Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ08-009006
Richman, J.
The most fundamental principle of the legal system is due process, and the most important components of due process are notice of the claim or charge against one, and the opportunity to defend against it. Anthony K., the father of minor J.S., appeals from the order terminating his parental rights. He asserts a sole claim of error, though one which has several components: it is that the termination order is fatally tainted by the fact that he did not receive timely notice of the dependency. He argues that notice only came when it was too late for him—who was on his way to state prison—to effectively urge the juvenile court that J.S. should be placed with appellant’s parents, the girl’s paternal grandparents, who were already caring for a sibling of J.S., and who were the preferred choice of the Alameda County Social Services Agency (Agency) for J.S.’s ultimate adoption. In case his appeal fails due to steps not taken by this counsel in the juvenile court, appellant has also commenced an original proceeding (A124825) with a petition for a writ of habeas corpus.
We conclude that appellant did not receive notice of the dependency in anything like a timely manner. This error requires reversal of the termination order, but it does not taint the entirety of the dependency proceedings. In light of our decision to reverse the termination order, the habeas petition will be denied as moot.
BACKGROUND
On February 7, 2008, the Agency filed a petition in which it was alleged that J.S. qualified as a dependent child under Welfare and Institutions Code section 300, subdivision (b), because her mother was unable to care for her. The specifics of this part of the petition were as follows:
All calendar dates refer to the year 2008 unless otherwise indicated.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
“On or about 2/3/08, the minor was born with a positive toxicology screening for cocaine. As a result the minor was born with health problems and did not move for 30 minutes after being born. [¶] On or about 2/3/08, the mother admitted to using cocaine and marijuana during her pregnancy. [¶] The mother left the hospital without being released and therefore was unable to give permission for the minor to receive an MRI test, because of the minor’s health complications. [¶] The mother did not receive any prenatal care during her pregnancy.”
It was further alleged in the petition that J.S. also qualified as a dependent child under section 300, subdivision (g), because she had been left without any provision for her support by father. The identity, whereabouts, and “willingness of the father to care for the minor is unknown.”
The Agency’s report of February 8, supporting its request for detention of J.S., provided information that would support inferences that: (1) J.S.’s mother gave a false address when admitted to the hospital; (2) when discharged from the hospital the mother feigned ignorance of just having given birth; and (3) when contacted by an Agency social worker, the mother quickly ended the conversation and thereafter could not be reached. That same day, the juvenile court ordered J.S. detained, and also granted the Agency’s request for authority to have an MRI conducted to determine if J.S. had “hypoxic ischemic encephalopathy.”
A combined jurisdictional and dispositional hearing was held on February 21. The only parties represented were J.S. and the Agency. The matter was submitted on the basis of the Agency’s report, which advised the court of the following:
J.S. was still being treated at the hospital, and it is now confirmed that she has “acute encephalopathy.” Despite repeated efforts, the Agency was unable to contact the mother. The mother has a son who “lives with the maternal grandfather and is not a dependent of the Court.” There had been “referrals” to the Agency concerning the son but they had been “evaluated out.” The mother had another daughter, A.S., who “is being cared for by its father.” The mother is described as “not currently married.” The identity of J.S.’s father was still “unknown.” The Agency recommended that J.S. be adjudged a dependent child and placed in foster care “with a caregiver that has experience with fragile infants.”
The juvenile court sustained the allegations of the petition, accepted the Agency’s recommendations, and placed J.S.’s custody with the Agency.
The first mention of appellant was at the six-month review that was held on August 6. In its “Interim Report” for that hearing, the Agency informed the court that J.S. had been placed in a foster home and was doing well. Mother’s whereabouts were still unknown, and she had not availed herself of any of the reunification services offered by the Agency. The case worker reported “The identity of the father is unknown,” but she also reported the following: “However, on 6/12/08 the undersigned spoke with a woman who identified herself as the grandmother, Angela [K.].... Mrs. [K.] reports that she was contacted by the mother who informed her that her son, Anthony [K.], is the father of the minor [J.S.].” This information evoked the following exchange at the hearing:
“THE COURT:... We apparently have no information whatsoever on any alleged father, is that correct?
“THE [CASE] WORKER: I did get information from one possible father. I have sent the information and he was noticed about the hearing today as well but he has not contacted the Agency. He’s not—I have not heard from him.
