Opinion
F077385
10-26-2018
In re WENDY G. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. CARLOS R., Defendant and Appellant.
Alexis C. Collentine, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD136707, JD136708)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Raymonda B. Marquez, Judge. Alexis C. Collentine, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
INTRODUCTION
Appellant Carlos R. (father) challenges the juvenile court's denial of his Welfare and Institutions Code section 388 petitions and order terminating his parental rights to Wendy G. and C.M. Father previously appealed from the order denying reunification services and/or custody of Wendy, and in our unpublished opinion in case No. F076925 filed on September 5, 2018, we reversed the order and remanded the matter for the trial court to conduct a hearing pursuant to section 361.2.
References to code sections are to the Welfare and Institutions Code unless otherwise specified.
Shortly after the order denying reunification services was issued, father's section 388 petitions were heard and denied by the juvenile court and his parental rights were terminated as to both children. For the reasons set forth below, we reverse.
FACTUAL AND PROCEDURAL SUMMARY
Some of the factual background is taken from our unpublished opinion in case No. F076925. A section 300 petition was filed on behalf of Wendy on October 12, 2016, by the Kern County Department of Human Services (department). The petition alleged that Wendy came within the provisions of section 300, subdivisions (a), (b), and (g) based upon mother's conduct; no allegations were made against father in the petition. Father was identified as an alleged father. At the time of intervention, Wendy resided with mother and was four years old. Wendy had an infant brother, C.M., who also was taken into protective custody and a separate section 300 petition was filed on his behalf.
We take judicial notice of our unpublished opinion in case No. F076925.
The juvenile court conducted an initial detention hearing on October 12, 2016. Mother provided testimony regarding the paternity of the children. Mother testified that she was residing with father when she became pregnant with Wendy; resided with him during the entire pregnancy; and father was at the hospital when Wendy was born. Father signed the necessary paperwork to be listed as Wendy's father on the birth certificate; acknowledged he was Wendy's father; and never denied paternity. Mother and father lived together with Wendy for three years after her birth. Mother testified there were no other possible fathers of Wendy.
As to C.M., mother and father lived together for three months of her pregnancy with this child. Father is not listed on the birth certificate for C.M., but has acknowledged that he is the father of C.M. Father has never lived with C.M.
Mother claimed the last time she saw father was in January 2016. She had no current work or home address for father and did not know father's current whereabouts. Wendy had told the department her father worked in the "grapes," but mother claimed that was just something she told Wendy.
At the conclusion of the initial detention hearing, the juvenile court continued to refer to father as an "alleged father" and scheduled a continued detention hearing; there was no finding as to paternity.
At the October 17, 2016 continued detention hearing, the juvenile court announced it would "continue to reserve on paternity matters." The children were ordered detained from mother. A jurisdictional hearing was scheduled for November 30, 2016.
On November 29, 2016, a paralegal with the department filed a declaration regarding efforts to locate father. The declaration asserts, erroneously, that mother testified she and father were together for only three months. The paralegal stated she had searched the department's records, Criminal Justice Information System (CJIS), Department of Corrections website, Federal Bureau of Prisons, Consulate of Mexico, Kern County Sheriff's website, City of Bakersfield Homeland Security, and various other websites, including Facebook. Father's name did not appear in these sites.
Mother reported to one of the department's paralegals that the last time she had contact with father, he was living in Lamont and mother identified the street. Inexplicably, the paralegal attempted to contact father at a different address in Lamont, without success. When the paralegal went to the address identified by mother, the owner stated that father had been living at that address, but father had not been working and she asked him to vacate the premises. The owner had not seen father since he moved out.
At the November 30, 2016 hearing, the matter was continued because mother's counsel was seeking the appointment of a guardian ad litem for mother. The juvenile court appointed a guardian ad litem for mother.
The social study filed January 24, 2017, reflects father's whereabouts are still unknown.
At the January 24, 2017 jurisdiction hearing, the juvenile court found the whereabouts of father to be unknown after reasonable efforts to locate father were unsuccessful. The juvenile court continued to refer to father as an "alleged father." The section 300, subdivision (b) allegations of the petition were found true.
On August 29, 2017, the juvenile court denied reunification services to mother based upon section 361.5, subdivision (b)(2). Reunification services were not to be provided to father because "he is merely an alleged father who has not sought to establish paternity in this matter." The juvenile court found reasonable efforts had been made to locate father and his whereabouts were unknown. The juvenile court determined that the children were to be returned to a parent or placed for adoption by April 6, 2018.
