Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J516290B Martin W. Staven, Judge.
HALLER, Acting P. J.
Richard D., the biological father of Violet H., appeals the judgment terminating his parental rights pursuant to Welfare and Institutions Code section 366.26. Richard contends the juvenile court erred by denying his petition to modify (§ 388) the court's earlier ruling that he had been given notice of the proceedings as required by law; Richard claims the San Diego County Health and Human Services Agency (Agency) had not made reasonable efforts to find him before the dispositional hearing. Richard also contends the court erred in failing to appoint counsel for him in a timely fashion, and the cumulative effect of these errors requires reversal. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2010 Lisa H. gave birth to Violet. Agency removed Violet from the care and custody of Lisa, who suffered from severe mental illness and was under a conservatorship. Violet was detained in the home of a nonrelative extended family member (NREFM), who had adopted her half sibling. The half sibling is three years older than Violet.
Lisa was diagnosed with schizophrenia in 1994. Lisa lived in a locked psychiatric facility in Alpine from October 2009 to March 2010, when she transitioned to a board and care facility.
On February 4 Agency filed a dependency petition on behalf of Violet, alleging the child was at risk of serious physical harm because Lisa's mental illness prevented her from providing regular care. (§ 300, subd. (b).)
Lisa became pregnant in approximately June 2009 while living in a board and care facility in El Cajon. At the time, Lisa was not taking her medications and was abusing alcohol. Lisa was not sure who was Violet's father; it was either Richard, whom she only knew as "Ricky, " or a German national, whom she also was seeing. However, on her parentage inquiry form, Lisa listed Ricky as the father and gave his address as unit number 7 in the El Cajon board and care facility.
At the February 5 detention hearing, the juvenile court ordered Agency to conduct a reasonable search to locate and notify the father of the dependency proceedings. The section 300 petition was amended to change the father section from "identity unknown" to "Ricky—last name unknown, " who was designated as an alleged father.
On February 9 social worker Katherine Toppin attempted to contact Ricky at the address given for the El Cajon board and care facility by using the reverse white pages. Toppin did not find a telephone number listed for unit number 7, but found a telephone number for unit number 6 and called that number. The people in unit number 6 did not know the people living in unit number 7 and did not know a Ricky in the facility. On February 17 Toppin mailed notice of the upcoming jurisdictional/dispositional hearing to Ricky at the address of the El Cajon board and care facility. The post office returned the letter to Agency on February 25; it was marked "return to sender, attempted-not known, unable to forward."
At the jurisdictional/dispositional hearing on March 24, the juvenile court sustained the section 300, subdivision (b), petition and declared Violet to be a dependent child. The court found notice had been given as required by law. The court placed Violet in the home of the NREFM. Lisa executed a waiver of reunification services, and the court ordered no services be provided to her pursuant to section 361.5, subdivision (b)(14). The court set a section 366.26 hearing for July 20.
On March 29 social worker Molly Killian of the permanent planning assessment unit visited the El Cajon board and care facility and spoke to the manager. Killian learned Ricky's last name and the next day was able to locate a telephone number for his father. When Killian called the telephone number, Ricky was at the residence and he spoke with Killian. Until then, Richard did not know Lisa had given birth to a child. Richard requested a paternity test. Richard also told Killian that he was not sure he was the father because Lisa wavered in saying he was the father and also said at various times that she had terminated the pregnancy. Richard told Lisa that he wanted to raise the child if he was the father, but he had not seen Lisa since she was about four and a half months pregnant, despite efforts to locate her. Richard had not known Lisa's whereabouts until Killian contacted him. Later that day, the social worker drove to the residence and delivered notice of the section 366.26 hearing to Richard.
Ricky also uses his given name Richard. Further references to the father will use Richard.
Richard disclosed his family has a history of mental illness. In December 2009 Richard voluntarily admitted himself to the Paradise Valley Hospital Psychiatric Unit because he was hearing voices that were telling him to "kill everybody."
On April 6 the juvenile court received a form from Richard requesting an attorney. The court set a special hearing on April 29 to discuss the request.
On April 29 the juvenile court ordered genetic testing to determine if Richard was Violet's father. An attorney was present to be appointed for Richard; however, the appointment was not made because the attorney had a conflict of interest. At the attorney's suggestion, Richard waived appointment of counsel pending the results of the paternity test.
The genetic testing results showed Richard was Violet's father.
