Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK66082, Sherri Sobel, Juvenile Court Referee.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Eloy C. (father), father of 18-month-old N.C, appeals from an order of the juvenile court terminating his parental rights. Father argues that his statutory and constitutional due process rights were violated because he was not properly served with a notice of the hearing to terminate his parental rights. We affirm.
FACTUAL AND PROCEDURAL HISTORY
N.C. was born on December 8, 2006. N.C. and her mother, Amanda O. (mother), tested positive for amphetamines at the time of delivery. However, the child displayed no withdrawal symptoms and was a healthy child at birth. On December 11, 2006, the parents met with a social worker and agreed to submit to random drug testing and enroll in a drug treatment program. Paternal aunt stated that the family could live with her, but the social worker determined that paternal aunt’s home was not a suitable residence for the family. Mother agreed that she and N.C. would reside at the home of maternal aunt Stephanie O. The social worker implemented a safety plan with the parents and Stephanie O.
On December 13, 2006, the social worker could not locate the family at Stephanie O.’s home. That evening, she located them at the paternal aunt’s home. At that time, N.C. was detained and taken into protective custody.
1. The Section 300 Petition and Initial Detention Hearing
On December 18, 2006, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition alleging that N.C. was a child described by Welfare & Institutions Code section 300. Specifically, the petition alleged that N.C. was born with a positive toxicology screen for amphetamines. In addition, the petition alleged that mother had a history of substance abuse and that both mother and father were current users of methamphetamine, which rendered them incapable of caring for the child.
All further statutory references are to the Welfare & Institutions Code.
At the initial detention hearing on December 18, 2006, both parents appeared. The court ordered N.C. detained, and allowed the parents monitored visitation. The court found father to be the child’s declared, but not presumed, father. The parents were ordered to return for a further hearing on the matter on January 8, 2007.
2. Jurisdiction/Disposition Hearing
In preparation for the hearing, a DCFS social worker interviewed the parents. The interviews took place on December 26, 2006. Mother stated that she had been using methamphetamine for three years. When asked when she had last used methamphetamine, mother stated, “today.” Mother indicated that she was arrested numerous times as a juvenile.
Father also admitted to using methamphetamine. When asked when he last used the drug, he stated, “maybe two days before the baby was born.” When the social worker asked father if he would submit to a drug test, he asked “do they test for alcohol? I drank a few beers today.” In addition, father admitted that he “smoked some marijuana about a week ago.” Father reported that he had been arrested and convicted several times, for such things as grand theft auto, possession of marijuana, and skate boarding on public property. Following the interview, father called the social worker and left a voice message stating, “I gotta tell you the truth, I smoked speed today before you met with us.”
At the hearing held on January 8, 2007, neither parent appeared. The matter was continued to February 2, 2007, for a contested hearing..
At the hearing held on February 2, 2007, both parents appeared. They each executed written waivers of rights submitting to an amended petition. Both parents signed a written court-ordered disposition plan, which called for N.C. to be suitably placed with monitored visits for the parents. Both parents were ordered by the court to complete a drug rehabilitation program with random drug testing, parent education counseling, and individual counseling to address case issues. The parents were also ordered to obtain suitable housing.
3. Progress Review Hearings
On May 2, 2007, the court held a progress hearing. The parents were not present, but were represented by their respective counsel. DCFS had filed a report in anticipation of the hearing, which indicated that mother and father had failed to enroll in substance, parenting, and counseling programs, and that both parents failed to show up for random drug tests. The parents had participated in only two monitored visits. The court observed, “Parents have done absolutely nothing . . . . The Department needs to make sure this child is in an adoptive home.”
On August 2, 2007, the court held another status hearing. DCFS submitted a report for the hearing, which indicated that the parents still had not enrolled in any of the court-ordered programs. N.C. had been placed in a foster home where she had been living since March 22, 2007. She had adjusted well and formed a positive bond with her caregivers, who were willing and able to provide N.C. with a permanent placement through adoption. DCFS recommended termination of reunification services for the parents.
Upon the request of mother’s counsel and father’s counsel, the court set a contested hearing for August 9, 2007. Neither parent appeared at the hearing. The court stated: “Neither parent has done anything whatsoever on the case plan.” After finding that there had been no regular and consistent contact, and no progress in resolving the problems which led to removal, the court terminated reunification services. The court set a section 366.26 hearing for December 6, 2007.