“THE COURT: Okay. What’s his name?
“THE WORKER: Anthony [K.]. His mother contacted me and I’ve given her all of my information and asked her to have the son contact me, but apparently he’s in jail at Santa Rita right now.
THE COURT: Okay. Did you notice him there?
The proofs of service filed with the Agency’s report do not corroborate this statement.
“THE COURT: Okay. Well, if he is an alleged father, we should get counsel appointed for him if he’s incarcerated.
The minutes for the hearing recite “Alleged Father... appeared by counsel DiSilverio, Robert,” but the reporter’s transcript for the hearing reflects no such appearance. This discrepancy may be explained by preparation of the minutes after the hearing, and after Mr. DiSilverio was officially appointed to represent appellant. The declaration of service of the minutes by the clerk—which is dated the day after the hearing, and which show mailing to Mr. DiSilverio—supports this view.
“THE WORKER: I’ve sent him information on that.
“[¶]... [¶] THE COURT:... [A]nd you verified that that’s where he is?
“THE WORKER: Yes.
“[¶]... [¶] THE COURT: I think we’d better get counsel appointed because we need to get that issue of whether he actually is the father resolved or not.”
After ordering termination of reunification services to mother, the court asked J.S.’s counsel, “Do you want me to go ahead and make a finding that there is no need to offer services to Mr.[ K.] unless and until he establishes a legal basis?” Receiving an affirmative response, the court stated: “There is apparently some information completely unvalidated that a gentleman named Anthony [K.] could be an alleged father. I will make a finding that there is no need to offer him services unless and until he establishes presumed father status.
“[¶]... [¶] The matter will be continued for an assessment pursuant to... section 361.5(G) and for a hearing pursuant to section 366.26 within 120 days.
“Parents are ordered to return for the section.26 hearing.”
After reciting the admonitions concerning the parents’ right to appeal or seek review by extraordinary writ, the court set a “due diligence hearing” for September 22, and the termination hearing for December 4.
On August 20, appellant filed with the court the JV-505 “Statement Regarding Parentage” a Judicial Council form provided by the court. In it, appellant asked for “blood or DNA testing to determine whether or not I am the biological parent.” He also requested that J.S. be entrusted to his (appellant’s) mother’s care “if the baby is proven to be mine.” The court made an order directing the sheriff to produce appellant at the September 22 due diligence hearing.
The Agency’s due diligence report filed on September 11 was primarily devoted to the Agency’s unsuccessful efforts to locate the mother, and its request that the court authorize service upon her by publication. Concerning appellant, the Agency reported only that “The alleged father, Anthony [K.], was personally served at Santa Rita Jail on 08/29/08. Proof of service is available to the court. Due diligence for Mr. [K.] may be dropped.”
Appellant and Mr. DiSilverio appeared at the September 22 due diligence hearing. Advised about appellant’s JV-505 request, the court ordered paternity testing. The court was further advised that appellant anticipated being sentenced on October 7 to five years in state prison. After ordering publication of notice for mother, the court ruled that it was “dropping the matter of due diligence concerning the father because he has been properly noticed and is present for today’s hearing. [¶] Court will order the father to return for the section.26 hearing on December 4th.”
In October, the foster parents applied to be recognized as J.S.’s de facto parents.
The Agency’s “366.26 WIC Report” filed on November 21 brought the court up to date on many fronts: “A paternity test dated 10/02/08 verifies that Anthony [K.] is the biological father” of J.S. “According to the paternal grandparents, the biological parents were married in Reno Nevada, on or about 2006, and the marriage remains intact. The grandparents told Mr. Furness [an Agency case worker] that they have seen the marriage certificate.” Mother’s whereabouts were still unknown.
Concerning visitation with J.S.’s other relatives, the social worker reported that J.S. “met her paternal grandparents, Louis and Angela K[.], for the first time on 10/24/08. She also met her older sister, [A.S.] A second visit was held on 11/07/08. Both visits were supervised by Mr. Furness. The visitation went well. [J.S.] was held and played with by the grandparents. She appeared relaxed, enjoying eye contact, and [was] full of curiosity. [J.S.] immediately reached out to her sister to pull her closer. She transitioned back and forth easily. During the second visit, the foster parents left the area with no difficulty for [J.S.] She shows particular interest in her older sister, tracking her with her eyes and vocalizing to her more than to anyone else. Visitation is expected to continue, with a gradual transition to the home of the grandparents.
