Opinion
A130260
09-15-2011
In re M.S., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH & SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. KEVIN R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. J39538)
Defendant Kevin R., alleged father of M.S., appeals from an order terminating parental rights. He contends the Solano County Health and Social Services Department (Department) did not exercise due diligence in attempting to locate him and failed to provide him with proper notice. Defendant also maintains the order should be set aside due to extrinsic fraud or mistake. We affirm.
B ACKGROUND
We limit our recitation of the facts to those relevant to defendant's claims on appeal. The Department received a referral regarding M.S. and her two half siblings on June 29, 2009. Their mother, Paula S., had been arrested on June 26, 2009, for being under the influence of a narcotic during a disturbance at her mother's home. On July 9, 2009, the Department filed a Welfare and Institutions Code section 300 petition with subdivision (b) allegations regarding M.S. M.S. was detained on July 23, 2009, and placed with a licensed foster family on July 24, 2009.
All further statutory references are to the Welfare and Institutions Code.
The petition also included section 300, subdivision (g), allegations regarding the fathers of M.S.'s half siblings.
The petition alleged M.S. was born prematurely in October 2007 and tested positive for methamphetamine at birth. Paula S. (mother) admitted that while pregnant with M.S., she used methamphetamine and received no prenatal care. The Department had received seven prior referrals regarding mother, and provided mother with voluntary family maintenance services from November 14, 2008, through March 23, 2009. The voluntary services were terminated unsuccessfully after mother failed to cooperate. Following a contested jurisdictional hearing on October 1, 2009, the court sustained the amended allegations and set the dispositional hearing for October 20, 2009.
Mother is not a party to this appeal.
Mother initially told Department she had no information regarding the identity of M.S.'s father. She later identified two alleged fathers, defendant and Chris N. The social worker was given an "unconfirmed" spelling of defendant's name and no year or date of birth. On September 2, 2009, the Department initiated "absent parent searches" to locate the two men.
At the dispositional hearing on October 20, 2009, the court adjudicated M.S. a dependent child under section 300, subdivision (b), ordered reunification services for mother, and set a status review hearing for April 20, 2010.
During September and October of 2009, the Department attempted to locate defendant by searching the statewide MEDS database, Solano County welfare records, county jail online records, and the statewide CWS/CMS database, with no success. The Department contacted the Prison Locater Service twice, but they were unable to locate defendant without a birth date. Solano County Child Support Division had no records regarding defendant. The social worker's search of the Solano County superior court's online system revealed child support actions regarding M.S.'s half siblings, but none regarding M.S.
In January 2010, the Department obtained defendant's last known address, a post office box in Napa, from the U.S. Postal Service. The Department sent a registered letter to him at that post office box in care of Rosa R., who had the same last name and indicated she was his ex-wife. The Department received the postal return receipt card signed by Rosa R. The Department also sent a letter by regular mail to the post office box in care of Rosa R., but received no response.
All further undesignated dates are in 2010.
The same month, the Solano County Child Support Division provided the Department with a street address in Napa "as of 2007." The Department sent a registered letter to defendant at that address, which was returned unopened in February with the notation "Return to sender—unclaimed—unable to forward." The Department also sent a letter via regular mail to that address, and received back the JV505 form, "Statement Regarding Parentage," signed by Rosa R. stating "Kevin [R.] is no longer married to Rosa [R.] He lives in another state he told me on the phone. Child not his to return your mail."
Also in January, the Department learned of two more potential addresses for defendant from the Department of Motor Vehicles, one in Vallejo as of May 15, 2007, and a post office box in Alturas, California as of July 2, 2007. The Department of Justice provided the Department with defendant's aliases, driver's license number, FBI number and California Department of Corrections (CDC) numbers in January.
On January 19, the court ordered genetic paternity testing of alleged father Chris N. The testing indicated he was not M.S.'s biological father, and the court dismissed him from the dependency proceeding.
On March 1, Parole Agent Bradley informed the Department defendant was a parolee at large. On March 18, the Department filed a due diligence declaration regarding its efforts to locate defendant.
At the six-month review hearing on May 5, the court terminated reunification services to mother and set the matter for a section 366.26 hearing on August 24. On June 2, the Department mailed a letter of explanation, notice of hearing, notice and acknowledgment of receipt, and the JV-505 Statement Regarding Parentage to defendant at the post office box in Alturas. On June 16, M.S. was placed with her maternal aunt in Illinois.
