Opinion
F085848
09-20-2023
In re M.K. et al., Persons Coming Under the Juvenile Court Law. v. AMANDA K., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County Nos. JD141410-00, JD142311-00, JD142312-00, JD142313-00 & JD142314-00 Christie Canales Norris, Judge.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Amanda K. (mother) appeals from the juvenile court's order terminating her parental rights as to her five minor children (Welf. &Inst. Code, § 366.26). She claims that the order must be reversed as to one of her children-Adam K.-because Adam's alleged father-Patrick R., whose whereabouts were unknown throughout the underlying case-was not properly noticed of the proceedings.
All further undesignated statutory references are to the Welfare and Institutions Code.
In their initial respondent's brief, the Kern County Department of Human Services (department) conceded notice error but contended the error was amenable to a harmlessness analysis and was harmless beyond a reasonable doubt.
While this appeal was pending, this court requested supplemental briefing on whether mother's claims were forfeited for failure to raise them before the juvenile court, and, if so, whether we should exercise our discretion to address them. In response to this request, the parties appear to agree the claims have been forfeited; the department argues we should not address them, while mother urges us to.
Finding mother's claims have been forfeited and declining to exercise our discretion to address them, we affirm the juvenile court's order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
This family came to the attention of the department in September 2020 when Adam's half sibling, M.K. was born positive for amphetamine. A juvenile dependency petition was filed on behalf of M.K. due to risk from mother's substance abuse. At that time, no petition was filed on behalf of Adam and his three other half siblings who were in mother's care, as they were going to be staying with a maternal relative.
Dependency jurisdiction was taken over M.K. pursuant to section 300, subdivision (b)(1); he was ordered removed from mother's care, and she was ordered to participate in reunification services.
In the meantime, it was discovered that Adam and his other siblings were living with another maternal relative; the children were found to be unsupervised and living in unsanitary conditions, and mother was not present and could not be found. A dependency petition was filed on July 21, 2021, alleging Adam, then 14 years old, came within the juvenile court's jurisdiction under section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of siblings). Separate dependency petitions were simultaneously filed on behalf of Adam's three siblings.
During the course of the department's investigation, Adam and mother informed the department that Adam's father was Patrick R. Adam told the social worker he had met Patrick and had seen him a few months before but did not have contact information for him. Adam's birth certificate did not have a father listed.
Patrick had a criminal history ranging from 2010 to 2016, consisting mostly of drug-related misdemeanors and one domestic violence misdemeanor. It appears the domestic violence offense, from 2012, was likely related to a child welfare referral where it was reported mother was with Adam in the park, and Patrick "responded to the park, became aggressive, began to yell, attempted to take custody of Adam and struck [mother] on her mouth with an open hand" before fleeing the scene. Mother reported Patrick appeared to be under the influence of alcohol and a controlled substance and had hit her before. Law enforcement responded to Patrick's residence and took him into custody. The referral was evaluated out.
Adam and his siblings were ordered detained from mother on July 23, 2021. Mother was not present at the detention hearing.
On September 22, 2021, the department filed a declaration "in support of diligent search" (unnecessary capitalization omitted) for Patrick. The declaration listed Patrick's full name, date of birth, and social security number and indicated the paternal grandparents, "according to [department] records" were "unknown." The declaration outlined the declarant's efforts to locate Patrick. The declarant searched department records, Consortium IC (C-IV), Criminal Justice Information System (CJIS), the Federal Bureau of Prisons website, the Medical Eligibility Data System (MEDS Lite), the California and Arizona Department of Corrections websites, the Kern County Sheriff's Department website, a Thomson Reuter locate search site, Facebook, and the Work Number website.
Department records revealed a phone number and that Patrick may have lived in an unknown city in Arizona. The CJIS check returned a result stating that as of November 29, 2019, Patrick was transient in Bakersfield, California. The Thomson Reuter search returned an address from October 2, 2015, in Bakersfield. None of the searches revealed that Patrick was in custody, and the Work Number search did not reveal that Patrick was currently employed. The MEDS Lite database returned the department address for Patrick as well as a phone number. The Consortium (C-IV) database, a client database of participation in public assistance, revealed that mother's records had listed father as an "absent parent," and had "Samantha R[.]" listed as a relative of his. The search for Patrick returned a mailing address in Bakersfield. The Facebook search returned 100 possible profile pages, and the declarant was unable to determine which may have been Patrick. The declarant attempted to reach Patrick by calling each of the possible phone numbers that came from the searches. None led the declarant to contact with Patrick, and only one allowed her to leave a voicemail; she left three voicemails with no response. The declarant also made unsuccessful attempts to contact mother for information on Patrick's whereabouts.
