Opinion
D059687
10-19-2011
In re MICHAEL B. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ISABEL C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ3141A-C)
APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed.
Isabel C. appeals the judgment terminating her parental rights to her son Michael B. and her daughters M.C. and J.C. (together, the children). Isabel was notified of the Welfare and Institutions Code section 366.26 hearing by the method specified in section 294, subdivision (f)(7)(A), which provides for service on counsel of record if the parent's whereabouts are unknown and the parent cannot, with reasonable diligence, be served by alternate means. Isabel contends this method of service violated her substantive due process rights because counsel did not know her whereabouts and had had no contact with her, and the court and the San Diego County Health and Human Services Agency (the Agency) were aware of this. Isabel argues the notice was not reasonably calculated to give her actual notice and suggests publication or some other means of service would have been appropriate. Isabel concludes the error is structural and reversible per se. We affirm.
All further statutory references are to the Welfare and Institutions Code.
I
BACKGROUND
A.
FROM THE FILING OF THE PETITIONS TO
THE SETTING OF THE SECTION 366.26 HEARING
On September 18, 2009, the Agency filed dependency petitions for six-year-old Michael, five-year-old M.C. and infant J.C. The petitions were based on domestic violence between Isabel and her current and past boyfriends. At the time the petitions were filed, the children were staying with their maternal great-grandmother and the maternal grandfather as part of a safety plan. The children remained in that home for the remainder of this case, and the court eventually designated the maternal great-grandmother the prospective adoptive parent.
A few months before the dependency petitions were filed, Isabel lived with the maternal great-grandmother. After that, Isabel resided in a domestic violence shelter and then in a transitional apartment. The petitions listed an apartment on Bradley Avenue in El Cajon as Isabel's address. Social workers spoke with Isabel at that apartment nine days before the petitions were filed. The Bradley Avenue address was listed in the detention report; a September 4, 2009, police report; and Isabel's September 11 applications for temporary restraining orders (TROs).
At the September 18, 2009, detention hearing, the court appointed the Office of the Alternate Public Defender, Primary Parent Office (APD/PPO) to represent Isabel and orally ordered Isabel to keep the court and the Agency advised of her mailing address. Isabel signed and filed a notification of mailing address form listing a Marlboro Avenue address in San Diego. The form stated that all notices would be sent to that address until Isabel provided written notice of a new mailing address. Isabel never provided written notice of a new address.
The report for the jurisdictional and dispositional hearing, filed on October 8, 2009, listed the maternal great-grandmother's address for Isabel, an address on Madera in Lemon Grove. Attached to the report was a copy of an application for reissuance of a TRO, executed by Isabel under penalty of perjury on September 30. The application listed an address on Madera that differed by two digits from the maternal great-grandmother's address. Also attached to the report was a form, apparently signed by Isabel on September 4, listing an address on "St. Croix" with no city specified. On October 13 the court entered true findings on the petitions and ordered reunification services for Isabel.
The six-month review report and an addendum report, filed in April 2010, listed an address on Ladora in Lemon Grove for Isabel. All subsequent reports except one listed an El Dora Street address, with the same house number as the Ladora address.
An addendum report filed in March 2011 did not list an address for Isabel.
Notice of the six-month review hearing was mailed to Isabel at the Bradley Avenue address. She attended all hearings through April 2010, including the six-month review hearing, but did not attend any further hearings. By late May she had stopped visiting the children regularly and participating in services. She ceased contact with the Agency and her telephone numbers were no longer in service.
Notice of the same hearing was sent to the maternal great-grandmother at the Madera address listed in the jurisdictional and dispositional reports.
On July 19, 2010, Isabel left the social worker a voicemail stating she was staying with the maternal grandmother in Las Vegas, Nevada. In early August Isabel appeared at the maternal great-grandmother's home, took the two younger children and left. Isabel returned the children two hours later after the maternal great-grandmother called law enforcement. Isabel then disappeared.