A section 366.26 hearing was scheduled for December 7, 2017. On October 17, 2017, the department sought permission to publish notice to father of the proceedings in a newspaper of general circulation, which was granted. As of November 20, 2017, the department was in direct contact with father.
A section 366.26 hearing is to set a permanent plan for a child, which may include termination of parental rights and adoption.
On December 7, 2017, father made his first appearance in the proceedings with counsel. Father filed a JV-140 form that day, setting forth his full street address in Lamont and his telephone number. Father also filed a JV-505 form regarding parentage as to C.M, and requesting DNA testing with C.M.
The department objected to DNA testing, asserting father was only an alleged father, the children had been in foster care since October 2016, and the department was requesting a termination of parental rights.
Counsel for father argued that DNA testing with C.M. should be completed and went on to state: "[A]t this stage, I am new to the case. I have not had the opportunity to review prior discovery to see if [father] received proper notice of prior proceedings; to see if his rights were violated in any fashion in past hearings, or to gather more background information concerning the issue of parentage and his opportunities or lack of opportunities to appear at these hearings." Father's counsel requested a continuance.
The juvenile court asked when father's counsel had been appointed and counsel responded that he received a text message on November 14, stating "12-7, a.m., father [Carlos R.] and a case number." The text did not indicate the type of hearing or the name of the social worker on the case. He received no other information until the 27th or 28th of November, when he received the section 366.26 report. Counsel stated he was "not waiving the 45 day notice that is required to be given to counsel for a parent" for the "setting of a .26 hearing or for a .26 hearing."
During the afternoon portion of the December 7, 2017 hearing, counsel for father requested that father be elevated to presumed father status as to Wendy and requested visitation. The juvenile court noted that father was present at Wendy's birth; was named as her father on the birth certificate; lived with Wendy and mother for three years after Wendy's birth; held Wendy out as his daughter; and contributed to Wendy's support.
The department objected to elevating father to presumed father status "at this hearing" because "the Court cannot terminate parental rights in regard to the father unless there's a showing of detriment, which would then prolong the child's situation, basically in limbo."
The juvenile court deferred making a ruling on the issue of presumed father status and visitation and continued the hearing.
At the December 12, 2017 continued hearing, the juvenile court noted that father's counsel was entitled to 45 days' notice of the section 366.26 hearings, so counsel would be provided 45 days from the December 7, 2017, date to prepare. Paternity testing for father and C.M. was ordered.
The department objected to the juvenile court making a finding that father was the presumed father of Wendy. Counsel asked that father be elevated to presumed father status and stated, "a request for services" would be made if father was elevated to presumed status.
The juvenile court found that father "signed the voluntary declaration of paternity at the time of her birth; that the mother testified corroboratively in that respect; that he lived with Wendy and her mother from birth until some point in 2014; that he is Wendy's presumed father." The juvenile court ordered that supervised visitation be provided father. The order on parentage was filed December 12, 2017.
The matter was continued to January 22, 2018, for a continued section 366.26 hearing. Father remained after the hearing to meet with the social worker.
At the January 22, 2018 hearing, the juvenile court indicated father's counsel had filed a section 388 petition as to each of the children. The matter was continued to January 26, 2018.
Section 388 petitions generally seek a modification of a prior order.
The purpose of the January 26, 2018 hearing, was to conduct a prima facie hearing on the section 388 petitions and a section 366.26 hearing. The DNA testing disclosed that father was the biological father of C.M. The juvenile court elevated father to the status of a biological father of C.M.
The juvenile court indicated that the petitioner in a section 388 petition had the burden of proof. Father's counsel objected to that characterization, stating that father was the presumed father of Wendy and as such, was entitled to receive services under section 361.5. Counsel argued father was entitled to reunification services, and should not have to establish that providing services was in Wendy's best interests.
The juvenile court inquired of counsel if it was father's position that he was "entitled to placement and/or services" and counsel replied in the affirmative. The juvenile court held that the provisions of section 361.2 regarding placement of a child with a parent with whom the child was not residing at removal, applied "only at the time the child is first removed from the custodial parent." The juvenile court further found that father failed to appear in the case until the section 366.26 hearing. The juvenile court held that if a father fails to achieve presumed father status before the expiration of the reunification period, he is not entitled to reunification services under section 361.5.