4. The Section 366.26 Hearing
DCFS prepared a report for the December 6, 2007 hearing. The report stated that N.C. remained in the home where she had been placed on March 22, 2007. The report indicated that the family had bonded with the child and stated that she was a part of their family. They wanted to adopt her. The report further indicated that the parents had a total of two visits since the child had been placed in foster care in December 2006.
The DCFS social worker who prepared the report had met with father on October 9, 2007. Father stated that he was opposed to the adoption and would contest it. Yet, since that time he had not made any effort to see the child. During the social worker’s meeting with father, father was personally served with notice of the December 6, 2007 hearing.
Mother had not made herself available to DCFS, despite the social worker’s efforts to locate her. The social worker indicated that mother was served by substitute service at two homes, one where she was reported to be living, and the other where she received her mail. A first-class courtesy notice was also sent to both homes.
Attached to the report were several proofs of service showing service on father. One proof of service evidences the personal service effected on father during the social worker’s meeting with father. The date of service, handwritten on the form, indicates “10-9-07.” The time of service indicates “2:00 p.m.” Father’s name is handwritten next to the time of service. On the next page, the proof of service is executed by Margaret Stevens and dated September 6, 2007.
Another proof of service indicates that, on October 5, 2007, Margaret Stevens served father by first-class mail addressed to father’s residence.
A third proof of service executed by Margaret Stevens on October 5, 2007, shows that substituted service was made upon “Lawrence [M.] – Eloy [C.], Sr.” at 5:00 p.m. on October 5, 2007. This proof of service also indicates that service was mailed to father’s residence on September 6, 2007.
The parents did not appear on December 6, 2007, for the contested section 366.26 hearing. The court found: “Notice has been given to the father as required by law. No further notice is necessary.” Father’s counsel, who was present at the hearing, raised no objection. The court discussed service to mother, and found that the substituted service to mother was adequate. The court set the matter for a contested evidentiary hearing on December 18, 2007. The court ordered DCFS to provide “courtesy notice to the parents.” A proof of service executed by Margaret Stevens on December 10, 2007, shows that notice was mailed to father by first-class mail on that date.
On December 18, 2007, DCFS reported that the social worker had spoken to mother on December 10, 2007. Mother did not want to give the social worker her address. The social worker offered to meet her at a neutral site on Wednesday, December 12, 2007. Despite several further attempts to personally serve the mother, the social worker was unsuccessful. However, on December 13, 2007, when the social worker called mother, mother reported that her great-grandmother had given her notice for the December 18, 2007 hearing. She stated that she did not need to meet with the social worker to be personally served. Mother stated that she would be at court on December 18, 2007, at 8:30 a.m.
Neither parent was present at the hearing on December 18, 2007. Parents’ counsel were both present. Father’s counsel requested a continuance on behalf of his client, but stated no grounds for the request. The court denied the continuance. The court then found the child adoptable and terminated parental rights. This appeal followed.
DISCUSSION
I. Applicable Law
Parents have a “fundamental and compelling interest in the companionship, care, custody and management of their children. [Citation].” (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.) “[T]he state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard. [Citations].” (In re B. G. (1974) 11 Cal.3d 679, 688-689.) “Until parental rights have been terminated, both parents must be given notice at each step of the proceedings. [Citation.]” (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1019.) In general, 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.’ [Citation.]” (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.)
Section 294 sets forth the requirements for notifying a parent when the court has set a section 366.26 hearing. Among the proper means of accomplishing the required notice are: “Personal service to the parent named in the notice” (§ 294, subd. (f)(3)), and “Delivery to a competent person who is at least 18 years of age at the parent’s usual place of residence or business, and thereafter mailed to the parent named in the notice by first-class mail at the place where the notice was delivered” (§ 294, subd. (f)(4)).
II. Notice to Father Complied With the Law
The proofs of service found in the record relevant to father’s notice of the section 366.26 hearing are as follows:
1. A proof of service dated October 5, 2007, signed by Margaret Stevens, indicating that substitute service was made on “Lawrence [M.] – Eloy [C.], Sr.” at father’s residence on October 5, 2007, at 5:00 p.m.
2. A proof of service dated October 5, 2007, signed by Margaret Stevens, indicating that service was made by first-class mail to father’s residence on October 5, 2007.
