In re DANIEL F., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY v. DANIEL F. et al.
A160929
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 5/24/21
CERTIFIED FOR PARTIAL PUBLICATION* (Alameda County Super. Ct. No. JD-030689-01)
In the unpublished portion of our opinion, we affirm the juvenile court‘s order denying Mother‘s oral request to continue the permanency planning hearing (
In the published portion of our opinion, we reverse the juvenile court‘s order denying Father‘s petition under
A. Section 300 Petition and Detention
On January 29, 2019, the Agency filed a dependency petition alleging that Daniel, three and a half years old at the time, came within the juvenile court‘s dependency jurisdiction under
The Agency further reported that Mother and Daniel were transient and occasionally slept at the home of Mother‘s husband, I.Z. Monica M., Daniel‘s adult sibling, told the Agency that Mother did not have contact information for Father but believed he resided in Mexico. At the detention hearing, the juvenile court ordered Daniel detained and set the matter for a jurisdiction and disposition hearing.
B. Jurisdiction and Disposition
In its jurisdiction and disposition report, the Agency recommended that Daniel be declared a dependent of the juvenile court and remain in out of home placement, with family reunification services provided to Mother. The Agency further recommended supervised visitation until Mother obtained substance abuse treatment and demonstrated the ability to live sober. Father was again listed as Daniel‘s alleged father with whereabouts unknown.
The Agency reported Mother‘s child welfare history, including referrals it began receiving in 2001 alleging general neglect of Daniel‘s siblings. At the time of the report, Mother had five other minor children who were not in her care. Mother admitted using marijuana and cocaine, and she indicated willingness to participate in alcohol testing and substance abuse treatment.
In an addendum report, the Agency reported that Daniel expressed anger towards his family and one of the foster parents when a visit with his sisters ended. The foster parents reported increasing tension between Daniel and their son.
The jurisdiction and disposition hearing was continued twice during February and March 2019 due to Mother‘s continued hospitalization after the car
At the March 20, 2019, contested jurisdiction and disposition hearing, the juvenile court declared Daniel a dependent and found that Mother had made no progress towards alleviating or mitigating the causes necessitating placement. The court ordered that reunification services be provided to Mother.
C. Initial Contact with Ana N.
The Agency identified Father‘s sister, Ana N., as the only paternal relative among potential relative caretakers. It appears from the record that the Agency first began trying to contact her in April 2019. A social worker called and left messages for Ana N. on April 3, 26, and May 7, 2019. The social worker finally spoke with Ana N. on May 9, 2019. According to the Agency, when Ana N. was asked about possible placement of Daniel, she stated “she didn‘t think that her family would be able to have placement but she would follow up with her husband and get back to the undersigned. [Ana N.] shared that she had only met Daniel once when he was born.” The social worker followed up with Ana N. on May 16, 2019, “and left a voicemail message requesting a call back to discuss her decision regarding placement.”
D. Absent Parent Search Request
The Agency reported that on February 6, 2019, a child welfare worker had submitted an “Absent Parent search request” for Father. However, when the Agency conducted a follow up inquiry on August 28, 2019, it was informed that the initial request “wasn‘t received or processed.” The Agency resubmitted the search request that same day.
E. Agency‘s Section 388 Petition
On September 3, 2019, the Agency filed a
In its six-month status review report, the Agency reported that Mother had not cooperated with her case plan, which included drug testing and participation in family therapy and substance abuse services; nor had she enrolled or participated in a substance abuse treatment program. Mother did not maintain consistent contact with Agency staff, did not regularly attend scheduled meetings, and missed visits with Daniel. Daniel was doing well in his foster placement, where he had been since January 2019. Mother‘s inconsistent visitation had been harmful to Daniel, as he was distressed and felt sad and conflicted about his relationship with his biological and foster families.
At the six-month review hearing in September 2019, Father was designated “not present,” and Mother appeared through counsel. A contested hearing and a hearing on the Agency‘s
In an addendum report, the Agency reported that Father‘s whereabouts remained unknown, despite reasonable efforts to locate him. The Agency attached a “Declaration of Search Efforts,” executed in September 2019, stating that Father‘s last known address was in Mexico, that his precise whereabouts were unknown, and that the Agency had searched various government and other databases of records for California and Alameda County, none of which provided sufficient information to locate Father.2
At an October 2019 hearing, the juvenile court found that the allegations of the Agency‘s
G. Due Diligence Efforts and Hearing
In describing its efforts to locate Father, the Agency first noted that there was no father named on Daniel‘s birth certificate, and that Mother had
Mother further stated that she married I.Z. in 2000, “but that they are separated, and [I.Z.] is not the minor‘s biological father.” I.Z. likewise told a child welfare worker in January 2019 that he was not Daniel‘s father.
