Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J215416 & J215415 Robert Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Lenor L. Ramirez, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and P. Joanne Fenton and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minors.
OPINION
King J.
Father appeals from an order terminating his parental rights with respect to two children pursuant to section 366.26 of the Welfare and Institutions Code. He contends that the court erred by denying him an evidentiary hearing on his request for reunification services pursuant to section 388. The request was based in part upon the assertion that he did not receive notice of the proceedings until after the section 366.26 hearing had been set. Plaintiff, San Bernardino County Department of Children’s Services (DCS), argues that father was given a hearing that complied with the requirements of section 388, and that the court did not abuse its discretion in denying the petition. We hold that father has failed to show any prejudicial error in the conduct of the hearing and that the denial of the petition was not an abuse of discretion. Accordingly, we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Counsel for the children filed a letter brief stating that the children “join the position of the County of San Bernardino.”
I. SUMMARY OF FACTS AND PROCEDURAL HISTORY
This case concerns two children. The first child was born in May 2001, the second in May 2002. On June 9, 2007, the children’s mother left the children with a relative, saying that she would be gone for a couple of hours. At this time, the first child was six years old and the second was five years old. Father had not lived with them since 2002 or 2003. When the mother did not return for two days, the relative contacted police, who contacted a social worker. The relative told the social worker that the mother was on a “meth-trip” and had other children in foster care or adoptive homes. The children were taken into protective custody and placed in a foster home. After meeting with the mother the following day, DCS decided that the children would be returned to the mother’s custody “under Court family maintenance.” At a detention hearing, the children were placed in temporary custody of the mother.
DCS filed a petition concerning the children pursuant to section 300, subdivision (b), based upon allegations that the mother has a history of neglect and drug use that interferes with her ability to adequately parent and make provisions for the children. In a jurisdictional/dispositional report, the social worker reported that father’s current whereabouts were unknown. A declaration of due diligence was filed showing that DCS used various sources to discover two possible telephone numbers and two possible addresses for father. One of the addresses was 830 Chestnut Avenue, No. 14, Long Beach, California (the Chestnut Avenue address). The social worker called each of the two telephone numbers. One was “not a good phone number”; the other was the telephone number of a former girlfriend of father. The former girlfriend told the social worker that she “sees him around but does not have a way to contact him.” Attempts were made to personally serve father with notice of the proceedings at each of the possible addresses, but these failed when the current residents at the respective addresses said they did not know father.
At the jurisdictional/dispositional hearing, the court declared the children to be dependents of the court. The court found that father is the presumed father of both children and that reunification services are to be provided to him “if he avails himself to the services.” The court further found that DCS made reasonable, but unsuccessful, efforts to locate father.
In August 2007, DCS filed supplemental petitions concerning the children pursuant to sections 342 and 387 to seek more restrictive placement. In these petitions, DCS alleged that the mother’s drug use rendered her unable to provide adequately for the children, her use of derogatory statements and excessive profanity put the children at substantial risk of suffering emotional damage, mother struck the younger child in the back of the head, and the children were found “unsupervised, playing with a dangerous knife and living in filthy conditions.” At a detention hearing, the court ordered the children removed from the mother and placed in temporary custody of the director of DCS and detained with maternal relatives.
In connection with the jurisdictional/dispositional hearing on the supplemental petitions, DCS filed a second declaration of due diligence in September 2007. This declaration shows updated searches that revealed father had been discharged from prison in 2002, but provided no information beyond what was previously known. According to the declaration, the addresses had been “eliminated” as possible locations for father. In a jurisdictional/dispositional report, the social worker informed the court that father’s whereabouts were unknown.
The court found true the allegations in the supplemental petitions, declared the children to be dependents of the court, removed them from mother, and found that DCS made reasonably diligent efforts to locate father. Father and mother were denied reunification services. The court also set a hearing to be held pursuant to section 366.26. The hearing was set for March 28, 2008.
On January 9, 2008, and January 11, 2008, DCS made additional efforts to locate father. The agency received new reports from various sources that father resided at the Chestnut Avenue address, where personal service had been previously rejected. Father’s former girlfriend was again called. She said that father does not live at the Chestnut Avenue address, but that he does visit that residence. She said that she will post a message for him. Notice of the section 366.26 hearing was sent by certified and registered mail on January 11, 2008. DCS also received a report that father resided at the Long Beach Rescue Mission in Long Beach. In a telephone call to the Long Beach Rescue Mission, a receptionist said that she could not confirm or deny that father lived there, but said she would post a message on a message board. Notice of the hearing was then sent to the Long Beach Rescue Mission. As a result of these efforts, a DCS representative declared: “Search efforts exhausted. Whereabouts of [father] remain unknown.”
On January 14, 2008, father received the certified mailed notice of the section 366.26 hearing. Nine days later, he was personally served with the notice at the Chestnut Avenue address.
On the scheduled date for the section 366.26 hearing, father appeared in court and was appointed counsel. The court granted father’s request for discovery and a continuance.
