Opinion
F051987
5-31-2007
In re ANTHONY G. et al., Persons Coming Under the Juvenile Court Law. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JESUS G., Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Levy, Acting P.J., Dawson, J., and Kane, J.
INTRODUCTION
Jesus G. appeals from orders of the juvenile court terminating his parental rights pursuant to Welfare and Institutions Code section 366.26. Appellant contends, and respondent concedes, that he did not receive notice of the proceedings and that the judgment must be reversed. We concur with the parties and will reverse the judgment of the juvenile court and remand for further proceedings.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Josie P., the mother of three children, Anthony, Faith, and Jesus (between five months and nearly three years old), left her children with the Merced County Human Services Agency (Agency) on July 27, 2005. Josie named appellant as the father of these three children. Josie said she was homeless. A social worker drove her to the bus station where she boarded a bus and left town, leaving no contact information. On July 29, 2005, a petition was filed pursuant to section 300, subdivisions (b) and (g). The Agencys search for appellant included the Child Welfare Service Case Management System (CWS/CMS) data base and the Internet. Appellant had an arrest for spousal abuse and appeared to have been incarcerated at a California state correctional facility in Delano since October 22, 2004. No release date was available.
Josie left three other minors, children of a different presumed father not a party to this appeal, with the Agency as well.
We take judicial notice of the record in Josies appeal in case No. F051685. Josies appeal was dismissed on February 13, 2007.
The children were formally detained on August 1, 2005. Neither Josie nor appellant appeared. The juvenile court signed two orders for appellants appearance directed to the California State Department of Prisons (CDC). The record does not show that the order was served on the CDC.
The jurisdiction report prepared August 18, 2005, notes the Agency had just learned appellant was incarcerated in Calipatria State Prison and an interview was being arranged. Josie had failed to contact the Agency and her whereabouts were unknown. The jurisdiction hearing occurred on August 23, 2005. Neither parent appeared. The court found the allegations true.
In a disposition report prepared September 12, 2005, the social worker learned in August that appellant had been incarcerated in Calpatria, but was paroled to the Immigration and Naturalization Services (INS). A representative from the INS told the social worker appellant had been deported to Mexico on August 8, 2005. The Agency contacted Josie on August 19, 2005. Thereafter, Josie failed to stay in contact with the Agency.
Neither parent appeared at the September 13, 2005 disposition hearing. The court made the minors dependents and ordered reunification services for Josie. Because appellant was only an alleged father, the court offered him no reunification services. A six-month status review report filed on March 6, 2006, noted that appellants location was unknown. Josie was in another county, she was homeless, had not participated in reunification services, and her exact whereabouts were unknown.
The social worker prepared an addendum report filed on March 15, 2006, explaining that Josie told the social worker that appellant was in Santa Clara County jail on an INS hold. Josie provided two different birthdates for appellant, a case number, and a file number. The social worker cross-referenced this information and found a booking number and a date of birth that did not match the dates provided by Josie. The social worker talked to a clerk with the probation department in Santa Clara County and learned appellant was still incarcerated there.
The Agency prepared a declaration of due diligence on March 3, 2006. The report included no concrete information concerning appellants location and stated that "[t]he search for [appellant] is still in progress; some search sources are pending." On March 16, 2006, the juvenile court terminated reunification services to Josie and set the matter for a section 366.26 hearing. The court ordered the Agency to send writ procedure forms to the last known address of the parents.
The Agency filed an application for order for publication for the permanency planning hearing on April 28, 2006. The contents of the declaration disclosed no positive responses concerning appellants location. The court signed the publication order. Publication of citation to appear at the permanency planning hearing was made in the Merced Sun-Star on four days in May 2006. The section 366.26 permanency planning report was filed on July 17, 2006. Josie was incarcerated in jail in San Benito County and appellants location remained unknown. The children were doing well in foster care. The social worker recommended parental rights be terminated.
The permanency planning hearing was continued several times. On September 19, 2006, a statement acknowledging paternity of all three minors was prepared by the Agency and signed by appellant. On October 10, 2006, counsel for the Agency informed the court the social worker had just shown him the acknowledgement of paternity and that appellant was incarcerated in a federal prison in Blythe. Counsel was appointed for appellant.
Proof of service of at least one notice of the hearing was sent to the Mexican Consulate in Fresno, California.
Josie testified that appellant was the father of her three youngest children. Appellant lived with the family when the children were born and held them out as his. Appellant was incarcerated before the youngest was born and did not again live with the family. The juvenile court found appellant was the presumed father of the two older children. The hearing was continued.
On October 26, 2006, appellant was not present. Agency counsel explained that the process server failed to serve appellant, who was now reported to be in a federal prison in Adelanto, California. Notice of the October 26, 2006, hearing was sent by certified mail to the federal prison in Adelanto, but it was not received by appellant and there is no information in the record indicating that appellant received the notice. The hearing was continued to November 7, 2006. Notice of the new hearing date was sent to appellant at the penitentiary in Adelanto on November 3, 2006. There is, however, no proof of delivery or receipt in the record.
A letter from appellants counsel to appellant dated November 1, 2006, indicates that counsel has just learned that appellant could not receive calls or overnight mail in the federal penitentiary. Counsel informed appellant that she would attempt to set up a telephone conference with him.