A second declaration was attached to the first, documenting the efforts of a second department employee to locate Patrick. This declarant visited one of the addresses that resulted from the other declarant's searches, where she contacted a male resident who stated he was a friend of one of Patrick's family members and that Patrick had moved a month ago. The resident denied having any contact information for or any way to contact Patrick. The declarant visited a second potential address and contacted a woman who stated she did not know Patrick and had been living at the residence for three years. The declarant went to a third address, a shelter, and was advised Patrick was not on the roster and no one with his last name was staying at the shelter.
In October 2021, the juvenile court terminated mother's reunification services and set a section 366.26 hearing as to M.K.
On December 7, 2021, the juvenile court found the petitions filed on behalf of Adam and his siblings true and that the children were described by section 300, subdivisions (b), (g), and (j).
At the disposition hearing on January 19, 2022, the juvenile court considered the due diligence declarations for Patrick, and found his whereabouts were unknown and reasonable efforts to locate him had been unsuccessful. Adam and his siblings were ordered removed from mother's physical custody. The juvenile court found the bypass provisions set forth in section 361.5, subdivision (b)(10) applied in that mother had failed to reunify with M.K. and had not made a reasonable effort to treat the problems that led to M.K.'s removal, and mother was not ordered reunification services. The court set a section 366. 26 hearing as to Adam and his siblings.
Mother filed a notice of intent to file a petition for extraordinary writ on January 31, 2022. Neither mother's appointed counsel nor mother, in pro per, filed a petition, and this court dismissed the action as abandoned on March 18, 2022.
On February 22, 2022, the department filed a document entitled "DECLARATION, APPLICATION AND ORDER DISPENSING WITH SERVICE OF NOTICE OF HEARING ON SELECTION OF A PERMANENT PLAN - JUVENILE [Welf. &Inst. Code § 294]." County counsel declared that the department's recommendation for permanent placement of Adam "ha[d] been limited to Long-Term Foster Care or Legal Guardianship" and that the department "cannot, after reasonable diligence, give notice of the hearing in the manner prescribed under Welfare and Institutions Code § 294(f)(1), (2), (3), (4), or (5)" to Patrick. The declaration indicated Patrick's physical whereabouts remained unknown and the paternal grandparents' whereabouts were also unknown. Attached to the application were the declarations filed on September 22, 2021.
On February 22, 2022, the juvenile court executed the order prepared by the department which read "GOOD CAUSE APPEARING, the Court finds that there has been reasonable diligence in searching for the child's alleged father PATRICK R[.] pursuant to Welfare and Institutions Code §294(f)(7)(B), and dispenses with notice to the alleged father and to the grandparents whose whereabouts are unknown."
Contrary to the department's declaration, the department's section 366.26 report indicated that the department's recommendation was that parental rights be terminated and adoption selected as Adam's permanent plan. The report indicated the children had no relationships with their fathers prior to being placed in protective custody. It further indicated mother had last visited Adam in August 2021. Adam had been placed with M.K. and resided with his care providers, maternal relatives, since July 2021, and his care providers wished to adopt him, as well as M.K. The report stated Adam had formed a "strong relationship" with the care providers and their family and looked to them to meet his daily physical and emotional needs. Adam stated his care providers were good to him and they were "better role models" in his life. He expressed he wanted to be adopted by his care providers.
Due to several continuances for various reasons, including to resolve paternity issues for Adam's siblings, the section 366.26 hearing was not held until February 14, 2023. The juvenile court found Adam and his siblings were adoptable, ordered adoption as their permanent plans, and terminated parental rights.
Mother personally attended no hearings with regard to the petition filed on behalf of Adam (though she was always represented by counsel). As such, she was never examined under oath regarding paternity as to Adam. Patrick remained an alleged father throughout the proceedings.
