Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J230842 Barbara Buchholz, Judge.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Appellant F.L., Sr. (Father) appeals the termination of his parental rights under Welfare and Institutions Code section 366.26 as to his minor son F.L., Jr. Father contends the order terminating his parental rights should be reversed because he did not receive timely or adequate notice of the jurisdiction and disposition hearings or his right to establish paternity. He also argues there is insufficient evidence to support the jurisdictional findings. In addition, Father contends the trial court abused its discretion when it denied his request for a continuance of the section 366.26 hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father also filed a petition for writ of habeas corpus (case No. E052596), which raises a related ineffective assistance of counsel claim. He has therefore requested consideration of the writ petition together with the appeal. Although both matters will be considered together, we will resolve the petition for writ of habeas corpus by separate order.
FACTUAL AND PROCEDURAL BACKGROUND
F.L., Jr., (the child) was removed from mother by the San Bernardino County Department of Children and Family Services (CFS) as a newborn because mother tested positive for opiates and amphetamines. A petition pursuant to section 300 was filed on January 13, 2010. The petition alleged mother has an extensive substance abuse history, had given birth to nine children, none of whom were in her care, and had failed to benefit from services or to reunify with a daughter in another proceeding filed December 5, 2008. At the time the petition was filed, Father’s whereabouts or his ability to care for the child were unknown, and his name was not on the birth certificate. Mother did give the social worker Father’s name in an interview on January 8, 2010, but was unable to provide any other identifying information. Nor was she able to provide a valid address or telephone number.
By telephone, mother later told the social worker she and Father were at the hospital together to visit the baby, and Father wanted a paternity test. When the social worker asked to speak with Father, mother said he only spoke Spanish. The social worker then asked mother to tell Father about the detention hearing, but she said he would not be able to attend because of his work schedule. Mother also told the social worker she and Father were homeless and moved from motel to motel.
On January 14, 2010, the court held a detention hearing and detained the child but allowed mother to visit the child at the hospital with supervision. During the hearing, mother was pressed for Father’s contact information. The information mother gave to the court included Father’s name and birth date. She also said Father was a day laborer, and mother had given the social worker a telephone number for Father’s employer. Mother did not give the social worker an address for Father’s employer. Mother said if she needs to contact Father, she calls his employer. Although mother indicated, “I’m with him, ” she said he “works all the time.” She indicated Father was staying in motels. She also indicated they “go by the day” and she would not know which motel Father would be staying in “until he gets out of work.”
During the detention hearing, the court ordered mother to complete Form JV-140, notification of mailing address. On the same date, two JV-140 forms were signed showing mother and Father living at the same address in Fontana, but notices later sent to this address were returned as undeliverable. Also on the same date, mother told the social worker she and Father were living at the Sierra Crossing Motel. However, the next day mother and Father were no longer there when a social worker went to the motel to give mother a ride to a treatment facility.
The social worker called Father’s employer and left three separate messages. On January 27, 2010, the social worker received a telephone call from Father’s supervisor, who agreed to give him a message.
On or about January 19, 2010, mother appeared unannounced at the social worker’s office. She said she and Father were staying in a trailer, but she was unable to provide an address or telephone number.
On January 28, 2010, the social worker contacted the Mexican consulate to obtain assistance in notifying Father of the upcoming jurisdiction hearing. A representative from the consulate was able to speak with Father at his job. Father said he was currently renting a room and saving money to move into an apartment. He was unable to attend court hearings because of his work schedule, but he planned to have his mother come from Mexico to help care for the child.
On February 4, 2010, CFS filed a declaration of due diligence as to Father. The declaration indicates an exhaustive search was conducted, but an accurate address or phone number for Father was not found.
On February 9, 2010, the social worker was able to speak with Father by telephone with the assistance of a translator from the Mexican consulate. Father said he works long hours and was currently living at the Sierra Motel. He attempted to see the child on February 2, 2010, but was informed he could not because the child was in the custody of CFS. Although Father stated he was not sure he was the child’s father, he agreed to pick up paperwork to have a paternity test. Father indicated he was interested in custody and could bring his mother from Mexico to care for the child.