Visitation was ordered for C.M., Wendy, and father. The matter was continued to April 4, 2018, for an evidentiary hearing on the section 388 petitions and a section 366.26 hearing.
On January 29, 2018, father filed a notice of appeal, challenging the denial of his request for reunification services and citing the December 12, 2017, and January 26, 2018, hearings.
In our unpublished opinion in case No. F076925, we concluded the juvenile court erred in not finding father to be the presumed father of Wendy at the October 12, 2016, detention hearing. We also concluded the error was prejudicial and reversed the order denying reunification services and/or custody to father and remanded the matter with directions for the juvenile court to conduct a hearing pursuant to section 361.2.
After the order denying reunification services was issued and while the appeal was pending, a contested hearing was held on father's section 388 petitions on April 20, 2018. The section 388 petitions alleged that the juvenile court had made prior findings without proper notice to father; that father was requesting reunification services be provided; that reunification services with Wendy were statutorily mandated and that services with C.M. should be ordered to keep the sibling group together.
The juvenile court took judicial notice of its prior orders and findings and the documents attached to the section 388 petitions. Attached to the section 388 petitions was documentary evidence establishing father had been arrested on November 15, 2015, in Kern County; pled no contest to a misdemeanor charge on December 14, 2016; and was ordered to serve 270 days in jail.
The juvenile court also reviewed the social study dated November 27, 2017, the supplement dated January 19, 2018, and reports or supplements dated January 24, 2018, and April 2, 2018, in preparation for the hearing.
November 27 , 2017 Social Study
The November 27, 2017, social study continues to refer to father as an "alleged" father. The social worker was recommending termination of the parental rights of both parents and that the children be freed for adoption. The social worker reported that father's whereabouts had been unknown, and on October 13, 2017, a diligent search declaration was filed; father contacted the department on November 1, 2017, and provided his contact information; the department served notice of the hearing on father on November 20, 2017.
The social study noted that a dependency petition had been filed due to the mother's conduct and inability to care for the children. Mother suffered from a mental illness, "heard voices," and had made three reports to law enforcement about hearing voices telling her that Wendy was being sexually abused. A guardian ad litem was appointed for mother on November 30, 2016. On January 24, 2017, and again on April 21, 2017, the juvenile court ordered psychological evaluations of mother. Reunification services were denied mother because her mental illness was such that she was incapable of benefitting from services.
The children were placed in foster care after being detained. Father had not been provided with visits or reunification services and when father contacted the department on October 24, 2017, he was told to contact the court.
The social study stated that father lived with the children for only a "brief period of time" and therefore, "it can be assumed that there was a minimal relationship." The social worker opined that the benefit of adoption outweighed any possible detriment from severing the parent-child relationship.
January 19 , 2018 Supplemental Social Study
The January 19, 2018, social study states father represented mother came to father's residence in July 2017 and told him the children had been removed from her care. Father did not get any paperwork from mother and was not told of any court dates by mother. Father followed up at the department's location in Lamont, but it took him about a month to locate the correct contact. Father also stated he gave mother money for the children's needs but does not know how the money was used. Father stated he was Wendy's father, but uncertain if he was C.M.'s father. If he was C.M.'s father, he wanted custody of both children.
The social study also noted that father had been incarcerated in the local jail on a misdemeanor charge on December 14, 2016, and released from custody on March 28, 2017.
The social worker had spoken with Wendy and asked if she liked living with her caretakers. Wendy responded, "yes." The social worker reported that Wendy was in agreement with the plan of adoption.
The social study described the prospective adoptive parents. The prospective adoptive father was 59 years old and had three adult children in their 20's and 30's. The prospective adoptive mother was 48 years old and had two adult children in their 20's. Together, the prospective adoptive parents had adopted four young children, who were 12, 10, eight, and five years old. Wendy and C.M. would be their fifth and sixth adopted children.
The prospective adoptive parents stated they were motivated to adopt Wendy and C.M. because they felt a "bond" with the children and wanted to provide a "stable environment." The other children in the home, however, were noted as "still adjusting" to Wendy and C.M. It was reported that the prospective adoptive parents were "working with the [other] children to remind them of age appropriate expectations and teaching them boundaries."
The social worker described the relationship between mother, Wendy, and C.M. as a "visiting relationship." Father's relationship was described as "non visiting [sic]." The social worker opined that because the children's relationship with their parents was not "significant," they would experience "a minimal level of detriment" if placed for adoption.
