Opinion
E070500
08-07-2018
V.B., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Nicole Oswill for Petitioner. No appearance for Respondent. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. SWJ1600649) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Judith C. Clark, Judge. Petition dismissed. Nicole Oswill for Petitioner. No appearance for Respondent. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
The juvenile court set the Welfare and Institutions Code section 366.26 hearing. On petition for extraordinary writ, petitioner, V.B. (Father), contends real party in interest, Riverside County Department of Public Social Services (the Department), failed to provide Father adequate notice of the jurisdictional hearing such that he was deprived of due process. The petition is dismissed.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL HISTORY
The facts of the case are irrelevant to the issues raised by Father.
On October 31, 2016, G.N. (Minor), born in September 2005, was taken into protective custody after police arrested S.N. (Mother) for child endangerment. The Department filed juvenile dependency petitions, as amended, alleging, as to Father, that he had failed to provide for Minor (b-3) and Father's whereabouts were unknown (g-1). Both petitions listed Father's address as "Unknown [¶] Kingman , AZ ."
Mother is not a party to the petition.
The detention report listed Father's address as "Unknown Unknown [¶] Kingman, AZ." Mother "denied having any contact information regarding the child's father. She only stated that the father is somewhere in Los Angeles, CA, and 'is lost in drugs.'" A previous Department referral dated July 3, 2009, reported Father did not provide for Minor and would pull her hair as a form of discipline: "During the investigation, the father was able to make telephonic contact with the Department; however, he refused to provide the location of his residence."
At the detention hearing on November 3, 2016, at which Father failed to appear, the court appointed counsel for Father, declared Father the presumed father, and detained Minor. Notice of the jurisdictional hearing was mailed to Father at "UNKNOWN," Kingman, Arizona. An Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) notification sent out on December 7, 2016, listed Father's address as "Unknown," Kingman, Arizona.
The jurisdictional and dispositional report filed December 7, 2016, listed Father's address as "Unknown," Kingman, Arizona. The social worker indicated Father's whereabouts were unknown. The social worker referred the matter to the Parent Locator Unit on November 16, 2016.
Minor "reported that she ha[d] no recollection of meeting her father, and that he ha[d] not sent her anything or called her. She [did] not know what he looks like. The mother reported that she last had contact with [Father] when the child was approximately three years old, indicating that the father has had no contact with the child for nearly eight years." The social worker recommended the court deny Father reunification services pursuant to section 361.5, subdivision (b)(1) (parent's whereabouts unknown). A declaration of search reflected the social worker requested information regarding Father from Mother and Minor, had checked local jails, and had referred the case to the Parent Locator Unit for further search. She asserted she was unable to locate Father and had obtained insufficient information to justify or require additional efforts to locate Father.
On December 13, 2016, the date scheduled for the jurisdictional hearing, the Department noted that no declaration of due diligence in the search for Father had yet to be obtained. The court set the matter out for a contested hearing, which the court believed would allow sufficient time for the filing of a declaration of due diligence. In an addendum report filed January 19, 2017, Father's address was again listed as "Unknown," Kingman, Arizona. On January 24, 2017, the court again continued the jurisdictional hearing to obtain sufficient notice, or attempt thereof, on Father.
On February 17, 2017, the Department filed a declaration of due diligence regarding the outcome of the parent locator assistance in finding Father. Searches were conducted of database systems of the Riverside, Orange, San Diego, Imperial, San Bernardino, and Los Angeles County jails; the California Department of Corrections; the Federal Department of Prisons; the California Statewide Automated Welfare System; the Medical Eligibility Data System; the Registrar of Voters; the Child Welfare Case Management System; Judicial Access; Accurint for Government; and Facebook. E-mails, telephone calls, and text messages had been made to addresses and numbers listed as potentially belonging to Father; no responses were received.
The Accurint database identified two potential physical addresses for Father: one in La Verne, California and one in Azusa, California. Letters of inquiry were sent to both addresses with no responses received. Judicial Access had revealed that "[a] court document filed on 1/19/2017 list[ing]: Kingman, Arizona." No physical address was apparently listed on the court document. A February 24, 2017, addendum report listed Father at an address in Duarte, California. The social worker still indicated Father's whereabouts were unknown.
