Opinion
B192436
4-25-2007
In re A. S. M., Jr., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent, v. A. S. M., Appellant.
Anna L. Ollinger, under appointment by the Court of Appeal, for Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Fred Klink, Senior Deputy County Counsel for Respondent. Kimberly A. Knill, under appointment by the Court of Appeal, for the minor.
NOT TO BE PUBLISHED
An alleged father appeals to challenge the juvenile courts denial of his motion requesting all orders made at the detention, jurisdiction, disposition and review hearings be declared void for lack of jurisdiction. He also claims the court erred in denying his petition for modification without a hearing. In both his motion and petition the alleged father asserted he had not received notice of the proceedings because the department failed to exercise due diligence in attempting to locate him, and in addition, failed to use the Hague Service Convention to serve him despite knowledge he had been deported to Belize. We affirm.
FACTS AND PROCEEDINGS BELOW
Appellant, A. S. M., is the father of A. S. M., Jr., born in October 2003. The minors mother is not a party to this appeal.
On November 24, 2004 Los Angeles County Sheriffs deputies executed a search warrant on a residence in Carson where mother and the minor resided with other persons. The officers discovered illegal drugs and several guns. The officers reported the condition of the home was filthy and had what appeared to be a pile of human feces in the room where the minor slept in a dirty playpen. The officers concluded the home was dangerous and unsafe because it had, among other problems, loose wires hanging from walls and appliances. Mother was arrested and charged with child cruelty posing a risk of injury or death. Officers notified the Department of Children and Family Services (DCFS) and a social worker took the minor into protective custody.
The DCFS filed a petition under Welfare and Institutions Code section 300 which alleged mother had created a detrimental and endangering home environment for the minor by keeping drugs and firearms within the reach of the minor and by maintaining an unsafe, filthy and unsanitary home. The petition further alleged mother had a history of substance abuse, the minor had not received necessary immunizations, and the minor had numerous unexplained marks and bruises on his body.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Detention Hearing:
The detention hearing occurred on December 1, 2004. Father was not present. To notify father of the hearing the caseworker called the listed telephone number for father and learned the number had been disconnected. The caseworker then sent a telegram to fathers last known address as listed in the detention report. The detention report stated fathers birth date was November 29, 1977.
Mother appeared at the hearing. In response to the courts questions, mother confirmed fathers name was A. S. M. Mother was not positive of his birth date, but believed it was July 29, 1974. Mother told the court she believed father was then living in Belize.
In response to further questioning by the court, mother stated fathers name was not on the minors birth certificate. Mother claimed father "was deported" when she was five months pregnant and was not present when the minor was born.
Based on mothers information the court determined father was an "alleged" father because "[h]e is not on the birth certificate, hasnt held himself out as the childs father, [and] hasnt supported [the minor.]"
The court ordered the DCFS to perform a due diligence search for father.
Jurisdiction Hearing:
A DCFS social worker attempted to locate father for the pretrial resolution conference scheduled for January 25, 2005. The worker again called the listed telephone number for father but it was still disconnected. The worker then visited fathers last two known addresses, one on the Esplanade in Redondo Beach and one on 93rd Street in Los Angeles. The landlords at both locations stated father was not a resident. Moreover, neither landlord remembered any tenant with fathers or mothers name ever living in their buildings.
For the January 25, 2005 hearing DCFS personnel prepared a declaration regarding their due diligence search for father. The declaration stated DCFS personnel contacted 16 different agencies, entities or persons in conducting a search for father but without success. The declaration states the name used for the search was a variant of A. S. M., rather than fathers true name.
The court continued the jurisdiction hearing to February 18, 2005. Neither parent appeared. The court sustained the allegations of the petition. The court ordered the DCFS to provide a due diligence report for mother for the disposition hearing scheduled for April 7, 2005.
Disposition Hearing:
DCFS personnel conducted a second due diligence search for father. The declaration regarding the departments due diligence search is dated April 7, 2005. The declaration states personnel checked usual sources, such as local jails, prisons and probation departments. The social worker explained she sent a letter to fathers prior address on the Esplanade in Redondo Beach which was returned with a forwarding address in Hawthorne. The worker then sent three letters to the Hawthorne address but each was returned with the notation "unable to forward."
