Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court Nos. BN05416, BN05417 of Los Angeles County. John L. Henning, Judge.
Janette Freemen Cochran, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Maureen L. Keaney for Defendant and Respondent.
CHAVEZ J.
Aida M. (Aida) appeals from an order terminating her parental rights to her two biological children, Iliana R. (born in August 2000) and Jordan J. (born in January 2006). The children have lived with respondent Michelle B. (Michelle) since a few days after their respective births. Michelle, who had become the children’s legal guardian, filed petitions in 2009 to free them from parental custody and control so that she could adopt them. At that time, Aida’s whereabouts were unknown and the trial court granted Michelle’s application for order of publication of summons. Aida seeks to set aside the judgment, claiming that the trial court erred in granting the order for publication. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Family background
Aida’s two biological children have been raised by Michelle. When Iliana was just a few days old, she was placed in Michelle’s home by the Department of Children and Family Services (DCFS). Iliana has been in Michelle’s custody ever since. Before Jordan’s birth, DCFS contacted Michelle and asked her if she would accept custody of Iliana’s younger half sibling when he was born. On January 2006, Michelle accepted Jordan, who was one day old. He has been in her custody ever since. Aida had a substance abuse problem and was incarcerated when Jordan was born.
Iliana was generally healthy, but she has been diagnosed with attention deficit hyperactivity disorder (ADHD) and takes medication for this condition. Michelle had tried to help establish a relationship between Iliana and Aida, but due to Aida’s addiction, and other behavior which kept Aida in and out of jail, this effort was unsuccessful.
Jordan was diagnosed with autism, had acid reflux disorder and was lactose intolerant. Jordan requires constant supervision, as he bangs his head on objects, pulls his hair, and bites his lips. Aida never called to check on Jordan’s well being.
Michelle obtained guardianship of Iliana on October 13, 2005, and of Jordan on March 7, 2006.
2. Petition to terminate parental rights for adoption
On September 2, 2009, Michelle petitioned to free the children from parental custody and control. Michelle’s petitions alleged that the children had been abandoned as defined by Family Code section 7822. Aida had not made any attempt to communicate with the children since May 2008.
On September 21, 2009, the trial court granted Michelle’s application for publication of summons, citation or notice of hearing as to Aida. The court ordered publication at least once a week for four consecutive weeks. Proofs of publication, filed October 22, 2009 and November 5, 2009, stated that notice was published in the Los Angeles Daily Journal on September 25, October 2, October 9, and October 16, 2009 as to Jordan, and October 1, October 8, October 15, and October 22, 2009 as to Iliana. Michelle’s counsel filed a “Certificate/Declaration Re Military Service” stating that the present address of Aida was “unknown.” A declaration signed by Michelle’s trial counsel on October 30, 2009, and filed on November 12, 2009, stated that Aida’s address was not ascertained during the court ordered period of publication.
Orders dispensing with notice to the birth fathers were granted by the court on July 14, 2009.
The probation officer’s reports, filed November 20, 2009, recommended that each of the adoption petitions be granted. The reports indicated that Aida’s whereabouts remained unknown. In addition, they contained allegations that Aida had a substance abuse problem and may have supported her drug addiction by prostitution. Aida had attempted to regain custody of Iliana when Iliana was approximately four years old; however, Aida did not appear for her supervised visits and failed to follow through with the court’s orders that she attend counseling, secure employment and stable housing.
3. Hearing on the petition
A hearing was held on December 8, 2009. Michelle was present with her attorney Meg Smith (Smith) of Adopt-Help Law Center. Smith explained to the court that they were unsuccessful in locating Aida, which necessitated their petition for service by publication. The court specifically asked if Smith had followed up on a certain address, and Smith confirmed that she had done so. She also confirmed that she had attempted to contact Aida at a telephone number she had found. Smith described the details of the notices by publication. Smith stated that Michelle had guardianship of both minors and had not had contact with Aida since May 2008.
The court then asked Michelle about her contact with Aida. Michelle confirmed that she had not heard from Aida in over a year. At first, a social worker had set up supervised visitation between Aida and the children. However, Aida would not keep the appointments, nor did she call to cancel. Finally the social worker said, “enough is enough.” Upon questioning by the court, Michelle confirmed that Aida had Michelle’s phone number and could have contacted her.
The court confirmed that under the circumstances, it appeared that there was “no choice but to publish in the newspaper.” The court asked the clerk if he had gone out to the hallway and called out Aida’s name in a loud, clear voice. The clerk responded that he had done so. Thus, the court found that “In the case of each child, ... notice has been given as required by law and that the allegations in the petition are true.” The court then terminated Aida’s parental rights.
4. Aida’s motion/notice of appeal
On January 8, 2010, Aida filed a notice of motion and motion for order setting aside the default and vacating the judgment, along with a memorandum of points and authorities in support thereof. Aida also filed a declaration, in which she challenged Michelle’s statements that Michelle did not know Aida’s whereabouts, and submitted documentary evidence.
