64 Cal.App.5th 701
Cal. Ct. App.2021Background
- Dependency petition filed Jan. 29, 2019: Daniel (3½) removed after mother’s untreated substance abuse and an alcohol-related car accident in which Daniel was unrestrained. Father listed as alleged father; whereabouts unknown (believed to be in Mexico).
- Agency initiated searches but did not serve Father with the dependency petition, jurisdiction/disposition notices, or provide form JV-505 for asserting paternity; initial absent‑parent search request submitted Feb. 2019 was not processed until months later.
- Agency had early contact with Father’s sister (Ana N.) in spring 2019 but did not obtain Father’s contact information until November 2019; two messages left then produced no response; direct contact with Father occurred in May 2020 after Ana N. arranged a call.
- Juvenile court terminated Mother’s reunification services in Oct. 2019 and set a § 366.26 permanency planning hearing; by Sept. 1, 2020 the court found Daniel adoptable and terminated parental rights.
- Mother appealed the denial of an oral continuance of the § 366.26 hearing; Father appealed the summary denial of his § 388 petition seeking vacation of the disposition order based on lack of notice and denial of due process.
- Court: affirmed denial of Mother’s continuance (untimely oral request; contrary to child’s interests); reversed denial of Father’s § 388 petition and remanded for an evidentiary hearing on whether the Agency exercised due diligence in locating/serving him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of Mother’s oral continuance of § 366.26 hearing | Need continuance to review outstanding discovery before defending permanency hearing | Request was untimely and procedurally deficient; further delay contrary to child’s need for stability | Affirmed — no good cause for late oral request; denial not abuse of discretion |
| Denial of Father’s § 388 petition challenging notice and asking to vacate disposition | Father was never served with petition, notices, or JV‑505; thus deprived of due process and chance to establish paternity/reunification rights | Agency exercised reasonable diligence; Father’s whereabouts were unknown and he had minimal contact | Reversed — remand for evidentiary hearing on Agency’s diligence; prima facie notice failure entitles Father to hearing (best‑interest showing not required at threshold) |
Key Cases Cited
- In re D.R., 39 Cal.App.5th 583 (2019) (agency must use the specific, most‑likely leads to locate a parent)
- Ansley v. Superior Court, 185 Cal.App.3d 477 (1986) (dependency judgment void as to a party deprived of due‑process notice)
- In re DeJohn B., 84 Cal.App.4th 100 (2000) (child welfare agencies must "leave no stone unturned" in locating parents)
- In re Justice P., 123 Cal.App.4th 181 (2004) (distinguishes cases of no effort from those with some reasonable efforts; reasonableness requires follow‑through)
- In re Paul H., 111 Cal.App.4th 753 (2003) (alleged fathers have due‑process right to notice and JV‑505 to assert paternity)
- In re Zacharia D., 6 Cal.4th 435 (1993) (§ 388 is appropriate remedy when lack of notice prevented a parent from asserting rights)
- In re J.W.-P., 54 Cal.App.5th 298 (2020) (alleged fathers have fewer dependency rights but are entitled to notice)
- In re Celine R., 31 Cal.4th 45 (2003) (harmless‑error standard: inquiry whether error led to reasonable probability of a different outcome)
- In re Alyssa F., 112 Cal.App.4th 846 (2003) (improper service under Hague Service Convention can render proceedings void as to the overseas party)