The worker also checked the minors birth certificate. The birth certificate did not have any name for the father, but stated the fathers date of birth was January 29, 1976 and that the fathers place of birth was Belize. This was a birth date different from the one mother provided at the detention hearing of July 29, 1974 and different from the one listed in the detention report of November 29, 1977.
Based on the lack of results, the social worker stated in the due diligence declaration the "alleged fathers whereabouts are unknown at this time."
Mother appeared for the disposition hearing on April 7, 2005 and at her request the court continued disposition to May 20, 2005 for a contested hearing. Mother failed to appear at the continued hearing and the court proceeded in her absence. The court ordered reunification services for mother. However, the court did not order reunification services for father on the grounds he was an alleged father whose whereabouts were unknown.
Six-Month Status Review Hearing:
In a report for the June 30, 2005 status review hearing the social worker reported mother had not visited the minor for five months. The worker reported his foster parents wished to adopt him and a home study of their home had been completed. The worker recommended reunification services be terminated and the matter set for a section 366.26 hearing.
Notice to father of the hearing was again mailed to his last known address in Hawthorne.
On June 30, 2005 mother did not appear for the status review hearing. The court terminated family reunification services for mother. The court ordered the DCFS to be prepared to address the issues of an interim legal guardianship pending adoption, and termination of parental rights. The court also ordered the DCFS to publish notice of the parents right to seek writ review of the courts orders. The court set the section 366.26 hearing for October 27, 2005.
Section 366.26 Hearing Scheduled for October 27, 2005:
The DCFS published notice of the upcoming hearing for both parents for four consecutive weeks: the last three weeks in July and the first week of August 2005. On the notice, the minors name is accurate. However, the published notice again used the variant of fathers name, rather than his true name.
A renewed due diligence search for father ultimately found him in the custody of the Immigration and Naturalization Services (INS) through information provided by the probation department/parent locator services. The social worker attempted to have notice personally served on father at the INS facility on August 11, August 12, August 16, August 18, August 19, and August 22, 2005. On August 23, 2005 the Dependency Investigator Assistant was able to contact INS personnel who agreed to have the notice served on father. On August 30, 2005, Thomas Pasillas from the INS informed the social worker father had been deported to Belize on August 25, 2005 and notice had not been served prior to his deportation.
Mr. Pasillas of the INS informed the social worker he did not have an address for father in Belize nor an address for any of fathers relatives.
On October 27, 2005 the court continued the matter to permit republication of the notice with the correct spelling of mothers name. The court directed no further notice need be provided to father.
December 22, 2005 Status Review Hearing:
At the December 22, 2005 status review hearing the court, without terminating parental rights, appointed the foster parents interim legal guardians of the minor pending adoption. The court reset the section 366.26 hearing for February 2, 2006.
February 2, 2006 Continued Section 366.26 Hearing:
The DCFS filed a supplemental report for the continued section 366.26 hearing. The social worker reported that on January 26, 2006 she had received a telephone call from father stating he was in Belize and was calling with regard to the minor. Father said he was employed, had a home and wished to have custody of the minor. Father told the social worker he did not know his son was in DCFS custody until only recently. Father explained he was incarcerated when his son was born, and that he remained incarcerated until the INS deported him to Belize. Father told the social worker his actual birth date was July 29, 1977.
Father claimed he had been looking for his son for two years and had written letters to the DCFS to this effect, as recently as April 2004. The social worker told father this could not be possible because the minor had not even been detained until November 24, 2004. Father informed the social worker he could not return to the United States to attend court hearings and asked whether the DCFS could ask the court to appoint counsel to represent him at the hearings.
Father gave the social worker his current residence address in Belize. The social worker provided father with the courts telephone number and mailed father notice of the upcoming section 366.26 hearing via both certified mail, return receipt requested, and by first class mail.
