and reported that it was a wrong number. The Absent Parent Search was attached to the report and indicated that, as of January 24, 2019, the Department of Corrections Identification and Warrants Division had no record of Salvador P. The Stanislaus County Court System Locator, the Department of Child Support Services, the jail, Medi-Cal eligibility, the probation department, and another online database all reported the first Salida address. The three telephone numbers previously listed were also located from those agencies. On February 14, 2019, the juvenile court found that the agency had exercised due diligence in attempting to locate and notify Salvador P.
At a continued review hearing on February 26, 2019, mother was granted an additional six months of services for A.G. The juvenile court again found that the agency exercised due diligence in attempting to locate Salvador P.
The report for the June 20, 2019 18-month review hearing initially recommended mother be given an additional three months of reunification services in order to begin and monitor a trial visit with A.G. The report stated that Salvador P. had been served notice by first class mail. An Absent Parent Search on May 21, 2019, revealed four possible addresses, the two previously listed addresses, as well as an address in French Camp and one in Modesto. The French Camp address was found in the Medi-Cal Eligibility Data System; the Modesto address was obtained from the Stanislaus County Jail. Both included the one long-standing telephone number. Notice was sent to all of these addresses. The social worker again called the one telephone number and left a message requesting a return call. The report indicated that the Department of Corrections still had no record for Salvador P.
On June 27, 2019, the juvenile court again found the agency had exercised due diligence in attempting to locate and notify Salvador P. The matter was continued for a contested hearing.
On June 28, 2019, the agency filed an addendum report recommending termination of services for mother and referral for a section 366.26 hearing to establish a permanent plan for A.G. Mother's services were terminated on July 23, 2019, and a section 366.26 hearing was set for November 19, 2019.
On August 22, 2019, the agency filed a motion to appoint counsel for Salvador P., indicating that a new Absent Parent Search conducted for the upcoming section 366.26 hearing revealed that Salvador P. was currently incarcerated at Sierra Conservation Center. Hearing on the motion was set for August 23, 2019.
At the hearing, counsel for the agency indicated that, while Salvador P. had been located, the social worker had not been able to speak to him. The juvenile court questioned how the agency knew whether Salvador P. even wanted an attorney. Counsel reported that a JV-505 (Statement Regarding Parentage) had been sent to Salvador P., an ICWA-020 (Parental Notification of Indian Status) would be, and the agency would continue to attempt to contact Salvador P. at the facility. The agency wanted to be sure counsel was appointed immediately because of the pending section 366.26 hearing.
Counsel was appointed and the juvenile court advised the agency to provide discovery immediately. The juvenile court set the matter for September 10, 2019, to address possible ICWA matters and make parentage findings.
On September 3, 2019, the agency filed an ICWA-020 in which Salvador P. stated he had no Indian ancestry. It also filed a JV-505 in which Salvador P. stated he wanted an attorney and did not know if he was the parent of the child and requested DNA testing. He did not check the box on the form requesting to be found to be the presumed father.
Salvador P. was not present at the September 10, 2019 hearing, but was represented by counsel. The social worker indicated that Salvador P. had been transferred from state custody to the county public safety center. Discovery had been sent to counsel by the social worker. The juvenile court found that ICWA did not apply and ordered DNA testing for Salvador P. Records indicated that Salvador P. was pending an October 9, 2019 pretrial hearing, and that he was being held on $60,000 bail.
The report prepared for the November 19, 2019 section 366.26 hearing indicated that DNA testing had been completed, but results not yet received. The report recommended termination of parental rights for mother and Salvador P., and that A.G. be referred for adoption by his current caretakers, with whom he had been residing for the past 22 months, since he was four months old.
On November 4, 2019, the agency filed an additional report, indicating that Salvador P. had been found to be A.G.'s biological father.
