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In re Carl C.

California Court of Appeals, Fourth District, First Division
Feb 23, 2011
No. D058361 (Cal. Ct. App. Feb. 23, 2011)

Opinion


In re Carl C., a Minor. DUSTIN C. et al., Petitioners and Respondents, v. JOSE E., Objector and Appellant. D058361 California Court of Appeal, Fourth District, First Division February 23, 2011

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County, No. A56718 Cynthia Bashant, Judge.

AARON, J.

Jose E., the alleged natural father of 14-month-old Carl C., appeals from the August 2010 order terminating his parental rights pursuant to Family Code section 7662. Jose contends that the court denied him his due process right to meaningful notice of the proceedings and, as a result, deprived him of the opportunity to establish that he is Carl's presumed father. We conclude that there is substantial evidence to support the court's implied finding that the prospective adoptive parents, Dustin C. and Kristin C., exercised due diligence in attempting to locate and serve Jose with the section 7662 petition. Accordingly, we affirm the order.

Undesignated statutory references are to the Family Code.

FACTUAL AND PROCEDURAL BACKGROUND

On March 2, 2010, Dustin and Kristin petitioned to terminate Jose's parental rights. The petition alleged Dustin and Kristin had custody of Carl pursuant to the mother's consent to his adoption, and that the presumed natural father under section 7611, subdivision (a), had waived his rights to further notice of adoption planning. The petition also alleged that the natural mother had never married Jose, the alleged natural father, and that she had not cohabited with the alleged natural father at any time after Carl's birth. In addition, the petition alleged that Jose's whereabouts were unknown. The court ordered the San Diego County Health and Human Services Agency (the Agency) to investigate the identity of the alleged natural father pursuant to section 7663 and to report back to the court in writing.

The Agency reported on July 30, 2010 that: (1) Carl was born in La Mesa, California, in October 2009; (2) the name, age and state of birth of the father was omitted from the birth certificate; (3) the birth mother signed an independent adoption placement agreement on October 28, 2009; and (4) Carl had resided with the prospective adoptive parents in Arizona continuously since November 13, 2009. The birth mother informed the adoption service provider, and stated in her declaration, that Jose was the child's natural father. She declared that she and Jose were never married and that they had never lived together as man and wife. She further declared that Jose had never contributed to Carl's support and care. The birth mother also stated that Jose had been aware of the pregnancy and that he had offered to take the child into his home. However, the birth mother declared that she refused to take Jose's money because " 'he would feel that he has a right to see me, [and] I have a restraining order on him.' "

The Agency's report described the efforts it had undertaken to serve the petition on Jose. In June 2010 the Merced County Sheriff's Department made an unsuccessful attempt to serve him at the Merced address that the birth mother had provided. A parent search revealed a second address under Jose's name, and the Agency sent him two letters-one by regular mail and one by certified mail-to that address. The return receipt for the letter that was sent by certified mail was signed by "Julie E." on June 21, 2010, and listed a different Merced address. The Agency report concluded that Jose was the alleged birth father and stated that "his whereabouts may be... Merced, CA...."

Dustin and Kristin submitted a declaration describing their similarly unsuccessful efforts to serve Jose. In January 2010 the Merced County Sheriff's Department attempted to personally serve Jose at an address on Cone Avenue in Merced, which is the address that appeared on the restraining order. However, Jose had moved. Later, in July 2010, the Merced County Sheriff's Department attempted to personally serve Jose at the address on 19th Street. Service was unsuccessful because again, Jose had moved. Dustin and Kristin declared on information and belief that Jose's whereabouts could not be determined, and they had no other means of locating him.

On August 20, 2010, the court terminated Jose's parental rights to Carl, ruling that the necessity of Jose's consent was dispensed with, and that he would receive no further notice of the pendency of adoption proceedings. Jose filed a notice of appeal, on which he listed the address on 19th Street as his contact address.

DISCUSSION

The sole question in this appeal is whether there is substantial evidence to support the court's implied finding that Dustin and Kristin exercised due diligence in their attempts to locate and serve Jose.

"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; In re Claudia S. (2005) 131 Cal.App.4th 236, 247 (Claudia S.).) Well established principles of due process require "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." (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) Section 7666 sets forth the following notice requirements for adoption proceedings:

"(a) Except as provided in subdivision (b), notice of the proceeding shall be given to every person identified as the natural father or a possible natural father in accordance with the Code of Civil Procedure for the service of process in a civil action in this state at least 10 days before the date stated in the notice of the proceeding, except that publication or posting of the notice of the proceeding is not required. Proof of giving the notice shall be filed with the court before the petition is heard.

"(b) If a person identified as the natural father or possible natural father cannot be located or his whereabouts are unknown or cannot be ascertained, the court may issue an order dispensing with notice to that person."

Where, as here, a parent's whereabouts are unknown, "the issue becomes whether due diligence was used to locate the parent." (Claudia S., supra, 131 Cal.App.4th at p. 247.) In this context, the term reasonable or due diligence " 'denotes a thorough, systematic investigation and inquiry conducted in good faith....' " (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016, quoting Judicial Council of Cal., com., reprinted at Deering's Ann. Code Civ. Proc. (1991 ed.) foll. § 415.50, p. 676.) "Due process notice requirements are deemed satisfied where a parent cannot be located despite a reasonable search effort and the failure to give actual notice will not render the proceedings invalid. (Claudia S., at p. 247.)

We conclude on this record that Dustin and Kristin and the Agency exercised due diligence in their attempts to locate and serve Jose with notice of the section 7662 proceeding to terminate his parental rights. The Merced County Sheriff's Department made three unsuccessful attempts to personally serve Jose at different addresses in Merced, including an address on 19th Street. Two letters-one sent via regular mail and the other via certified mail-were sent to an address that the Agency discovered in its parent search. The woman who signed for the certified letter listed a different address-the 19th Street address-on the return receipt. Jose gave the 19th Street address as his mailing address on the notice of appeal. In addition, the record shows that Jose knew about the pregnancy but took no affirmative steps to establish paternity.

Taking into consideration all of the circumstances described above, we conclude that Dustin and Kristin complied with the requirements of section 7666, and that the court did not err in terminating Jose's parental rights without further notice of the adoption proceedings.

DISPOSITION

The order is affirmed.

WE CONCUR: McCONNELL, P. J., BENKE, J.


Summaries of

In re Carl C.

California Court of Appeals, Fourth District, First Division
Feb 23, 2011
No. D058361 (Cal. Ct. App. Feb. 23, 2011)
Case details for

In re Carl C.

Case Details

Full title:In re Carl C., a Minor. DUSTIN C. et al., Petitioners and Respondents, v…

Court:California Court of Appeals, Fourth District, First Division

Date published: Feb 23, 2011

Citations

No. D058361 (Cal. Ct. App. Feb. 23, 2011)