January 24 , 2018 Supplemental Social Study
The supplemental social study dated January 24, 2018, reported that the social worker met with mother on January 22, 2018. At that time, mother stated she had been taken into custody when the children were detained. When she was released in November 2016, she attempted to locate father. Mother claimed she obtained a telephone number for father's girlfriend and contacted father, telling him the children were taken into protective custody. Mother stated father told mother not to contact him again, because he was in a "new relationship." Mother later learned father was incarcerated for a few months beginning in December 2016.
Mother also told the social worker she encountered father on the street in March 2017, while pregnant with her third child, and asked father for help with buying food for the children. Mother stated father refused to provide her with financial assistance and asked her not to contact him again. Mother again encountered father in July 2017 and stated father asked about the children. Mother was "offended" by the question because she had previously told father the children were no longer in her care.
The social worker met with father on January 22, 2018. Father told the social worker he first learned the children were not in mother's custody when his cousin told him in March 2017 that mother was looking for him and stated the children were in protective custody. Father told the social worker he had been out of state working from January through August of 2017. He also told the social worker he had been arrested in December 2016 and remained in custody until his release in March 2017. At the time of the interview, father was working in Visalia six days a week.
During the interview, Father stated he did not make any attempt to contact the department while he was on probation because he had been unable to pay his fines and assumed he would be arrested. In July 2017, father's girlfriend paid his fines. Father stated he began searching the internet to locate his children in August 2017.
On November 1, 2017, a social worker contacted father after receiving a voice mail message to please contact him. When the social worker spoke with father, he indicated he obtained contact information for the social worker by searching online and was interested in seeking placement and/or visits with his two children. The social worker told father they did not have contact information for him and "he did not make himself available," so the department had not been in contact. Father provided his contact information.
Father again contacted the department on November 13, 2017, to inquire about the status of his request for visits and/or placement. The social worker "encouraged [father to] follow up with the court" because there was a hearing scheduled for December 7, 2017. The following day, November 14, 2017, another social worker contacted father and asked him to come to the department's office, so he could be served personally with notice of the hearing.
The January 24, 2018, social study also reported that at the January 13, 2018 visit, with Wendy, father was "emotional and cried" as he hugged Wendy. Wendy appeared to recognize her father and hugged him back.
The social study opined that father did not have contact with his children for approximately sixteen months "due to his own personal reasons."
April 2 , 2018 Social Study
The April 2, 2018, social study noted that DNA testing revealed that father was the biological father of C.M. Father had participated in seven court-ordered visits with Wendy and C.M. Wendy referred to father as "Papa." Father brought clothing for the children at one visit. The social worker noted that father can call Wendy and speak with her, but there were times when Wendy "appears to be very emotional after they speak."
At the March 24, 2018 visit, the social worker noted that the children greeted father with "cheers and hugs." Father did "a great job interacting" with both children. Father brought Easter baskets for each child, hid Easter eggs for them to hunt, and Wendy "had a lot to say" to her father. Both children were excited and happy during the visit.
On two occasions in March 2018, the social worker had attempted to meet with father at his home, to inspect the home. Father was delayed by work and had a conflict with his work schedule; he communicated by telephone with the social worker both times to explain the problem. During a conversation in January 2018 with the social worker, father indicated he had family members willing to provide childcare while he worked, but "did not trust them." Father intended to look for childcare.
The April 2, 2018, social study noted that the department had not completed a review of father's home and father had not provided updated childcare information. The department recommended the section 388 petitions be denied.
Contested Sections 366.26 and 388 Hearing
On January 26, 2018, the juvenile court held a hearing on whether father had made a prima facie case to support moving forward with an evidentiary hearing on the section 388 petitions. The trial court stated that father "[had] the burden," and father's counsel objected to this statement of the burden of proof. Father's counsel argued that father was statutorily entitled to receive reunification services, at least as to Wendy, and it was an "impermissible shift of the burden of proof" to make father establish a right to services. The juvenile court responded, "The Court did not require that you file those petitions. I'm acknowledging that you have, and the petitioner in a [section] 388 petition has the burden." The juvenile court subsequently found that father had presented a prima facie case, entitling him to a full evidentiary hearing on the section 388 petitions.
Father was present at the hearings and required the assistance of a Spanish language interpreter.
The initial contested hearing on the section 388 petitions commenced on April 4, 2018. At the hearing, neither party presented additional evidence. Father argued that comments from mother are not the same as "legal notice that is required from the County that is also supposed to contain very clear statements of the consequences of not coming forward." If father had been provided adequate notice and elevated to presumed father status early in the case, disposition of the case would "have been much different."