Salvador P., with counsel, was present for the first time at a pretrial hearing held November 12, 2019. Salvador P. was found to be A.G.'s biological father. Salvador P. reported that he had been in custody since December of 2018, and prior to that, in custody for the last two years "off and on," but mostly in custody. Counsel for Salvador P. stated that he would be asking to put the section 366.26 hearing over, in order to allow father to "explore his legal options" and file a section 388 petition. When asked by the juvenile court what would constitute change for a section 388 petition, counsel replied that it was being found to be the biological father and appointment of counsel, and that, had counsel been appointed earlier, Salvador P. would have asked for visitation through letters from prison.
The juvenile court denied the request for a continuance, and indicated that any section 388 petition filed prior to the section 366.26 hearing would be heard at the same time on November 19, 2019, as scheduled.
Counsel for Salvador P. filed a section 388 petition on November 14, 2019. The petition alleged, as changed circumstances, that since the setting of the section 366.26 hearing, Salvador P. had been appointed counsel in August 2019; received discovery and requested a paternity test in September of 2019; and found he was A.G.'s biological father on November 12, 2019. Salvador P. reported that he had been in custody for the last 11 months, though only recently in Stanislaus County Jail and "previously in prison." The section 388 petition requested the section 366.26 hearing be vacated or trailed to allow Salvador P. to "prepare," to elevate him to presumed father status, to grant him reunification services, and to order that paternal family be assessed for placement.
The section 388 petition alleged that this change in orders would be in A.G.'s best interests, because "[t]he family deserves a fair opportunity at reunification." The petition stated:
"[Salvador P.] reports that he has been incarcerated for the past 11 months, yet, his whereabouts have been deemed to be unknown upon review of the discovery. Had [counsel] been appointed 11 months ago, an order to transport would have [been] prompted, leading [to] a DNA test request, earlier knowledge of paternity, perhaps at a state where reunification was still the permanent plan, plus requests to visit."
The petition's question as to whether anyone disagreed with Salvador P.'s request stated,
"Social Worker and County Counsel contend that Father received letters informing him of the proceedings and did not present himself. Social Worker reports that father confirmed this information. Father reports to his counsel that he misunderstood the inquiry and did not know that these proceedings were occurring."No documentation was attached to the petition.
The juvenile court set the matter for a hearing on whether to grant or deny an evidentiary hearing for November 19, 2019.
At the November 19, 2019 hearing, counsel for Salvador P. asked the juvenile court to grant an evidentiary hearing on the motion to offer Salvador P. reunification services, vacate or continue the section 366.26 hearing, and consider A.G.'s paternal side of the family for placement. He indicated that the petition was prompted by appointment of counsel and very recent DNA results, along with the fact that Salvador P. had "not been a free man since December 27th, 2018," and that Salvador P. would testify to the prisons he had been in. Counsel acknowledged that due diligence searches in January and May of 2019 did not show Salvador P. appearing in the corrections system, but that Salvador P.'s testimony would refute that information, as he "would have popped up in the CDCR search." Counsel thought there was a "notice issue" as well, and that Salvador P. should be allowed to request visitation of some sort.
County Counsel reviewed the history of the searches and notices sent to Salvador P. over the two plus years. Counsel for the agency argued that the disentitlement doctrine applied to Salvador P., that there was no supporting documentation attached to the section 388 petition, no declaration under oath from Salvador P., and no evidence of best interest for A.G. County counsel also noted that, in the section 388 petition, Salvador P. acknowledged receiving notice letters when questioned by the social worker, but that he now claimed to counsel that he misunderstood the social worker's inquiry.
Counsel for A.G. noted that, while Salvador P. claimed to have been in custody for at least 11 months, A.G. had been under the juvenile court jurisdiction for more than two years and Salvador P. did not come forward during any of that time.
Counsel for Salvador P. then attempted to clarify that, if Salvador P. testified, he would explain that the letters he admitted getting were from child support about another child and he misunderstood the inquiry.