On February 11, 2010, Father appeared for an appointment with the social worker and provided a DNA sample for paternity testing. He told the social worker he was not present for the child’s birth, did not sign the birth certificate, and he and mother were not together at that time. However, they recently reconciled to try to get the child back and were currently living at the Sierra Motel in Fontana. Father stated he visited the child in the hospital on January 8, 2010. Father also told the social worker he is legally married to another woman and has two children from this marriage, but lost contact with his family when he was deported in June 2009. Father was also deported in 2006. At this meeting, the social worker provided Father with copies of the petition and detention report, as well as a notice of the upcoming court hearing on February 22, 2010.
In her report of the meeting, the social worker remarked that Father did not request visitation or ask about the child’s location, health, or overall well-being. Based on her prior conversations with mother and others, the social worker also expressed concern mother and Father had a plan “to sell the baby, ” and this was their motivation for wanting custody.
On February 22, 2010, the court held a pretrial settlement conference. Despite personal service of the hearing notice to Father, neither parent appeared. At that time, the court acknowledged receipt of results from genetic testing establishing Father’s biological relationship to the child. The court also set a jurisdictional hearing for February 26, 2010, and a dispositional hearing for March 5, 2010.
At the jurisdictional hearing on February 26, 2010, the court found the allegations in the petition true. The parents did not appear at the hearing.
On March 5, 2010, the court held a dispositional hearing. Neither parent was present. The court found by clear and convincing evidence that reasonably diligent efforts were made to locate Father but the search was unsuccessful. Both mother and Father were denied reunification services and visitation. Services to Father were denied because of his status as an “alleged father.” The court set a section 366.26 hearing to consider the termination of parental rights and ordered writ notice to be sent to the last known address for the parents. On March 8, 2010, the court mailed writ notices to the address in Fontana provided by mother for both parents on Form JV-140.
On March 6, 2010, the child was placed with prospective adoptive parents. This family had previously adopted the child’s half brother.
On April 19, 2010, CFS filed a second declaration of due diligence as to Father. Search efforts to obtain an address for Father were once again unsuccessful. However, proofs of service in the record filed April 22, 2010, indicate both mother and Father were located for personal service on April 16, 2010, and were provided with notice of the upcoming section 366.26 hearing.
On July 6, 2010, the court held a section 366.26 hearing. Father was present in court for the first time, and the court appointed counsel to represent him. The matter was continued to August 20, 2010, and Father was ordered to return to court on that date.
On August 20, 2010, Father was not present for the continued section 366.26 hearing. His counsel reported Father had been deported to Mexico. The paternal grandmother was present at the hearing, and her testimony, which was considered by the court, confirmed Father was living with her in Mexico. She requested custody of the child. Counsel requested a continuance to give Father an opportunity to get back to the United States legally in order to appear in court. The court denied the request for a continuance, terminated parental rights, found the child was likely to be adopted, and referred the case to an adoption agency. The court also found adoption was in the child’s best interest.
DISCUSSION
Adequacy of Notice to Father
Father contends his right to due process was violated because he was not served with a copy of the form entitled “Statement Regarding Parentage” (form JV-505) as required by rule 5.635(g) of the California Rules of Court, so he could request and establish paternity. In addition, Father complains he was not provided with prompt notice of the results of paternity testing indicating he is the child’s biological father. Father believes the outcome of the proceeding would have been different if he had been served with form JV-505, and was promptly notified he was the child’s biological father. Father’s theory seems to be that if he had been provided with this information, it would have prompted him to participate in the proceeding, achieve “presumed father” status, obtain reunification services, and have the child placed with his mother under the relative placement preference.
“ ‘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].’ [Citation.]” (In re Emily R. (2000) 80 Cal.App.4th 1344, 1351.)
Subdivision (b) of section 316.2 and rule 5.635(g) of the California Rules of Court require the juvenile court to inquire about parentage and then provide each alleged father with notice of the proceedings by mail. California Rules of Court, rule 5.635 states that if “one or more persons are identified as alleged parents of a child, ” the clerk “must provide to each named alleged parent, at the last known address, by certified mail, return receipt requested, a copy of the petition, notice of the next scheduled hearing, and Statement Regarding Parentage (Juvenile) (form JV-505)....” (Cal. Rules of Court, rule 5.635(g).)