The department argued that father could not "sit on [his] rights for a year" and then come forward. "I find that to be nonparental. I find that to be suspect." The department asked that the section 388 petitions be denied, arguing denial was in the children's best interest.
Father's counsel argued that father was a "non custodial [sic] parent making a request for placement" under section 361.2. Counsel argued father was deprived of due process and his rights because he was never properly notified of the dependency proceeding until months after the filing.
The department acknowledged at the hearing that their original due diligence search disclosed an outstanding warrant for father, and the department should have, but did not, check to see if father was in custody. The department argued this failure was not a "fatal flaw." Father was in local custody in Kern County from December 2016 until March 28, 2017.
The department agreed with father's position that to terminate parental rights to Wendy, the juvenile court had to make a finding of "parental unfitness." The department also opined that the juvenile court had to make a finding that there was clear and convincing evidence of substantial danger to the children if they were placed with father. In arguing against placement of the children with father, the department stated father had not made his home available for inspection, worked out of town, and did not have a "babysitting setup." The department also argued that the children had bonded with their caretakers and were "thriving in their placement."
Father's counsel argued in reply that father did not "[sit] on his rights;" father had not been informed of his rights and afforded due process. Counsel also argued the fact that father was poor, works long hours, had a misdemeanor conviction, had not yet arranged childcare, and had not yet been able to provide the department with access to his home, did not rise to the level of clear and convincing evidence of detriment to the children under section 361.2.
At the conclusion of argument, the juvenile court continued the matter to April 20, 2018, at which time it would issue its ruling. On April 20, 2018, the juvenile court articulated its findings and conclusions before denying the section 388 petitions.
The juvenile court denied father's request to alter any of its prior findings and orders. The juvenile court found the department "could have definitively conducted a search of CJIS and located [father] while he was in custody." It also found, however, that father had notice of the proceedings from mother. The juvenile court found that father "indisputably became aware" of the dependency proceedings from mother in November 2016.
Father's failure to come forward during the case, despite "actual knowledge" of the proceedings from mother, precluded him from reunifying with the children. The juvenile court concluded father "abandoned his parental role, his parental responsibilities, and his parental care for his children." The juvenile court also stated father "chose to attend to himself, his care, his pleasures, and his pursuits."
In response to father's request that the provisions of section 361.2 be applied to him, the juvenile court refused, stating the section was applicable only at the time the child is first removed from custody. The juvenile court found that father's "protractive failure to seek any relief in the juvenile court is sufficient to persuade the Court that there is clear and convincing evidence of detriment." The juvenile court also found that father's "refusal to diligently attend to the [children's] needs, his inability or refusal to make appropriate arrangements for the care of the children," and "demonstrated [] lack of commitment to the care and well-being of the children[,]" all constituted clear and convincing evidence of a substantial danger to the children if placed with father.
Upon denial of the section 388 petitions, the juvenile court proceeded immediately to the section 366.26 hearing. Father's counsel objected to termination of parental rights and a permanent plan of adoption, noting that Wendy called father "Papa" and was "[super] happy" in father's presence.
The juvenile court noted that the children had been in the dependency proceeding for about 18 months and father had "enjoyed visits" only since the beginning of the year. Although the children were enjoying the visits with father, the juvenile court found this was insufficient to establish the "beneficial relationship exception." The juvenile court found there was no "significant attachment" between father and the children, because that type of "relationship comes from day-to-day interaction, companionship and shared experiences."
The juvenile court concluded the benefits of adoption outweighed "any detriment caused by the severing of the parent-child relationship" and terminated parental rights. The juvenile court ordered a permanent plan of adoption.
On April 23, 2018, father filed a timely appeal of the juvenile court's orders denying his section 388 petitions and terminating his parental rights.
DISCUSSION
We previously, in case No. F076925, held that the failure to elevate father to presumed father status at the detention hearing and the failure to provide reunification services to father after he appeared in the dependency proceeding was prejudicial error.
This appeal was taken before our opinion in case No. F076925 was issued. In this appeal, we are asked by the department to conclude that the department's failure to provide timely notice to father, the juvenile court's failure to elevate father to presumed father status at the detention hearing, and the failure to offer reunification services to father are harmless; but father's failure to appear in the dependency proceeding after receiving incomplete third-hand information several months after the filing of the section 300 petition that his children were in protective custody warrants father's parental rights being terminated because the children need permanency. We reject the contention that justice is "served by sacrificing a parent's due process rights to a minor's need for stability." (In re DeJohn B. (2000) 84 Cal.App.4th 100, 102.)
