Opinion
B333224
08-09-2024
In re K.C., a Person Coming Under the Juvenile Court Law. v. RONNELL C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Katie Curtis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21CCJP03010 Linda L. Sun, Judge. Reversed and remanded with directions.
Katie Curtis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Senior Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Ronnell C. (Father) appeals from the juvenile court's order denying his Welfare and Institutions Code section 388 petition seeking to vacate the jurisdiction findings, disposition order, and subsequent orders based on lack of notice of the proceedings involving his three-year-old daughter, K.C. On appeal, Father contends the Los Angeles County Department of Children and Family Services (Department) failed to make a reasonably diligent, good faith effort to locate him, and the court violated his due process rights by making orders, including bypassing provision of reunification services, without notice to him. The Department contends any error was harmless beyond a reasonable doubt because even if Father had notice, the court would have bypassed provision of reunification services.
All further statutory references are to the Welfare and Institutions Code.
However, the juvenile court granted reunification services to K.C.'s mother, Vanessa R. (Mother), despite finding the factual predicates for bypass applied to her, because she appeared in the proceeding and visited with K.C. We cannot say beyond a reasonable doubt the court would not have similarly granted Father reunification services had the Department properly served him with notice of the proceedings (and he appeared at the disposition hearing). We reverse the court's order denying Father's section 388 petition and the subsequent order terminating his parental rights; we remand for the court to set a new jurisdiction and disposition hearing.
Mother is not a party to this appeal, and Father does not challenge the jurisdiction findings as to Mother. Accordingly, we do not disturb the juvenile court's order asserting dependency jurisdiction over K.C., or the disposition and subsequent orders as to Mother, which she has not separately appealed. (See In re D.P. (2023) 14 Cal.5th 266, 283 ["[T]he principle that '[d]ependency jurisdiction attaches to a child, not to his or her parent' [citation] means that '"[a]s long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate."'"].)
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Juvenile Welfare History Involving K.C.
On November 10, 2020 the Department received a referral alleging neglect of then-two-month-old K.C. by Father and Mother. The caller stated Father and Mother had two children removed from their care in Arizona due to their drug use. They moved to Los Angeles for K.C.'s birth. The week before the referral the parents were seen using drugs; on the day of referral, K.C. went without a feeding for several hours; and the caller was concerned K.C. lacked warm clothing. The Department closed the referral after a social worker was unable to make contact with the family.
On June 1, 2021 the Department received a referral stating the family was homeless in Arizona. On April 12 Father had punched Mother in the face and choked her while K.C. was present. Father was admitted to a crisis response center for suicidal ideation. Mother declined treatment, stating she did not want the Arizona Department of Child Safety (Arizona DCS) or the police involved. Mother admitted to occasionally smoking methamphetamine with Father. The reporting party stated the family had been traveling back and forth between Los Angeles and Tucson, and three weeks before K.C. was born in Los Angeles, Arizona DCS closed a case regarding K.C.'s two-year-old sister Ke.C. after terminating Mother's and Father's parental rights.
Arizona DCS investigated the April 12, 2021 allegations but closed the case because it was unable to find the family.
B. The Current Referral and Investigation
On June 26, 2021 the Department received an immediate response referral alleging general neglect of K.C. by Father and Mother. The caller reported the family arrived at the Union Rescue Mission shelter in Los Angeles on June 24. On June 26 Father tested positive for methamphetamine and amphetamine, and Mother tested positive for methamphetamine.
A Department social worker interviewed Mother and Father at the shelter on June 26. Mother stated both parents had stopped using drugs more than four months earlier, and she denied domestic violence by Father. Mother and Father had been in a relationship since 2017. Father stated he had struggled with drug use since he was 15 years old, but he had been sober for 10 years until a recent relapse. Father's relapse was triggered by narcotic medication he was prescribed for several serious health conditions and by recently seeing his sister's husband use drugs while Father and his family were living with the sister in Arizona. Father stated, "I told them I need to get into the shelter so I don't do it. I already lost my kids and I don't want to lose my child." Father admitted he had used methamphetamine on June 24. Father gave the social worker the contact information for his case worker and therapist at the La Frontera Center in Arizona, stating they were part of his support system.