On September 2, 2010, the court relieved APD/PPO and appointed the Dependency Legal Group, Primary Parent Office (DLG/PPO) as counsel for Isabel. In September the Agency filed a section 388 petition requesting that Isabel's visits be supervised. The Agency mailed the petition to Isabel at the El Dora Street address. At the 12-month review hearing on October 13, the court terminated Isabel's reunification services and set a section 366.26 hearing for February 10, 2011. On October 28, 2010, the court granted the Agency's section 388 petition. The court clerk mailed copies of the October 13 and 28 minute orders, and all subsequent minute orders, to Isabel at the El Dora Street address. The minute orders were not returned.
The substitution of counsel was necessary because of a change in providers under the State of California's Administrative Offices of the Court's contract for the provision of legal representation in the San Diego County dependency courts.
B.
THE SEARCH
1. Introduction
By late October 2010, the Agency had begun a search for Isabel, using the name Isabel C. and an alias, Isabel D. The search focused on San Diego County, the location of Isabel's last known address; and on El Paso, Texas and Las Vegas, Nevada, cities where the maternal great-grandmother believed Isabel was staying with relatives.
2. California
Through an online public record search platform, Consolidated Lead Evaluation and Reporting (CLEAR), the Agency found four San Diego County addresses: (1) the maternal great-grandmother's address on Madera in Lemon Grove; (2) an address on St. Croix Court in Lemon Grove, with the same house number as the St. Croix address Isabel provided on the September 4, 2009, form; and (3) two new addresses, one on Gribble Street in San Diego and the other on El Prado Avenue in Lemon Grove. The maternal great-grandmother said the Madera address was her own former address, and an inquiry to the United States Postal Service (USPS) confirmed that Isabel was not known at the address. An inquiry to the USPS regarding the St. Croix address revealed that Isabel was not known there. The Gribble Street address was a sober living home whose staff had never heard of Isabel. An inquiry to the USPS regarding the El Prado Avenue address disclosed that Isabel did not receive mail there. A protective services assistant went to the El Prado Avenue home three times and found no one home. Each time she left her business card and a note requesting a telephone call. On December 6, 2010, after her third trip to the home, the protective services assistant received a call from a man named Raphael. Raphael said he had not seen Isabel in more than a year.
A social worker called the telephone number associated with the Bradley Avenue address. The man who answered said Isabel did not live there and he did not know her. On January 7, 2011, at the El Dora Street address, Isabel's cousin told the protective services assistant he had not seen Isabel for at least five months. The protective services assistant went to an address in Chula Vista, derived from case records. The property manager there said she had never heard of Isabel.
The Agency searched the records of the following entities with no additional results: the Medi-Cal Eligibility Determination System; the San Diego County Department of Child Support Services; the San Diego County Case Data System (providing information on closed and current public assistance cases); the San Diego County Sheriff's Department; the San Diego County Probation Department; the San Diego County Index to Assessment Rolls and Correspondence Files; the Metropolitan Correctional Center; the Registrar of Voters; and WhitePages.com for San Diego.
3. Las Vegas
By October 21, 2010, the Agency had obtained a Las Vegas address for Isabel through the California Department of Motor Vehicles. The date associated with the address was September 13. On October 21 the Agency sent notice of the section 366.26 hearing to Isabel at that address by certified mail, but the notice was returned unclaimed. On November 22, in response to the Agency's request for service of process, the local sheriff's office left a card at the Las Vegas residence asking to be contacted. The sheriff returned to the home on November 23 and 29 but received no response. On November 30 the sheriff "issued a non-service." The Agency's inquiries to the Division of Parole and Probation, the Clark County Registrar of Voters and Nevada State Prison were also fruitless.
On December 10, 2010, Isabel telephoned the social worker who was overseeing the search. Isabel said the maternal great-grandmother had told her the date of the section 366.26 hearing and had told her to call the social worker. Isabel reported she was living in Las Vegas with the maternal grandmother and would be there for at least another month. Isabel said she was calling from a neighbor's telephone and refused to provide that number. Isabel claimed she did not have a telephone number, but was going to get a cellular telephone on December 13 and would call the Agency with the cellular number.