DISCUSSION
Mother contends the department's deficiencies in attempting to serve Patrick resulted in a due process violation and requires reversal of the order terminating parental rights for both parents. Mother contends the department's search for Patrick was not reasonably diligent, as they failed to follow up on certain leads like trying to locate "Samantha R[.]" and failed to document any efforts past September 2021. Mother further contends that the department erred by obtaining an order dispensing of notice of the section 366.26 hearing to Patrick and was at least required to serve notice via publication pursuant to section 294, subdivision (f)(7)(A), as the department was recommending adoption as Adam's permanent plan. Mother also suggests (without much discussion) that the jurisdictional and dispositional findings and orders should be reversed as well, presumably based on mother's contention the juvenile court's finding at the disposition hearing that the department's search for Patrick was reasonable was error. Mother urges us to exercise discretion to grant her standing to raise these issues.
The department does not object to our granting mother standing. It initially conceded error in that it agreed Patrick should have been served via publication, rather than not at all, but asserted that its search was reasonably diligent, and any error in not notifying Patrick as opposed to notifying him by publication was harmless beyond a reasonable doubt as Patrick was an alleged father and was unlikely to have any cognizable objections to the issues to be decided at the section 366.26 hearing-Adam's adoptability or whether any exceptions to termination of parental rights applied.
While this appeal was pending, we requested that the parties address the question of whether mother's claims regarding notice to Patrick were forfeited by her failure to raise them before the juvenile court, and if so, whether we should exercise our discretion to consider them. In its supplemental brief, the department argued the claims had been forfeited and that we should not exercise our discretion, while mother appears to concede the claims had been forfeited but nonetheless requests that we consider them. We agree with the department.
Failure to object to assertedly deficient notice is a well-recognized ground of forfeiture. "An appellate court ordinarily will not consider challenges based on procedural defects or erroneous rulings where an objection could have been but was not made in the trial court. [Citation.] ... 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." (In re Wilford J. (2005) 131 Cal.App.4th 742, 754 (Wilford J.).)" 'A [Welfare and Institutions Code] section 388 petition is the appropriate method for raising a due process challenge based on lack of notice.'" (In re Mia M. (2022) 75 Cal.App.5th 792, 807.)
Application of the forfeiture rule is not automatic, and appellate courts have discretion to excuse a party's failure to properly raise an issue in a timely fashion. (In re S.B. (2004) 32 Cal.4th 1287, 1293; Wilford J., supra, 131 Cal.App.4th at p. 754.) However, "in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance," an appellate court's discretion to excuse forfeiture" 'should be exercised rarely.'" (Wilford J., at p. 754; see In re S.B., at p. 1293.) Accordingly, "when a parent had the opportunity to present [a notice] 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." (Wilford J., at p. 754.)
In the present case, the juvenile court made a finding that the department's search for Patrick was reasonable at the disposition hearing and multiple subsequent findings of proper notice. In February 2022, the juvenile court found the department had exercised reasonable diligence to locate and serve Patrick with notice of the section 366.26 hearing and made an order dispensing of notice as to him. This ruling took place a year before the section 366.26 hearing, at which the juvenile court found notice to all parties had been proper. None of these findings or orders were objected to by any party, including mother, who has waited until the juvenile court has ordered termination of parental rights to seek to enforce Patrick's rights to notice of the proceedings. We conclude that because mother was represented by counsel and properly noticed of hearings throughout the proceedings, she had ample opportunity to raise her claims before the juvenile court where any error may have been more efficiently and effectively corrected. Therefore, we conclude mother's claims have been forfeited, and we decline to address them.
We acknowledge that in a case relied on by mother-In re J.R. (2022) 82 Cal.App.5th 569 (J.R.), the appellate court found the father had standing to raise an issue of notice defect as to the mother, and exercised its discretion to consider the issue even though the father did not raise it below. However, we are not persuaded by J.R. as applied to the present case.
