Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK65568, Terry T. Truong, Juvenile Court Referee.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, County Counsel, Jr., James M. Owens, Assistant County Counsel, Willliam D. Thetford, Principal Deputy County Counsel for Plaintiff and Respondent.
PERLUSS, P. J.
Timothy T., the father of two-year-old T. T., appeals from the juvenile court’s February 7, 2008 order terminating his parental rights pursuant to Welfare and Institutions Code section 366.26. Timothy T., who appeared at the initial detention hearing but not at any subsequent dependency proceeding, argues he was denied his due process right to notice of the section 366.26 selection and implementation hearing because the Los Angeles County Department of Children and Family Services (Department) failed to use due diligence to locate him. We affirm.
Statutory references are to the Welfare and Institutions Code.
Following his appearance at the initial detention hearing, the whereabouts of Timothy T. have been unknown; he has had no contact with the juvenile court, his appointed attorney or the social workers involved in T. T.’s case. Timothy T. has not personally authorized this appeal. Although a notice of appeal signed by an attorney without the client’s consent is generally ineffectual (In re Alma B. (1994) 21 Cal.App.4th 1037, 1043), when, as here, the appeal itself is addressed to the appellant’s lack of actual notice of the underlying judgment or order, it is sufficient for the attorney to sign the notice of appeal without the appellant’s personal authorization. (See, e.g., In re Steven H. (2001) 86 Cal.App.4th 1023, 1031 [“If we were to hold that access to the appellate courts required appellants to personally protest trial court proceedings of which they have not been properly notified and of which they are actually unaware, it would seemingly be a ‘Catch 22.’ [Fn. omitted.] On the one hand, if an appellant is actually made aware of what is going on in the trial court, any technical error in notice is likely to be harmless and provide no grounds for appeal (see In re Amy M. (1991) 232 Cal.App.3d 849, 868-869); on the other hand, if appellant is not notified or made aware of what is going on, there are likely grounds for appeal, but no opportunity to pursue it. Such circular logic not only may cause injustice in particular cases, it tends to undermine public confidence in the judicial system.”].)
FACTUAL AND PROCEDURAL BACKGROUND
1. Initiation of Dependency Proceedings as to T. T.
After T. T. tested positive for cocaine at birth and her mother, D. P., also tested positive for cocaine, the Department temporarily placed T. T. with her adult maternal cousin, Kimberly W., and initiated dependency proceedings on her behalf under section 300, subdivisions (b) and (g). The petition alleged D. P. had a long history of substance abuse that rendered her incapable of caring for T. T. (§ 300, subd. (b)) and Timothy T. refused or was unable to provide T. T. with ongoing care, supervision and the basic necessities of life (§ 300, subd. (g)).
Timothy T. appeared at the November 1, 2006 detention hearing, and an attorney was appointed for him. Through his counsel Timothy T. advised the court the street address listed in the section 300 petition was incorrect (the petition had omitted a numeral in the street address) and provided the court with his correct address on East Montana Street in Pasadena. The juvenile court informed Timothy T. the address he provided would be used to provide notice to him concerning the dependency proceedings involving T. T. and ordered him to inform the court and the Department of any changes to his contact information.
D. P. did not appear at any of the dependency proceedings. She is not a party to this appeal.
Finding a prima facie showing had been made that T. T. came within section 300, the juvenile court detained T. T. and ordered that she remain placed with Kimberly W. In addition, the court granted family reunification services and monitored visitation for Timothy T. and D. P. and set a pretrial resolution conference (PRC) and jurisdiction hearing for December 4, 2006.
2. The PRC and Uncontested Jurisdiction and Disposition Hearing
Timothy T. did not appear at the December 4, 2006 PRC or at any other hearing in this case. The court found proper notice of the PRC/jurisdiction hearing had been given to Timothy T. at the address he provided, but continued the matter to January 5, 2007 for an uncontested jurisdiction and disposition hearing.
On January 5, 2007 the juvenile court sustained all four counts in the section 300 petition against Timothy T. and D. P. and ordered the Department to provide each of them with reunification services. In addition, the court ordered T. T.’s placement with Kimberly W., in whose care T. T. was thriving, continue. Timothy T. and D. P. were given monitored visitation and ordered to participate in parenting and drug rehabilitation counseling and random drug testing. The court set the six-month review hearing (§ 366.21, subd. (e)) for July 6, 2007.