In their respondent's brief, the Department indicated the Alturas address was for the CDC Devil's Garden Conservation Camp.
The July 27 report prepared by the Department for the section 366.26 hearing recommended termination of parental rights and a permanent plan of adoption. It noted M.S. continued to be placed with her maternal aunt, who wanted to adopt her. The report indicated defendant's "circumstances are unknown," and his last known address was the post office box in Alturas. The Department left a message for defendant's parole officer on July 14, but received no response.
At the August 24 hearing, the court granted mother's motion for a contested section 366.26 hearing, and set it for September 7. The court noted, without objection from any party, "the father is a parolee at large according to the report."
On August 27, the Department mailed a copy of the June 2 letter, notice of hearing, notice and acknowledgment of receipt and the JV-505 Statement Regarding Parentage to defendant at San Quentin prison. The record does not reflect when or how the Department learned defendant might be in San Quentin. Defendant responded with a handwritten letter, received by Solano County Counsel on September 9, stating: "To Whom It May Concern [¶] My name is Kevin [R.] I received a paper for a dependency court of a child I have no idea about Case # J39538. Child [M. S.]? I am in San Quentin doing a violation of parole. I am to be on streets Nov 15th. Can I please set an appointment in your office and postpone court till after that so I can find out what is going on in this case. Thank you [signed] Kevin [R.]"
In the meantime, mother did not appear at the hearing on September 7, and the court terminated her and defendant's parental rights. The Department did not inform the court at the hearing that it had a potential address for defendant at San Quentin. On September 8, the superior court clerk mailed defendant a notification of right to appeal and form JV-800 at the Alturas address. The court's September 8 notice to defendant at the Alturas address was returned as undeliverable on September 17.
In response to defendant's September 9 letter, Solano County Counsel sent defendant a letter dated October 27 at San Quentin, providing him with a copy of the court order terminating his parental rights and the notice of appeal form with return envelope for him to complete. On the same date, Solano County Counsel provided a memorandum to the court attaching the correspondence from defendant and stating she sent him "the necessary forms to appeal." Defendant returned the notice of appeal with a handwritten note stating "I received this appeal form on 11-1-10. I was told by Paula [S.] that I wasn[']t the father. She refused to take a DNA test. If I am the father then I would like to appeal this. Thank You [signed] Kevin [R.]"
DISCUSSION
Rights of Alleged Fathers
To provide context to the issues raised by defendant, we briefly review the rights of alleged fathers in dependency proceedings. "In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers and presumed fathers. A man . . . who has assumed the role of parent, is a 'de facto father.' A man who may be the father of the dependent child but has not been established to be the natural or presumed father is an 'alleged father.' A man who has been established to be the biological father is a 'natural father.' A man who has held the child out as his own and received the child into his home is a 'presumed father.' . . . [¶] Presumed father status ranks highest. Only a 'statutorily presumed father' is entitled to reunification services . . . ." (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, fns. omitted.)
An alleged biological father " 'does not have a known current interest because his paternity has not yet been established.' " (In re Joseph G. (2000) 83 Cal.App.4th 712, 715, quoting In re Emily R. (2000) 80 Cal.App.4th 1344, 1352.) Alleged fathers are not generally entitled to reunification services and have only "limited due process and statutory rights." (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) "Due process for an alleged father requires only that the alleged father be given notice and 'an opportunity to appear and assert a position and attempt to change his paternity status.' " (Ibid., quoting In re O.S. (2002) 102 Cal.App.4th 1402, 1408.) Generally, "an alleged biological father who is not a party of record in the dependency court has no standing to appeal an order terminating parental rights." (In re Joseph G., supra, 83 Cal.App.4th at p. 716.) Where an alleged father "appear[s] and assert[s] a position," he may become a party with standing to appeal. (See In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117; In re Paul H., supra, 111 Cal.App.4th at p. 759.)
The Department does not dispute defendant has standing to appeal in the circumstances here. " 'Any person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment' is considered a 'party aggrieved' for purposes of appellate standing." (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035 [holding grandmother, although not a party, has standing to seek appellate review of the denial of her request for placement].)