On January 31, 2006 the Department of Human Services of Belize sent a letter by facsimile transmission to the DCFS social worker. The letter explained the department understood there was an upcoming hearing to terminate parental rights to the minor and father had requested the departments assistance in having the minor "repatriated" to his care. The department requested the hearing be postponed until it could conduct a home study of fathers home and an analysis of fathers ability and capability of parenting the minor in order to make a recommendation. Father included a notarized statement stating he was then living in Belize and he was prepared, with the help and assistance of his immediate family in Belize, to apply for and take custody of the minor. Father included a photograph of himself, mother and the minor. The photo was apparently taken when mother came to visit him in prison in April 2004 because father later stated it was the only time he ever saw the minor.
At the hearing on February 2, 2006 the court reiterated father had been properly noticed for all prior hearings. The court nevertheless appointed father counsel, directed counsel to communicate with father, and continued the hearing for 30 days as requested. The court identified the legal guardians as the minors prospective adoptive parents.
At the continued hearing date, the court and parties discussed whether father had in fact received proper notice of the proceedings. The court ultimately directed the DCFS to prepare a recapitulation of all efforts attempted when conducting its due diligence search for father. The court also directed fathers counsel to find out what efforts, if any, father had made to locate the minor from the time father was arrested, through his incarceration and INS hold and deportation, to the present. The court continued the section 366.26 hearing for an additional 30 days.
Fathers Motion to Void All Orders for Lack of Notice:
On March 30, 2006 father filed a memorandum of points and authorities claiming his due process rights had been violated on the ground he had never received notice of the dependency proceedings. Father also argued the DCFSs failure to provide notice to him in Belize through the Hague Service Convention rendered the courts orders void for lack of jurisdiction.
On May 3, 2006 father filed a separate memorandum in response to the DCFSs report regarding its due diligence efforts to locate father. Father asserted the DCFS had not used due diligence in its attempts to find him, either while in the United States or after being deported to Belize. Fathers memo pointed out additional efforts the social worker could have taken to more aggressively search for him, for example, by contacting the Belize Consulate, by contacting social services in Belize, or by contacting mothers sister in Chicago.
Fathers memorandum provides no information regarding any efforts father might have made to locate and/or provide for the minor since the minors birth.
The minors counsel opposed fathers motion to void jurisdictional findings for lack of notice and filed a memorandum of points and authorities in opposition.
On May 5, 2006, and while the section 366.26 hearing was still pending, the DCFS filed a section 387 petition and the minor was removed from the legal guardians home. Notice to father of the section 387 petition was sent to his correct address in Belize. However, according to the certified mail receipt, the notice was addressed to an "Ana" S. M, rather than to A. S. M.
At the continued May 11, 2006 hearing the court dealt primarily with issues concerning the minor and the minors placement. However, the court directed the DCFS to produce all supporting materials documenting its efforts in conducting its due diligence search in order to assist the court in determining whether father had received proper notice, and in determining whether the DCFS had made reasonable efforts in attempting to locate and provide father notice of the proceedings. The court continued the matter.
Fathers Petition for Modification of the Courts Orders:
On May 25, 2006 father filed a petition for modification under section 388. Fathers petition asserted the DCFS failed to exercise due diligence in trying to locate him in the United States while incarcerated and while in Belize after he was deported. Fathers petition requested the court "to find the jurisdictional and dispositional orders void for failure by DCFS to follow the Hague Service Convention, for failure by DCFS to exercise due diligence in noticing father of the adjudicatory, dispositional and all following proceedings."
The DCFSs Report of Its Due Diligence Efforts:
As directed by the court, the DCFS social worker filed a special report regarding the departments due diligence efforts to locate father. The worker noted the detention report listed fathers last known address as on the Esplanade in Redondo Beach and gave a birth date for father of November 29, 1977.
In January 2005 the DCFS conducted a due diligence search for father using the November 29, 1977 birth date and father was not located. All the supporting documentation for this search shows the DCFS had in fact conducted its search using fathers correct name. It was only the due diligence declaration submitted to the court which incorrectly stated a variation of fathers true name.