On December 10, 2010, the Agency again sent Isabel notice of the section 366.26 hearing by certified mail to the Las Vegas address. On December 13 the Agency sent a copy of the notice to the maternal grandmother, enclosing a self-addressed stamped envelope and a note asking the maternal grandmother to serve Isabel.
The Agency also served the maternal grandmother herself with notice of the section 366.26 hearing by first class mail, but the proof of service does not state the date of mailing. On October 27, 2010, the Agency served the maternal great-grandmother with notice of the section 366.26 hearing by first class mail.
On December 15, 2010, Isabel again called the social worker who was overseeing the search. The social worker gave Isabel the date, time and address of the section 366.26 hearing and Isabel provided the maternal grandmother's cellular telephone number. Isabel said she would sign for the certified mail sent by the Agency. The same day the social worker called the maternal grandmother, who said she would serve Isabel and mail the social worker the proof of service. The Agency never received any return mailings.
4. El Paso
Meanwhile, in late November 2010, the maternal great-grandmother told the Agency her adult son had recently seen Isabel in El Paso; Isabel had called the children on Thanksgiving; and the maternal great-grandmother had asked Isabel several times for her telephone number and address. Isabel replied that she did not have a telephone number or an address, but acknowledged she was staying in El Paso. The maternal great-grandmother told Isabel about the section 366.26 hearing and advised her to call her attorney. The maternal great-grandmother believed that Isabel knew the date and other information regarding the hearing.
At the maternal great-grandmother's suggestion, the social worker called the Job Corps in El Paso. An employee there said they had not heard from Isabel since 2006 and her last address was in San Diego.
The CLEAR search, mentioned above, yielded three El Paso addresses for Isabel. Responses the Agency received in December 2010 to inquiries to the USPS revealed that Isabel had moved from the first address more than one year previously; she did not receive mail at the second address; and she had moved from the third address. An inquiry to the El Paso Police Department resulted in the second address found through the USPS search and a fourth El Paso address, a vacant apartment. An inquiry to the social services agency for El Paso yielded no new information, and inquiries to the El Paso Sheriff's Department and a voter registration agency provided no information. WhitePages.com for El Paso had one telephone number for an Isabel C. The person who answered a call to that number said he did not know anyone with that name.
On December 27, 2010, Isabel had a supervised visit with the children at the Agency's office in San Diego. On January 10, 2011, the maternal great-grandmother told the social worker overseeing the search that Isabel was living in El Paso. The maternal great-grandmother said Isabel had spoken to her social worker on December 26, 2010, and was aware of the date, time and location of the section 366.26 hearing. The maternal great-grandmother said she did not have an address or telephone number for Isabel.
C.
NOTICE AND THE SECTION 366.26 HEARING
On January 26, 2011, the Agency filed a declaration of due diligence regarding its search, and the court entered an ex parte order allowing notice to Isabel by certified mail, return receipt requested, to her counsel of record. The declaration listed the search efforts set forth above. On January 31 the Agency requested vacation of the section 366.26 hearing date and the setting of a secondary hearing, dated April 7, and sent notice of the April 7 section 366.26 hearing to the supervising attorney at DLG/PPO by certified mail. On February 3 a DLG/PPO employee signed for the certified mail.
On February 10, 2011, Isabel's new DLG/PPO counsel, Judith Klein, objected to the January 26 order for notice to Isabel through counsel. Klein stated that she did not know Isabel's whereabouts and had had no contact with her. Because 75 days had not elapsed since the January 26 filing of the Agency's declaration of due diligence (§ 294, subd. (f)(7)), the court continued the section 366.26 hearing to April 7 and 26 for notice to Isabel.
April 11, 2011, was the 75th day following January 26.
On April 7, 2011, the Agency's counsel noted that 75 days had not elapsed since January 26. Klein objected to notice through counsel on due process grounds. The court deferred its notice finding and confirmed the April 26 section 366.26 date.
By April 25, 2011, the Agency still had had not heard from Isabel. On April 26 Klein again objected to notice on counsel. The court found "notice has been given or reasonably attempted as required by law," designated the maternal great-grandmother the prospective adoptive parent and terminated parental rights.