The statutory procedure that protects the limited due process rights of alleged fathers is set forth in section 316.2. (In re Paul H., supra, 111 Cal.App.4th at p. 760.) That section provides in part: "At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers. [¶] . . . [¶] (b) If, after the court inquiry, one or more men are identified as an alleged father, each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice. . . ." (§ 316.2, subds. (a)-(b).) The California Rules of Court also provide "If, after inquiry by the court or through other information obtained by the county welfare department . . . one or more persons are identified as alleged parents of a child for whom a petition . . . has been filed, the clerk must provide to each named alleged parent, at the last known address, by certified mail, return receipt requested, a copy of the petition, notice of the next scheduled hearing, and . . . form JV-505 . . . ." (Cal. Rules of Court, rule 5.635(g).)
" '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 J.H. (2007) 158 Cal.App.4th 174, 182.) Section 291, subdivision (a)(2) expressly requires that any alleged father be given written notice of the jurisdictional and dispositional hearings. The statute also requires alleged fathers to be sent Judicial Council form JV-505, which, among other things, "contains an advisement to alleged fathers regarding reunification, the right to a court trial to determine paternity and the right to be represented by counsel at such trial." (In re Paul H., supra, 111 Cal.App.4th at p. 761.)
Reasonable Diligence in Searching for Missing Alleged Father
Defendant claims the Department failed to diligently search for him after mother identified him as a possible father. When the location of a parent is not known, thereby preventing the giving of requisite notice, "[t]he 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.)
Defendant claims the Department's search was inadequate, relying on three cases in which the courts found no reasonable diligence. In In re Arlyne A. (2000) 85 Cal.App.4th 591, the court found an agency's search inadequate because it "ignored the more timely information . . . that [father's] parents were living in Rialto," and failed to obtain a police report after being informed it contained father's home and work address. (Id. at pp. 598-599.) The court in David B. v. Superior Court (1994) 21 Cal.App.4th 1010, found no reasonable diligence because the agency knew father was in the United States Marines, but failed to make any contact with that organization. (Id. at p. 1016.) In In re P.A. (2007) 155 Cal.App.4th 1197, the court found the agency's search inadequate because it failed to make "a thorough inquiry of mother who had [father's] last known home address and his disconnected telephone number." (Id. at p. 1208.)
Defendant claims the Department's search was similarly inadequate, asserting the Department should have conducted a second prison locater service search after it received two CDC numbers for him from the Department of Justice, and should have telephoned his parole officer again after receiving no response to its July 14 call. Defendant claims this would have resulted in notice to him prior to the section 366.26 hearing.
Unlike the cases on which defendant relies, the Department did not receive any leads about defendant's whereabouts which it failed to pursue. While defendant claims the Department should have done another CDC search, he does not assert when a CDC search would have revealed his whereabouts. The record does not reflect, nor does defendant reveal, when he stopped being a "parolee at large" and began his incarceration in San Quentin. Defendant nowhere asserts he was in San Quentin on June 2, the date the Department mailed notice regarding the section 366.26 hearing, nor does he dispute he had been a parolee at large—he in fact acknowledged in September 2010 he was in San Quentin on a "violation of parole." Thus, though the record does not reveal exactly how or when the Department learned defendant was in San Quentin, it did at some time after July 27, when the Department prepared the report for the section 366.26 hearing indicating defendant's "circumstances are unknown," and on or before August 27, when it mailed notice to him there.
The Department here conducted a thorough search for defendant despite being given very little information by mother, or anyone else. And, it was defendant's own actions, as a "parolee at large," that prevented the Department from locating him.
Notice to Alleged Father
Defendant acknowledges receiving two letters while at San Quentin, but asserts the notice he received was inadequate because "the circumstances of notice . . . and exactly what notice he received are unclear." He claims there was " 'no evidence in the record that [defendant] was served with Judicial Council form JV-505, either by certified mail . . . or otherwise.' "
The Department gave defendant the notice required under section 316.2, which mandates notice only to defendant's "last known address." (Cal. Rules of Court, rule 5.635(g); § 316.2.) After having the notices sent to two different addresses for defendant in Napa returned, the Department sent notice to defendant at the last known address in Alturas provided by the Department of Motor Vehicles. Defendant does not dispute this was his last known address. The fact defendant was apparently no longer residing at any of the addresses discovered by the Department did not render the Department's notice noncompliant with the statutory requirements.