The social worker explained that later in January 2005 the DCFS received a certified copy of the minors birth certificate. The certificate listed no name for the father. However, the certificate stated the father was from Belize with a birth date of January 29, 1976. This was neither the birth date listed for father in the detention report nor the birth date mother provided for father at the detention hearing.
In April 2005 the DCFS conducted a second due diligence search for father using what everyone now knew to be an incorrect birth date for father. Again, father was not located.
In August 2005 the social worker located father through the probation department by using the parent locator. The social worker then learned father was in INS custody. The social worker made six attempts to personally serve father while in INS custody with notice of the section 366.26 hearing set for October 2006. Father was deported to Belize on August 25, 2006 before he could receive notice of the hearing. The INS did not have an address for father in Belize. Thus, for the section 366.26 hearing notice to father was by publication. The published notice used the variant of, rather than, fathers actual name.
The worker further reported DCFS did not previously know of a maternal aunt living in Chicago. On January 25, 2006 the maternal aunt called the adoption child social worker and told the worker she had been looking for mother for over a year and had even hired a private detective to find mother. The maternal aunt stated she had recently found mother, who, in turn, informed the aunt the minor had been detained and was a dependent of the juvenile court. The maternal aunt told the social worker father had written her a letter to thank her for taking care of the minor while he was in custody. The maternal aunt telephoned father in Belize and relayed mothers information to him.
On January 26, 2006 father telephoned from Belize. He told the social worker he had been in state prison from April 2004 to November 2004. In November 2004 he was released from state prison into INS custody and was deported to Belize on August 25, 2005. He knew of the minor because mother had brought him to visit father in state prison and they had a photo taken together. Father stated he lost track of mother and the minor and did not know the minor had been detained until recently.
Court Denies Fathers Motion to Void All Orders and His Petition for Modification:
On June 15, 2006 the court addressed fathers motion to void all orders for lack of notice. Fathers counsel requested the court to continue the matter until counsel received a video father had made of himself. Other counsel objected on the ground the video would be irrelevant to the narrow issue before the court of due diligence and notice. The court denied fathers counsels request to continue the hearing.
On the merits, the court noted the DCFS had at least three different birth dates for father and did not learn fathers true birth date until he contacted the DCFS from Belize in January 2006. The DCFS did finally locate him in INS custody but was unable to notice him for the hearing before he was deported. Thereafter, the DCFS still could not notice father because the department did not have an address for him in Belize.
The court noted father was not in Belize when it made all its crucial rulings and for this reason service using the Hague Service Convention would not have located father in any event. The court commented, "[e]ven if the department had, in fact, contacted the consulate in Belize and followed the Hague [Service] Convention, it would not have mattered because he wasnt there. It really would have been an exercise in futility, and the department didnt have a reason to believe he was there at the time. [¶] What I have found in my review of this file is that between all the due diligences, the different birth dates, the names that we had, that the departments actions were reasonably calculated under the circumstances to have provided notice to [father], and I am finding as such the department did, in fact, exercise due diligence in noticing this father for all of the proceedings."
Fathers counsel objected, claiming the DCFS could have found father had they contacted mothers relatives. The court disagreed, stating, "[t]hose issues were all raised in the motions as well as the due diligences, and whether the department knew of those relatives at the time the due diligences were actually effectuated would be another issue, and I dont believe that they did. I think that the mothers relatives actually went out in search of the mother and knew that she had a baby, not that the department missed them."
Although the court had previously ordered no further notice to father was necessary, the court explained now that father was located, he was entitled to proper notice of all further proceedings. The court later ordered the DCFS to serve father using international mail with a return receipt requested.
The next day, on June 16, 2006 the court set dates for adjudication of the section 387 petition and for the continued section 366.26 hearing. The court once again placed the minor with the prospective adoptive mother/legal guardian. There were no allegations in the section 387 petition against her. The prospective adoptive mother/legal guardian had since separated from her husband, and it was the husbands actions alone which had prompted the DCFS to remove the minor from their home.