When the social worker informed Father and Mother the Department was immediately taking K.C. into custody, Father became upset. He stood up and said the Department was taking his baby because of what Father's mother and aunt had reported, and he was going to get a gun and kill them. Father put his hand up to the social worker's face and made a gesture of a gun with his fingers pulling the trigger. Father then stormed out of the room, yelling at responding police officers that he would "slap the shit out of them." Mother gave K.C. to the social worker and agreed to participate in services and drug testing.
C. The Petition and Detention
On June 29, 2021 the Department filed a petition under section 300, subdivision (b)(1), alleging Father had a 17-year history of substance abuse and was a current abuser of methamphetamine, and on June 26 Father tested positive for methamphetamine and was under the influence of methamphetamine while K.C. was under his care and supervision. The petition further alleged Father "ha[d] mental and emotional problems including homicidal ideation" and on June 26 threatened to kill paternal grandmother and another paternal relative and to strike police officers. The petition alleged Mother had a history of substance abuse and was a current abuser of methamphetamine, and she tested positive for methamphetamine on June 26 while K.C. was under her care and supervision.
In advance of the detention hearing, the Department conducted a search under Father's name in the California Child Support Automation System (CCSAS) and found a verified primary physical and mailing address on 64th Street in Los Angeles. The search also returned eight unverified secondary addresses, four in California and four in Arizona, including one on Richey Boulevard in Tucson. The search returned a primary telephone number, but when the social worker called the number, it had been disconnected.
At the July 2, 2021 detention hearing, Father was not present; Mother appeared telephonically. The juvenile court asked Mother how to reach Father, and Mother responded that she had no contact with Father and did not have a phone number for him. Asked if she had Father's address, she answered, "There isn't one." According to Mother, the address on 64th Street was the paternal great-aunt's address, but the aunt did not keep in contact with Father because she disapproved of Mother's race. After K.C. was taken into protective custody on June 26, Mother moved to Michigan.
The juvenile court ordered K.C. detained from Father and Mother, with Mother receiving monitored visitation and referrals for services. The court denied Father visitation until he made contact with the Department. The court also ordered that the parents could not visit together or supervise each other's visits.
D. The Department's Efforts To Locate Father
The August 13, 2021 jurisdiction and disposition report and attached due diligence report described the Department's efforts to locate Father. Mother denied knowing Father's whereabouts, but K.C.'s caregiver disclosed that Mother and Father visited together during video calls and they "[w]ould tell the child that they are going to get her back." The Department concluded, "It is apparent that [M]other and [F]ather are still together and have not been forthcoming about [F]ather's whereabouts." The social worker attempted to contact Father by telephone, but Father did not return any of the calls or text messages.
The record does not reflect what telephone number the social worker used to leave Father voice and text messages.
On July 22 the social worker contacted Team Wellness Center in Detroit, Michigan (Team Wellness), where Mother was receiving services, and confirmed Father was enrolled in services and residing in Detroit. The social worker asked the Team Wellness case manager to give Father her contact information and to ask Father to contact the Department. During a follow-up call on August 31, the Team Wellness case manager reported that Father and Mother were still enrolled in services and Father made in-person visits to "his programs," but the case manager did not have contact information for Father.
On August 3 the social worker sent Father a notice of the upcoming jurisdiction hearing (then set for August 24) by registered mail to seven addresses in California and Arizona that were identified through the Department's searches on child support, child welfare, public benefits, and law enforcement databases, as well as voting, prison, and motor vehicle records. The addresses did not include the Richey Boulevard address in Tucson identified in the pre-detention CCSAS database search. The Department also sent the notice letter to the postmaster in each zip code for the seven addresses and to Mother's current address in Detroit, and the Department requested Mother give the notice to Father. The Department did not send the notice to Team Wellness or any other addresses in Michigan.