At the March 2, 2017, jurisdictional and dispositional hearing, Father's counsel objected to the declaration of due diligence insofar as the Department failed to make field visits to the addresses identified by Accurint and to which the Department had sent letters of inquiry, but from which it received no responses. The Department responded that only two addresses were found, one in La Verne and one in Azusa, and that letters of inquiry sent to those addresses were sufficient for purposes of a finding of due diligence. The court ruled that the Department did not need to make field visits to those addresses; the letters of inquiry were sufficient. The court found due diligence had been exercised in attempting to locate Father and relieved Father's counsel. The court found the allegations in the petition true, sustained the petition, found Minor a ward of the court, removed Minor from the parents' custody, ordered reunification services for Mother, and denied reunification services for Father pursuant to section 361.5, subdivision (b)(1).
On July 18 and August 1, 2017, the Department sent noticing documentation to Father regarding the six-month review hearing to the Duarte address. On August 17, 2017, the social worker again listed Father at the Duarte address. On August 31, 2017, the court continued the six-month hearing. On September 5 and 7, 2017, the Department notified Father of the continued six-month hearing at the Duarte address. The social worker again listed Father's address in the addendum to the six-month report filed September 8, 2017, as the Duarte address. On September 13, 2017, the court continued reunification services to Mother.
On December 6, 2017, Department personnel mailed notice of the 12-month review hearing to Father at the Duarte address. On December 12, 2017, Department personnel mailed notice of the 12-month review hearing to Father at a "CONFIDENTIAL ADDRESS."
The 12-month review report filed on December 19, 2017, listed Father's address as Red Rock Correctional Center in Arizona. In the report, the social worker noted "that on February 25, 2016, a petition for child support was filed against [Father]. On July 18, 2017, a proof of service by mail form . . . indicated that [Father] . . . is [sic] currently held at the Red Rock Correctional Center, located [in] . . . Arizona . . . ." The social worker further observed: "On December 15, 2017, a search of the Arizona Department of Corrections was conducted. The search confirmed that [Father] is an inmate at Red Rock Correctional Center [in] . . . Arizona. . . . It was reported that [Father] is incarcerated for theft and burglary in the first degree. It was further reported that [Father's] expected release date is September 29, 2018."
At the 12-month hearing on January 2, 2018, the court continued reunification services for Mother. On April 11, 2018, Department personnel mailed noticing documentation of the 18-month review hearing to Father at both the Red Rock Correctional Center and Duarte addresses. The 18-month status review report filed on April 18, 2018, lists Father's address as the Red Rock Correctional Center.
At the 18-month review hearing on April 30, 2018, at which Father failed to appear, the court terminated Mother's reunification services, set the section 366.26 hearing, and ordered the clerk to give Father notice of his writ rights. On May 14, 2018, Father personally filed a notice of intent to file a writ petition: "Petitioner was not advised in a timely manner of such hearing date. Notified [sic] by receiving notice after the hearing was held. I was not given the opportunity to attend by telephonic [?] or other. Father is incarcerated in prison."
II. DISCUSSION
Father contends the Department failed to exercise reasonable diligence in attempting to locate him and provide him notice of the jurisdictional hearing such that he was deprived of due process. Specifically, Father argues that Department personnel had some inkling of his residence within the state of Arizona as early as the filing of the petition on October 31, 2016, by virtue of their listing of his address as Kingman, Arizona. Hence, Father maintains any finding of due diligence would have required, at minimum, a search of jails and prisons in Arizona.
The Department responds that Father's failure to seek timely review of the juvenile court's dispositional order deprives this court of jurisdiction to consider his claims. Moreover, the Department contends it acted with due diligence in attempting to locate Father, Father was provided with timely notice of the 18-month hearing, and any error in exercising due diligence in attempting to locate him and provide him earlier notice was harmless. We agree with the Department. A. Jurisdiction
"One of the most fundamental rules of appellate review is that the time for filing a notice of appeal is jurisdictional. '[O]nce the deadline expires, the appellate court has no power to entertain the appeal.' [Citation.]" (In re A.O. (2015) 242 Cal.App.4th 145, 148.) A notice of appeal from an appealable juvenile court order must be filed within 60 days of the rendition of judgment. (Cal. Rules of Court, rule 8.406(a)(1).) "A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment . . . ." (§ 395, subd. (a)(1).) "'"A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." [Citation.]' [Citations.]" (In re S.B. (2009) 46 Cal.4th 529, 532; accord, In re Z.S. (2015) 235 Cal.App.4th 754, 769.)