Believing I.Z. might legally be the presumed father of Daniel, the Agency left a message with I.Z.‘s adult daughter and sent I.Z. a “JV-505 (Declaration of Paternity) form and letter,” but he did not respond.
In November 2019, an Agency worker spoke with Father‘s sister, Ana N., who provided a telephone number and date of birth for Father and said he was living in Mexico City “with no stable address.” The Agency worker “left telephone messages for [Father] on 11/15/2019 and 11/18/2019” but received no response.
In December 2019, the Agency filed a second declaration of search efforts for Father, stating that his whereabouts remained unknown, and that the same databases as before were searched. An Oakland address was obtained for a person matching Father‘s name and date of birth, and the Agency sent a letter to that address in November 2019, but there was no response.
A due diligence hearing was held in early January 2020. The juvenile court found that the Agency had exercised due diligence in searching for Father. The court stated that Father may be served by publication notice in the California Bay Area and in Mexico City.
H. Section 366.26 Reports and Further Due Diligence
In its first of several
The juvenile court held a
In its March 2020 memorandum report, the Agency continued to recommend that parental rights be terminated and that Daniel be placed for adoption. Mother was late for supervised visits in February 2020 and did not attend Child and Family Team meetings in February and May 2020 during which post-adoption visitation was discussed.
In May 2020, the Agency filed a due diligence memorandum asking that the matter be continued for 45 days in order to complete a search for Mother. The Agency reported that Mother failed to appear for a scheduled visit and had not kept in contact since mid-March 2020.
The Agency also reported that on May 12, 2020, a social worker spoke with Father‘s sister, Ana N., who “had the father called the undersigned.” At last, the Agency made telephone contact with Father, who provided the Agency with an address in Mexico and a telephone number where he could be reached. Father was “opposed to adoption, and wants to obtain custody of his son. He requested an attorney.”
A hearing was held in May 2020, during which the Agency asked the juvenile court to schedule the matter for a permanency planning hearing. Father‘s appointed counsel appeared and requested time to discuss the matter with his client. The court continued the matter and advised Father to file a request to change court order on Judicial Council form JV-1803 if he wished to be heard before the
The Agency filed another
A
I. Father‘s Section 388 Petition
Father‘s counsel filed a
J. Hearings on Section 366.26 and Father‘s Section 388 Petition
On September 1, 2020, both Mother and Father finally appeared before the juvenile court. Mother‘s new counsel, Kelly Pretzer, orally requested that the matter be continued on the ground there was outstanding discovery for
“visitation logs, interactions between Daniel and the family.” Pretzer explained that on the night before the hearing, she sent a copy of the continuance request to the juvenile court‘s email address, but the document was rejected because the bottom portion of the file was cut off. According to Pretzer, the discovery request was made by Mother‘s former counsel in mid-August 2020, and the Agency had been unable to respond in time. Pretzer claimed she could not put together a defense until reviewing the discovery. Daniel‘s counsel expressed concern that the
As to Father‘s
The juvenile court then found by clear and convincing evidence that Daniel was adoptable and made adoption his permanent plan. The court further found that biological paternity had not been established and that I.Z.
“is not the father of [Daniel] and is not a party to this case.” The court terminated the parental rights of Mother, Father, and “any unknown father.”