As father points out, the “date of deposit” was initially typewritten as September 6, 2007. That date was crossed out and the date of October 5, 2007, was handwritten next to the crossed-out date.
3. A proof of service dated September 6, 2007, signed by Margaret Stevens, indicating that father was personally served on October 9, 2007, at 2:00 p.m.
The record shows that DCFS served father both by personal service, permitted under section 294, subdivision (f)(3), and substitute service, permitted under section 294, subdivision (f)(4). Father does not dispute that service was attempted by these means on the dates specified. Nor does father claim that he was not served. Instead, father’s position is that the proofs of service are deficient. Specifically, he argues that the proofs of service fail to “provide sufficient information to the court to support a finding that notice was proper” in that they contain inconsistencies and indicate “a lack of reasonable attention to the importance of service on the father.” This lack of reasonable attention, father argues, “denotes the service was not done in good faith, but [was] simply a mechanical preparation.” As examples of this lack of reasonable attention, father points to the inconsistency in the dates mentioned on the proof of personal service, which was attested to on September 6, 2007, but not served until October 9, 2007; and fact that proof of mailing was not attached to the proof of service by mail. Father notes that the deficiencies in the proofs of service “may have been the result of a clerk’s mistake,” but argues that “the use of multiple service forms containing incomplete information [cannot] be deemed a reasonable attempt to effect notice to this father.”
In addition, DCFS served father’s counsel by certified mail on September 6, 2007.
DCFS argues that father forfeited his right to make this argument because father’s counsel did not object at the hearing to the juvenile court’s finding that “Notice has been given to the father as required by law.” However, an appellate court may review an alleged error despite a party’s failure to raise it below if due process rights are involved. (In re P.A. (2007) 155 Cal.App.4th 1197, 1210.) Because father was not present at the hearing to raise his claims regarding deficient notice, we address the merits of father’s arguments.
In support of father’s argument that the proofs of service are deficient, father cites County of Orange v. Carl D. (1999) 76 Cal.App.4th 429, 439. In that case, “County officials simply took the mother at her word that Carl was somewhere out of state and could not be located.” (Ibid.) “They did not truthfully and accurately inform the dependency court that a ‘“thorough, systematic investigation and inquiry [had been] conducted in good faith.”’” (Ibid.) The facts of Carl D. are distinguishable from the facts before us. Here, DCFS not only personally served father after meeting with him, it took the additional steps of providing substitute service and serving father’s attorney.
While conceding that two proofs of service were prepared for the section 366.26 hearing in this matter, father argues that “none of the manners of service were destined to actually serve [father] with notice of the hearing.” As support for this argument, father cites In re Anna M. (1997) 54 Cal.App.4th 463. In that case, all parties agreed that “the court did not, either in statutory language or in a functional equivalent, advise [mother] that at the next hearing it was required to ‘select and implement a plan of adoption, legal guardianship, or long-term foster care for the minor.’ [Citation.]” (Id. at p. 468.) Rather, “at least three times the court emphasized the likelihood of guardianship as the permanent plan.” (Ibid.) Father points to no evidence in the record that the juvenile court ever considered guardianship in this case. In contrast, as early as May 2, 2007, when N.C. was only five months old, the court voiced its position that, given the parents’ failure to participate in any court-ordered programs, adoption would be the likely permanent plan for the child. In addition, the social worker reported that when she met with father and accomplished personal service, father “stated that he was opposed to the adoption.” This evidence strongly suggests that, not only was father informed of the section 366.26 hearing, father was well aware of the nature of the proceedings and the likelihood that his parental rights would be terminated.
Father has cited no law supporting his position that the alleged deficiencies in the proofs of service constitute error. In addition, the record overwhelmingly supports the juvenile court’s determination that the notice was “‘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.’ [Citation.]” (In re Melinda J., supra, 234 Cal.App.3d at p. 1418.) In fact, the record shows that DCFS went above and beyond this standard in this case, providing notice by every possible means available. Under these circumstances, minor discrepancies in the notice forms are immaterial. We therefore find that father was properly served with notice of the hearing to terminate his parental rights, and no due process violation occurred.
Because we have determined that father was properly served with notice of the section 366.26 hearing, we need not address the parties’ competing arguments as to whether any error would have constituted a structural defect, requiring automatic reversal, or would have been subject to a harmless error analysis.
DISPOSITION
The order is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.