II
DISCUSSION
A.
THE APPLICABLE LAW REGARDING NOTICE
Section 294, subdivision (f)(7) allows notice to a parent of the section 366.26 hearing in the following manner: "If a parent's identity is known but his or her whereabouts are unknown and the parent cannot, with reasonable diligence, be served in
any manner specified in paragraphs (1) to (6),[] . . . the petitioner shall file an affidavit with the court at least 75 days before the hearing date, stating the name of the parent and describing the efforts made to locate and serve the parent. [¶] (A) If the court determines that there has been due diligence in attempting to locate and serve the parent and the . . . social worker recommends adoption, service shall be to that parent's attorney of record . . . by certified mail, return receipt requested. If the parent does not have an attorney of record, the court shall order that service be made by publication of citation requiring the parent to appear at the date, time, and place stated in the citation, and that the citation be published in a newspaper designated as most likely to give notice to the parent. Publication shall be made once a week for four consecutive weeks. Whether notice is to the attorney of record or by publication, the court shall also order that notice be given to the grandparents of the child, if their identities and addresses are known, by first-class mail."
Those paragraphs specify the following manners of service: (1) the court's advisal to the parent at the setting hearing, followed by notice by first-class mail; (2) "[c]ertified mail, return receipt requested, to the parent's last known mailing address," provided the Agency then receives the return receipt signed by the parent; (3) personal service; (4) delivery to a competent adult at the parent's usual place of residence or business, followed by notice by first-class mail to the delivery address; (5) where the parent resides outside California, "service . . . as described in paragraph (1), (3), or (4) or by certified mail, return receipt requested"; and (6) "[i]f the recommendation . . . is legal guardianship or long-term foster care, or, [for] an Indian child, tribal customary adoption, service . . . by first-class mail to the parent's usual place of residence or business." (§ 294, subd. (f)(1)-(6).)
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Notice is a constitutional as well as a statutory imperative. (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.) "Due process requires that a parent is entitled to notice that is reasonably calculated to apprise him or her of the dependency proceedings and afford him or her an opportunity to object. [Citation.] The 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. [Citation.] [¶] However, there is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings." (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) On the other hand, if the social services agency makes no reasonable attempt to give the parent notice of the section 366.26 hearing as required by section 294, subdivision (f)(7)(A), the result is a structural error requiring automatic reversal. (In re Jasmine G., supra, at p. 1116.) Other constitutional noticing errors are evaluated using the Chapman standard, that is, by determining whether the error is harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 393-394, citing Chapman v. California (1967) 386 U.S. 18 and Arizona v. Fulminante (1991) 499 U.S. 279; In re Justice P., supra, at p. 193; In re J.H. (2007) 158 Cal.App.4th 174, 183; In re A.D. (2011) 196 Cal.App.4th 1319, 1321, 1325-1326; see In re James F. (2008) 42 Cal.4th 901, 915-916 ["The[] significant differences between criminal proceedings and dependency proceedings provide reason to question whether the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases"].) "[T]reating a procedural error as a structural defect requiring automatic reversal would [result in] . . . needless reversals of dependency judgments, [to the detriment] . . . of the strong public interest in prompt resolution of [dependency] cases so that the children may receive loving and secure home environments as soon as reasonably possible." (In re James F., supra, at p. 918.) We review constitutional issues de novo. (In re J.H., supra, at p. 183.)
B.
THE CONSTITUTIONALITY OF SECTION 294, SUBDIVISION (f)(7) (A)
Isabel asserts section 294, subdivision (f)(7)(A) is unconstitutional because it does not "exclude from the use of substitute service on counsel circumstances where trial counsel has never had contact with the parent and has no idea as to the parent's whereabouts." She asserts the notice permitted by section 294, subdivision (f)(7)(A) was not reasonably calculated to give her actual notice, and suggests "notice should [have been] given by publication or some other means . . . reasonably adopted by one desiring to provide actual notice."