On June 22 the juvenile court found Richard to be the biological father and amended the dependency petition to reflect this. The court appointed counsel from the Conflict Parent Office to represent Richard. Richard requested custody or, in the alternative, placement with his family and visitation. The court ordered liberal supervised visits. The court told Richard a section 388 petition was required for his other requests. At Agency's request, the court ordered a psychological evaluation.
Inadvertently, the same counsel that had declared a conflict on April 29 was appointed.
Agency set up one half hour supervised visits for Richard every other week. Richard's first visit with Violet was on June 25.
On June 30 the juvenile court relieved counsel because of the conflict of interest (see fn. 4, ante), and new counsel from the Independent Counsel Office was appointed.
At the next scheduled hearing on July 8, new counsel did not appear. The court relieved the Independent Counsel Office and appointed Conflict Counsel Office of the Dependency Legal Group as counsel for Richard.
Neither Richard, who was incarcerated, nor new counsel appeared at a July 20 hearing.
Counsel for Richard did not appear until August 3. Counsel had not yet received the court file.
Although the court had ordered a psychological evaluation, in mid-August a psychiatric evaluation of Richard was conducted instead. The psychiatrist who evaluated Richard recommended he undergo psychological testing and random drug testing. The psychiatrist wrote: "It is unclear whether this parent has a significant mental disability or incapacity that renders him unable to care for or control a child adequately." The adoption social worker, Linda Johanesen, said a psychological evaluation, which is a much more in-depth report, would have been more useful in determining if Richard would benefit from reunification services.
On October 25 Richard filed a section 388 petition, alleging Agency had not properly searched for him at the beginning of the case. Richard requested the court vacate the section 366.26 hearing for Violet and order reunification services for him. The court found Richard had made a prima facie showing on the section 388 petition and ordered an evidentiary hearing.
At the conclusion of the hearing, the court denied the section 388 hearing, finding it would not be in Violet's best interests to grant the petition. The court also followed Agency's recommendations and terminated parental rights pursuant to section 366.26.
DISCUSSION
I. Section 388 Petition
Richard contends Agency did not exercise due diligence in its efforts to locate him before the dispositional hearing and thereby denied him of due process. This denial of due process in turn, Richard asserts, prejudiced him because he was denied the opportunity to obtain reunification services and establish himself as Violet's father before disposition. Richard maintains the juvenile court's denial of his section 388 petition to rectify the due process violation was error.
A section 388 petition is an appropriate method of raising a due process challenge based on lack of notice. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481, 487-488.) Section 388 allows the juvenile court to modify an order if a parent establishes, by a preponderance of the evidence, that there are changed circumstances or new evidence and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the denial of a section 388 petition for an abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Parents, including alleged fathers, are entitled to due process notice of dependency proceedings affecting the care and custody of their children. (Stanley v. Illinois (1972) 405 U.S. 645, 651.) Due process requires notice reasonably calculated to apprise parents of dependency proceedings and allow them an opportunity to object. (In re Justice P., supra, 123 Cal.App.4th at p. 188.) Agency must use reasonable diligence to locate a missing parent. (Ibid.) This requires "a thorough, systematic investigation and an inquiry conducted in good faith." (Ibid.) "Due process notice requirements are deemed satisfied where a parent cannot be located despite a reasonable search effort and the failure to give actual notice will not render the proceedings invalid." (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
Our initial inquiry, therefore, is whether Agency's efforts to notify Richard were reasonable.
The record shows that on the day after Violet was born an Agency social worker asked Lisa to identify the father. Lisa said she did not know who was Violet's father, but indicated it could be a former boyfriend named Ricky or a German national, whose name she did not know. The only other lead the social worker had was that there might be a police report from a May 2009 incident in which Ricky injured Lisa.
Four days after Violet's birth, Lisa gave another Agency social worker the address of the board and care facility in which she and Ricky were living when she became pregnant. The social worker subsequently did an online reverse search based on this address and found a telephone number associated with the next door unit in the facility. When the social worker called this number, she was told by the occupants that they did not know the people in the next door unit and did not know a Ricky in the facility. The following week, the social worker mailed a notice addressed to "Ricky" at the address supplied by Lisa. On February 25 the post office returned the notice letter to Agency.
The jurisdictional/dispositional hearing was held on March 24. The court found notice had been given as required by law.
Five days later, a social worker, who was newly assigned to the case, visited the El Cajon board and care facility and learned the surname of Ricky from the manager of the facility. With this information, the social worker was able to locate and contact Richard the following day.