Form JV-505 “expressly advises the alleged father of his rights and options.” (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1121.) For example, the form “specifically informs an alleged father that he can compel the court to determine his paternity, and gives him the means to request appointment of counsel, state his beliefs that he is the father of the child, and ask that the court enter a judgment of paternity.” (Ibid.) Failure to provide this notice may deprive an alleged father of “adequate notice of his rights and the ability to access the procedure for establishing paternity, obtaining reunification services, and ultimately seeking placement” of the child with him or one of his relatives. (Id. at p. 1122.)
The social services agency “has a duty initially to make a good faith attempt to locate the parents of a dependent child.” (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.) However, once a parent has been located and advised of the nature of the proceeding, it becomes the parent’s obligation to communicate with the social worker, to participate in the proceeding, and to furnish a means of contact by mail. (Ibid. See also § 316.1 [stating “each parent or guardian shall designate for the court his or her permanent mailing address”].) In other words, the social worker is not obligated to continually track a parent’s whereabouts. “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.” (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
On the record before us, we cannot conclude Father’s right to due process was violated even though it is apparent from the record he was not served with form JV-505 as required by subdivision (b) of section 316.2 and California Rules of Court, rule 5.635(g). The record shows CFS attempted to obtain a valid address for Father to be used for service of process beginning with the social worker’s initial interview with mother on January 8, 2010. Efforts to obtain a valid address for service of process continued at the detention hearing on January 14, 2010, when mother essentially admitted she and Father lived a transient lifestyle and moved from motel to motel on a daily basis. At the time of the detention hearing, forms were filled out showing mother and Father lived at the same address in Fontana. However, notices later sent to this address were returned as undeliverable. Mother also said she and Father were staying at the Sierra Crossing Motel, but CFS learned the next day the address was no longer valid. As evidenced by the declaration of due diligence filed on February 4, 2010, it is apparent CFS conducted an exhaustive search but was unable to locate an accurate address or phone number for Father. In other words, CFS did not have an address to provide Father with the required notice by mail.
Prior to the jurisdictional and dispositional hearings, Father did appear for a personal meeting with the social worker on February 11, 2010, and provided a DNA sample for paternity testing. At the meeting, the social worker personally served Father with copies of the petition, the detention report, and a notice of the next hearing scheduled for February 22, 2010. For some unknown reason, the social worker apparently did not personally serve Father with form JV-505 during their personal meeting. However, the copy of the petition given to Father includes a prominent warning stating, “Your parental rights may be permanently terminated. To protect your rights, you must appear in court and answer this petition.” Despite this warning in the petition and receipt of the notice of the next hearing, Father not only failed to attend the next hearing, he waited almost five months before he finally appeared for the first time in court at the section 366.26 permanency hearing on July 6, 2010.
Father also complains the social worker did not promptly contact him to advise him of the results of the paternity test. However, as evidenced by a second declaration of due diligence filed April 19, 2010, it is apparent CFS continued its efforts to locate Father after it received the results of the paternity test. The record also indicates Father did not contact the social worker after he provided a DNA sample to ask about the child or the results of the paternity test. The record indicates both mother and Father were finally located for personal service of the section 366.26 notice on April 16, 2010, but CFS still had no valid address for service of process.
In sum, the record shows that CFS made good faith efforts to locate Father and to obtain a valid address for service of process by mail. By personally serving Father with copies of the petition, the detention report, and the notice of the next hearing during their meeting on February 11, 2010, CFS substantially complied with the notice requirements in subdivision (b) of section 316.2. By contrast, the record indicates mother and Father repeatedly avoided providing a valid, current address to CFS and the court. From the record, it is obvious mother and Father purposely avoided providing authorities with a valid address for service of process and did not participate in the proceedings, because Father was in the country illegally and feared another deportation. Under these circumstances, we simply cannot conclude Father’s right to due process was violated.