In its ruling denying an evidentiary hearing on the petition, the juvenile court stated:
""[I]t is clear that [Salvador P.] has indeed been determined to be the biological father of [A.G.]. However, the mere status of a biological father does not give one entitlement to reunification services, and it would have to be deemed to be in the child's best interest to give [Salvador P.] reunification services which is what is being asked for. And it is also being asked at this point to change [A.G.'s] current placement. [¶ ] Now ... the Court has indeed made previous orders that the Agency exercise[d] due diligence to attempt to locate and notify [Salvador P.]. And further, the Agency did conduct absent parent searches after it was really not required to do so. [¶ ] Clearly, [Salvador P.] knew that he had sexual relations with [mother] that may well have resulted in the conception of this child and he did nothing to pursue whether in fact he had a child or not. [¶ ] He has been in custody for a significant period of time. The Court has to be mindful of the fact that [A.G.] has been in his current placement for 22 months now, and that is really the only placement ... since January 4th of 2018, and that is the only placement that this child has really had ... for the majority of his life. He is also placed with his sister with whom he is very much bonded. [¶ ] ... [A]sking the Court to change this child's placement, which is part of the 388, where he has been living for a very significant period of time, does not show a concern about the child's best interest but actually as to [Salvador P.'s] interest. And he is currently incarcerated, there is no evidence before the Court that he will be released at any time in the very near future."
The juvenile court then proceeded to the section 366.26 hearing. Salvador P. provided no witnesses, but objected to the termination of his parental rights. Parental rights as to both mother and Salvador P. were terminated.
DISCUSSION
Salvador P. contends the juvenile court erred as a matter of law by failing to hold an evidentiary hearing on his section 388 petition, which he contends for the first time on appeal was an Ansley petition. We find that the petition did not meet the criteria of an Ansley petition and Salvador P. failed to raise the Ansley issue below. As such, he may not do so here. Even if we address the section 388 petition on the basis Salvador P. asserts, it required a prima facie showing of both change of circumstances or new evidence and best interests of the minor in order to warrant an evidentiary hearing, and no such showing was alleged in the petition. We find no abuse of discretion on the part of the juvenile court.
Section 388 Petition
Under section 388, a parent may petition the juvenile court to modify any of its orders. To obtain the requested modification, a parent must demonstrate (1) a change of circumstance or new evidence, such that (2) the proposed change of order is in the child's best interests. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) To warrant an evidentiary hearing, a parent must "'sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests.'" (In re K.L. (2016) 248 Cal.App.4th 52, 61 [affirming denial of evidentiary hearing].) "'A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' [Citation.] In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case." (In re K.L., supra, at pp. 61-62.)
Ansley Petition
A parent whose child is involved in a juvenile dependency matter is entitled to notice that is reasonably calculated to apprise the parent of the proceedings and to allow the parent a meaningful opportunity to participate. (In re D.R. (2019) 39 Cal.App.5th 583, 590; In re Justice P. (2004) 123 Cal.App.4th 181, 188 (Justice P.).) The absence of adequate notice is a due process violation that renders the juvenile court's jurisdiction defective. (Justice P., supra, at p. 188; Ansley, supra, 185 Cal.App.3d at p. 483.)
Whenever the agency files a juvenile dependency petition, section 290.1 requires that the social worker provide a copy of the petition and notice of the date, time, and place of the hearing to a number of individuals, including any alleged father "whose whereabouts are known or become known prior to the initial petition hearing." (§ 290.1, subds. (a)(2), (d)(1)-(3).) Section 290.2 requires the clerk of the court to provide similar notice to any alleged father "whose address is known or becomes known prior to the initial petition hearing." (§ 290.2, subds. (a)(2), (d)(1)-(3).) If a parent's whereabouts are unknown, the agency must act with due diligence to locate the parent. (Justice P., supra, 123 Cal.App.4th at p. 188.) Due diligence requires a thorough, systematic investigation and an inquiry conducted in good faith. (Ibid.) However, there is no due process violation as long as the agency exercises good faith and due diligence to provide notice to the parent whose whereabouts are unknown for the majority of the proceedings. (Ibid.)
