39 Cal.App.5th 583
Cal. Ct. App.2019Background
- In Sept. 2015 DCFS filed dependency petitions for Z.R. and D.R.; mother was detained and reunification services ordered for her; father (P.R.) was reported deported to Mexico in 2014 and his whereabouts were unknown.
- DCFS conducted multiple searches of U.S. government databases and attempted mailings to prior California addresses but did not meaningfully pursue social media leads or obtain help from cooperative siblings who reported contact with Father via Facebook and who provided telephone numbers in Mexico.
- The juvenile court found DCFS had exercised "due diligence," permitted notice by publication, declared the children dependent, and denied reunification services for Father; Father received only limited monitored visitation if he contacted DCFS.
- In May–June 2018 Father contacted counsel from Mexico, provided a Tijuana address, and indicated interest in custody; counsel later filed a Welfare & Institutions Code § 388 petition seeking to vacate orders against Father for lack of notice.
- The juvenile court denied the § 388 petition; Father appealed. The Court of Appeal reversed, concluding DCFS did not exercise reasonable diligence and that service must comply with the Hague Service Convention because Father is a Mexican resident.
Issues
| Issue | Plaintiff's Argument (DCFS) | Defendant's Argument (P.R.) | Held |
|---|---|---|---|
| Whether DCFS used reasonable diligence before resorting to service by publication | DCFS argued it searched standard U.S. databases, attempted mailings and address visits, and thus exercised due diligence | Father argued DCFS ignored the most likely leads (siblings' Facebook access and Mexican phone numbers) and failed a thorough, good-faith inquiry | Court held DCFS did NOT exercise reasonable diligence; it unreasonably failed to use social media leads from cooperative family members |
| Whether service by publication was sufficient to confer personal jurisdiction | DCFS argued publication was authorized after due diligence findings | Father argued publication was invalid because DCFS failed reasonable diligence | Court held publication was invalid because the required due diligence inquiry was not performed |
| Whether Hague Service Convention applied to notice to a Mexican resident parent | DCFS contended exceptions applied (e.g., whereabouts unknown despite diligence or Fathers waiver/general appearance) | Father argued he was a Mexican resident and Hague Service rules apply; he did not consent to jurisdiction | Court held Hague Service Convention applies and DCFS failed to comply, so service was deficient |
| Whether Father's later contact or counsel's appearances cured defective service or constituted a general appearance | DCFS argued counsel's July 2, 2018 appearance constituted a general appearance waiving defects | Father argued the appearance was special and solely to investigate notice issues and seek relief | Court held counsel made a special appearance; Father did not acquiesce to jurisdiction and defective service was not cured |
Key Cases Cited
- David B. v. Superior Court, 21 Cal.4th 1 (discusses due diligence and notice in dependency proceedings)
- In re B. G., 11 Cal.3d 679 (due process requires actual efforts to notify nonresident parent; total absence of notice invalid)
- Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (due process notice must be reasonably calculated to apprise interested parties)
- In re Arlyne A., 85 Cal.App.4th 591 (department must pursue the specific leads most likely to locate missing parent)
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (Hague Service Convention governs service abroad)
- In re Alyssa F., 112 Cal.App.4th 846 (Hague Convention and central authority requirements in dependency context)
- In re Vanessa Q., 187 Cal.App.4th 128 (Hague Convention applies to juvenile dependency service on foreign residents)
- In re Jennifer O., 184 Cal.App.4th 539 (service under Hague rules necessary to acquire personal jurisdiction over nonresident parent)
- In re Justice P., 123 Cal.App.4th 181 (procedural vehicle for raising notice/due process defects is § 388)