I. Previous Decision
In our prior decision, we found the juvenile court failed to comply with California Rules of Court, rule 5.635(d)(2), and direct that a JV-500 (Parentage Inquiry - Juvenile) form be submitted to the local child support agency. The juvenile court did, however, inquire into paternity by accepting testimony from mother at the detention hearing as required by section 316.2. Mother's uncontroverted testimony at the October 2016 detention hearing, was that she was residing with father when she became pregnant with Wendy; resided with him during the entire pregnancy; and father was at the hospital when Wendy was born. Mother testified father signed the necessary paperwork to be listed as Wendy's father on the birth certificate; acknowledged he was Wendy's father; and never denied paternity. Mother and father lived together with Wendy for three years after her birth.
References to rules are to the California Rules of Court.
We concluded that mother's uncontroverted testimony established that father met all the requirements of Family Code section 7611, subdivision (d) to be the presumed father of Wendy, by receiving the child into his home and holding the child out as his natural child. Because mother's uncontroverted testimony establishes the rebuttable presumption, that presumption may be rebutted only by clear and convincing evidence. (Fam. Code, § 7612, subd. (a).) Father did not have the burden of producing more evidence, or taking further steps, to establish his presumed father status as to Wendy. (In re Liam L. (2000) 84 Cal.App.4th 739, 746-747.) Father did not have to be present at the detention hearing for the juvenile court to find he was Wendy's presumed father. (In re Korbin Z. (2016) 3 Cal.App.5th 511, 514; In re Briana V. (2015) 236 Cal.App.4th 297, 303.)
After concluding the juvenile court erred in not finding father to be Wendy's presumed father at the detention hearing, we assessed the prejudicial effect of that error. We applied a harmless-error analysis in reviewing the error. (See In re Jesusa V. (2004) 32 Cal.4th 588, 624; In re Marcos G. (2010) 182 Cal.App.4th 369, 383.)
Our earlier opinion noted that if reunification services are denied a parent because the parent's whereabouts are unknown, the juvenile court must set a six-month review hearing. (In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1257 (Jonathan P.).) The purpose of this requirement is to provide a parent whose whereabouts are initially unknown, but who desires to reunify with a child, the opportunity to do so if the parent's whereabouts become known within a reasonable period. (Ibid.) As of November 1, 2017, when father's whereabouts became known, had father been elevated to presumed father status at the detention hearing, he would have been entitled to invoke the procedures of section 361.2, subdivision (a), as a noncustodial, nonoffending parent and assume custody of Wendy unless placement with father could be shown by the department to be detrimental to the safety, protection, or physical or emotional well-being of the child. (Rules 5.708(g), 5.710(a)(2); Jonathan P., supra, 226 Cal.App.4th at p. 1254.)
Furthermore, as a presumed father whose whereabouts became known prior to the expiration of six months after reunification services presumptively were denied pursuant to section 361.5, subdivision (b)(1), father would be entitled to reunification services. (See Jonathan P., supra, 226 Cal.App.4th at p. 1257.) Father's whereabouts were known to the department at least by November 1, 2017, which is well before the expiration of six months from August 29, 2017.
Our opinion concluded that had father been elevated to presumed father status at the detention hearing, there would have been a review hearing, not a section 366.26 hearing, and father would have been entitled to reunification services without the need to file a section 388 petition. Thus, the errors were prejudicial.
We turn now to the current appeal.
II. Current Appeal
Father contends the juvenile court erred in denying his section 388 petitions and in terminating his parental rights. We agree.
Notice to Father
We initially address concerns over the department's acknowledged failure to follow through on information in its possession that would have led to locating father about 11 months earlier than his November 1, 2017, phone call with the department. The department acknowledged that their original due diligence search disclosed an outstanding warrant for father, and the department should have, but did not, check to see if father was in custody. Father was in local custody in Kern County from December 2016 until March 28, 2017.
Had the department followed through on the information in its possession, father's whereabouts would have been known while he was in custody. The department is required to notify an incarcerated parent of all stages of a dependency proceeding. (Pen. Code, § 2625; rule 5.530(f).) The procedural posture of this case would be vastly different had notice to father been effected early in the case. While the department's counsel opined at the April 4, 2018 hearing, that he hoped the failure to follow through on information and provide early notice to father would not be a "fatal flaw," it is. Even if father's status was only that of an alleged father, he had an absolute right to notice of the proceedings. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1351.)