In a September 14 last minute information for the court, the Department reported it had ruled out all seven of the addresses identified in its due diligence report. A social worker called or visited each address: occupants at several addresses did not know who Father was; a paternal relative in Tucson denied Father lived at her address and did not have contact information for him; and an Arizona shelter stated Father did not reside there.
The Department later reported that on September 30 it mailed notice of the proceedings to Father at Team Wellness via certified mail. The social worker also called Father's Team Wellness case manager, who agreed to give Father the notice of the jurisdiction hearing (then set for October 5) when he came in for services.
E. The Jurisdiction and Disposition Hearings
Father did not appear at the October 5, 2021 jurisdiction hearing. The juvenile court found notice for the hearing was proper. After hearing argument, the court sustained the allegations in the petition relating to Mother's and Father's substance abuse and dismissed the allegations regarding Father's mental health. The court continued the disposition hearing to November 2.
The record on appeal does not include a reporter's transcript of the jurisdiction hearing because the court reporter's notes could not be found. Our summary relies on the minute order.
On October 13 the social worker contacted the case manager at Team Wellness, who reported she had no contact with Father, and at the beginning of October Mother had requested her case be closed. Mother and Father had not participated in any programs at Team Wellness (contrary to what the case manager previously stated), and they only received housing assistance. K.C.'s caregiver reported that the current visitation schedule allowed Mother to have virtual visits with K.C. three days a week for one hour. Mother was appropriate during her visits, and the caregiver did not see anyone else participating in the calls.
At the November 2 disposition hearing, the juvenile court declared K.C. a dependent of the court and removed her from the parents' custody. Father did not appear at the hearing; however, the court stated it reviewed the proofs of service and found Father was properly served. The Department and minor's counsel argued that the parents should be denied family reunification services pursuant to the bypass provisions in section 361.5, subdivisions (b)(10) and (11), because Mother and Father had their parental rights terminated in Arizona for older sibling Ke.C based on the parents' drug use and the bypass provision was applied to deny Father reunification services with respect to K.C.'s older half-brother Messiah C. Mother's attorney argued the court should not apply the bypass provisions because Mother had maintained regular contact with K.C. and there was "enough evidence before [the court] to have confidence that [Mother] will continue to address the issue that caused removal in this particular case if given the opportunity to reunify with her daughter."
Section 361.5, subdivision (b)(10)(A), provides that reunification services need not be provided to a parent where the juvenile court terminated reunification services for any sibling or half sibling of the dependent child after the sibling or half sibling was removed from the parent pursuant to section 361, and the parent did not subsequently make a reasonable effort to treat the problems that led to the sibling or half sibling's removal. Section 361.5, subdivision (b)(11)(A), provides that the juvenile court may bypass reunification services where parental rights over a sibling or half sibling were permanently severed, and the parent failed to make a reasonable effort to address the problem that led to the sibling's or half sibling's removal.
The juvenile court bypassed Father's reunification services with respect to Messiah pursuant to section 361.5, subdivision (b)(11), when it sustained a 2020 petition alleging Messiah's mother was an abuser of marijuana and left Messiah alone without supervision.
Mother's attorney also argued the section 361.5, subdivision (b)(10), bypass provision was inapplicable to Mother because Mother's other children (including Ke.C. and K.C.'s halfsister Aaliyah M.) had been removed in Arizona, and thus the removals were not "pursuant to section 361" as required by section 361.5, subdivision (b)(10).