Without a hearing the court denied fathers petition for modification based on alleged due process violations for lack of due diligence and alleged lack of service through the Hague Service Convention. The court wrote on his petition, "[m]atter fully argued and ruled on via motion filed on 6-15-06."
Father appeals to challenge (1) the courts June 16, 2006 order summarily denying his section 388 petition without a hearing and (2) the courts June 15, 2006 order denying his request to declare all orders void for the DCFSs failure to exercise due diligence in attempting to locate him.
DISCUSSION
I. GENERAL REQUIREMENTS OF DUE PROCESS IN AFFORDING PARENTS NOTICE OF DEPENDENCY PROCEEDINGS.
"`Since the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard. [Citations.] (In re B.G. (1974) 11 Cal.3d 679, 688-689.) `An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality 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. [Citations.] The notice must be of such nature as reasonably to convey the required information, [citation], and it must afford a reasonable time for those interested to make their appearance, [citations]. (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314.)"
In re Emily R. (2000) 80 Cal.App.4th 1344, 1351.
In order to satisfy the requirement of providing notice "reasonably calculated under all the circumstances" to provide actual notice, the DCFS must undertake a "thorough, systematic investigation and inquiry conducted in good faith." However, "in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. [Citations.] (Mullane v. Central Hanover Tr. Co., supra, 339 U.S. at p. 317.)"
David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.
In re Emily R., supra, 80 Cal.App.4th 1344, 1352.
We review the record evidence of the DCFSs due diligence efforts with these standards in mind.
II. THE DCFS EXERCISED DUE DILIGENCE IN ATTEMPTING TO PROVIDE FATHER NOTICE OF THE PROCEEDINGS.
Father contends the court erred in finding the DCFS exercised due diligence in attempting to locate him and erred in denying his motion to have all prior orders declared void for lack of jurisdiction and as violative of his due process rights.
`"Dependency law recognizes three types of fathers: presumed, alleged and biological. (In re T.R. (2005) 132 Cal.App.4th 1202, 1208.) A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the childs presumed father under Family Code section 7611. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) `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. (Ibid.)
`"A fathers status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. [Citation.] "Presumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan." [Citation.] (In re T.R., supra, 132 Cal.App.4th 1202, 1209.) 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. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) He is not entitled to appointed counsel or to reunification services. (Ibid.)"
In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.
Section 316.2, subdivision (a) requires the court to inquire as to the identity of all presumed or alleged fathers at the detention hearing or as soon after as practicable. The court made the requisite inquiry at the detention hearing in this case. Mother identified father as the minors father and provided other information about father. Based on mothers information the juvenile court had sound bases for finding father was only an alleged father. Father was not married to mother, was not named on the minors birth certificate, was incarcerated at the minors birth and thus did not receive the minor into his home or hold him out as his natural child, and did not provide financial or other support for the minor.
Family Code sections 7540, 7541, 7611; In re Zacharia D. (1993) 6 Cal.4th 435, 449; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 838; In re O.S. (2002) 102 Cal.App.4th 1402, 1410.
An alleged father is nevertheless entitled to notice of juvenile proceedings. Section 316.2, subdivision (b) specifies an alleged father must be notified of the proceedings at his last known address. This section states: "If, after the court inquiry, one or more men are identified as an alleged father, each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. . . .
In re O.S., supra, 102 Cal.App.4th 1402, 1408 ["An alleged father in dependency proceedings is entitled to notice, because notice provides him an opportunity to appear and assert a position and attempt to change his paternity status."].
"Section 291 also requires notice to an alleged father of the jurisdiction and disposition hearings. If, as in this case, the minor is detained and the alleged father was not present at the detention hearing, notice to the alleged father must be made by personal service or certified mail, return receipt requested.
Section 291, subdivision (a)(2).
Section 291, subdivision (e)(1).
For the detention hearing the DCFS telephoned the number listed for father and learned it had been disconnected. The DCFS then sent a telegram to fathers last known address. Father did not receive this notice or attend the detention hearing because he was then in prison. For the jurisdiction hearing the DCFS complied with the statutory requirements and sent notices to father to all his last known addresses, as well as forwarding addresses, by certified mail, return receipt requested. All these were returned as undeliverable.