Although it appears implicit, the social worker who prepared the report shied away from stating that J.S. and A.S., who was born in June 2006, share the same parents.
“There has been no contact yet by the maternal grandfather and [J.S.’s] sibling [i.e., her brother D.S.] in his care. The maternal grandfather had discussed with Mr. Furness his inability to take [J.S.] into his care, as he is struggling with providing care to the older sibling. The maternal and paternal grandparents plan on making their own arrangements for contact so the siblings can be connected and spend time together.”
The Agency recommended adoption as J.S.’s permanent plan. Concerning this future, the report advised: “[J.S.] was assessed as being adoptable.... [J.S.] is living in the homes of a concurrent planning family with an approved home study, who wants to adopt her. She also has paternal grandparents who have come forward as proposed adoptive parents, and their assessment process is in progress. Adoptive homes are available for this child.... Adoption appears likely. [¶]... [¶] Although the current caretakers are very willing to adopt [J.S.], a move is tentatively being planned to the home of the paternal grandparents, pending completion of necessary assessments and documents. The foster family is available as a backup. The grandparents are the proposed adoptive parents.”
To facilitate the goal of adoption, the Agency recommended termination of the parental rights of both the mother and appellant, although no explanation was provided for the latter conclusion.
The hearing on December 4 began with the juvenile court announcing, over the Agency’s objection, that it was appointing counsel for the de facto parents. The court continued:
“Obviously I have absolutely no objection to the proposed permanent plan here of adoption. As you all know, I’m highly in favor of that and always think it’s the best option for a child this age, but it was pretty upsetting even before the request for [the] appointment of counsel for the de facto parents... the idea that you would be moving this child from the only family that she’s ever known, given the considerable physical difficulties that the de facto parents have helped her overcome and from my point of view the lateness of the paternal family... intervening into the case. [¶] And I would point out to you that the father has established himself as the biological father, but in no way is he a presumed father in this matter.”
At that point counsel for appellant stated, “Your Honor, we’d like to offer testimony on that issue.” The court turned aside this request: “Well, why don’t we talk about what I’ve proposed to do here. I think the real issue here is not the permanent plan but rather the placement issue. So I would be prepared to go forward and adopt the permanent plan of adoption today if the County’s willing to agree.
“[¶]... [¶]... If the County wants to agree that I can declare them [the de facto parents] prospective adoptive parents today, I’d be willing to go forward with the plan of adoption [¶]... [¶] I have absolutely no problem whatsoever, and I doubt that the proposed adoptive parents have either, with the grandparents being the grandparents. My problem is that they [the de facto parents have] been acting as the baby’s parents, and I think that really is the appropriate arrangement.”
When counsel for the de facto parents moved that they “be deemed prospective adoptive parents,” counsel for the Agency and J.S. did not object. But appellant’s counsel did:
“MR. DiSILVERIO: We do object, Your Honor. My client indicates to me that he was married to [J.S.’s] mother on December 11, 2003, at Reno, Nevada. He believes himself to be a presumed father. He believes that this is a Kelsey S. situation. He should have been entitled to notice at the time that [J.S.] came into the system. He should have been offered services. He was not in custody at the time that [J.S.] was born, and he feels today that he is in a position to arrange for the care of his child... in the home of his parents. And he would like the freedom to do that.
“THE COURT: Is there some reason he didn’t come forward at the time of the birth?
“MR. DiSILVERIO: He was not aware that the child had been born. The child’s mother had been residing with him and left his home, and she was residing separately and apart from him and he was not aware at the time the child was born that the child had been born.
“THE COURT: But he was well aware of the pregnancy?
“MR. DiSILVERIO: He was aware of the pregnancy.
“THE COURT: All right. Well, obviously that complicates things, but I don’t think it resolves them.
[COUNSEL FOR J.S.]: Your Honor, just for the record, I’m looking at the birth certificate and he’s not listed on the birth certificate. And I’m certain that if his
“MR. DiSILVERIO: Which makes it all the more a Kelsey S. situation. The mother acted to conceal from him his position as a father.