The juvenile court found by clear and convincing evidence that the factual predicates of the section 361.5, subdivision (b)(11), bypass provision had been established as to Mother, but it was in K.C.'s best interest that Mother receive six months of family reunification services. The court reasoned that Mother initially enrolled in Team Wellness and participated in visits with K.C., "although we do not know whether Mother has continued in her program." The court found by clear and convincing evidence that the factual predicates of section 361.5, subdivision (b)(10) and (11), had been established as to Father and denied him reunification services, finding "Father has not shown any interest in this proceeding and has not made . . . even his first appearance in this proceeding. Father has not visited the child at all since the child was detained from them." The court again denied Father visitation until the Department located him and he requested visitation. Father was not allowed to be present during Mother's visits with K.C.
F. Post-disposition Proceedings
At the May 3, 2022 six-month review hearing, the juvenile court terminated Mother's family reunification services, finding she was not in substantial compliance with her case plan, and it set a permanency planning hearing (§ 366.26). The court ordered the Department to complete another due diligence report on Father. The Department tried again to contact Father at the 64th Street address in Los Angeles, but ruled the address out after there was no answer at the door.
Over the four-week period beginning in July 2022 the Department published notice of the permanency planning hearing in a local Los Angeles newspaper. In August 2022 a social worker spoke with paternal aunt J.F., who reported she had not had any contact with Father "in over a year or two." J.F. put the social worker in touch with paternal grandfather, Ronnell C., Sr., who told the social worker he had heard from Father two weeks earlier. Ronnell Sr. believed Father and Mother remained in a relationship and were living in Phoenix.
On August 30, 2022 the juvenile court found notice by publication had been completed with respect to Father, but it delayed the permanency planning hearing several times while the Department looked for Mother and other relatives. At a hearing on November 14, 2022, the Department advised the juvenile court that "Father was actually located. We served him. . . . They found him in Arizona at the last known address, I believe."
After termination of reunification services, Mother stopped visiting with K.C., and the Department was unable to reach Mother at her last known telephone number.
In a December 2022 due diligence report regarding Mother, the Department reported it found Mother's social media account through Father's social media account. The report explained, "Prior to the disposition hearing, the [social worker] conducted a social media search on [F]ather. [The social worker] visited [F]ather's Facebook account and observed that a profile [with Mother's name] 'liked' a picture on father's profile."
Screenshots of Mother's social media page show that an account in Father's name was among Mother's linked "friends."
In a May 2023 status review report, the Department stated that Arizona DCS had removed Mother and Father's infant child, C.C., after the child tested positive for high levels of methamphetamine, and Father and Mother continued to engage in domestic violence and substance abuse.
Father appeared telephonically at the permanency planning hearing on May 2, 2023 (Mother did not appear). The juvenile court advised Father he would have an attorney at the next hearing, and the court continued the hearing. Father stated his current address was in Phoenix.
G. Father's Section 388 Petition
On July 6, 2023 Father, through his attorney, filed a Section 388 petition pursuant to Ansley v. Superior Court (1986) 185 Cal.App.3d 477 requesting that the juvenile court "vacate and void all orders from the October 5, 2021 jurisdictional hearing and November 2, 2021 dispositional hearing and all orders subsequently made regarding the father and return to the arraignment/detention in the instant matter" because Father had not received proper notice of the proceedings in violation of his due process rights. As alleged, the Department failed to send notice of the jurisdiction and disposition hearings to the address on Richey Boulevard in Tucson that Father reported to the Department on a notification of mailing address (form JV-140) Father had filed in 2019 in Messiah's dependency case. The Department also failed to search for Father on social media. Father's first appearance in the case in May 2023 constituted changed circumstances, and K.C.'s best interests would be served by vacating the jurisdiction findings and disposition order. The juvenile court set a hearing on Father's petition for September 12, 2023, the date of the continued permanency planning hearing.
In Ansley v. Superior Court, supra, 185 Cal.App.3d at pages 487 to 488, the Court of Appeal held that a section 388 petition is the proper vehicle for a parent to raise a due process challenge based on inadequate notice in dependency proceedings.