A parent may assert that an order or judgment is void based on inadequate notice at any point in the proceeding by filing a request to change, modify, or vacate a previous order pursuant to section 388. (Ansley, supra, 185 Cal.App.3d at pp. 487-488; In re D.R., supra, 39 Cal.App.5th at p. 590 ["A section 388 petition is the correct method for raising a 'due process challenge based on lack of notice'"].) A parent who files such a petition bears the burden of showing, by a preponderance of the evidence, that there is a new evidence indicating inadequate notice, and that the proposed change is in the child's best interests. (See § 388; Ansley, supra, at pp. 486-487 [characterizing allegations of inadequate notice as new evidence in accordance with § 388].)
Standard of Review
We review the summary denial of an evidentiary hearing on a section 388 petition for abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358.) Under that standard, we will not disturb the decision of the juvenile court unless it was arbitrary, capricious, or patently absurd. (Ibid.) However, we review any underlying factual findings for substantial evidence, and review the legal question of whether a party received adequate notice de novo. (See In re Maya L. (2014) 232 Cal.App.4th 81, 102 ["'When applying the deferential abuse of discretion standard, "the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious."'"]; In re J.H. (2007) 158 Cal.App.4th 174, 183 [adequacy of notice is a legal question reviewed de novo].)
Waiver
Salvador P. contends the juvenile court decision to deny his section 388 petition, which he describes as "his Ansley motion," without an evidentiary hearing was an abuse of discretion and violated due process. Father contends he adequately alleged new evidence because, according to him, "the agency failed to conduct a reasonably diligent absent parent search, which denied [Salvador P.] due process notice of the proceedings." He further contends error occurred when the juvenile court found he did not meet the "best interests of the minor" prong, because, according to Salvador P., such a finding is not required "in an Ansley motion where the agency did not complete a reasonably diligent search and thereby denied [Salvador P.] due process notice of the proceedings."
The glaring defect in Salvador P.'s argument, however, is that his section 388 petition never argued that the jurisdictional findings were void for lack of due process notice, in accordance with Ansley. Instead, his section 388 petition alleged the following as a change of circumstance or new evidence as reason for granting his petition:
"Since the [section] 366.22 hearing, [counsel] was appointed to father Salvador [P.] in August 2019. In September 2019, [counsel] received discovery and requested a paternity test. On 11/12/19, [Salvador P.] found out that he was the biological father. On 11/12/19, [Salvador P.] reported that he has been in custody for the last 11 months, though only recently in [Stanislaus] County Jail and previously in prison."
There is no allegation of a failure to either receive actual notice or an allegation that the agency failed to use due diligence to locate Salvador P. and provide notice. Nor did the petition request that the juvenile court reverse its jurisdiction or disposition findings as to A.G., but instead asked that the juvenile court vacate or trail the section 366.26 hearing set for November 19, 2019, to allow Salvador P. "to prepare," to grant him services, to elevate him to presumed father status and order that his family be assessed for placement.
As such, Salvador P. may not claim for the first time on appeal that the agency failed to give him notice. If a parent fails to object or raise an issue in the juvenile court, the parent is prevented from presenting the issue on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.) "Many dependency cases have held that a parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court." (Ibid., and cases cited therein.)
Analysis
In any event, even if we read Salvador P.'s petition liberally to somehow interpret it in the way he suggests, the petition did not meet the standards for meriting an evidentiary hearing. As addressed above, in order to obtain a hearing on a section 388 petition, the party filing the petition must first make a prima facie showing that there is either new evidence or there has been a change of circumstances and the proposed order would be in the best interests of the minor. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Salvador P.'s petition did not allege facts, or attach any evidence or declarations under penalty of perjury, to establish that the judgment of disposition was void for lack of jurisdiction, or that the agency failed to exercise due diligence to locate and notify him of the proceedings. In requesting an evidentiary hearing on the section 388 petition, trial counsel suggested that there might be a "notice issue" because there was a discrepancy between the due diligence searches in January and May of 2019, in which a check of the California Department of Corrections Identification and Warrants Division still had no record of Salvador P., which was in contrast with Salvador P.'s statement that they should have been able to notify him since he had been in state custody since December 2018. However, December 2018 would have been more than a year after A.G.'s birth, and long past the detention, jurisdiction, and disposition hearings. Thus, Salvador P. failed to make a prima facie showing of a notice violation amounting to a due process violation sufficient to trigger an evidentiary hearing.