DISCUSSION
A. Mother‘s Appeal
Mother contends the juvenile court abused its discretion in denying her oral motion to continue the
A continuance of any dependency hearing “shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.” (
We review the juvenile court‘s denial of a continuance motion for abuse of discretion and find none here. (In re F.A. (2015) 241 Cal.App.4th 107, 117.) Mother‘s counsel made no showing of good cause for the oral nature of her continuance request, and her attempted filing of a written motion the night before the hearing, even if not rejected for technical reasons, would have been untimely. (
Furthermore, even if we assumed there was good cause for an oral motion, the juvenile court did not abuse its discretion in finding an absence of good cause for the continuance itself. In considering the child‘s interests,
substantial weight must be given to a child‘s needs for stability and prompt resolution of custody status. (
B. Father‘s Appeal
As a threshold matter, we reject the Agency‘s contention that Father forfeited his claim of notice error by not objecting at hearings held in May and July 2020. Besides the fact that these were abbreviated proceedings in which the matters discussed were scheduling and a further continuance, the Agency relies solely on the general rule that a party is precluded from urging for the “first time on appeal” a point “not raised in the trial court.” Here, Father clearly raised his claim of notice error in his
favor of its sufficiency [citation] and a hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order.‘” (R.A., supra, 61 Cal.App.5th at p. 836.) In determining whether a parent has made a prima facie showing under
Liberally construed, Father‘s allegation that he was not given “proper” notice of the proceedings challenges the Agency‘s diligence in attempting to locate and serve him. A
Although alleged fathers, as distinguished from presumed fathers, have fewer rights in dependency proceedings and are not entitled to custody, reunification services, or visitation (In re J.W.-P. (2020) 54 Cal.App.5th 298, 301 (J.W.-P.)), they nonetheless possess due process rights to be given notice
and an opportunity to appear, to assert a position, and to attempt to change their paternity status (In re Paul H. (2003) 111 Cal.App.4th 753, 760 (Paul H.)). When an alleged father claims that a lack of notice of the proceedings caused him to fail to achieve presumed father status prior to expiration of the reunification period, his remedy is to file a
There is no due process violation where a child welfare services agency has exercised reasonable diligence to provide notice to a parent whose whereabouts are unknown. (Justice P., supra, 123 Cal.App.4th at p. 188.) On this score, reasonable diligence “denotes a thorough, systematic investigation and an inquiry conducted in good faith.” (Ibid.) It includes searching not only “standard avenues available to help locate a missing parent,” but “specific ones most likely, under the unique facts known to the [Agency], to yield [a parent‘s] address.” (D.R., supra, 39 Cal.App.5th at p. 591, citing In re Arlyne A. (2000) 85 Cal.App.4th 591, 599 [agency failed to search “most likely” avenues, e.g., calling directory assistance of city where parents reportedly lived and obtaining police report that showed where father worked]; see also Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481 (Ansley) [no evidence in record that agency attempted to serve father with notice of proceedings].) Thus, in D.R., the court found a violation of due process where the child welfare services agency “searched almost two dozen United States government databases, well aware Father had been deported to Mexico,” but ignored the “most likely means of being able to actually identify Father and gain his contact information to notify him,” such as asking for help from his children who were in contact with him through social media. (D.R., supra, 39 Cal.App.5th at pp. 591–592.)
Several questions emerge from this record of events. When did Ana N.‘s identity become known to the Agency? Could it have contacted her prior to April 2019, or better yet, prior to the jurisdiction and disposition hearing? During their initial conversations in May 2019, was Ana N. asked about Father‘s location and contact information, or was this only raised in November 2019, after the case had already proceeded to the permanency planning stage?4 Without further clarification, it appears, as in D.R., that this is “a case where there were leads from [a] cooperative family member,” but the Agency searched only standard avenues without taking advantage of
the “‘specific ones most likely, under the unique facts known to the [Agency],‘” to yield Father‘s contact information. (D.R., supra, 39 Cal.App.5th at p. 591.)
The Agency points out it began a formal investigation of Father in early February 2019 when it submitted an absent parent search request. However, for reasons unexplained, this request “wasn‘t received or processed,” and the Agency does not elaborate on the circumstances of this lapse. Nor does the Agency explain why it failed to follow up on this request for more than six months.
Meanwhile, the Agency‘s due diligence efforts were limited to databases of records for California and Alameda County, even though the Agency was told by Mother, Monica M., and Ana N. that Father resided in Mexico. The Agency could have contacted the Mexican consulate or the Mexican social services agency Desarrollo Integral para la Familia (DIF) for assistance to locate or serve Father, especially after the Agency obtained his date of birth and telephone number from Ana N. in November 2019. (See, e.g., In re A.G. (2017) 12 Cal.App.5th 994, 998 [agency requested DIF evaluate father‘s home in Mexico and provide classes]; In re R.L. (2016) 4 Cal.App.5th 125, 133, 147–148 [agency requested DIF assistance through international liaison]; In re Rosalinda C. (1993) 16 Cal.App.4th 273, 276 [agency requested Mexican consulate and DIF to make home visit in Mexico].)
In summarily denying Father‘s petition, the juvenile court observed that Father “has had practically no relationship at all, from the Court‘s understanding, with the child.” But the mere fact that Father was in Mexico throughout the proceedings does not indicate he and Daniel had no relationship. Father told the Agency in or around May or July 2020 that he had not had contact with Daniel in “over a year.” By implication, Father may
have been in contact with Daniel during these very proceedings. More importantly, Father said the reason he was not in contact with Daniel for so long was because Mother “had not provided him any information about Daniel‘s whereabouts and what was happening with him.” We see no indication in the record as to whether the Agency determined if Mother was preventing Father from having contact with Daniel.