In the Department's report for the September 12 hearing, the Department summarized its efforts to provide Father with notice of the jurisdiction and disposition hearings, and it asserted due process had been afforded to Father by the Department's "reasonable diligence." The report explained, "Through a systematic investigation and inquiry conducted in good faith, it was reasonable to believe that father was residing in Detroit, Michigan. At the time, the most likely mean[s] of finding and noticing father was by sending the notice to the agency that was providing father with services and asking the father's case manager to notice father as father appeared to be intentionally dodging the [D]epartment at the time."
Father stated to a social worker in a July 14, 2023 interview that after the Department took custody of K.C., Father and Mother traveled to Arizona, then Detroit, then Las Vegas, then Texas. Father said he had been "all over the place." He did not stay in Los Angeles "because [K.C.] was taken and it is nobody's business." The report stated Father was aware of "an open case for [K.C.] with the Department," but provided no further detail as to what Father knew about the proceedings.
On July 19, 2023 Father began having twice weekly virtual visits with K.C. The visits were very short, often less than 10 minutes long, and K.C. showed no desire to engage with Father. K.C. appeared to have "no bond or attachment" with him. Between July 19 and August 12, Father missed three of eight visits.
H. Hearing on Father's Section 388 Petition and Permanency Planning Hearing
At the September 12, 2023 hearing on Father's section 388 petition, Father's attorney argued the Department did not send notice to the address it had on file in Messiah's case, the most reasonable way to reach Father. The attorney also argued the August 2021 diligence report did not address Father's social media account, and the Department did not follow up with paternal relatives identified in the report. Minor's counsel argued the Department had conducted a good faith, reasonably diligent search for Father, and even if there were any notice defects, it was harmless error. Further, a change in orders was not in K.C.'s best interests because re-litigating the petition would delay establishment of a stable and permanent placement, Father's visitation was poor, and there was no evidence Father addressed case issues. The Department's attorney added that Father and Mother had a history of being untruthful and evading the Department and Arizona DCS. In addition, a document sent to the Richey Street address in Messiah's case had been returned as undeliverable in July 2020, and Father was aware of the current proceeding and was present during Mother's virtual visits with K.C. in 2021.
In his petition, Father acknowledged that a court document mailed to Father at the Richey Boulevard address was returned as undeliverable in July 2020, but he asserted the Department nonetheless continued in Messiah's case to send notices to the address.
The juvenile court found the Department made a good faith attempt to provide notice to Father, and there was no due process violation. Father had acknowledged he was aware of the proceedings, and the court found it was reasonable for the Department and the court to believe from questioning Mother that Father was at Team Wellness in Detroit in the weeks before the jurisdiction hearing. Further, because the Department reasonably believed Father was in Michigan, the court concluded it was appropriate not to send notice to the Richey Boulevard address in Tucson. The court also found (incorrectly) there was no evidence Father had a social media account.
The juvenile court also ruled that even if there was a due process violation, Father could not demonstrate a "reasonable probability of a more favorable outcome absent the error in giving notice," or that he made a reasonable effort to treat the problems that led to K.C.'s removal. The court reasoned that actual notice would not have changed the outcome of the jurisdiction hearing because the court would have still bypassed reunification services pursuant to section 361.5, subdivision (b)(10) and (11), due to his failure to reunify with K.C.'s siblings Messiah and Ke.C. Further, K.C. was only nine months old when she was detained, she had not seen Father for two years, and Father had not been involved in a recent active dependency case in Arizona involving infant C.C. The court found that any error in the notice to Father was harmless and denied Father's section 388 petition.
The juvenile court then held the permanency planning hearing. The court rejected Father's argument for application of the beneficial parental relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)), finding Father failed to prove consistent visitation and a substantial, positive emotional attachment with K.C. The court terminated Father's and Mother's parental rights over K.C. and selected adoption as K.C.'s permanent plan.
Father timely appealed from the order denying his section 388 petition.