3. The Section 342 Subsequent Petition
On February 7, 2007 the Department filed a subsequent petition under section 342 alleging Timothy T. had a history of substance abuse and drug-related convictions as well as a conviction for spousal abuse. In its report prepared for the hearing on the subsequent petition, the Department represented that, during a visit to Timothy T.’s last-known address on East Montana Street, it had been informed by the occupants of the residence that Timothy T. no longer lived there but sometimes received his mail there. The juvenile court expressed concern whether notice to Timothy T.’s last known address under the circumstances was sufficient. The court stated, “[The Department] needs to determine whether he actually is living there and why is it that he’s receiving mail there if he’s not living there. So . . . he needs to be noticed. If he’s not at that address and if the person at that address does not say, ‘yes, I’m receiving his mail,’ then you’re going to have to do a due diligence.” The juvenile court continued the matter until March 9, 2007 for the Department to investigate further and to conduct a due diligence search for Timothy T.’s current residence or contact information if necessary.
Section 342 provides, “In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. This section does not apply if the jurisdiction of the juvenile court has been terminated prior to the new allegations.”
At the March 9, 2007 hearing on the subsequent petition the Department submitted a declaration of due diligence detailing its attempts to locate Timothy T. The Department advised the court it had sent notice of the hearing to Timothy T. at the East Montana Street address, his last known residence. Timothy T.’s counsel informed the court he believed Timothy T. was homeless and requested a continuance, but acknowledged he had no knowledge of Timothy T’s whereabouts. The court denied the request for a continuance and sustained each of the allegations in the subsequent petition, stating it would revisit its ruling if Timothy T. appeared within 10 days and filed objections to the ruling. T. T. continued to remain placed with Kimberly W.
4. The Six-month Review Hearing
Notice again became an issue at the six-month review hearing on July 6, 2007. Although the Department had served Timothy T.’s counsel, the court observed the proof of service describing attempted service on Timothy T. at his last known address listed the incorrect address, that is, the one included on the initial section 300 petition, rather than the corrected address Timothy T. had provided at the detention hearing. The court found notice inadequate and continued the matter to July 24, 2007, then continued it again at the Department’s request to August 10, 2007.
On August 10, 2007 the Department submitted a declaration of due diligence identifying the Department’s efforts to locate Timothy T, including personal visits to Timothy T.’s last known address and searches of government, law enforcement and social services data bases, as well as records of the hospital where T. T. was born. It also sent notice to the East Montana Street address Timothy T. had provided. The court found the Department had exercised due diligence in attempting to locate Timothy T.
The court terminated reunification services for both Timothy T. and D. P., concluding return of T. T. to Timothy T. and D. P. would create a substantial risk of detriment to her safety and well-being and there was no substantial probability she could be returned to either parent by the 12-month review hearing. The court also found neither parent had complied with court-ordered counseling or treatment programs or had made any progress in resolving the problems that led to T. T.’s removal. T. T. was thriving in Kimberly W.’s care, and Kimberly W. had expressed a desire to adopt her. The court set a selection and implementation hearing pursuant to section 366.26 for December 7, 2007 to consider termination of parental rights to free T. T. for adoption.
5. The Selection and Implementation Hearing Terminating Parental Rights
At the selection and implementation hearing on December 7, 2007 Timothy T.’s counsel requested a continuance for lack of notice and adequate due diligence. He asserted, although Timothy T. had made some sporadic and unannounced visits to Kimberly W.’s home to see T. T., the due diligence declaration did not indicate Kimberly W. was questioned concerning whether she knew how to contact Timothy T. The court agreed such inquiry would be useful and further observed that, once again, the Department had failed to send notice of the hearing to Timothy T. at the East Montana Street address. The court continued the selection and implementation hearing to February 7, 2008 and ordered the Department to serve notice to Timothy T. at the correct address and to ask Kimberly W. at the next in-home visit whether she knew how to contact Timothy T.
On February 7, 2008 the Department reported, in compliance with the court’s order, the caseworker had asked Kimberly W. at the last in-home visit in December 2007 if she knew how to contact Timothy T. Kimberly W. responded she believed Timothy T. was homeless and did not know how to contact him.