“THE COURT: Well, as I say, I intend to go forward today and make the findings that adoption is the appropriate permanent plan, but I am also making a finding that the de facto parents are the proposed adoptive parents under the Code. [¶]... [¶] They will be entitled to a hearing as to placement of the baby, and these issues will need to be resolved at that time. [¶] But I’m not prepared at this point, Mr. DiSilverio, to declare the father a presumed father.”
After reiterating that the issue of ultimate placement would be the subject of a future hearing, the court proceeded with “the.26 hearing..., which means that I’m going to be terminating the parental rights of the birth parents and freeing the baby for adoption.” The court then did so.
A written ordering terminating the parental rights of the mother and appellant was entered that same day. Appellant filed a timely notice of appeal.
DISCUSSION
General Principles
In general, the rights to which a father is entitled in a dependency depend upon his status. The dependency statutes distinguish among three categories: (1) presumed; (2) biological, or natural; and (3) alleged. (See In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)
The Family Code sets forth the criteria for determining presumed father status. As relevant here, there are three: a man marries or attempts to marry the child’s mother; he and the mother execute a voluntary declaration of paternity; or he receives the child into his home and openly holds out the child as his. (Fam. Code, §§ 7571, 7573, 7611, subds. (a)-(d).) A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the child’s presumed father. An alleged father is a man who may be the father of the child, but who has not established biological paternity or presumed father status. (In re Zacharia D., supra, at pp. 449, fn. 15, 451; In re J.L. (2008) 159 Cal.App.4th 1010, 1018.)
“Presumed father status ranks highest.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) “[O]nly a presumed, not a mere biological father is ‘a parent’ entitled to receive reunification services under 361.5’ or to seek custody of the child under section 361.2.” (In re Zacharia D., supra, 6 Cal.4th 435, 451.) “Biological fatherhood does not, in and of itself, qualify a man for presumed father status under [Family Code] section 7611. On the contrary, presumed father status is based on the familial relationship between the man and the child, rather than any biological connection.” (In re J.L., supra, 159 Cal.App.4th 1010, 1018.)
The due process to which any parent in a dependency proceeding is entitled 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.’ ” (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418, quoting Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314; accord, In re Claudia S. (2005) 131 Cal.App.4th 236, 247; In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.) “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 that interest, must afford him adequate notice and an opportunity to be heard.” (In re B.G. (1974) 11 Cal.3d 679, 688-689.) Notice must be provided to “[t]he father,” whether “presumed or alleged.” (§ 291, subd. (a)(2); see In re O.S. (2002) 102 Cal.App.4th 1402, 1408; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.) It is required at each stage of the proceedings leading to terminating a parent’s rights. (In re J.H. (2007) 158 Cal.App.4th 174, 182; In re DeJohn B., supra, at p. 106; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1019.)
But “[t]he right to be heard ‘ “has little reality or worth unless one is informed that the matter is pending... ” ’ ” (County of Orange v. Carl D. (1999) 76 Cal.App.4th 429, 439; accord, In re O.S., supra, 102 Cal.App.4th 1402, 1408.) “The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith.” (In re Justice P. (2004) 123 Cal.App.4th 181, 188; accord, In re J.H., supra, 158 Cal.App.4th 174, 182; In re Claudia S., supra, 131 Cal.App.4th, 236, 247 248.) “Social service agencies, invested with a public trust and acting as temporary custodians of dependent minors, are bound by law to make every reasonable effort in attempting to inform parents of all hearings. They must leave no stone unturned.” (In re DeJohn B., supra, 84 Cal.App.4th 100, 102.)
The Agency’s Arguments Against Reaching The Merits Are Not Persuasive
“An alleged father in dependency or permanency proceedings does not have a known current interest [in the proceeding] because his paternity has not yet been established.” (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352.) This is the basis for the Agency’s contention that appellant lacks standing to overturn the termination order.
However, as shown, an alleged father is entitled to notice of the dependency proceedings so that he may have an opportunity to establish paternity and thus ascend to presumed father status. (In re Alyssa F. (2003) 112 Cal.App.4th 846, 855.) “A defect in notice... is a most serious issue, potentially jeopardizing the integrity of the entire judicial process. However, when a parent had the opportunity to present that issue to the juvenile court and failed to do so, appellate courts routinely refuse to exercise their limited discretion to consider the matter on appeal. This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court.” (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Appellant’s claim is based upon this limited exception. Moreover, the view that an alleged father cannot appeal from a termination order is not monolithic. There is well-reasoned authority to the contrary. (See In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1116 1117; In re Paul H. (2003) 111 Cal.App.4th 753, 759.)