The Agency contends that Father‘s petition was properly denied because he never elevated his status to that of presumed father, and thus, he had no right to seek services or custody. We cannot agree.
It is undisputed that the Agency never provided Father with Judicial Council form JV-505 (form JV-505), which allows an alleged father to indicate his position with regard to paternity, including by requesting that the juvenile court enter a judgment of paternity. (Paul H., supra, 111 Cal.App.4th at p. 761.) Where one or more men are identified as an alleged father, “each alleged father shall be provided notice” of the dependency proceedings and the potential for termination of parental rights, and JV-505 “shall be included with the notice.” (
Of significance here, the inquiry into alleged fathers must occur “[a]t the detention hearing, or as soon thereafter as practicable.” (
The
The court in Justice P. reached a different conclusion, distinguishing Ansley as involving “no efforts” by the child welfare services agency to give notice, while in the case before it, the “Agency initially made reasonable search efforts, but later did not follow through.” (Justice P., supra, 123 Cal.App.4th at p. 190.) Rejecting the argument that any
We believe this case is more akin to Ansley and R.A. because, at least on the face of the petition and the current record, Father made a prima facie showing that the Agency made little to no effort to give him notice until it was poised to terminate parental rights. As we have recounted, the Agency‘s February 2019 absent parent search request was a nullity that went undiscovered for more than six months. Despite being in contact with Father‘s sister since May 2019, the Agency did not appear to ask Ana N. for Father‘s contact information until November 2019, whereupon she provided it and the Agency left two messages for him.5 The Agency‘s due diligence declarations, executed in September and December 2019, showed that searches were never
The Agency contends any error was harmless. Applying the reasonable probability of prejudice standard (In re Celine R. (2003) 31 Cal.4th 45, 59–60), we conclude otherwise. Notice of a relatively inconsequential hearing was not at issue here. Rather, Father was deprived critical notice of the
dependency proceedings and his rights as an alleged parent until just before the hearing in which parental rights were subject to termination. Meanwhile, there was minimal information in the record regarding Father‘s circumstances and background, including why he was in Mexico, whether he is capable of returning to the United States, and the nature of his and his relatives’ relationships with Daniel. “We cannot assume, based on this dearth of information, that had [Father] established his paternity and been appointed counsel, he would not have received reunification services” or otherwise been able to assert and protect his parental rights. (Paul H., supra, 111 Cal.App.4th at pp. 761–762; see J.W.-P., supra, 54 Cal.App.5th at p. 307.)
The Agency nevertheless maintains any error was harmless because it is unlikely that Father can establish paternity. We disagree. That there was no named father on Daniel‘s birth certificate simply demonstrates an uncertainty, but there appears nothing improbable about Father‘s potential to establish paternity. Mother consistently told child welfare workers that Father, not I.Z., was the biological father of her son (who notably bears the same name as Father). There is no indication that Ana N. ever disputed being the child‘s aunt, and she claimed to have met Daniel when he was born. When Father was finally contacted in May 2020, he did not deny parentage, but immediately expressed his opposition to adoption and sought appointment of counsel to advocate for him.
The Agency contends that I.Z. is the presumed father of Daniel pursuant to
reported that they were separated at an unspecified time. It remains unclear if Mother and I.Z. were
For the foregoing reasons, we conclude Father was entitled to an evidentiary hearing on his
DISPOSITION
The order of the juvenile court issued on September 1, 2020, is affirmed in part and reversed in part. We affirm the denial of Mother‘s request for a
continuance of the
Fujisaki, Acting P.J.
WE CONCUR:
Jackson, J.
Wiseman, J.*
A160929
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In re DANIEL F., a Person Coming Under the Juvenile Court Law (A160929)
Trial Court: Alameda County
Trial Judge: Honorable Tara Flanagan
Attorneys:
First District Appellate Project, Jacob I. Olson; for Plaintiff and Appellant (Mother) Appellate Defender‘s Inc. Pamela Rae Tripp for Plaintiff and Appellant (Father).
Office of County Counsel, Alameda County; Donna R. Ziegler, County Counsel, Samantha Stonework-Hand, Senior Deputy County Counsel, Hannah L. Reed, Associate County Counsel.