Moreover, the record before the juvenile court was sufficient to establish that the agency exercised due diligence to locate Salvador P. and that he had notice of the various hearings. Following the directives of section 316.2, subdivision (a), which requires that, at the detention hearing in September of 2017, the juvenile court inquire of the mother as to the identity and address of all presumed or alleged fathers, the juvenile court ordered mother to identify A.G.'s father in order to give him notice. When mother could only identify him as "Dreamer," the juvenile court ordered mother to contact mutual friends to determine his name and as much identifying information about him as she could gather. When mother failed to do so, she was admonished and ordered to do so again within a five-day period.
Mother provided a name and address for Salvador P. on October 6, 2017, and a letter was mailed to him at that address on October 10, 2017. In addition, the agency ran a search through Youth Connection Search and Absent Parent Search, both of which resulted in an address and telephone numbers. Letters were sent and the telephone numbers called, but the social worker was unable to reach Salvador P. Mother did not have a birthdate for him, but did state he was a "Jr.," which was consistent with the information found in one of the search reports.
A new search was conducted in January of 2018, when it was necessary to remove A.G. from mother' s care. Follow up letters were sent to the located addresses and phone calls were placed in both English and Spanish to the phone numbers listed. Letters were also sent to identified family members, including four paternal relatives, indicating that A.G. was in need of placement. An Absent Parent Search in January of 2018 utilized numerous official government databases, including the Stanislaus County Jail and the California Department of Corrections Identification and Warrants Division, both of which revealed an address in Salida. Multiple letters were sent to this address.
By putting various pieces of information together, the agency believed it had the right Salvador P., including a birthdate and social security number. On January 9, 2018, at the detention hearing on the supplemental petition, the juvenile court found that proper notice had been given.
Salvador P. contends that the search might have been more successful if the agency had personally visited the address in Salida and followed up more thoroughly on the telephone calls, or tried other data bases. This, however is not the legal standard. 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. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) The agency must act with diligence in locating a missing parent. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.) Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598-599.)
Here the agency conducted not one, but many searches utilizing reliable public data bases. They continued to send notices to the address that repeatedly appeared in the various searches. Although the notices were not responded to, neither were they returned. (See In re Marcos G. (2010) 182 Cal.App.4th 369, 386-387 [letters correctly addressed and properly mailed presumed received].) The agency also continued to call the three telephone numbers that consistently appeared in the data base searches, leaving messages in English and Spanish.
When three new mailing addresses were found in May of 2019, the agency sent notice to each of the addresses. One of the addresses obtained from the Stanislaus County Jail included one of the long-standing telephone numbers previously found. It is reasonable to conclude that Salvador P. was reporting various addresses to various government agencies and it was reasonable for the agency to rely on these addresses to attempt to provide notice to Salvador P.
It was not until August of 2019 that, due to another Absent Parent Search, the agency located Salvador P. in state custody. At this time, the agency sent Salvador P. notice and a JV-505 and immediately filed a motion to appoint counsel for him. Here, the agency followed every lead and, when it did locate Salvador P. in custody, it did not wait for him to return the JV-505 and to request or decline counsel, but immediately had counsel appointed for him.
In denying the evidentiary hearing on the section 388 petition, the juvenile court noted that it had found the agency had exercised due diligence to attempt to locate and notify Salvador P. and conducted absent parent searches even after it was not required to do so. This finding by the juvenile court is supported by the evidence.