Nor can we agree with the Agency’s related argument that “the juvenile court did not violate appellant father’s due process rights in selecting adoption as the permanent plan and terminating father’s parental rights as to the minor... [¶] because he no longer had a protected interest in reunification.” The Agency reasons that because appellant is certain to be incarcerated beyond the maximum period for which he might get reunification services (see § 361.5, subd. (a)(2) [reunification services not to exceed 18 months]), there is no point to trying to get him those services. This is a straw man argument. It ignores the central reality of appellant’s position from the first moment he tried to become a part of the dependency: he was aware of his situation, realized that he personally could not have J.S. placed with him, but he wished custody to be with his parents, the girl’s paternal grandparents—who, not incidentally, apparently already have custody of J.S.’s sister. (See fn. 5 and accompanying text, ante.)
This reasoning also defeats the Agency’s argument that “any delay by the Agency in notifying appellant of the dependency proceedings constituted harmless error, where appellant became incarcerated for a period longer than that of allowable reunification services.” In addition to a natural reluctance to be seen as rewarding the Agency for its failure to comply with its duty to provide timely notice to appellant, our ensuing discussion will demonstrate that this omission cannot possibly qualify as harmless. It will also contribute to destroying the Agency’s final argument, that “any error that may have prevented relative placement with the minor’s grandparents... was moot” by the time of the termination hearing.
One approach the Agency does not press is that appellant is prevented from attacking the actual termination order because he did not seek an extraordinary writ to overturn the August 6 order setting the termination hearing. (See § 366.26, subd. (l).) The obvious explanation for this sensible omission is that appellant in his opening brief convincingly showed why this argument would fail, namely, because appellant was not told that he had this option.
Reversal of the Termination Order is Required Because Appellant Did Not Receive Timely Notice Of The Pending Dependency
Under the caption “The Orders Made at the Hearing under Section 366.26 must be Reversed, and Prior Findings and Orders Back to the Jurisdiction and Disposition Vacated, on Due Process Grounds, and the Matter Remanded for Hearings in which Appellant Is Given the Opportunity to Elevate Paternity Status and Show Grounds for Related Requests,” appellant makes the following arguments: (1) “due to the [Agency’s] failure to make a good faith effort to identify appellant and timely notify him of the proceeding and his right, appellant was prevented from being able to appear and seek to establish paternity and related rights before the court had set a hearing under section 366.26”; (2) “because of the [Agency’s] prior lack of due diligence, appellant’s due process rights were violated by denial of his request for Kelsey S. and presumed father status, that the [Agency] had failed to use due diligence to provide him with timely notice and opportunity to assert his rights, and that it was appropriate to place [J.S.] with his parents”; and (3) “the [Agency’s] repeated lack of due diligence and lack of forthrightness with the court require not only reversal of the orders under section 366.26 but also that all prior findings and orders back to jurisdiction/disposition must be vacated on due process grounds.”
We agree with appellant that he did not receive timely notice of his daughter’s dependency, and that this omission was attributable to the Agency not exercising anything approaching due diligence in order to locate him, thus compromising appellant’s ability to acquaint the court with his desire to have J.S. placed with appellant’s parents. We also agree with appellant that this omission was error of such fundamental magnitude that it cannot possibly qualify as harmless. However, we do not agree with appellant that this error can only be remedied by reversing the findings and order establishing the dependency.