The right to notice is one of constitutional dimension. " 'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is 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. [Citations.] The notice must be of such nature as reasonably [necessary] to convey required information, [citation], and it must afford a reasonable time for those interested to make their appearance, [citations].' " (In re Emily R., supra, 80 Cal.App.4th at p. 1351.)
The department did not provide notice reasonably calculated to convey information to father until November 2017 and even then, it was provided two weeks or more after father's initial contact with the department. Father spoke with the social worker on November 1, 2017, and provided his address and phone number; the department waited until November 14, 2017, to call father and ask him to come in to the office to be personally served with notice.
As for mother purportedly informing father verbally on or before March 2017, that the children were not in her care and were in protective custody, there is no evidence that mother conveyed the requisite information to constitute "notice" of the proceedings as contemplated by rules 5.524 or 5.530, or sections 290.1 through 294, 316.2, 349, or 361.5, subdivision (e)(1). The record evidence would appear to indicate that mother was incapable of providing constitutionally adequate notice, because her mental illness required the appointment of a guardian ad litem for mother in the dependency case. Moreover, if notice is given orally, a declaration must be filed stating that oral notice was given and to whom; no such declaration appears in the record. (Rule 5.524(h).)
Section 388 Petitions
At the January 26, 2018 hearing, the juvenile court stated, "The Court did not require that you file those [section 388] petitions. I'm acknowledging that you have, and the petitioner in a [section] 388 petition has the burden." While it is true the petitioner in a section 388 petition has the burden of proof (rule 5.570(h)), father should not have been required to file section 388 petitions in order to seek custody and/or reunification with his children. That father had to file section 388 petitions is the direct result of the errors of the department and juvenile court.
As we explained in our earlier opinion, father should have been elevated to presumed father status at the detention hearing, and as a noncustodial, nonoffending parent, reunification services would only have been denied because his whereabouts were unknown. (§ 361.5, subd. (b)(1).) Our earlier opinion noted that if reunification services are denied a parent because the parent's whereabouts are unknown, the juvenile court must set a six-month review hearing, not a section 366.26 hearing. (Jonathan P., supra, 226 Cal.App.4th at p. 1257.) The purpose is to allow a parent whose whereabouts become known within a reasonable time to reunify with their child. (Ibid.)
On August 29, 2017, at the continued disposition hearing, reunification services were denied father because the juvenile court erroneously classified him as an alleged father. Father's whereabouts became known to the department two months later, on November 1, 2017. At this point, father was legally entitled to reunification services without the need to file a section 388 petition to enforce his right to services. (See Jonathan P., supra, 226 Cal.App.4th at p. 1257.)
Furthermore, the juvenile court may order reunification services for a period of up to 18 months after a child is removed from a parent's custody. (§ 361.5, subd. (a)(3)(A).) The children were removed from mother's care in October 2016; 18 months from that date is April 2018. Father should have received at least five months of reunification services, from November 2017 through March 2018, before the April 6, 2018, hearing. Those services, however, were never provided, which we previously determined was error.
We do not address the specific findings of the juvenile court with respect to the section 388 petitions because, as we have explained, it was error to place father in the position of having to file such petitions and father was entitled to reunification services without the need to file a section 388 petition.
Termination of Parental Rights
The juvenile court did not have the benefit of our earlier opinion in case No. F076925 when it terminated parental rights. In terminating parental rights, the juvenile court noted that father had "enjoyed visits" only since the beginning of the year. Although the children were enjoying the visits with father, the juvenile court found this was insufficient to establish the "beneficial relationship exception." The juvenile court found there was no "significant attachment" between father and the children, because that type of "relationship comes from day-to-day interaction, companionship and shared experiences." The juvenile court concluded the benefits of adoption outweighed "any detriment caused by the severing of the parent-child relationship" and terminated parental rights. The juvenile court ordered a permanent plan of adoption. The juvenile court erred in terminating parental rights.
First, the juvenile court erred in failing to apply the provisions of section 361.2 to father, which presumptively entitled father to custody and services. The juvenile court refused to apply section 361.2, stating the section was applicable only at the time the child is first removed from custody. As we noted in our earlier opinion, this is not true. The procedures of section 361.2, "can be invoked at the six-month and 12-month review hearings." (Rules 5.708(g), 5.710(a)(2); Jonathan P., supra, 226 Cal.App.4th at p. 1254.) "A nonoffending parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so ...." (In re A.A. (2012) 203 Cal.App.4th 597, 605.) When there is a nonoffending, noncustodial parent requesting custody, "the standard of detriment is very high." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1263.)