DISCUSSION
A. Governing Law and Standard of Review "Notice is both a constitutional and statutory imperative.
In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend." (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 (Jasmine G.); accord, In re Mia M. (2022) 75 Cal.App.5th 792, 807 (Mia M.); see In re Claudia S. (2005) 131 Cal.App.4th 236, 247 ["Parents are entitled to due process notice of juvenile court proceedings affecting the care and custody of their children, and the absence of due process notice to a parent is a 'fatal defect' in the juvenile court's jurisdiction."].) "'A parent's fundamental right to adequate notice and the opportunity to be heard in dependency matters involving potential deprivation of the parental interest [citation] has little, if any, value unless that parent is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein. Only with adequate notice can one choose to appear or not, to prepare or not, and to defend, or not.'" (In re Daniel F. (2021) 64 Cal.App.5th 701, 712 (Daniel F.); accord, Mia M., at p. 807.)
"[A] 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. (2004) 123 Cal.App.4th 181, 188 (Justice P.); accord, In re A.H. (2022) 84 Cal.App.5th 340, 369.) "It includes searching not only 'standard avenues available to help locate a missing parent,' but '"specific ones most likely, under the unique facts known to the [Department], to yield [a parent's] address."'" (A.H., at p. 369; accord, In re D.R. (2019) 39 Cal.App.5th 583, 591.) "[T]here 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." (Justice P., 123 Cal.App.4th at p. 188; accord, Mia M., supra, 75 Cal.App.5th at p. 807; see In re Claudia S., supra, 131 Cal.App.4th at p. 247 ["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."].)
"A section 388 motion is a proper vehicle to raise a due process challenge based on lack of notice." (Justice P., supra, 123 Cal.App.4th at p. 189, citing Ansley, supra, 185 Cal.App.3d at pp. 487-488; see In re Christopher L. (2022) 12 Cal.5th 1063, 1080 [a section 388 petition seeking reconsideration of orders based on a parent's lack of notice is "sometimes referred to as an 'Ansley motion'"].) Section 388 provides for modification of a juvenile court order based on a change in circumstances or new evidence, where the moving party demonstrates modification of the prior order is in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 414-415 ; In re Malick T. (2022) 73 Cal.App.5th 1109, 1122.) But "[t]he analysis of a section 388 petition is 'different when a parent shows he did not receive notice of the dependency petition in violation of due process.'" (Mia M., supra, 75 Cal.App.5th at p. 810; see Ansley, at pp. 490-491 ["it is implicit in the juvenile dependency statutes that it is always in the best interests of a minor to have a dependency adjudication based upon all material facts and circumstances and the participation of all interested parties entitled to notice"].)
Consequently, in cases where a juvenile welfare agency's efforts to provide notice have been inadequate, appellate courts have generally held the section 388 petitioner need make no further showing concerning the child's best interests. (See Mia M., supra, 75 Cal.App.5th at p. 811 ["Allowing a child's best interests 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."]; Daniel F., supra, 64 Cal.App.5th at p. 716 ["Though we are keenly mindful of [minor's] interests in having a stable placement as soon as possible, a 'best interests' showing was not required under the circumstances" where agency's efforts to locate father were inadequate]; In re R.A. (2021) 61 Cal.App.5th 826, 837-838 [where father's section 388 petition "raised the possibility the Agency failed to use diligence to locate him," he was entitled to a hearing on his petition because no additional showing of best interest to the child is necessary]; cf. Justice P., supra, 123 Cal.App.4th at p. 191 ["Where reasonable efforts have been made, a dependency case properly proceeds [and 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."].)
We review a trial court's ruling denying a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re I.B. (2020) 53 Cal.App.5th 133, 152.) However, we review de novo whether inadequate notice violated a parent's due process rights. (Mia M., supra, 75 Cal.App.5th at p. 806; In re J.H. (2007) 158 Cal.App.4th 174, 183.)