The DCFS also conducted two separate due diligence searches for father: one in January 2005 prior to the jurisdiction hearing and one in April 2005 prior to the disposition hearing. It is true, as father points out, the DCFS searched for father through "standard" sources, rather than attempting to find him in Belize. For example, the DCFS interviewed the landlords of fathers prior residences, contacted the Department of Motor Vehicles, the county jail, the probation department, the California Youth Authority, postal services, voter registration, state prison, the parent locator system, the local police department, mothers acquaintances at her current and prior residences, the telephone directory, and the justice department, among other sources. No source provided information on fathers current whereabouts.
As the record on appeal makes clear, the searches were in fact conducted using fathers correct name. It was only the social workers declarations of due diligence which erroneously stated the searches instead used a variant of fathers true name. Thus, the problem was not that the DCFS used an incorrect name for father during its due diligence searches. Instead, the problem was the DCFS did not have fathers accurate birth date. For this reason, all searches for him using an incorrect birth date could not produce a match. Each of the three birth dates provided for father were inaccurate: the birth date on the detention report, presumably provided by mother, a second birth date mother provided the court at the detention hearing and a third birth date mother listed on the minors birth certificate. No one knew fathers actual birth date until he provided it to the social worker in January 2006, and months after the court had set a hearing date for the section 366.26 hearing.
When the DCFSs two due diligence searches for father proved unsuccessful, the court permitted notice to father by publication. Publication is sufficient for due process purposes when, as in this case, an alleged fathers whereabouts are unknown and cannot be determined with due diligence. However, it is true, as father points out, the DCFS published notice to him using the variant of, rather than his true, name. However, the minors name was spelled out in full in the published notice and was unquestionably accurate. Given the minors and fathers identical and distinctive names, it is probable, if not certain, had father, or anyone who knew father, seen the published notice he or she would know the notice was directed to father and no one else.
In re Emily R., supra, 80 Cal.App.4th 1344, 1352.
A subsequent due diligence search in August 2005 through the parent locator/probation department revealed father had been in the prison system but had since been transferred to INS custody. As soon as the DCFS learned of fathers whereabouts the DCFS immediately attempted to personally serve him with notice on six separate occasions. On the social workers sixth attempt an INS employee agreed to personally deliver the notice to father. However, father was deported two days later, and before he could be served with the notice.
According to father, he was transferred from state prison to INS custody in April 2005 and was thus in INS custody by the time of the May 20, 2005 disposition hearing. Although father may have been able to communicate with the juvenile court in writing had he received notice, the juvenile court would not have had the authority to secure his temporary release from INS custody in order to attend the hearing. (See In re Maria S. (1997) 60 Cal.App.4th 1309, 1312-1313; compare, Pen. Code, § 2625 [establishing a procedure through which state prisoners incarcerated in California are able to attend dependency hearings held in California].)
Once father contacted the social worker and explained his situation, the court appointed father counsel who represented his interests thereafter.
Further notices were mailed first class and certified mail, return receipt requested, to fathers address in Belize. In one instance, the DCFS apparently mailed notice using fathers correct address but directed to "Ana" S. M. instead of to fathers correct name.
Had mother had a more stable existence, or had she participated in the proceedings, perhaps the court and the DCFS could have further questioned her about fathers location or about possible family members who might have known of fathers location. However, mothers whereabouts for the majority of the proceedings were similarly unknown. Thus, given the limited information it had, DCFSs efforts were reasonably calculated under all the circumstances to notify father of the proceedings. 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 . . . ."
In re Justice P. (2004) 123 Cal.App.4th 181, 188.
On this record we conclude the juvenile court did not err in finding the DCFS exercised due diligence in attempting to locate father, and in denying his motion to void all orders for lack of jurisdiction.
