Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
APPEAL from a judgment of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Super. Ct. No. NJ13251A.
HALLER, J.
Natalie M. appeals the judgment terminating her parental rights over her daughter Jada B. Natalie contends she was denied due process because she was not served with a copy of a Welfare and Institutions Code section 387 supplemental petition and was not properly notified of section 387 hearings or the section 366.26 hearing. Natalie also contends the juvenile court erred by declining to apply the sibling relationship exception to termination (§ 366.26, subd. (c)(1)(B)(v)). We affirm.
All statutory references are to the Welfare and Institutions Code.
BACKGROUND
Upon her birth in December 2005 Jada tested presumptively positive for opiates and suffered narcotic withdrawal syndrome. Natalie admitted using heroin during pregnancy. Accordingly, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition. Jada was detained in the hospital, a foster home, and the home of maternal great-aunt R.L. R.L.'s home became a placement.
At the outset of the case, Natalie said she lived with maternal grandmother Lupe M. at apartment 339 of a Morning view Drive address in Escondido. Natalie also supplied a telephone number. On the date of the detention hearing, she signed a declaration under penalty of perjury stating "I understand that I must promptly notify the Court in writing of any change in my address or phone number. I understand that the Court will send all notices and orders only to the last address I have provided to the Court."
Natalie attended the detention hearing on December 9, 2005, and the jurisdictional hearing December 29. She told the social worker she was staying with friends, would be living with the maternal great-grandmother, and would contact substance abuse programs. Natalie then disappeared. According to Lupe, Natalie was in a substance abuse program. The social worker made several calls in an unsuccessful attempt to discover which program Natalie had entered. The Agency also conducted a search for Natalie's address. The search yielded only Lupe's address. In late January 2006 the social worker learned Natalie was admitted to a detoxification program on December 30, 2005, but left through a bathroom window on December 31.
In late March 2006 just after the dispositional hearing, Natalie reappeared and began participating in reunification services. In early July she told the social worker she was going to start the Family Recovery Center residential program that month. Several days later Natalie had a positive test for methamphetamine. The social worker gave her referrals to detoxification programs. Natalie entered a detoxification program on July 20, used morphine on July 22, was discharged for noncompliance on July 24, and used heroin on July 25.
On August 7, 2006, Natalie left a message for the social worker saying she did not have a telephone. The social worker tried to contact Natalie that day and the next day but received no response. On August 8 Lupe told the social worker she did not know where Natalie was. On August 22 Natalie was arrested on drug charges. According to Lupe, a friend posted Natalie's bail and Natalie moved in with maternal great-grandmother Beatrice E. at a Rock Springs Road address in San Marcos. The social worker called Natalie at a new telephone number, but the number had been disconnected.
It is not clear from the record how the social worker obtained this number.
Natalie was produced from custody for hearings in November 2006. On November 14 the court terminated reunification services and set a section 366.26 hearing for March 13, 2007. In January 2007 Natalie gave birth to a son, Giovanni B., and was admitted to a residential drug treatment program. In February she filed a section 388 petition. In March the court granted her section 388 petition in part, vacating the section 366.26 hearing and reinstating reunification services. In May Jada began a 60-day visit with Natalie who was living in the residential treatment facility with Giovanni. In June the 60-day visit became a placement. After Natalie completed the residential treatment program she moved with the children to Beatrice's home.
On August 5, 2007, about one week after Natalie was released from the treatment program, Lupe reported to the San Marcos Sheriff's Office that Natalie was missing. On August 6 Lupe told the social worker Natalie had left Jada with Beatrice on August 3 and had not returned. On August 10 the Agency filed a supplemental petition (§ 387) based on Natalie's disappearance and the court ordered Jada detained with maternal aunt Vanessa M. The court ordered the Agency to conduct a reasonable search to locate Natalie and notify her of the proceedings.
The sheriff's office was unable to find Natalie. On August 21, 2007, it transferred the case to the homicide detail because Natalie had been missing for more than 10 days. On August 27 the social worker called the Medical Examiner's Office and learned there was no record of Natalie's death. On August 30 the court entered a true finding on the supplemental petition, ordered Jada placed with Vanessa, and set a section 366.26 hearing for December 27.