The court found the Department’s affidavit of due diligence satisfied due process. In addition, it found by clear and convincing evidence T. T. was likely to be adopted and would suffer substantial detriment if she were returned to her either of her parents. The court terminated Timothy T.’s and D. P.’s parental rights and implemented a plan of adoption.
Timothy T.’s counsel stated generally the court’s selection and implementation order was “over father’s objection,” but did not state the basis for that objection.
DISCUSSION
1. Timothy T. Was Not Deprived of His Constitutional Right to Notice of the Selection and Implementation Hearing
a. Governing law
Until parental rights are terminated, a parent enjoys a due process right to notice at every stage of the dependency proceedings. (In re B. G. (1974) 11 Cal.3d 679, 688-689 [“the interest of a parent in the companionship, care, custody and management of his [or her] children is a compelling one, ranked among the most basic of civil rights”]; In re Justice P. (2004) 123 Cal.App.4th 181, 188; see also Stanley v. Illinois (1972) 405 U.S. 645, 651 [92 S.Ct. 1208, 31 L.Ed.2d 551].) This due process right 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.”’” (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106; accord, In re J. H. (2007) 158 Cal.App.4th 174, 182; see also In re Wilford J. (2005) 131 Cal.App.4th 742, 751 [one’s due process right to be heard has “‘“‘little reality or worth unless one is informed that the matter is pending and can choose for himself [or herself] whether to appear or default, acquiesce or contest’”’”].)
When the location of a parent is unknown, thereby hindering the ability to give the requisite notice, “[t]he 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., supra,123 Cal.App.4th at p. 188; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.) A standardized approach to due diligence, while appearing reasonable in the abstract, may not satisfy due process if the investigating agency ignores information most likely to locate the parent. (David B.,at p. 1016 [“[w]here the party conducting the investigation ignores the most likely means of finding the defendant, the service is invalid even if the affidavit of diligence is sufficient”]; In re Arlyne A. (2000) 85 Cal.App.4th 591, 599 [“[a]lthough the Department searched the standard avenues available to help locate a missing parent, it failed to search the specific ones most likely, under the unique facts known to the Department, to yield [father’s] address”].)
The contents, timing and methods of notice required for a section 366.26 hearing are provided in section 294 (formerly section 366.23).
b. The juvenile court did not err in concluding the Department had exercised due diligence in attempting to locate Timothy T. to provide him notice of the February 7, 2007 selection and implementation hearing
Timothy T. contends the Department’s due diligence efforts to provide him notice of the selection and implementation hearing were inadequate and deprived him of due process. According to Timothy T. the Department’s “standardized” efforts to locate him ignored more “salient methods” that were likely to have been more successful. For example, he cites a May 31, 2006 police report of his arrest for physically abusing his girlfriend. According to the report, the woman told police officers she was three months’ pregnant with Timothy T.’s child. She reported she and Timothy T. were homeless and kept most of their belongings at Union Station, a homeless shelter in Pasadena. Timothy T. argues the Department should have directed its investigation to Union Station in Pasadena, insisting (albeit without any factual support) that a telephone call or visit to the shelter more than a year after his arrest may have revealed Timothy T.’s whereabouts.
Timothy T. also notes, through its due diligence efforts, the Department had learned he was receiving services of some sort from the Pasadena office of the California Department of Social Services (DPSS). He asserts (again without supporting facts) some investigation with DPSS may have been helpful in locating him.
Timothy T., who was represented by counsel at every stage of the dependency proceedings, did not raise either of these arguments in the juvenile court. The court was thus precluded from considering whether the additional measures he now suggests would have been useful and whether they should have been pursued as part of the Department’s on-going effort to effect actual notice. Having failed to raise these notice-related arguments in the juvenile court, Timothy T. has forfeited their consideration on appeal. (See In re S. B. (2004) 32 Cal.4th 1287, 1293 [forfeiture doctrine applicable in dependency proceedings]; In re Wilford J., supra, 131 Cal.App.4th at p. 754 [“The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected. . . . [¶] A defect in notice, as we have discussed, 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 [for the first time] 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.”].)
Timothy T.’s counsel argued the due diligence was unsatisfactory because it did not include questions to Kimberly W. about whether she knew Timothy T.’s whereabouts or had the means to locate him.