III. THE COURT DID NOT ERR IN DENYING FATHERS PETITION FOR MODIFICATION WITHOUT A HEARING.
Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. A section 388 motion is a proper vehicle to raise a due process challenge based on lack of notice. However, a court "may still deny a section 388 petition without an evidentiary hearing if the parent does not make a prima facie showing that the relief sought would promote a childs best interest."
Section 388, subdivision (a).
In re Justice P., supra, 123 Cal.App.4th 181, 189; see also, Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481, 487-488.
In re Justice P., supra, 123 Cal.App.4th 181, 189.
In his petition, as in his motion, father argued all prior orders were void because the DCFS failed to exercise due diligence in attempting to locate him. Fathers petition, as well as his motion, alleged the DCFS failed to provide notice through the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, commonly known as the Hague Service Convention. Relying primarily on the decision in In re Alyssa F., father argued, "[f]ailure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person."
In re Alyssa F. (2003) 112 Cal.App.4th 846, 852.
The court denied his petition for modification without a hearing on the ground all issues raised in fathers petition had been fully argued and ruled on when addressing the DCFSs due diligence efforts just the day before.
It is true, mother claimed at the detention hearing father had been deported to Belize. However, this was erroneous information. Father was not in Belize then nor while the DCFS was attempting its due diligence efforts to locate him. As the court noted in ruling on fathers due diligence motion, attempts to find father through the Belize consulate, or through the Human Services Department in Belize, or attempts to notice father in Belize through the Hague Service Convention would have been futile acts because father was not in Belize at the relevant times. Father was either in state prison or in INS custody at the times of the crucial hearings, namely, the detention, jurisdiction, disposition and review hearings.
Because fathers petition for modification raised only the issues of the courts lack of jurisdiction because of the DCFSs alleged lack of due diligence and alleged failure to provide notice to him in Belize through the Hague Service Convention, the court denied his petition without a hearing on the ground these very matters had been adequately and fully addressed in ruling on his motion to void all orders for lack of notice. The record evidence supports the courts actions and rationale for denying the petition without a hearing.
There are additional, and more fundamental, reasons why it was not error to deny fathers petition for modification based on the lack of service through the Hague Service Convention. The intended recipients address in the foreign country is a prerequisite to effect service through the Hague Service Convention (or otherwise). The INS did not provide the DCFS with an address for father in Belize. Indeed, no one knew fathers address in Belize until he provided it in January 2006 and long after the court had already set a date for the section 366.26 hearing. Accordingly, there was no way the DCFS could have used the Hague Service Convention to notify father in Belize of any of the earlier hearings without an address for him there.
More importantly, however, Belize is not a member state of, nor apparently a signatory to, the Hague Service Convention. Thus, any attempt to accomplish service on father in Belize using the service would indeed have been a useless act. Because Belize is not listed as a participating state of the Hague Service Convention, service through the Hague Service Convention was not necessary in this case for the court to acquire jurisdiction over father.
The web site address to verify the status of member and non-member states of the Hague Service Convention is http://www.hcch.net/index_en.php?act=conventions.status&cid=17.
Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 707 [in cases in which the Hague Service Convention does not apply, service of notice need only meet the requirements of state law and the due Process Clause to be effective].
Moreover, father made no showing modification of the courts orders was in the best interest of the minor. Father has not established paternity, is not a presumed father, and thus as an alleged father he is not entitled to either reunification services or custody. Moreover, father has been deported and can no longer legally enter this country. For these reasons, reunification with the minor appears unrealistic if not impossible. This is especially true given the maximum 18 months mandated by the Legislature for reunification.
In re Zacharia D., supra, 6 Cal.4th 435, 448-449; In re Paul H., supra, 111 Cal.App.4th 753, 760.
Section 361.5, subdivision (a); In re Zacharia D., supra, 6 Cal.4th 435, 452-453.
For all these reasons, we conclude it was not error for the court to deny without a hearing fathers petition for modification of the courts prior orders.
In re Jasmon O. (1994) 8 Cal.4th 398, 415 [A section 388 "petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion."].
DISPOSITION
The judgment is affirmed.
We concur:
WOODS, J.
ZELON, J.