The crux of our reasoning, and thus our decision to reverse, are these statements in the Agency’s “Interim Report” that it provided to the juvenile court for the six-month review hearing: while the case worker concluded that “The identity of the father is unknown,” she also reported that “However, on 6/12/08 the undersigned spoke with a woman who identified herself as the grandmother, Angela [K.].... Mrs. [K.] reports that she was contacted by the mother who informed her that her son, Anthony [K.], is the father of the minor [J.S.].” To judge by the dates accompanying the signatures of the responsible case worker and her supervisor, this document was completed on July 28 for use at the August hearing. It cannot be determined with certainty whether the case worker who spoke with appellant’s mother initiated the conversation or was replying to a message from Mrs. K. Appellant has a devastatingly understated critique of what the case worker did not inform the court: “The social worker did not indicate whether she had asked Angela K., or Angela K. had told her anything, about the whereabouts of her son Anthony, the nature of his relationship with [the mother], whether it was likely that he was [J.S.’s] father, whether he was married to [the mother], whether he was the father of [J.S.’s] sibling [A.S.], or any other information relevant to determining paternity and other family relationships in [J.S.’s] case. The social worker did not indicate what, if anything, she had done to follow-up on the information she received from Angela K.” Moreover, “The report did not indicate that appellant had been identified as an alleged father at that point, and did not indicate that the social worker had sent him any notice of the proceedings, information regarding the proceedings and his rights, or forms for declaring his beliefs regarding his paternity and his desires regarding establishing paternity.”
Some of this information was supplied at the hearing, when the case worker advised the court that appellant had been located in the county jail, served there, and that his mother had been “given... all of my information.” When the case worker filed the Agency’s due diligence report five days after the hearing, the court was told that appellant had not been served until August 29. But most significantly, although the report identifies no fewer than 13 avenues used to try to locate the mother, there is nothing—absolutely nothing—about when and how the Agency tried to locate appellant prior to August 29.
Appellant cites one instance where the Court of Appeal—in what might admittedly constitute a more egregious instance of inaction—stated “To state these facts is to demonstrate... the reason for our reversal, and we see no need to say much more.” (In re Megan P. (2002) 102 Cal.App.4th 480, 489.) The record does not show that the Agency did anything to locate J.S.’s father prior to the contact with appellant’s mother. No check of its own records. No check of the circumstances of the mother’s two other children, one of whom apparently had the same parents as J.S. (See fn. 5 and accompanying text, ante.) No check with the Department of Motor Vehicles or other state agency. (See § 361.5, subd. (e)(2) [“The county welfare department shall utilize the prisoner locator system developed by the Department of Corrections and Rehabilitation to facilitate timely and effective notice of hearings to incarcerated parents.”].) No check with any law enforcement or other agency in Alameda County. No check with any federal source. In other words, it was only when the dependency had already been established and was about to move out of the period of attempting reunification efforts, that the Agency become aware of the existence of a father. And even then, it allowed almost two months to elapse without lifting a finger to correct this unexecused state of ignorance. This may not be “a total absence of effort” (County of Orange v. Carl D., supra, 76 Cal.App.4th 429, 439), but whatever else it might be called, it cannot be called due diligence. We are somewhat heartened that the county counsel, representing the Agency, makes no attempt to argue that it does.
“In... dependency proceedings, time is of the essence.... A social services agency does not act with due diligence when it takes no action to locate an alleged father for two months after being informed of his identity.” (In re O.S., supra, 102 Cal.App.4th 1402, 1409.) This period might be even greater, and aggravated, if the record showed that it was in fact appellant’s mother who initiated the contact with Agency, and if so, whether any significant period of time went by before she got a call back from the case worker. On the other hand, we cannot agree with appellant’s statement that the Agency “perhaps tried to hide [appellant’s identity], and to delay the appearance of a possible father in the case.”
The timing is significant. It occurred at the point in time when the mother was virtually disappearing as a consideration, and the father was headed for prison. It was the last stage at which the parent’s interests are greater than the child’s. (In re Zacharia D., supra, 6 Cal.4th 435, 447.) Nevertheless, as soon as appellant became aware of the dependency he took the position he maintained thereafter: if he was J.S.’s father, he wanted her placed with his parents. Had he received the timely notice to which he was entitled, his position might have been immeasurably strengthened. For example, the extra time would almost certainly have allowed for discovery of the marriage certificate. Whether or not he would have been recognized as a presumed parent must remain an open question, but he would unquestionably have given him the standing to express his opinion of the best placement for J.S. Moreover, it is a virtual certainty that, had the Agency accomplished a more timely discovery of appellant’s existence, it would also have gained earlier knowledge of the grandparents and their strong desire to have J.S. placed with them. The Agency would also have had time—and the motivation—to ascertain whether the grandparents were already caring for J.S.’s sister, hardly an inconsequential bit of information.