A second letter in the record dated October 31, 2006, is written by a social worker to appellant. The social workers letter references a letter from appellant indicating his concerns about the welfare of his children and requests that a relative become their guardian. The social workers letter informs appellant that he has been appointed counsel and that a hearing to terminate his parental rights is scheduled for November 7, 2006. On November 7, 2006, the juvenile court terminated the parental rights of both parents.
DISCUSSION
Appellant contends that the courts order terminating his parental rights must be reversed because he failed to receive notice of the dependency hearings, depriving him of his due process right to notice. Respondent concedes the error. We will reverse the trial courts order terminating parental rights and remand for a hearing by the juvenile court to determine what reunification services, if any, to order for appellant.
Appellant has three motions pending on appeal. Appellant requests that we take judicial notice of an identification and warrants hotline and of federal prison regulations regarding transfer of inmates for state court proceedings. We deny the requests for judicial notice without prejudice to appellant renewing them in the trial court.
Appellant further seeks expansion of the appointment of his appellate counsel to file a petition for writ of habeas corpus to develop facts outside the record to establish that the Agency failed to exercise due diligence in attempting to notify appellant of the proceedings. In light of our ruling, we will deny appellants request for expansion counsels appointment.
Because we are reversing the judgment for the Agencys failure to serve appellant notice, we do not reach appellants second, related issue on appeal — his assertion that trial counsel was ineffective.
Appellants status as a father affects the extent to which he may participate in the proceedings and whether he was entitled to reunification services. Presumed fathers are entitled to appointed counsel, custody (unless there is a finding of detriment) and a reunification plan. Presumed fatherhood for purposes of dependency proceedings denotes one who promptly comes forward and demonstrates full commitment to parental responsibilities. (In re T. R. (2005) 132 Cal.App.4th 1202, 1209.) Though it occurred toward the end of the proceedings in the instant action, the juvenile court found appellant was a presumed father to at least the two older of the three children. Because appellant failed to receive notice at an earlier stage of the proceedings, it was impossible for him to come forward any sooner than he did.
An elementary and fundamental requirement of due process in any proceeding which is accorded finality is notice that is reasonably calculated to apprise interested parties of the pendency of the action and which affords them an opportunity to present objections. The notice must reasonably convey the required information and must afford a reasonable time for interested parties to make their appearance. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1351.)
A judgment is void for lack of jurisdiction of the person where there is no proper service of process or appearance by a party to the proceedings. Service by publication is sufficient to meet the requirements of jurisdiction only when a persons whereabouts remain unknown despite a reasonably diligent inquiry. To justify service by publication, reasonable diligence denotes a thorough, systematic investigation conducted in good faith. Where the party conducting the investigation ignores the most likely means of finding a party, the service is invalid even if the affidavit of diligence is sufficient. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016; also see In re Arlyne A. (2000) 85 Cal.App.4th 591, 598 (Arlyne A.).)
By March 2006, the Agency had a social security number for appellant. At various times throughout the proceedings, the Agency knew appellants location but failed to serve him with process. In July and August 2005, the Agency had located appellant in two different state prisons. In September 2005, the Agency thought the INS had deported appellant. By March 2006, however, the Agency confirmed a report from Josie that appellant was incarcerated in Santa Clara County jail. Even after this confirmation, the Agency failed to serve appellant at that time.
This case was complicated from the Agencys standpoint because appellant was constantly being moved by the authorities and initially had the status of only an alleged father. At times, there were even conflicting reports concerning his whereabouts. Had the Agency carefully followed the procedures set forth in section 316.2, there may have been a more accurate determination of appellants status as a presumed father at an earlier stage of the proceedings. Appellant may have been able to submit information pertinent to his status as a father and the court could have determined if he was entitled to reunification services.
Given the fact, however, that the Agency knew appellants actual location at times, and that it failed to serve him with process when it could have done so, we conclude the Agencys declaration of due diligence cannot be sustained. Although the Agency searched standard avenues available to help locate a missing parent, it failed to search the specific ones most likely under the circumstances known to it to yield appellants address. (Arlyne A., supra, 85 Cal.App.4th at p. 599.) The interest of a parent in the companionship, care, custody, and management of his or her children is a compelling one, ranked among the most basic civil rights. Before depriving a parent of this interest, the state must afford the parent adequate notice and an opportunity to be heard. (Id. at p. 598; In re B. G. (1974) 11 Cal.3d 679, 688-689.)
DISPOSITION
The appellants two requests for judicial notice are denied without prejudice to appellant renewing them before the juvenile court. Appellate counsels request for expansion of his appointment to include a writ of habeas corpus is denied.
Due to the juvenile courts lack of personal jurisdiction over appellant, we reverse the judgment of the juvenile court terminating parental rights as to appellant only. The juvenile court shall conduct a new dispositional hearing as to appellant, after the Agency has properly served appellant with notice of the proceedings. The court shall determine what reunification services, if any, appellant may be entitled to receive pursuant to section 361.5. If the court determines appellant is entitled to reunification services, it shall conduct further proceedings in accordance with dependency law. Should the court determine that appellant is not entitled to services because of any exception applicable under section 361.5, or other statutory provision, the court shall reinstate its judgment terminating parental rights. The decision is final forthwith as to this court (Cal. Rules of Court, rule 8.264(b)(3)).