Even if they had not been forfeited, Timothy T.’s arguments lack merit. The due process requirement of reasonable diligence does not necessitate employing every means possible to locate a missing parent irrespective of the likelihood of success. (In re Justice P., supra,123 Cal.App.4th at pp. 182-183.) When a parent is transient and his or her whereabouts unknown, a reasonable and “‘good faith attempt to provide notice’” satisfies due process. (In re J. H., supra, 158 Cal.App.4th at p. 183 [“there 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”]; see also In re Melinda P. (1991) 234 Cal.App.3d 1413, 1418-1419 [child welfare agency not required to employ likely futile means to locate transient parent].)
In this case, Timothy T. appeared at the detention hearing and was appointed counsel. He was clearly advised at that time, pursuant to section 316.1, the address he provided would be used to effect notice of dependency hearings involving his daughter and was ordered by the court to notify both it and the Department of any changes to his contact address. (See § 316.1; Cal. Rule of Court, rule 5.534(m) [“At the first appearance by a parent or guardian in proceedings under section 300 et seq., the court must order each parent or guardian to provide a mailing address. [¶] (1) The court must advise that the mailing address provided will be used by the court, the clerk, and the social services agency for the purposes of notice of hearings and the mailing of all documents related to the proceedings. [¶] (2) The court must advise that until and unless the parent or guardian, or the attorney of record for the parent or guardian, submits written notification of a change of mailing address, the address provided will be used, and notice requirements will be satisfied by appropriate service at that address.” (Italics added.)]; see also In re Raymond R. (1994) 26 Cal.App.4th 436, 441 [“The Department has a duty initially to make a good faith attempt to locate the parents of a dependent child. Once a parent has been located, it becomes the obligation of the parent to communicate with the Department and participate in the reunification process.”]; In re Rashad B. (1999) 76 Cal.App.4th 442, 450 [once parent has been properly advised of necessity of keeping court and Department informed of any changes to address, it is parent’s burden to notify the court of changes in contact information “or risk failing to receive notices”].) Timothy T. failed to comply with that order.
Once apprised Timothy T. was no longer living at the residence address he had provided, however, the juvenile court did not rely on the fact that mail notice had been provided to his last known address. Instead, the juvenile court insisted a due diligence search for Timothy T. be conducted to attempt to locate him. To that end, the court continued the selection and implementation hearing to ensure the Department personally visited the address Timothy T. had provided the court, questioned Kimberly W. as to her possible knowledge of Timothy T.’s whereabouts and searched more than 20 local, state and federal databases using Timothy T.’s name, date of birth, driver’s license number and social security number. The search also included the records of the hospital where T. T. was born. Although Timothy T. urges even more should have been done, including contacting a homeless shelter Timothy T. had reportedly visited more than a year earlier, there is no legal support for his contention any additional search was necessary to satisfy due process, especially when there is no evidence those efforts would have been successful. (See In re Justice P., supra, 123 Cal.App.4th at p. 188 [no due process requirement to continue fruitless efforts to locate transient parent who, by his or her conduct, has demonstrated no desire to be found]; In re Larry P. (1988)201 Cal.App.3d 888, 895 [“[i]f for whatever reasons the mother’s own attorney could not locate her and produce her in court, it is unclear what more could have been done in this case”].)
Timothy T. urges the due diligence was deficient because, for many database searches, it used the birth date Timothy had told the court and the Department and the one that appeared on official police reports (December 1965) and not the date listed as his date of birth on T. T.’s birth certificate (December 1964.) Contrary to Timothy T.’s contention, the record shows, for the final due diligence report made in connection with its efforts to provide notice of the selection and implementation hearing, the Department used both 1964 and 1965 as possible years of birth, except when the use of the 1965 date actually yielded information about Timothy T.
In re Arlyne A., supra, 85 Cal.App.4th 591 and In re David B., supra, 21 Cal.App.4th 1010, on which Timothy T. relies, do not require a different result. In Arlyne A. the dependent child’s maternal grandmother and caregiver had told the social services agency the child’s father was residing with his parents in Rialto, yet the social services agency failed to pursue that information. Had the agency made further inquiries based on that lead, even to the local directory assistance in Rialto, it would have found the father’s address. (Arlyne A., at pp. 598-599 [“[t]he Department failed to take the simple and most direct step of calling directory assistance to find the parents’ number in Rialto”].) In David B. the social services agency’s due diligence efforts did not include contacting the United States Marine Corps even though the dependent child’s birth certificate indicated the child’s father was a Marine. (See David. B., at p. 1016 [“We reject the contention of [the social services agency] that its efforts were reasonable given the information it had on petitioner. Petitioner’s name was on the birth certificate as was the fact that he was in the United States Marines. [The social services agency] failed to take the one step which patently appeared to hold the most promise of locating petitioner -- an inquiry addressed to that organization.”].)