"When there is no attempt to serve a parent with notice the error is reversible per se; when there is error in a notice the question is whether the error is harmless beyond a reasonable doubt." (In re Marcos G. (2010) 182 Cal.App.4th 369, 387; accord, In re J.H., supra, 158 Cal.App.4th at p. 183 [applying harmless-beyond-a-reasonable doubt standard where Department attempted to serve father but he did not receive actual notice, explaining that "[u]nless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice"]; see Mia M., supra, 75 Cal.App.5th at p. 806 [inadequate efforts by the Department to locate father, who did not receive notice of dependency proceeding until the sixmonth status review hearing, was not harmless beyond a reasonable doubt, requiring remand for a new jurisdiction and disposition hearing]; Justice P., supra, 123 Cal.App.4th at pp. 192-193 [although child welfare agency erred by delaying five months in giving father notice of the proceedings, father was not entitled to an evidentiary hearing on his section 388 petition because his "failure to demonstrate prejudice stemming from his delayed notice [was] dispositive" under harmless-beyond-a-reasonable-doubt standard].)
Father argues "the absence of any reasonable attempt to give notice" by the Department constituted structural error, requiring automatic reversal, citing Jasmine G., supra, 127 Cal.App.4th at page 1114 . Jasmine G. is distinguishable. The Court of Appeal in Jasmine G. found structural error where the juvenile court conducted the selection and implementation hearing and terminated the mother's parental rights in her absence and the child services agency had made no attempt to provide the mother with notice of the hearing despite having repeated contacts with her, and the court denied the mother's attorney's request for a continuance to notify her about the hearing. (Id. at pp. 1113-1114.) Here, by contrast, the Department made considerable efforts to locate Father, who was transient and resided in multiple states, serving notices to at least nine addresses and following up on each, including at Team Wellness in Detroit after being told Father was enrolled in services there.
In In re Christopher L., supra, 12 Cal.5th at pages 1082 to 1083, the Supreme Court considered the structural error analysis in Jasmine G., supra, 127 Cal.App.4th at page 1118 before deciding that automatic reversal was not required where the juvenile court conducted the jurisdiction and disposition hearing without appointing counsel and arranging for an incarcerated parent to appear: "The rationale [in Jasmine G.] may be that automatic reversal is necessary to deter egregious negligence when the state fails to even attempt to give notice. A complete failure of the state process may also implicate dignity concerns not present when human error results in a notice defect." As in Christopher L., in this case we find no evidence of "egregious negligence" and "[a] complete failure of . . . state process[es]" that would require automatic reversal. The Christopher L. court declined to decide whether parental notification errors are "subject to the prejudice standard for state law error [under People v. Watson (1956) 46 Cal.2d 818, 835] or the more stringent standard for federal constitutional error [under Chapman v. California (1967) 386 U.S. 18, 24]." (Christopher L., supra, 12 Cal.5th at p. 1083.) The Department concedes we should reverse unless the error is harmless beyond a reasonable doubt, and we agree this more stringent standard applies given the federal due process concerns at issue. (Accord, Mia M., supra, 75 Cal.App.5th at p. 806; In re Marcos G., supra, 182 Cal.App.4th at p. 387; In re J.H, supra, 158 Cal.App.4th at p. 185; In re Angela C., supra, 99 Cal.App.4th at p. 395.)
B. The Juvenile Court's Error in Adjudicating the Petition Without Notice to Father Was Not Harmless Beyond a Reasonable Doubt
Father contends the Department failed to make a diligent and good faith effort to locate him, ignoring at least six search avenues that were the most likely means of effectuating notice on him. Thus, he argues, the court erred in denying his section 388 petition, and the error was not harmless because the court granted reunification services to Mother, who was similarly situated to Father. The Department does not contend on appeal that notice to Father was legally sufficient; rather, it argues that any error was harmless beyond a reasonable doubt because the juvenile court would not have granted Father reunification services even if he had appeared at the jurisdiction and disposition hearing, and Father was not similarly situated to Mother in that he made no attempts to treat his substance abuse and did not visit K.C. Father has the better argument.