On September 12, 2007, the social worker contacted Vanessa in an attempt to find Natalie. Vanessa did not know where Natalie was. On September 13 the Agency's parent search clerk began an extensive but unsuccessful computer search for Natalie. The clerk updated the search in November and December with no results. On December 6 Natalie left a telephone message for the social worker but did not provide her own telephone number. The social worker believed Natalie was in northern San Diego county as several family members admitted seeing her. The social worker also believed Natalie might be hiding because there were warrants for her arrest and her probation officer was looking for her. On December 20 the Agency filed a declaration of due diligence outlining its search efforts (§ 294, subd. (f)(7)(A)). That day, the court ordered the Agency to serve Natalie by substituted service on her attorney and to serve Natalie immediately if her residence became known (§ 294, subd. (f)). On December 27 the court continued the section 366.26 hearing to February 25, 2008, so notice could be given to Natalie. On December 31, 2007, the Agency's counsel personally served Natalie's counsel pursuant to the December 20 order.
The search covered closed and current public assistance cases, the probation department, the sheriff's office (including records of local jails, the district attorney's office, and traffic matters), the family support division, the assessor's office, revenue and recovery records, the telephone directory, the registrar of voters, the California Department of Motor Vehicles, the MediCal Eligibility Determination System, state and federal prisons (including arrest and parole information), an online nationwide public record search tool, and inquiries to addresses obtained from those sources as well as inquiries to the post office. The Agency obtained several addresses: the Rock Springs Road address; three versions of the Morning view Drive address (one with no apartment number, one with apartment number 442, and one with apartment number 339); and the address of Natalie's former residential treatment facility. Inquires regarding all of these addresses were fruitless.
In addition to requiring service on Natalie's counsel, the court's December 20, 2007 order stated, "IT IS FURTHER ORDERED notice be given by first class mail to Lupe . . . at the address indicated in the Declaration of Due Diligence or other address ascertained by [the Agency] to be [Lupe]'s current address. The notice shall include the time and place of the proceedings and that they may appear." Natalie suggests this required the Agency to serve her by mail at Lupe's address. This was not a provision for service on Natalie; it was a provision for courtesy service on Lupe. Furthermore, Lupe had no knowledge of Natalie's whereabouts since early August, so serving Natalie at Lupe's address would have been fruitless.
In early February 2008 Natalie gave birth to a son, Rudy M. Both tested positive for opiates. Natalie asserts a social worker met with Natalie in the hospital but did not advise her of the date of the section 366.26 hearing. Natalie did not provide a current address while she was in the hospital. On February 25 the court made a notice finding and, at the request of Natalie's counsel, set the matter for a contested hearing on March 7. On February 26 the court clerk mailed a copy of the February 25 minute order to Natalie at Beatrice's address. A short time before the March 7 hearing, the social worker had contact with Natalie and scheduled a visit for March 6. Natalie did not attend the visit. At the contested section 366.26 hearing on March 7 the court again made a notice finding.
NOTICE
Natalie contends she was denied due process because she was not served with a copy of a section 387 supplemental petition and was not properly notified of the August 10, 2007 section 387 detention hearing, the August 30, 2007 section 387 jurisdictional and dispositional hearing, or the December 27, 2007, February 25, 2008, and March 7, 2008, section 366.26 hearings.
Natalie never filed a timely notice of appeal following the August 2007 hearings. Thus, she has forfeited her right to challenge those findings and orders. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Furthermore, the court continued the December 27, 2007 hearing specifically so Natalie could be given notice. Thus, she is not aggrieved by a failure of notice as to that date. As discussed below, Natalie was not denied proper notice of the February 25 and March 7, 2008 hearings.
The instant notice of appeal refers only to the March 7, 2008 section 366.26 hearing.
Due process entitles a parent to notice that is reasonably calculated to apprise her of the dependency proceedings and allow her an opportunity to object. (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The Agency must use reasonable diligence to locate a missing parent. (Ibid.) This requires "a thorough, systematic investigation and an inquiry conducted in good faith." (Ibid.) "[T]here 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 for the majority of the proceedings." (Ibid.)
Natalie claims a social worker named "Gail P." interviewed her at the hospital when she gave birth to Rudy and failed to personally serve her with notice of the February 25, 2008 hearing. It is reasonable to infer from the Agency's report that a social worker did interview Natalie in the hospital regarding Rudy's positive toxicology. The report does not mention a failure to give notice, however. For that proposition Natalie relies on dialogue at the hearing.