Even if we could conclude Father’s right to due process was violated because he was not served with a copy of Form JV-505 as required by subdivision (b) of section 316.2, a harmless error analysis would apply. (In re Kobe A., supra, 146 Cal.App.4th at p. 1122.) We would determine any error in this regard to be harmless. There is nothing in the record to convince us Father would have done anything differently if he had been served with a copy of form JV-505 and, as a result, the outcome of the proceeding would have been the same.
Sufficiency of the Evidence Under Section 300, Subdivision (b)
In the petition filed January 13, 2010, only two allegations were made against Father under subdivision (b) of section 300: (1) “The exact whereabouts of the father... is currently unknown and his ability to provide care for his child... is unknown”; and (2) “The alleged father... failed to ensure the safety and well being of his child... in that he knew, or reasonably should have known, that the mother had a substance abuse history or problem.” At the jurisdictional hearing on February 26, 2010, the court found these allegations true. Mother and Father did not appear at the hearing.
Father argues there was insufficient evidence to support the findings made at the jurisdictional hearing. Father claims he can challenge the court’s jurisdictional findings in this appeal, because he was not provided with timely or adequate notice of the hearing and his right to establish his status as a biological or presumed father. For the same reasons, Father also argues he can challenge the findings and orders made at the dispositional hearing. We disagree.
“Juvenile dependency law does not abide by the normal prohibition against interlocutory appeals.” (In re Edward H. (1996) 43 Cal.App.4th 584, 590.) Under subdivision (a)(1) of section 395, “[a] judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.” “In a section 300 proceeding, the order entered at the dispositional hearing is a final judgment.” (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250.) “[T]he court’s dispositional and following orders are directly appealable, with the exception of an order scheduling a selection and implementation hearing under section 366. 26. [Citations.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 259.) “Generally... a parent may not attack the validity of a prior appealable order for which the statutory time for filing an appeal has passed. [Citation.]” (Ibid.) “In other words, ‘A challenge to the most recent order entered into in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.’ [Citation.]” (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) In general, a notice of appeal in a dependency case “must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.” (Cal. Rules of Court, rule 8.308(a).)
Here, the court’s findings and orders at the jurisdictional and dispositional hearings were entered on February 26, 2010, and March 5, 2010, respectively. Father’s notice of appeal was not filed until August 23, 2010. Therefore, Father’s notice of appeal was filed several months after the jurisdictional and dispositional findings and orders had become final. He cannot now attack the validity of these findings and orders in connection with his challenge to the termination of his parental rights at the hearing on August 20, 2010.
In reaching our conclusion, we reject Father’s contention he can challenge these findings and orders now because he was not provided with timely or adequate notice of the jurisdictional and dispositional hearings. For the reasons outlined more fully ante, notice to Father was adequate based on all of the facts and circumstances at the time these hearings were set. In sum, Father was personally served with the petition, the detention report, and a notice of the next hearing. He lived a transient lifestyle and moved from motel to motel on a daily basis. He avoided providing a valid, current address for service of process by mail. Without success, CFS conducted two extensive searches to locate an address for Father. Father simply elected not to appear in court, maintain regular contact with the social worker, or otherwise participate in the proceeding despite personal service of the petition, which included the prominent warning that, “Your parental rights may be permanently terminated. To protect your rights, you must appear in court and answer this petition.”
Notice to an alleged father of a dispositional and/or jurisdictional hearing is required under section 291, subdivision (a)(2). Notice may be by personal service or by mail. (§ 291, subd. (e).)
Father also may not attack the findings and orders made at the jurisdictional and dispositional hearing because an order setting a section 366.26 hearing was entered at the dispositional hearing on March 5, 2010. “In subdivision (l) of section 366.26, the Legislature has unequivocally expressed its intent that referral orders be challenged by writ before the section 366.26 hearing.... [W]hen services are denied to both parents at the dispositional hearing, all challenges to the dispositional judgment and underlying jurisdictional findings must be brought by writ because all such challenges, ... are designed to overturn the referral order.” (Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 156.)