Even if we were to conclude that Salvador P. did not receive adequate notice, which we do not, he has failed to establish that a change in orders would be in A.G.'s best interests, as also required to grant an evidentiary hearing on a section 388 petition. (§ 388; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The only possible mention of A.G.'s best interests in the section 388 petition was that "[t]he family deserves a fair opportunity at reunification." This is certainly not sufficient.
We note that Salvador P. relies on Ansley for the proposition that, if lack of notice is found, there is no need to address the best interests of the child because it is always in the best interest of the child to set aside a judgment that is void of due process notice. However, as explained in Justice P., the statutory scheme in effect at the time Ansley was decided more than 30 years ago, did not place the same emphasis on expediency in achieving permanency and stability for a dependent child, which is a paramount goal under the current scheme. (See Justice P., supra, 123 Cal.App.4th at pp. 191-192.) For the same reasons outlined in Justice P., we decline to follow the Ansley automatic reversal rule.
In sum, we reject Salvador P.'s argument that he was denied due process because the juvenile court summarily denied his section 388 petition. Salvador P. wholly failed to identify new or additional evidence he would have presented at an evidentiary hearing that would have established a due process violation and been in the best interests of A.G. Furthermore, a section 388 petition brought on the eve of a section 366.26 hearing is disfavored. This is so because, at this point in the dependency proceeding, the child's interest in stability is the juvenile court's foremost concern and outweighs any interest in reunification. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.)
Although Salvador P. alleges that, if he had had notice prior to disposition on the supplemental petition, he could have elevated his status to presumed father, this allegation ignores the reality. In his JV-505, he did not even allege he was the presumed father or even that he desired that designation. Instead, he indicated that he did not know if he was A.G.'s father. Trial counsel did not even attempt to allege facts that would entitle Salvador P. to presumed father status.
Here, Salvador P. was attempting to elevate his status to presumed father long after A.G. had been declared a dependent and placed into foster care, which would have required Salvador P. to demonstrate that it was in the best interest of A.G. to offer him services or visits and establish a relationship with the minor. Salvador P. also argues that, even if he was incarcerated he was the non-offending parent and could have arranged for a relative to care for A.G. until he was released. And while it is true, as Salvador P. notes, that incarceration does not necessarily mean "'Go to jail, lose your child'" (In re S.D. (2002) 99 Cal.App.4th 1068, 1077), the section 388 petition did not indicate any specific relative. And it should be noted that connection letters were sent to parental relatives in January 2018, indicating that a placement was being sought for A.G., but no relative applied.
As for the best interests of A.G., we consider the strength of the bonds between the dependent child and both Salvador P. and the caregivers (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532), and note A.G., now 26 months old, had been with his current caregivers for 22 months, the same caregivers who also cared for A.G.'s half sister. Salvador P., on the other hand, had never met A.G.
We find Salvador P.'s case similar to that described in In re Marcos G., supra, 182 Cal.App.4th 369 in which the father was incarcerated when his biological son was born and through the time dependency proceedings began. The court found the father to be an alleged father only and did not appoint counsel to represent him. (Id. at p. 375.) The father eventually appeared 16 months later, asserted notice to him had been defective (he had never been served with Judicial Council form JV-505, and the court had proceeded without an express written waiver of his attendance). He filed a section 388 petition requesting the court hold a new disposition hearing for him and find him to be the child's presumed father. (Id. at p. 380.) Thereafter, he failed to appear at two section 366.26 hearings. (Id. at p. 389.) The juvenile court denied the petition and terminated the father's parental rights. (Id. at pp. 381-382.) The Court of Appeal affirmed, concluding the father had ignored the case and, even had he received required notices and been transported to the jurisdiction hearing, the result would not have differed. (Ibid.)
We conclude any error in failing to hold an evidentiary hearing on Salvador P.'s section 388 petition was harmless.
DISPOSITION
The judgment is affirmed.
SMITH, J. WE CONCUR: FRANSON, Acting P.J. SNAUFFER, J.