At the February 25, 2008 hearing, Natalie's trial counsel cited statements in Rudy's detention report which is not part of the record in this appeal. The Agency's trial counsel acknowledged that Rudy's social worker, Gail Pomare, contacted Natalie at the hospital and Natalie gave Pomare a telephone number—a different number than one Natalie's trial counsel disclosed the morning of the February 25 hearing. The Agency's trial counsel stated "an attempt was made to reach [Natalie] at the phone number [Natalie] provided [at the hospital] without success." Additionally, the Agency's report states Natalie did not provide a current address when she was in the hospital. In making its notice finding at the February 25 hearing, the court cited Natalie's homelessness, her active arrest warrant, the social worker's inability to reach her at the telephone number she provided in the hospital, the new telephone number Natalie's counsel had just provided, and Natalie's failure to provide any address other than the one she supplied at the outset of the case. This notice finding was proper.
On February 26, 2008, the court clerk mailed a copy of the February 25 minute order to Natalie at Beatrice's address. The minute order stated a contested section 366.26 hearing was set for March 7 at 8:30 a.m. and gave the court's address and department number. Natalie complains the minute order did not "provide comprehensive information regarding the nature of the proceedings or [the Agency's] recommendations" as required by section 294, subdivision (f) and did not give her the 55 days' notice required by section 294, subdivision (c)(1).
Under the circumstances, this minute order provided sufficient information regarding the nature of the proceedings and the Agency's possible recommendations. Natalie was aware of the nature of a section 366.26 hearing. This case had been pending for more than two years. The court set a section 366.26 hearing in 2006, Natalie successfully petitioned to have that hearing vacated, and Jada was returned to her custody. Natalie knew if she absented herself further, Jada would remain in the dependency system. Because the March 7 hearing was continued from an earlier date of which Natalie was properly noticed, we reject her assertion as to section 294, subdivision (c)(1).
Natalie was present at the outset of this case and furnished her address. She was apprised of her duty to keep her address information current. Instead, she disappeared repeatedly and never provided a new address. The sheriff's office, the probation department, and her relatives could not find her. The Agency made exhaustive efforts to locate and contact her. Natalie made no effort to respond. In this situation, the court properly authorized substituted service on counsel. Although it would have been commendable if Rudy's social worker had served Natalie in the hospital with notice of Jada's upcoming section 366.26 hearing, the failure to do so did not contravene due process. At the hospital, Natalie gave the social worker a telephone number at which she could not be reached and did not provide her current address. Natalie gave her attorney yet another telephone number but did not give it to the Agency or the court. The February 25, 2008 minute order was mailed to Natalie at Beatrice's home, where she had been living before her latest disappearance. "Once a parent has been located, it becomes the obligation of the parent to communicate with the [Agency]. . . ." (In re Raymond R. (1994) 26 Cal.App.4th 436, 441].) Natalie did not fulfill this obligation.
" '[I]n 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.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419, quoting Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 317, 94 L.Ed. 865, 875.) There was no due process violation.
THE SIBLING RELATIONSHIP EXCEPTION
Section 366.26, subdivision (c)(1)(B)(v) provides an exception to termination of parental rights if there would be substantial interference with the child's sibling relationship and the severance of that relationship would be so detrimental to the child as to outweigh the benefits of adoption. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-953; § 366.26, subd. (c)(1)(B)(v).) The juvenile court must "balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L. Y. L., supra, 101 Cal.App.4th at p. 951, citing In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Factors to be considered include whether the siblings were raised in the same home, whether they shared significant common experiences or have existing close and strong bonds, and whether ongoing contact is in their best interests, including their long-term emotional interest, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).) Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the juvenile court's finding Natalie did not meet her burden of proving the sibling relationship exception. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 947, 952.)
At the time of the section 366.26 hearing, Jada was two years old, Giovanni was 14 months old, and they had lived together for nine months. Giovanni was not a juvenile court dependent. In January 2008 Vanessa became his guardian. By early February, she had begun her adoption home study for Jada. Because the children were in the same home, there was no evidence that adoption would substantially interfere with the sibling relationship. Furthermore, there was no evidence that if Jada were moved to another adoptive home, the severance of the sibling relationship would be so detrimental as to outweigh the benefits she would derive from adoption. While Jada and Giovanni shared a bond, she needed the stability of adoption.
The juvenile court did not err by failing to apply section 366.26, subdivision (c)(1)(B)(v).
Natalie does not raise this argument as to Rudy, who was only one month old at the time of the hearing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.