"'"If an order is appealable . . . and no timely appeal is taken therefrom, the issues determined by the order are res judicata." [Citation.] [¶] "An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed." [Citations.]' [Citations.]" (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1156.) "This '. . . rule' holds 'that an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order,' even when the issues raised involve important constitutional and statutory rights. [Citation.]" (In re Z.S., supra, 235 Cal.App.4th at pp. 769-770.) "'The first appealable order in a dependency case is the dispositional order. . . .'" (In re A.O., supra, 242 Cal.App.4th at p. 148.)
Here, Father does not challenge the order setting the section 366.26 hearing, but challenges the juvenile court's jurisdictional findings at the hearing on March 2, 2017, maintaining the lack of notice on Father about the jurisdictional hearing deprived the juvenile court of jurisdiction over his person as to all the remaining proceedings. Father's real challenge is to the juvenile court's finding at the jurisdictional hearing that the Department had exercised due diligence in attempting to locate and notice him. However, "'[a] challenge to the jurisdictional findings must be raised in an appeal from the dispositional order.' [Citation.]" (In re A.O., supra, 242 Cal.App.4th at p. 148.) Since Father failed to appeal the court's jurisdictional findings, this court has no jurisdiction to entertain his claims.
Father's counsel below did object to the court's finding of due diligence, but only on the basis that the Department had failed to make field visits to the two California residences identified in the Accurint database by the Parent Locator Unit. Father's counsel did not object to any failure on the part of the Department to conduct a search for Father in Arizona jail and prison databases. Thus, even if we had jurisdiction to address the issue, Father's counsel forfeited the claim by failing to object on that basis. (People v. Virgil (2011) 51 Cal.4th 1210, 1276 [generally, counsel's failure to object forfeits an issue on appeal].) Moreover, Father's counsel failed to file an appeal from the dispositional order in which such claims could have been raised.
According to Father's own contentions in this petition, such an effort would have been futile because Father was incarcerated at Red Rock Correctional Center in Arizona at that time, though nothing in the record supports this.
Furthermore, Father does not even raise ineffective assistance of counsel in this petition. However, even if he did, "resort to claims of ineffective assistance as an avenue down which to parade ordinary claims of reversible error is also not enough and that it is never enough, alone, to argue that counsel rendered ineffective assistance by not raising potentially reversible error on" a previously appealable order. (In re Janee J. (1999) 74 Cal.App.4th 198, 209.) "[L]ate consideration of ineffective assistance claims defeats a carefully balanced legislative scheme by allowing a back-door review of matters which must be brought for appellate review . . . by earlier appeals, that is, before the point is reached where reunification efforts have ceased and the child's need for permanence and stability become paramount to the parent's interest in the child's care, custody and companionship [citation]." (Id. at p. 208.) This court lacks jurisdiction to address Father's claims of error. B. Due Diligence
Even assuming we had jurisdiction to address Father's claims, we hold that sufficient evidence supported the juvenile court's finding that the Department acted with due diligence in attempting to locate Father and that any error was harmless.
"'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.' [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. [Citations.]' [Citation.] Thus, where a parent cannot be located notwithstanding a reasonable search effort, the failure to give actual notice will not render the proceedings invalid. [Citation.]" (In re J.H. (2007) 158 Cal.App.4th 174, 182.) "The means employed to give a party notice for due process purposes must be such as one, desirous of actually informing the party, might reasonably adopt to accomplish it." (In re Claudia S. (2005) 131 Cal.App.4th 236, 247; accord, In re J.H., supra, at p. 182 [notice to the father in jail by certified return receipt mailed five days prior to the father's release sufficient notice even though the department failed to receive a return receipt].)
"'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. If a missing parent later surfaces, it does not automatically follow that the best interests of the child will be promoted by going back to square one and relitigating the case. Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them. Further, the very nature of determining a child's best interests calls for a case-by-case analysis, not a mechanical rule.' [Citation.]" (In re J.H., supra, 158 Cal.App.4th at pp. 182-183.) "Unless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice. [Citations.]" (Id. at p. 183.)
Here, sufficient evidence supports the court's finding that Department personnel exercised due diligence in attempting to locate Father. Upon taking Minor into protective custody, the social worker immediately asked Mother for information regarding Father's whereabouts. Mother "denied having any contact information regarding the child's father. She only stated that the father is somewhere in Los Angeles, CA, and 'is lost in drugs.'" Review of previous Department referrals revealed that Father had previously been involved in an investigation, but refused to provide the Department with the location of his residence. Minor "reported that she has no recollection of meeting her father, and that he has not sent her anything or called her. She does not know what he looks like. The mother reported that she last had contact with [Father] when the child was approximately three years old, indicating that the father has had no contact with the child for nearly eight years."