Richard asserts Agency could have contacted and notified him of the dependency proceedings before the jurisdictional/dispositional hearing if a social worker had visited the board and care facility before the hearing. While this assertion is true, it does not necessarily render Agency's efforts to notify Richard unreasonable.
On the contrary, we find Agency's efforts were reasonably diligent under the circumstances. Initially, a social worker interviewed Lisa, who was not sure of the identity of Violet's father. Lisa's information about two possible fathers, including Ricky, was sketchy at best. Later, when Lisa provided the address of the board and care facility in which she and Ricky were residing when she became pregnant, the social worker followed up this information by attempting to find a viable telephone number. This attempt yielded the telephone number for the unit next door to the unit that was inhabited by Ricky in 2009. In February 2010 the occupants of the neighboring unit did not know of a "Ricky" at the board and care facility. The social worker next mailed notice of the proceedings to Ricky at the board and care facility address, but the post office returned the notice letter because Ricky was no longer living there and there was no forwarding address.
We understand that had the social worker gone one step further by visiting the facility and encountering the manager, she would have learned Richard's last name. But all that demonstrates is that this social worker was not as thorough as she possibly could be. Moreover, the fact that additional steps might have been taken does not mean the effort that was made was unreasonable. We conclude the social worker's efforts, while perhaps not perfect, were reasonable. Agency's efforts at locating Richard before the jurisdictional/dispositional hearing were systematic and conducted in good faith. At the time of the jurisdictional/dispositional hearing, the juvenile court's finding that notice as required by law was proper. "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." (In re Justice P., supra, 123 Cal.App.4th at p. 191.)
Richard's reliance on In re O.S. (2002) 102 Cal.App.4th 1402 and David B. v. Superior Court (1994) 21 Cal.App.4th 1010 is misplaced; these cases are readily distinguishable. In In re O.S., supra, at page 1409, the social services agency took no action to locate the alleged father for at least three months after being informed of his identity. In David B. v. Superior Court, supra, at page 1016, the social services agency did not attempt to locate the father, a United States Marine, even though his name and the fact that he was a Marine were listed on the child's birth certificate. In contrast, Agency immediately attempted to find Richard and took reasonable steps to accomplish this. We find no violation of Richard's due process right to notice; Agency's efforts were reasonably calculated under the circumstances to locate and inform Richard of the proceedings.
Assuming arguendo that Richard satisfied the first prong of section 388, he has not demonstrated in this appeal that the juvenile court abused its discretion by denying his modification petition on the basis of Violet's best interests. To prevail on a section 388 petition, a parent must show the relief sought is in the best interests of the child as well as changed circumstances or new evidence. (§ 388.) In his section 388 petition, Richard alleged Violet's best interests would be served because he "did not participate in mother's decision to place the child for adoption. Child is still very young and [it is] early in [the] dependency. [Richard] has visited since being found the biological father and is building a relationship with the child. Child will benefit from knowing her father and the opportunity to being raised by a biological parent [who] desires to parent and is willing and able to participate in reunification[] services."
The juvenile court reasonably concluded it was not in Violet's best interests to delay permanency. Although Richard had several visits with Violet, his role during the visits was not a parental one and there was no showing of a father/daughter bond. Further, given Richard's background it is unlikely he would be able to complete a case plan within six months. (§ 361.5, subd. (a).) Violet had a compelling interest in remaining in a permanent placement with her prospective adoptive parents and her half sibling. "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 at p. 191; accord, In re J.H. (2007) 158 Cal.App.4th 174, 182-183.)
The juvenile court did not abuse its discretion by concluding Richard had not demonstrated the best interests of Violet would be served by granting his section 388 petition. There was no error.
II. Appointment of Counsel
Richard contends the juvenile court erred by not appointing counsel for him in a timely fashion, and the error prejudiced his effort to establish himself as Violet's presumed father and receive reunification services.
When Agency located him, Richard told the social worker he wanted a paternity test because he was not sure he was Violet's father. Subsequently, Richard mailed a form requesting an attorney to the juvenile court. On April 29 a special hearing was held to discuss Richard's request. Although an attorney was present to be appointed for Richard, the attorney had a conflict and was not appointed. Nonetheless, the attorney suggested Richard could waive appointment of counsel pending the results of the paternity test. Richard agreed to the suggestion. The court treated Richard's acquiescence as a waiver of his right to counsel pending the results of the genetic testing.