Father argues the Department could have pursued the following search leads: (1) Father's caseworker and therapist in Tucson; (2) an email address found in the Department's online searches; (3) Father's social media account that a social worker discovered before the disposition hearing; (4) an active child support case, for which the Department had the case number; (5) Michigan-specific search databases; (6) the paternal grandparents, who were not contacted until a year after the disposition (when the Department contacted Ronnell, Sr.). Because the Department does not contend on appeal that it made a reasonably diligent search for Father, we do not decide whether a due diligence search should have included these search avenues.
At the disposition hearing, the juvenile court found by clear and convincing evidence that it could bypass reunification services for both Father and Mother because of the child welfare proceedings involving their other children. Notwithstanding this finding, the court granted Mother reunification services, concluding this would be in K.C.'s best interests because Mother initially enrolled in services at Team Wellness and was visiting with K.C. The court denied Father reunification services because he had not appeared in the case or "shown any interest in this proceeding," and he had not visited K.C. since she was detained. But, as discussed, Father did not receive notice of the July 2, 2021 detention hearing or the jurisdiction and disposition hearings. After Father received notice for the first time in November 2022, he appeared at the May 2023 permanency planning hearing. Further, at the detention hearing the court denied Father visitation with K.C. until he made contact with the Department. Thus, there was no basis for the court's conclusion that Father's failure to have visits with K.C. between July and November 2021 stemmed from a lack of interest in reunifying with K.C., rather than from a lack of proper notice of the detention and subsequent proceedings.
Other than Mother's appearance in the proceedings and visitation with K.C., Father and Mother were similarly situated. The sustained allegations of the petition based on substance abuse were virtually identical for both parents. Both parents had other children who were removed from them before and after K.C.'s removal, including Messiah (Father), Aaliyah (Mother), Ke.C (both), and C.C. (both). Although the juvenile court made a finding that Mother had enrolled in services at Team Wellness, the Team Wellness case manager reported in August 2021 that both parents enrolled in services. And in October 2021 the case manager reported that both parents in fact only received housing assistance at Team Wellness and did not participate in programs.
Accordingly, at the time of the disposition hearing the parents' efforts to address case issues were similar: they were traveling together and were still in a relationship, and the two distinctions (Mother's appearance and visitation) flowed at least in part from the fact she received notice of the hearings. Given the court's decision to grant Mother six months of reunification services notwithstanding clear grounds for bypass of reunification services, based on a finding this was in K.C.'s best interests, the Department has not shown beyond a reasonable doubt that had Father been given notice and appeared at the jurisdiction and disposition hearing, the court would not have similarly granted Father reunification services.
We do not find persuasive the Department's argument that the notice error was harmless because Father admitted he was aware of K.C.'s case and was present during one of Mother's visits with K.C. prior to the jurisdiction hearing. Although Father was aware there was a dependency proceeding, he lacked notice of the date the hearing would be held and "the nature of the hearing . . . including what will be decided therein." (Daniel F., supra, 64 Cal.App.5th at p. 712.) There is also no evidence that he was made aware of how to obtain the right to join visits with K.C. (that is, by contacting the Department).
We express no view on whether the juvenile court should grant reunification services to Father at a new disposition hearing based on K.C.'s best interests, an issue that is committed to the court's broad discretion. (In re William B. (2008) 163 Cal.App.4th 1220, 1229 ["A juvenile court has broad discretion when determining whether . . . reunification services would be in the best interests of the child under section 361.5, subdivision (c)."].)
DISPOSITION
The September 12, 2023 order denying Father's section 388 petition is reversed. The juvenile court is directed to vacate its jurisdiction findings and disposition order as to Father and the September 23, 2023 order terminating Father's parental rights. The court is directed to set a new jurisdiction and disposition hearing, at which time the court may consider whether to bypass Father's reunification services in light of current circumstances.
We concur: MARTINEZ, P. J. SEGAL, J.