On May 1, 2008, father filed a Request to Change Court Order (form JV-180), commonly referred to as a section 388 petition. In the petition, father sought reunification services and visitation. The petition was supported by (1) a declaration of father’s counsel, (2) a copy of a July 16, 2007, minute order reflecting that reunification services were to be provided to father upon his contact with DCS, (3) a copy of DCS’s July 2007 declaration of due diligence, (4) a rental agreement concerning father’s rental of the Chestnut Avenue address commencing April 2, 2005, and (5) the notice of the section 366.26 hearing that was served on father by mail. Counsel declared that father did not receive notice of the proceedings until March 28, 2007, even though he had lived at the Chestnut Avenue address since April 2005. Counsel further stated that the requested change would benefit the children because it “would give the children a chance to reunite with their father and be kept in the family.”
The same day the petition was filed, the court signed the preprinted order on form JV-180 stating: “The best interest of the child may be promoted by the requested new order, and . . . the request states a change of circumstances or new evidence . . . . A hearing shall be held on the request as follows: [¶] [a.] The matter is set for a hearing on (date): [May 7, 2008] at (time): 8:30 a.m. . . . [¶] [b.] The judge will not hold an evidentiary hearing. The judge will make a decision based on your request and any other papers filed by those listed in item 8. You and anyone listed in item 8 may ask for a hearing, which the judge will hold if there is good cause.”
The preprinted language on the JV-180 form states, “The judge will not hold a hearing.” In handwriting on the form, the court inserted the words, “an evidentiary,” in place of the word “a.”
The section 388 petition was addressed at a hearing on May 7, 2008. The following colloquy took place between the court and father’s counsel:
“THE COURT: I read [the petition], but what do we want to do this morning? I’m not going to hear that this morning, I don’t think.
“[Father’s counsel]: Well, we would like to have a hearing. The Court indicated it was going to take an evidentiary hearing.
“THE COURT: “It was not going to have an evidentiary hearing.
“[Father’s counsel]: Oh, okay. Will make a decision. The Court will make a decision based upon the request. I don’t know when the Court will do that, but I would like to have it. And, hopefully, we would prevail, and Dad would get services and visitation.”
Later, the court clarified that the hearing on the section 388 petition “is not an evidentiary hearing. It is only for argument.” Father did not object to this limitation on the scope of the hearing and did not request an opportunity to present additional evidence or to cross-examine witnesses.
DCS responded to the section 388 petition in an interim review report. DCS informed the court of the following facts (among others). In a prior dependency case involving the first child in 2001 and 2002, father attended the detention and jurisdictional/dispositional hearings and was ordered to participate in reunification services. Father did not attend any hearings after December 2001 and failed to complete his case plan. The mother informed a social worker in that case that her relationship with father was over as of February 2002. In the present case, the social worker asked the children if they knew father. The younger child said he had no recollection of father. The older child said that he saw father “a long long long time ago.” According to the social worker, “there is no evidence to show that [father] has had any type of relationship with his children,” and that he “has not been around for years.” The social worker further reported that father was an alleged father in dependency cases involving different mothers and children in Los Angeles County in 2002 and 2005. These cases resulted in the termination of parental rights and the adoption of the children.
At the hearing on the section 388 petition, counsel for father argued: father had lived at the Chestnut Avenue address since April 2005 and has been “stable for the last three or four years”; he has had contact with the children “a couple of times a year on the telephone, letters, things like that”; he was not notified of the dependency proceedings until March 2008; and, he would like the opportunity to reunify with his children. The attorney relied upon the documentary evidence included with his petition, including the declaration of due diligence and the written rental agreement, as well as facts set forth in DCS’s interim report. Counsel did not express any objection to the scope of the hearing or indicate that he desired to, or would, produce additional evidence to support the petition if given the opportunity.
The children, through their counsel, opposed the section 388 petition. Their counsel informed the court that father has not had contact with the children since 2002, when the younger child was approximately one year old. She also pointed out that the children were currently in therapy to treat posttraumatic stress disorder resulting from the “severe physical and emotional abuse” suffered while under the mother’s care, and that visitation with father would disrupt their progress. Counsel for DCS joined in the children’s arguments, and further argued that DCS was diligent in attempting to give notice to father.
The court denied the father’s petition, explaining that “no one has demonstrated . . . that it would be in the best interest of the children” to set aside the prior order terminating services for father.
The court then held the section 366.26 hearing. The court terminated the parents’ parental rights and ordered adoption as the children’s permanent plan. Father appealed.
II. ANALYSIS
Father contends that he stated a prima facie case of changed circumstances in his section 388 petition and that the opportunity to reunify with the children would promote the children’s best interests. Thus, he concludes, he “was entitled to a full evidentiary hearing on his [section 388 petition].” DCS does not dispute that father alleged a prima facie case entitling him to a hearing. The agency argues that father was provided with the hearing called for in section 388, and that the court did not abuse its discretion in denying the petition. We agree with DCS.
Father has arguably forfeited his argument on appeal by failing to object below to the limited scope of the hearing and failing to move for the introduction of additional evidence at the hearing. Indeed, there is nothing in the record to suggest that he desired to offer any evidence at the hearing beyond what was included in his petition. However, DCS does not assert forfeiture or waiver. Accordingly, we do not address this issue.
Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) If it appears that the best interests of the children may be promoted by the proposed change of order, “the court shall order that a hearing be held.” (Id., subd. (c), italics added.) The conduct of the hearing is governed by rule 5.570 of the California Rules of Court. (In re Lesly G. (2008) 162 Cal.App.4th 904, 913.) This rule provides that a hearing under section 388 must be conducted as a disposition hearing in two situations: (a) when the petitioner seeks removal of the children from the parent or guardian or seeks a more restrictive level of placement, or (b) there is a due process right to confront and cross-examine witnesses. (Rule 5.570(h)(2).) At a disposition hearing, the court must receive in evidence any relevant evidence offered by petitioner. (Rule 5.690(b).) Otherwise, “proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court.” (Rule 5.570(h)(2), last sentence.) Here, father does not seek removal of the children or a more restrictive level of placement; and he does not contend (and did not assert below) that he had a due process right to confront and cross-examine witnesses at the hearing. Thus, the court had discretion to limit proof at the hearing to declaration and other documentary evidence. (Rule 5.570(h)(2), last sentence.)
All further references to rules are to the California Rules of Court.
Father does allege a violation of due process. However, his due process argument is based upon the failure to give him notice of the dependency proceedings. He does not assert that he was deprived of a constitutional right to confront and cross-examine witnesses at the hearing.
Here, the court held a hearing and had before it all the documentary evidence submitted in support of the petition, as well as DCS’s response to the petition. When the court informed the parties that the hearing would not be an evidentiary hearing, father’s counsel expressed no objection. Indeed, he appears to accept this procedure when he responds: “Oh, okay. Will make a decision. The Court will make a decision based upon the request. I don’t know when the Court will do that, but I would like to have it.” There is nothing in the record to suggest that father desired to offer any evidence at the hearing beyond what was included in his petition. Nor does he identify what evidence he would have offered if a full evidentiary hearing was granted. In the absence of any such showing, we cannot conclude that the court abused its discretion in limiting the scope of the hearing to the evidence presented in father’s petition and DCS’s response. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1080-1081.)
Substantively, the court found that father had failed to satisfy his burden to show that the requested change would be in the best interests of the children. We will not disturb the juvenile court’s ruling on a section 388 petition absent a showing of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) The record supports this finding. Father’s petition states that the requested change “would give the children a chance to reunite with their father and be kept in the family.” However, there was evidence that father had no meaningful relationship with the children. One child could not recall ever being visited by father and the other child could recall only that he saw father “a long long long time ago.” According to the social worker, father, the children, and the mother lived with the maternal grandmother when the first child was one year old and mother was pregnant with the second child. The maternal grandmother reported that she told father to leave the house “because he was aggressive with [the first child].” Thereafter, father called about twice each year to ask for mother, but did not call for the children or come to see them. Based on such evidence, the court could reasonably conclude that the benefits of permanency that come with adoption outweighed any benefit to the children that could result from father’s requested change to allow visitation and reunification services. Therefore, the court did not err in denying the section 388 petition.
Father further contends that he was deprived of due process because he was not given notice of the proceedings until after the section 366.26 hearing was set. Such a deprivation, he argues, constitutes a changed condition necessitating a hearing on his petition. Because we hold that he was provided with an adequate hearing and that he failed to prove that the requested change would be in the best interests of the children, we need not consider his notice argument. Nevertheless, we reject the claim on the merits.
Parents are entitled to due process notice of juvenile court proceedings affecting the care and custody of their children. (In re B.G. (1974) 11 Cal.3d 679, 688-689; In re Claudia S. (2005) 131 Cal.App.4th 236, 247.) Due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) “If the whereabouts of a parent are unknown, the issue becomes whether [reasonable or] due diligence was used to locate the parent.” (In re Claudia S., supra, at p. 247.) “‘The term “reasonable [or due] diligence”’” “‘“denotes a thorough, systematic investigation and inquiry conducted in good faith . . . .”’ [Citation.]” The due diligence standard is not met when the social services agency “ignores the most likely means of finding” a missing parent. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.)
Here, father contends that during the relevant time period he lived at the Chestnut Avenue address. The record disclosed that prior to the jurisdictional/dispositional hearing, DCS learned from various sources that the Chestnut Avenue address was a possible residence for father. Thus, this is not a case where father’s actual residence was never found; DCS found his actual residence at an early stage in the proceeding. The issue is whether DCS acted with reasonable diligence in attempting to notify him at that location. It did. Prior to the jurisdictional/dispositional hearing, a process server was dispatched to serve father with notice of the proceedings at the Chestnut Avenue address. The process server reported to DCS that the “current resident” at the Chestnut Avenue address informed the process server that father did not reside at that address and that he or she did not know father. DCS could reasonably rely upon the report of the process server and conclude that father did not live at the Chestnut Avenue address. DCS was not required to assume that either the process server or the “current resident” was lying and make a further attempt at that location. These efforts, we hold, satisfy the reasonable diligence standard for attempting to notify father at that address.
III. DISPOSITION
The orders appealed from are affirmed.
We concur: McKinster Acting P.J., Gaut J.