Second, the juvenile court erred in not providing reunification services to father at least as of November 1, 2017, which would have provided father with about five months of services before the April 6, 2018, section 366.26 hearing. Father should have been classified as a presumed father at the continued detention hearing and was legally entitled to reunification services. (See Jonathan P., supra, 226 Cal.App.4th at p. 1257.) Father would have been eligible to receive services much earlier, if the department had followed through on information and effected proper notice to father early in the proceedings.
Third, the juvenile court erred in setting a section 366.26 hearing at the time it did. When reunification services were denied father on August 29, 2017, the only valid basis for denial was that father's whereabouts were unknown. Consequently, as we stated in our earlier opinion, under these circumstances the juvenile court must set a six-month review hearing, not a section 366.26 hearing. (Jonathan P., supra, 226 Cal.App.4th at p. 1257.) The purpose is to allow a parent whose whereabouts become known within a reasonable time to reunify with their child. (Ibid.) The April 6, 2018 hearing, therefore, should have been a review hearing, not a section 366.26 hearing at which parental rights could be terminated.
The "provision of reasonable services to the parent [is] an absolute condition for the termination of parental rights." (In re Monica C. (1998) 31 Cal.App.4th 296, 304.) The department had the burden of proving, by clear and convincing evidence, that reasonable services had been offered or provided to father before a section 366.26 hearing could be set and parental rights terminated. (§ 366.21, subd. (g)(4).) The erroneous denial of reunification services to father means the department could not, and did not, meet this burden.
When the children greeted father with "cheers and hugs," father did "a great job interacting" with both children, Wendy "had a lot to say" to father, and both children were excited and happy during father's visit, it seems apparent that reunification services would have strengthened the bond between children and father. Erroneously denying father reunification services, combined with the erroneous setting of a section 366.26 hearing when there should have been a review hearing, left father vulnerable to exactly what occurred, termination of his parental rights because he did not reunify. The termination of father's parental rights was an error.
Sibling Group
We are aware that our earlier opinion in case No. F076925 addressed only Wendy, and not C.M. We also acknowledge that father was not elevated to presumed father status for C.M.; father is the biological father of C.M.
The department maintained in the juvenile court, and in the appeal in case No. F076925, that Wendy was part of a sibling group pursuant to section 361.5, subdivision (a)(1)(C) with her brother, C.M. The juvenile court has the flexibility to "maintain a sibling group together in a permanent home." (Abraham L. v. Superior Court (2003) 112 Cal.App.4th 9, 14.) The provision of reunification services to a parent needs to be tailored to the unique needs of the family. (In re Monica C., supra, 31 Cal.App.4th at p. 306.)
Father's constitutional right to reunification services with his daughter Wendy cannot be adversely affected by deeming her to be part of a sibling group where father did not achieve presumed father status as to the sibling. (In re A.A., supra, 203 Cal.App.4th at p. 605; In re Valerie A. (2007) 152 Cal.App.4th 987, 1009, fn. 9.) Consequently, even though father's status as a presumed father applies only to Wendy and the right to reunification services applies only to presumed fathers, our holding applies to both children and reunification services need to be provided to father for both children.
Reunification services are to be designed to meet the unique needs of this family. To the extent the department believes father's residence is not appropriate housing for the children, or father lacks adequate childcare, the department should provide referrals and services to address these concerns.
Conclusion
Here, the department failed to follow through on information in its possession and, therefore, father was not notified of the dependency and advised of his rights early in the proceedings. The lack of constitutionally adequate notice was compounded by the juvenile court's failure to elevate father to presumed father status as to Wendy at the continued detention hearing. The juvenile court's denial of reunification services stems from its failure to elevate father to presumed father status at the detention hearing and apply the statutory and procedural provisions applicable to presumed fathers.
We conclude the combination of errors in this case was prejudicial to both Wendy and C.M., as part of a sibling group.
DISPOSITION
The order denying the Welfare and Institutions Code section 388 petitions and order terminating father's parental rights to Wendy and C.M. are reversed. The matter is remanded to the juvenile court with directions to order the department to provide reunification services to father to enable him to reunify with both children.