The social worker later checked the local jails with no results; she then referred the matter to the Parent Locator Unit to conduct a further search. The juvenile court twice continued the matter so that further attempts at obtaining an address for Father could be made. On February 17, 2017, a social worker from the Department's Parent Locator Unit filed a declaration of due diligence reflecting she had searched database systems of the Riverside, Orange, San Diego, Imperial, San Bernardino, and Los Angeles County jails; the California Department of Corrections; the Federal Department of Prisons; the California Statewide Automated Welfare System; the Medical Eligibility Data System; the Registrar of Voters; the Child Welfare Case Management System; Judicial Access; Accurint for Government; and Facebook. E-mails, telephone calls, and text messages had been made to addresses and numbers listed as potentially belonging to Father; no responses were received.
The Accurint database identified two potential physical addresses for Father: one in La Verne, California and one in Azusa, California. Letters of inquiry were sent to both addresses with no responses received. Judicial Access had revealed that "[a] court document filed on 1/19/2017 list[ing]: Kingman, Arizona." No physical address was apparently listed on the court document. Thus, substantial evidence supported the juvenile court's determination that Department personnel had made good faith and reasonable efforts to locate Father.
Father contends that the Department's listings and mailings to him, from the very beginning of the case, to an unknown physical address in Kingman, Arizona should have compelled the Department to conduct a search of the Arizona Department of Corrections. Without citation to the record, Father maintains that had such a search been conducted, Father would have easily been located as an inmate as he was incarcerated on October 28, 2016. (Morris v. De La Torre (2005) 36 Cal.4th 260, 265, fn. 2 [reviewing courts ignore factual assertions made without support by citation to the record].) Indeed, with respect to the date Father became incarcerated in Arizona, "our independent review of the record has not disclosed any such evidence." (Ibid.)
The first time Department personnel were able to determine that Father was incarcerated by the Arizona Department of Corrections was on December 15, 2017. This information came from a July 18, 2017, proof of service in a child support action which listed Father at that address. However, the record fails to indicate when Department personnel obtained this information.
The declaration of due diligence filed on February 17, 2017, reflects that a search of the Judicial Access database generated a court document dated January 19, 2017, which listed Kingman, Arizona as Father's address. It is undeterminable from the record whether this was the same document simply containing a typographical error regarding the date. However, the document here references a Red Rock Correctional Center address, not an address in Kingman, Arizona. We take judicial notice of the fact that Red Rock Correctional Center is located in Eloy, Arizona, quite a distance from Kingman, Arizona. <https://corrections.az.gov/location/112/red-rock-correctional-center> [as of Aug. 7, 2018]. (Evid. Code § 459.) --------
We acknowledge the incongruities regarding the service and address listings for Father in the instant case. Nothing in the record indicates why the Department repeatedly served Father and listed Father's address as Kingman, Arizona. Nothing in the record indicates why the Department later began serving Father at and listing his address as a residence in Duarte, California. Nothing in the record indicates why Department personnel later mailed notification of a hearing to Father at a "CONFIDENTIAL ADDRESS." Nonetheless, sufficient evidence supports the juvenile court's determination that at the time of the jurisdictional and dispositional hearings, Department personnel had exercised due diligence in attempting to find an address for Father.
Even if the juvenile court erred in finding Department personnel had exercised due diligence in attempting to locate and serve Father, we hold any error harmless. Father fails to demonstrate he could have or would have complied with reunification services had he been granted them. (In re J.H., supra, 158 Cal.App.4th at p. 185 ["[H]ad Father been afforded actual notice of the . . . jurisdiction and disposition hearing, there is no indication that he would have been able to obtain custody of his daughter." "[T]here is no evidence that actual notice to Father would have changed the outcome of the jurisdiction and disposition hearing."].) Moreover, the juvenile court could have still denied reunification services to Father under Welfare and Institutions Code section 361.5, subdivision (b)(12) due to Father's conviction for robbery (Pen. Code, § 667.5, subd. (c)(9)) and potentially for his conviction for burglary (Pen. Code, § 667.5, subd. (c)(21)). Thus, any error was harmless.
III. DISPOSITION
The petition is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.