“[A] biological father... if he does not attain presumed father status prior to the termination of any reunification period, he may move under section 388 for a hearing to reconsider the juvenile court’s earlier rulings based on new evidence or changed circumstances.” (In re Zacharia D., supra, 6 Cal.4th 435, 454, fn. omitted.) “A section 388 motion is a proper vehicle to raise a due process challenge based on lack of notice.” (In re Justice P., supra, 123 Cal.App.4th 181, 189.) Appellant contends that his failure to file such a motion “should not be deemed a waiver or forfeiture of his rights to raise the issues on this appeal.” If it is, appellant is prepared to argue in his habeas petition that his appointed counsel in the juvenile court was constitutionally incompetent for not making a section 388 motion. We agree with appellant that what his counsel told the court at the December 4 termination hearing—that appellant “should have been entitled to notice at the time that [J.S.] came into the system”—was sufficient to preserve the issue for appeal. For that reason, and because we reverse, we will deny the habeas petition as moot.
The bottom line is that the time lost greatly impaired the likelihood of achieving the Agency’s ultimate intent of having J.S. placed with her grandparents. Once the genealogy was established, the Agency’s plan would enjoy the strong statutory preference for placement with relatives. (See §§ 281.5, 361.3; In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1055 [“When a child is removed from parental custody, the child’s relatives are given preferential consideration for placement, whenever possible.”].) In these circumstances, the failure to give appellant timely notice cannot satisfy the beyond-a-reasonable-doubt standard for evaluating this violation of due process. (See In re J.H., supra, 158 Cal.App.4th, 174, 183; In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1132; In re Angela C. (2002) 99 Cal.App.4th 389, 391.)
Reversal Of The Termination Order Does Not Require Reversal Of The Jurisdictional Findings And The Dispositional Order
Notwithstanding the serious nature of the lack of notice to appellant, we do not agree with his contention that necessitates returning the dependency to square one by reversing the dispositional order and the jurisdictional findings upon which that order rests.
“It is not always possible to litigate a dependency case with all parties present. The law recognizes this and requires only reasonable efforts to search for and notice missing parents. Where reasonable efforts have been made, a dependency case properly proceeds. If a missing parent later surfaces, it does not automatically follow that the best interests of the child will be promoted by going back to square one and relitigating the case. Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them. Further, the very nature of determining a child’s best interests calls for a case-by-case analysis, not a mechanical rule.” (In re Justice P., supra, 123 Cal.App.4th 181, 191; accord, In re L.H., supra, 158 Cal.App.4th 174, 182-183.) But because appellant came forward prior to the setting of the termination hearing, his rights are not outweighed by J.S.’s need for stability and permanency. (See In re Zacharia D., supra, 6 Cal.4th 435, 447.)
Although appellant does not identify it as a basis for reversal, the conduct of the judicial officer cannot escape mention. Although the commissioner could certainly accept at face value the social worker’s representation that appellant had been served (see fn. 3 and accompanying text, ante), it appears never to have occurred to anyone that this only begged the question of why appellant had not been located at an earlier stage of the dependency. The complete absence of any prior efforts to effect service on appellant in the Agency’s due diligence report should only have drawn increased concern on this vital jurisdictional point, which is part of the juvenile court’s continuing duty to check parental identity. (See § 316.2; Cal. Rules of Court, rule 5.635.) Moreover, it would have spared the court the embarrassment of disregarding the Agency’s plan to have J.S. adopted by appellant’s parents for the stated reason of “the lateness of the paternal family... intervening into the case.” It is now clear that this “lateness” was in no sense a reflection of any slowness or hesitation by the paternal family in communicating their desire to adopt J.S.
However, when appellant did appear and raise the notice issue, he did so in the context of the six-month review hearing. Moreover, whatever problems there were in contacting appellant, there can be no dispute that the findings concerning the mother are not affected, and each of those findings is sufficient to establish juvenile court jurisdiction. (E.g., In re Alexis H. (2005) 132 Cal.App.4th 11, 16; In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) In these circumstances, the dispositional order must be allowed to stand. (See In re B.G., supra, 11 Cal.3d 679, 689.)
DISPOSITION
In A123518, the order terminating the parental rights of Anthony K. is reversed. In A124825, the petition for a writ of habeas corpus is denied.
We concur: Haerle, Acting P.J., Lambden, J.