Unlike in In re Arlyne A., supra, 85 Cal.App.4th 591 or In re David B., supra, 21 Cal.App.4th 1010, Timothy T. has not demonstrated an investigation at the Union Station homeless shelter or further inquiry with the local DPSS office would have, either directly or indirectly, provided concrete information concerning his current whereabouts. The record, on the other hand, shows the Department, with the court’s insistence, searched all possible databases, questioned the occupants of the home where he had last resided and asked Kimberly W. if she had any additional information. Although a parent’s right to notice of proceedings that may result in termination of his or her parental rights is fundamental, at some point, after reasonable efforts to locate a missing parent have been exhausted, a parent’s right to actual notice must yield to the dependent child’s interest in permanency and stability: “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.” (In re Justice P., supra, 123 Cal.App.4that p. 191; accord, In re J. H., supra, 158 Cal.App.4th at p. 183.)
Although Timothy T.’s appeal is primarily directed to his contention the Department’s due diligence was inadequate in connection with notice of the selection and implementation hearing, he also argues the due diligence was deficient with respect to the six month review hearing (§ 366.21, subd. (e)). However, the order at the six-month review hearing was a final, appealable order. (See § 395, subd. (a)(1) [“[a] judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment”].) Having failed to appeal from that order, any challenge to notice of those proceedings in this appeal is untimely. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [“unappealed disposition or postdisposition order is final and binding and may not be attacked on appeal from a later appealable order”].)
2. Timothy T. Has Forfeited His Argument Statutory Requirements for Notice to T. T.’s Grandparents Were Not Satisfied
Supplementing his due process argument, Timothy T. also contends the statutory notice requirements set forth in section 294, subdivision (f)(7)(A), were violated because neither T. T.’s maternal nor her paternal grandparents were provided notice of the selection and implementation hearing. Section 294, subdivision (f)(7)(A), provides, “If the court determines that there has been due diligence in attempting to locate and serve the parent and the probation officer or social worker recommends adoption, service shall be to that parent’s attorney of record, if any, by certified mail, return receipt requested. . . . Whether notice is to the attorney of record or by publication, the court shall also order that notice be given to the grandparents of the child, if their identities and addresses are known, by first-class mail.”
The statutory requirement of grandparent notification, which is only triggered when direct parental notification cannot be achieved, is intended, at least in part, as an attempt to get notice to the missing parent. (See In re Steven H. (2001) 86 Cal.App.4th 1023, 1033.) Timothy T.’s mother is deceased. In connection with its responsibilities under the Indian Child Welfare Act (ICWA), the Department had reported earlier in these proceedings that the identity and address of Timothy T.’s father were unknown, relieving the Department of any obligation to provide notice to him under section 294, subdivision (f)(7)(A). Thus, there was no error in failing to notify T. T.’s paternal grandparents, and it is by no means clear Timothy T. has standing to argue the Department failed to provide written notice to D. P.’s parents -- T. T.’s maternal grandparents.
Similarly, in light of Timothy T.’s failure to comply with the juvenile court’s order, made when he appeared at the detention hearing and provided a corrected mailing address for purposes of notice, that he notify the court and the Department of any changes to that address (In re Rashad B., supra, 76 Cal.App.4th at p. 450; see also Cal. Rules of Court, rule 5.534(m)), Timothy T. may well have forfeited any right to statutory (as opposed to constitutional) notice requirements. We need not reach either of those questions in this case, however, because Timothy T.’s counsel failed to raise this statutory notice issue at the selection and implementation hearing, when the juvenile court had the ability to correct it. Accordingly, this argument, raised for the first time on appeal, is forfeited. (In re Wilford J., supra, 131 Cal.App.4th at pp. 753-754.)
DISPOSITION
The juvenile court’s February 7, 2008 order terminating Timothy T.’s parental rights is affirmed.
We concur: WOODS, J. ZELON, J.