Aida’s motion to set aside the default and vacate the judgment terminating parental rights was treated as a notice of appeal. Pursuant to California Rule of Court, rule 8.405, subdivision (a)(3), we liberally construe Aida’s motion as a notice of appeal from the judgment terminating her parental rights.
Pursuant to Family Code section 7894, after entry of a judgment terminating parental rights, the trial court “has no power to set aside, change, or modify” the judgment. (Fam. Code, § 7894, subd. (b).) Because the trial court had no power to set aside the judgment, Aida’s motion was treated as a notice of appeal.
The evidence submitted in support of the motion -- including Aida’s declaration, photographs of her and the children, and records concerning a recent incarceration -- was not before the trial court when it made its determination that notice by publication was necessary. Absent exceptional circumstances, “‘when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.’” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Both parties refer to the postjudgment evidence submitted by Aida in their briefs. However, neither party has argued that exceptional circumstances exist here, nor has either party presented this court with authority permitting consideration of this evidence on appeal. Because this evidence was not part of the record when the trial court rendered its judgment, we do not consider it.
DISCUSSION
I. Applicable legal standards
Code of Civil Procedure section 415.50 (section 415.50) permits service by publication “if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article....” (§ 415.50, subd. (a).)
In determining whether the trial court properly granted an application for order of publication of summons, we review the record to ascertain whether the trial court strictly complied with the letter and spirit of the statute. (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41.)
We must consider the facts demonstrated by the applicant to determine whether they are sufficient to justify a resort to service by publication. “It is not actual ignorance that permits resort to service by publication, but the inability to accomplish personal service despite the exercise of reasonable diligence.” (Olvera v. Olvera, supra, 232 Cal.App.3d at p. 42.)
II. The petition demonstrated reasonable diligence
Section 415.50 requires the applicant to demonstrate that the party to be served cannot, with reasonable diligence, be served in another manner. The facts set forth in Michelle’s application demonstrated that Michelle’s counsel complied with this reasonable diligence requirement.
First, Smith used the address listed on Aida’s “declaration of mother.” She contacted the resident at that address and learned that Aida no longer lived there. Smith called the telephone number listed on the declaration, which she found had been disconnected. She then conducted an extensive records search under Aida’s name, as well as several aliases Aida had been known to use. The search included an asset search for all real property, stocks, watercraft, aircraft, and other assets located nationally. It also included a search of all telephone directories using Westlaw PeopleFind, a search of all utility hook-up records, and a search of the Department of Motor Vehicle and voter registration records in all states which permit access to such records.
Despite this thorough search, Aida asserts that Michelle “failed to take the one step that appeared to hold the most promise of locating [Aida], a search of the jail and prison system.” Aida points out that Michelle was aware that Aida was in and out of jail throughout her lifetime. Under the circumstances, Aida argues, Michelle should have checked the county jail records, Criminal Index and Information System, and probation/parole records.
We find that this omission does not undermine the trial court’s determination that Michelle and her counsel adequately demonstrated reasonable due diligence in their efforts to locate Aida. (See In re Matthew S. (1988) 201 Cal.App.3d 315, 319.) Aida has failed to cite authority indicating that standards of reasonable diligence require a search of the jail and prison system. Nor does she indicate that Michelle had any specific reason to believe that Aida was incarcerated during the relevant time period.
The two cases cited by Aida are distinguishable. In David B. v. Superior Court (1994) 21 Cal.App.4th 1010, efforts to locate the father were considered inadequate when an inquiry to the United States Marines was not made despite the fact that the child’s birth certificate noted that father was in the Marines. (Id. at pp. 1015-1016.) In contrast, Michelle had no specific information which suggested that a search of the prison systems would locate Aida. And in In re Arlyne A. (2000) 85 Cal.App.4th 591, notice was defective because DCFS could have located the appellant at his parents’ address, which was in DCFS’s records. In contrast, Aida makes no argument that Michelle or her counsel had access to her address during the relevant time period.
In sum, the trial court did not err in determining that Michelle had exercised reasonable diligence in her efforts to locate Aida. Under the circumstances, a search of the jail and prison system was not required to satisfy that standard.
III. The trial court did not err in permitting service by publication in the Daily Journal
Aida next argues that the newspaper selected did not meet the requirements of section 415.50, subdivision (b), which requires the use of a “newspaper, published in this state, that is most likely to give actual notice to the party to be served.” Aida argues that she is not an attorney and was not likely to read the Daily Journal, a legal news provider.
The trial court did not err in permitting publication of notice in the Daily Journal. The newspaper is available online and is a well known publisher of legal notices. Aida has not suggested that any other newspaper was more likely to provide her with actual notice. Further, because all other efforts to reach Aida had failed, publication that might reach someone acting as her legal representative was a valid last resort. Under the circumstances, we decline to disturb the judgment of the trial court.
DISPOSITION
The order is affirmed.
We concur: DOI TODD Acting P. J., ASHMANN-GERST, J.