Richard argues his waiver of counsel pending the paternity test results was invalid because (1) the conflicted attorney should not have been advising him or assuming any role once the conflict was announced and (2) the court failed to make standard waiver advisements on the record. We are not persuaded.
Section 317 provides, in part:
"(a) When it appears to the court that a parent... of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section. [¶] (b) When it appears to the court that a parent... of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel..., unless the court finds that the parent... has made a knowing and intelligent waiver of counsel as provided in this section. [¶]... [¶] (d) The counsel appointed by the court shall represent the parent, guardian, or child at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent, guardian, or child unless relieved by the court upon the substitution of other counsel or for cause. The representation shall include representing the parent, or guardian, or the child in termination proceedings and in those proceedings relating to the institution or setting aside of a legal guardianship."
We note subdivision (b) of section 317 gives the parent the right to waive counsel in the circumstance where appointment of counsel is mandatory. Also, the juvenile court is not required to appoint counsel if the indigent parent does not manifest an interest in appointed counsel. (In re Ebony W. (1996) 47 Cal.App.4th 1643, 1648; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1157.)
Richard has not presented any authority that particular formalities of securing a waiver of counsel from a parent are required under section 317. Rather, "[t]here is no requirement... that the court engage in a full Faretta-type admonition and inquiry...." (In re Angel W. (2001) 93 Cal.App.4th 1074, 1084.) Further, we note " ' "[d]ependency proceedings are civil in nature, designed not to prosecute a parent, but to protect the child." ' [Citations.] 'Except where there is a contested issue of fact or law, the proceedings shall be conducted in an informal nonadversary atmosphere with a view to obtaining the maximum cooperation of the minor upon whose behalf the petition is brought and all persons interested in his or her welfare with any provisions that the court may make for the disposition and care of the minor.' (§ 350, subd. (a)(1).) Dependency proceedings are 'adversarial in nature' only insofar as the Agency 'is advocating a position which, if successful, may result in depriving a parent of his or her constitutional right to parent.' [Citation.]" (In re B.F. (2010) 190 Cal.App.4th 811, 816-817.) Here, Agency did not oppose appointment of counsel for Richard; this issue was not adversarial.
The juvenile court, which was able to observe Richard and the conflicted counsel, was in a better position than we are to determine if Richard's temporary waiver of counsel was knowing and intelligent. Under these circumstances, we are satisfied that the temporary waiver was valid.
Less than one month later, on June 22, after the genetic testing results were received, the juvenile court appointed counsel from the Conflict Parent Office to represent Richard. Inadvertently, the same counsel who had earlier declared a conflict was appointed.
At the next hearing, which took place on June 30, court relieved this attorney and appointed new counsel from the Independent Counsel Office to represent Richard. At the next scheduled hearing on July 8, new counsel did not appear. The court relieved the Independent Counsel Office and appointed Conflict Counsel Office of the Dependency Legal Group as counsel for Richard. It was not until August 3 that counsel for Richard appeared before the juvenile court.
From our review of the record, we conclude Richard should have had appointed counsel no later than June 30, but because of a series of miscues (see fns. 4 & 5, ante) he remained unrepresented until August 3. By our calculation, appointment of counsel for Richard was delayed by at least four and one-half weeks—from June 30 until August 3. The delay would be eight weeks if we were to assume that Richard's temporary waiver was invalid.
The delay of four and one-half weeks—as well as a hypothetical delay of eight weeks—in appointment of counsel did not prejudice Richard. The case did not go forward during this period; the status quo remained. Richard continued to have visits with Violet, which presumably gave him an opportunity to show his parenting skills and develop a parent-child relationship.
As we have said, there was a delay in appointment of counsel for Richard because of a series of miscues, the most egregious being the appointment of an already conflicted attorney to the case. (See fn. 4, ante.) However, the delay—even if we use the eight week duration—did not prejudice Richard. We find the error, if any, was harmless. It is not reasonably probable the result would have been more favorable to Richard if counsel for him had been appointed on June 30 or on April 29. (In re Celine R. (2003) 31 Cal.4th 45, 60 [adopting harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836].) "The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a 'miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (In re Celine R., supra, at pp. 59-60).
There is no cumulative error in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., AARON, J.
Some of the delay and confusion surrounding the appointment of counsel for Richard was no doubt caused by the change in providers under the state contract for provision of legal representation for families in dependency court. The change took place on July 1, 2010.