Defendant next claims there is no evidence he received a JV-505 form at San Quentin, and no evidence it was sent by certified mail. While the record does not include copies and proofs of service of every document sent to defendant, defendant admits receiving a "paper for a dependency court of a child I have no idea about case # J39538." The record includes a copy of a letter dated June 2, 2010, from Solano County Counsel, addressed to defendant at his last known address in Alturas, indicating they sent "JV-505 Statement Regarding Parentage," an "acknowledgement of receipt for the notice of hearing to terminate parental rights," and a stamped, self-addressed envelope to defendant. Handwritten notations on that letter indicate it was resent to defendant on August 27, 2010, at San Quentin. On October 27, 2010, Solano County Counsel sent a letter to defendant at San Quentin stating: "On August 27, 2010, our office sent you at the above address [San Quentin State Prison], the following documents: a letter of explanation dated June 2, 2010, a notice to terminate parental rights, Statement Regarding Parentage and a copy of the original dependency petition which was filed on July 9, 2009."
Certainly, the Department would be well advised to make these documents part of the record in the future.
Defendant, notably, does not assert he did not receive the notice and JV-505 form, nor does he assert he was unaware of the dependency proceeding before September 2010. Based on this record, we find substantial evidence defendant was served with notice and the JV-505 Statement Regarding Parentage in compliance with section 316.2.
Extrinsic Fraud
Defendant claims the order terminating parental rights should be set aside on the basis of "extrinsic fraud." He asserts the Department's failure to "inform the court of [his] whereabouts [in San Quentin] at the September 7 hearing," and failure to inform the court until October 27 that he had been located in San Quentin constituted extrinsic fraud.
A court always has inherent equitable jurisdiction to vacate a judgment or order obtained through extrinsic fraud. (In re David H. (1995) 33 Cal.App.4th 368, 381.) "This is no less true of an order under section 366.26 than of any other order of a court." (Ibid., citing In re Olivia A. (1986) 181 Cal.App.3d 237, 242-243.) "Extrinsic fraud is fraud which prevents a fair adversary hearing and deprives a party of an opportunity to present his claim or defense to the court. [Citations.] To be entitled to relief from a judgment on the ground of extrinsic fraud, a party must show he or she had a meritorious defense, which would have been raised but for the other party's wrongful conduct [citations], and also must establish all of the elements of fraud [citations], which include an intentional or reckless misrepresentation and justifiable reliance on the misrepresentation by the aggrieved party." (In re David H., supra, at pp. 381-382.)
Defendant fails to show, however, any intentional or reckless misrepresentation by the Department. There is nothing in the record indicating the Department knew defendant was in San Quentin at the time of the September 7 hearing. The Department obviously had some information he might be at San Quentin, because they sent him notice there on August 27. Defendant's letter from San Quentin, which is the first confirmation in the record he was there, was not received by Solano County Counsel until after the hearing. At most, the record shows only the Department failed to inform the court it had located one more potential address for defendant, not that the Department knew of defendant's whereabouts and failed to disclose them.
And, defendant fails to demonstrate any prejudice from the delay in informing the court after the section 366.26 hearing that it received a letter from him confirming he was in San Quentin. He received notice of the order after the hearing and of his right to appeal, and did so timely.
Defendant also fails to show a "meritorious defense which would have been raised but for the other party's wrongful conduct." The dependency scheme generally limits reunification services to 12 months from the date the child is first removed from the physical custody of a parent, here on July 23, 2009. (§ 361.5, subd. (a)(1)(A); In re Zacharia D. (1993) 6 Cal.4th 435, 446.) The reunification period is not tolled by a parent's absence or incarceration. (In re Zacharia D., at p. 446.) Thus, the reunification period had ended, and the " 'sole purpose of the section 366.26 hearing [was] to select and implement one of the listed permanent plans.' " (In re Christopher M. (2003) 113 Cal.App.4th 155, 160, quoting In re Marilyn H. (1993) 5 Cal.4th, 295, 304.) "As an alleged father, appellant 'did not have a current interest' in the issues that were before the juvenile court at that hearing—whether the minor was adoptable and whether any exceptions to adoption applied." (In Christopher M., at p. 160.)
DISPOSITION
The juvenile court's order is affirmed.
Banke, J. We concur: Marchiano, P. J. Dondero, J.