Father claims an exception to subdivision (1) of section 366.26 applies because notice of the writ petition requirement was untimely. In support of this argument, Father cites a postmark for the notice dated March 10, 2010, which is five days after the dispositional hearing on March 5, 2010, when the section 366.26 hearing was set. Citing California Rules of Court, rule 5.708(n)(5)(A) in his reply, Father contends the writ notice was untimely because it must be mailed within 24 hours after the court orders a section 366.26 hearing. Father argues the writ petition requirement is excused if notice is untimely.
After a court issues an order setting a section 366.26 hearing, it must “advise all parties of the requirement of filing a petition for extraordinary writ review.... The notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order.” (§ 366.26, subd. (l)(3)(A), italics added.) If the court fails to advise a parent of the writ petition requirement in subdivision (l) of section 366.26, the requirement is excused, and the parent can challenge the order setting a section 366.26 hearing on appeal. (In re Athena P. (2002) 103 Cal.App.4th 617, 625.)
Here, Father does not contend, and the record does not show, there was a complete failure to provide notice of the writ petition requirement as required by subdivision (l)(3)(A) of section 366.26. Rather, the record shows notices were mailed to Father’s last known address as required because he was not present at the hearing. A proof of service states the notice was placed in the mail on March 8, 2010. A copy of the envelope addressed to Father, which was returned, shows a postmark of March 10, 2010. As noted above, a harmless error analysis would apply. (In re Kobe, supra, 146 Cal.App.4th at p. 1122.) Even though the notice should have been sent within 24 hours of the hearing on March 5, 2010, mailing of the notice on March 8, 2010, or March 10, 2010, could not in any way be deemed prejudicial. The notice was returned because Father never provided the court or the social worker with a valid address for service of process. Under these circumstances, there is no reason to excuse the writ petition requirement.
Denial of Continuance
On July 6, 2010, Father appeared in court for the first time at the initial section 366.26 hearing, and the court appointed counsel to represent him. A contested section 366.26 hearing was then set for August 20, 2010. On August 20, 2010, Father did not appear because he had been deported. The paternal grandmother came from Mexico and appeared instead. Father’s counsel requested a continuance to give Father an opportunity to come back in the country legally and appear in court. Counsel was not able to say whether this was possible or how long it would take. Based on the late stage of the proceeding and Father’s status as a mere biological parent and “alleged father” who had never been offered reunification services, there were a number of strong objections to granting a continuance. The court denied the request. Father believes the juvenile court denied the request for a continuance because it was unclear when and if Father would be able to appear. He argues this was an abuse of discretion because it was possible for him to challenge the termination of his parental rights through counsel without appearing in court.
Section 352 limits the juvenile court’s authority to grant continuances in dependency cases. A request for a continuance can only be granted “upon a showing of good cause” and cannot be granted if it would be “contrary to the interest of the minor.” (§ 352, subd. (a).) In this regard, section 352, subdivision (a), states as follows: “In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” The denial of a parent’s request for a continuance is reviewed for abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
Under the circumstances presented, we cannot conclude the trial court abused its discretion in denying Father’s request for a continuance. First, at the time of the hearing on August 20, 2010, the child was eight months old and had been in a preadoptive home with a half sibling since March 6, 2010. The social worker reported he was bonded to the family. By contrast, Father had no relationship with the child. He also presented no argument as to why it would be in the minor’s best interest to once again delay the section 366.26 hearing.
Second, counsel was appointed for Father at the initial section 366.26 hearing on July 6, 2010. Thus, when the court denied Father’s second request for a continuance, Father had already had from July 6, 2010, until August 20, 2010, to consult with counsel and to take steps to seek relief from the court based on the circumstances at the time. During this time, Father did not, for example, file a request to elevate his status from alleged or biological father to presumed father. Nor did he file a petition under section 388 seeking a change in the court’s prior order denying him reunification services. At the hearing on August 20, 2010, counsel also did not give the court any reason to believe Father intended to file any such documents or had an arguable basis for challenging the termination of his parental rights.
Under these circumstances, the juvenile court could reasonably conclude it was not in the child’s best interests to grant Father another continuance, because it would only have served to delay permanency for the child. We therefore conclude there was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., CODRINGTON J.