In J.R., the department had ample evidence that mother was in El Salvador, including the fact that the minor's care provider's sister, who lived in El Salvador, was able to contact the mother and even obtained a copy of the minor's birth certificate from her. In addition, at one point, the mother had contacted the department by telephone. Nonetheless, the department limited its search for mother to United States and California databases and consistently reported that the mother's whereabouts were unknown. The department ultimately obtained an order to serve the mother notice of the section 366.26 hearing via publication in a California newspaper. (J.R., supra, 82 Cal.App.5th at pp. 573, 574-578.) The appellate court ultimately found the facts of the case presented a "textbook ... due process violation" of the mother's right to proper notice and conditionally reversed the order terminating parental rights as to both parents and remanded the matter for further proceedings. (Id. at pp. 572, 595-596.)
In discussing its decision to exercise its discretion to address the forfeited issue, the J.R. court concluded the issue before it was a "pure question of law" and "the public's interest in the due administration of justice weighs in favor of adjudicating this claim of error because [the] mother lacks any meaningful opportunity to present this claim on her own." (J.R., supra, 82 Cal.App.5th. at p. 587.) In assessing whether the father should be granted standing, the J.R. court noted the mother was likely unable to seek relief via a habeas petition as she was out of the country, and it did not appear she was ever notified of the nature of the proceedings. (Id. at p. 583.) Further, while the J.R. court made note of the minor's interest in stability and permanence, the court concluded under the circumstances before it that "allowing [the minor's] interest in a permanent placement to 'act as a counterbalance to the agency's due diligence obligations would turn one of the key goals of the dependency statutory scheme on its head, reducing the chance of family reunification while simultaneously rewarding inadequate efforts to notify parents.'" (Id. at p. 584.) The J.R. court also noted "because a conditional reversal of the order terminating [the] mother's and [the] father's rights allows the juvenile court to reissue the termination order if [the] mother fails to appear after receiving proper notice ... our decision to confer standing upon [the] father will not result in an undue delay of [the minor's] permanent placement." (Ibid.)
J.R. is distinguishable from the present case. While the J.R. court could reasonably conclude that whether mother was adequately noticed was purely a question of law, we cannot as easily do so here. In J.R., it was clear mother's whereabouts were ascertainable, and yet the department did not make any reasonable attempts to contact her to inform her of the proceedings. Here, the record contains no such information. Mother's due process claim here is premised on the department not making a reasonably diligent search, which is a factual analysis that is dependent on whether the department failed to follow certain leads; this claim would have been more appropriately developed before the juvenile court.
More importantly, while the mother in J.R. had clearly defined rights in the underlying dependency case, in the present case, Patrick was an alleged father. As such, he had no rights in the case other than the right to step forward and seek to establish his paternity. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352.) In our view, this is an important distinguishing fact affecting the weight we have decided to give to Adam's interests in permanence and stability in determining whether to address mother's claims. We appreciate the J.R.'s court's comments that a minor's interests should not" 'act as a counterbalance to the agency's due diligence obligations,'" in effect" 'reducing the chance of family reunification while simultaneously rewarding inadequate efforts to notify parents.'" (J.R., supra, 82 Cal.App.5th at p. 584.) Under the circumstances of this case, however, we are concerned about negative effects on Adam that could result from mother's waiting to raise this issue until after parental rights have already been terminated, when it could have easily been raised at an earlier, more appropriate time. Based on the record before us, it is simply too speculative to conclude that our reviewing this issue will have any appreciable effect on Adam's best interests, and, unlike in J.R., the delay to the resolution of Adam's dependency case caused by addressing this matter at this point in the case could be substantial. If we were to agree with all of mother's claims and reverse and remand the matter, on this record, many factors are too unclear: whether a more thorough search would succeed in locating Patrick; whether, if found, Patrick would seek to elevate his paternity status; whether Patrick would, in fact, be able to show that he was Adam's presumed father, given the facts that he and mother were not married when Adam was born, he did not appear on Adam's birth certificate, and Adam had minimal contact with him; whether he would, in the alternative, seek to be established as Adam's biological father; and whether, given these variables, Patrick would be ordered reunification services. In contrast, Adam, who is now 16 years old, has care providers willing to provide him with the stability and permanence of adoption.
For the reasons set forth, we find mother has forfeited the claims she makes on appeal, and we decline to address their merits.
DISPOSITION
The order terminating parental rights is affirmed.
[*] Before Franson, Acting P. J., Snauffer, J. and De Santos, J.