For many years notice by publication has been regarded as constitutionally valid in many situations, despite its shortcomings. "It would be idle to pretend that publication alone as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. . . .Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed. . . .In weighing its sufficiency on the basis of equivalence with actual notice, we are unable to regard this as more than a feint." (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 315.) Nevertheless, the United States Supreme Court "has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights." (Id. at p. 317, quoted in In re Justice P., supra, 123 Cal.App.4th at p. 188.)
These principles apply equally in juvenile dependency cases. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1351-1354; In re Manuel J. (1984) 150 Cal.App.3d 513, 521.) " 'Due process is satisfied by notice by publication because of a rule of necessity. [Citation.] It is a tenet of due process of law that generally notice must be given which will inform persons of proceedings which will adversely affect their legally protected interests. In some situations, as for example when the identity or location of the persons to be affected is unknown, actual notice is not possible. Decisional law has established the proposition that in those situations the requirement of notice is not excused but rather is satisfied by a fictional form. The most common fictional form is notice by publication.
Due process is satisfied in those circumstances where notice by publication is sufficient, not because of the likelihood that publication will give actual notice, but because publication satisfies the legal fiction. . . .' " (In re Manuel J., supra, at p. 521, quoting In re La Opinion (1970) 10 Cal.App.3d 1012, 1019.)
"The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, [citations], or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes." (Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. at p. 315.) Service on counsel of record is no less "reliable" or "futile" than service by publication, and is less of "a feint." (Id. at pp. 315, 317.) Service on counsel is at least as likely as publication to provide notice to a parent, even if counsel does not know the parent's whereabouts. This is particularly true here. Isabel appeared with counsel at the initial hearings in this case, and the maternal great-grandmother later told Isabel about the section 366.26 hearing and advised her to call her attorney.
In view of the clear constitutionality of notice by publication, we perceive no infirmity in the method of notice prescribed in section 294, subdivision (f)(7)(A). "It is not always possible to litigate a dependency case with all parties present. The law recognizes this and requires only reasonable efforts to search for and notice missing parents. Where reasonable efforts have been made, a dependency case properly proceeds. . . .Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them." (In re Justice P., supra, 123 Cal.App.4th at p. 191.)
C.
THEREASONABLENESS OF THE AGENCY'S SEARCH
Isabel asserts there are three omissions and one misstatement in the Agency's declaration of due diligence. First, she notes the declaration does not mention an investigation of the Marlboro Avenue address she listed on her September 2009 notification of mailing address form; the Madera address she listed on her September 2009 application for reissuance of a TRO; or the Ladora address listed in the April 2010 reports. Second, Isabel notes the declaration of due diligence incorrectly states "[t]he identity of the maternal grandfather is not known."
Isabel does not suggest that an investigation of the three addresses or service on the maternal grandfather would have secured her presence at the section 366.26 hearing. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419.) Any such suggestion would be patently false. In light of Isabel's December 2010 statement that she was living in Las Vegas and would be there for at least another month, an investigation of the three addresses would have been futile when the Agency filed its declaration of due diligence in January 2010. Although the Agency did not give notice of the hearing to the maternal grandfather, it did give notice to the maternal grandmother, with whom Isabel was living. "[T]he grandparent notification provision of [former] section 366.23, subdivision (b)(5)(B) [now section 294, subdivision (f)(7)(A)] is intended, at least in part, as an attempt to get notice to the missing parent." (In re Steven H. (2001) 86 Cal.App.4th 1023, 1033.)
Although the Agency's search for Isabel may not have been perfect, it was extensive and sufficient. It is clear from the record both that Isabel was avoiding service and that she had actual knowledge of the date, time and place of the section 366.26 hearing. Moreover, she told the social worker in December 2010 "that she felt comfortable with the children living with the [maternal great-grandmother] and wished for them to remain there." Any error in allowing the Agency to give notice to Isabel through counsel of record, despite the above misstatement and asserted omissions, is harmless. (In re Steven H., supra, 86 Cal.App.4th at p. 1033.)
III
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR:
HALLER, J.
O'ROURKE, J.