In Re Justice P.
Stephen P. (Stephen), the father of Justice P., Devin P., Stephen M.P., and Hunter P., appeals the termination of his parental rights pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2002, Agency took Justice, seven years old, Devin, five years old, Stephen M.P., three years old, and Hunter, one year old, into protective custody after their mother, Tricia P., was arrested for using a stolen credit card.2
Tricia identified the children‘s father as Stephen and said she believed he was living in Arizona. Stephen and Tricia werе married in June 1995; Tricia said they had separated and she was divorcing him. Agency initiated a parent search for Stephen. Susan G., the maternal grandmother (maternal grandmother) who was living in Arizona at the time, told the social worker that Stephen was released from jail on September 9, 2002. The maternal grandmother subsequently moved to Idaho.
On October 9, 2002, Agency filed dependency petitions on behalf of the children, alleging there was a substantial risk of harm to them because they had been exposed
On October 31, 2002, the court made true findings on the
In anticipation of the upcoming disposition hearing, the social worker rеported that when she searched the Internet for Stephen using his name, there were no results. The worker‘s Internet search using the address listed on Stephen‘s Arizona driver‘s license showed that Stephen had used the address of the maternal grandmother and her husband. The social worker telephoned the maternal grandmother, who said Stephen used the address without permission. On November 7, 2002, the social worker recеived information listing a different Phoenix address (Colter Street) from the parent search. The social worker mailed a parent notification letter to Stephen at that address; the letter stated the four children were in protective custody, listed the date for the next hearing and explained how to have an attorney appointed for him.
At the November 14, 2002 dispositional hearing, the court ordered Triсia to comply with her case plan. The court also made notice findings as to Stephen.
On November 21, 2002, after being notified by postal officials in Phoenix that Stephen was “not known” at the Colter Street address, Agency‘s parent search clerk sent a letter to the Maricopa County Sheriff in Phoenix seeking assistance in locating Stephen. A sheriff‘s employee wrote a note on the letter that an individual with Stephen‘s name and Social Security number was in custody in the Durango Jail and mailed back the letter to the Agency. Apparently, Agency received the letter in early December. The new social worker did not pursue this lead, and as late as April 28, 2003, was reporting to the court that Stephen‘s whereabouts were unknown.
On May 1, 2003, Agency mailed a parent notification letter to Stephen at the Durango Jail. The letter was returned to Agency because Stephen was no longer in custody.
For the upcoming six-month review hearing, Agency recommended services be terminated and a
At the six-month review hearing on May 14, 2003, the court found notice had been given as required by law to all parties except Stephen, whose status at that time was alleged father. Tricia had not enrolled in any of the reunification services offered to her. The court terminated services and set a
At the end of June 2003, Agency prepared a notice of the upcoming
On October 3, 2003, Stephen wrote a letter to the court, saying he “would never [relinquish] my parental rights” and did not understand why the Agency concluded he did not want his children. Stephen said he did not have time to reply earlier or the postage to do so. He also said he had written and attempted to telephone the maternal grandmother at her previous Phoenix address and telephone number, but the letters were returned and the telephone was disconnected.
On October 17, 2003, the court appointed counsel for Stephen and distributed Stephen‘s letter to all counsel.
On December 10, 2003, the court found Stephen to be the presumed father of the children and amended the petitions.
Meanwhile, the court continued the
In January 2004, Stephen telephoned the adoption assessment worker and left a voice mail message requesting contact with the children. Later that month, the worker wrote a letter to Stephen, telling him (1) he could write the children through her, (2) the letters would have to be appropriate, (3) the letters would be given to the children‘s therapist, who would decide whеn they would be shared with the children. In reply, Stephen wrote the worker, stating (1) that he adamantly opposed adoption of his children, (2) Tricia lied and hid the children from him, (3) but for his incarceration, the children would be with him, (4) his release date from prison is August 10, 2005, and while in prison he had completed a parenting class and various trade courses.
On January 26, 2004, Stephen filed a
On February 24, 2004, the juvenile cоurt denied an evidentiary hearing on Stephen‘s
DISCUSSION
Stephen contends the juvenile court erred in denying him an evidentiary hearing оn his
Relevant Law
Due process requires that a parent is entitled to notice that is reasonably calculated to apprise him or her of the dependency proceedings and afford him or her an opportunity to object. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418, 286 Cal.Rptr. 239.) The сhild welfare agency must act with diligence to locate a missing parent. (See, e.g., David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016, 26 Cal.Rptr.2d 586.) Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598-599, 102 Cal.Rptr.2d 109.)
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 prоceedings. (In re Melinda J., supra, 234 Cal. App.3d at pp. 1418-1419, 286 Cal.Rptr. 239; see also Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 317, 70 S.Ct. 652, 94 L.Ed. 865 [“in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights“].)
Under
A
Analysis
Our review of the record shows the court‘s notice findings through the dispositional hearing were sound. Agency, using information supplied by Tricia, instituted a parent search. The social worker searched the Internet and found the address on Stephen‘s Arizona driver‘s license; the social worker followed up and determined the address belonged to the maternal grandmother and Stephen did not have permission to use it. Next, the parent search came up with the Colter Street address for Stephen in Phoenix; this address also was a dead end. That was the state of the parent search for Stephen when the dispositional hearing was held on November 14, 2002. Substantial evidence supports the court‘s notice findings at that time.
After the letter sent to Stephen at the Colter Street address was returned by postal authorities, the parent search clerk wrote to the sheriff in Maricopa County in Arizona for help with the search. A sheriff‘s employee replied that Stephen was in the Durango Jail. The record indicates Agency received this information in early December 2002. It was at this point that Agency effectively abandoned the search for Stephen for five months. Agency made no attempt to notify Stephen at the jail until May 1, 2003, when Stephen was no longer in custody there. The five-month delay in attempting to notify Stephen at the Durango Jail was inexcusable
Accordingly, we will assume for purposes of this appeal that Stephen‘s petition, by setting forth the efforts Agency made or did not make to locate and notify him of these procеedings — including waiting five months to attempt to notify him at the Durango Jail — made a prima facie showing of new evidence sufficient to satisfy the first prong under
In his
Stephen, who reiterates this position on appeal, relies on the following language in Ansley, supra, 185 Cal.App.3d 477, 229 Cal.Rptr. 771:
“[I]t is implicit in the juvenile dependency statutes that it is always in the best interests of a minor to have a dependency adjudication based upon all material facts and circumstances and the participation of all interested parties entitled to notice.” (Id. at pp. 490-491, 229 Cal. Rptr. 771.)
First, we note that Ansley is distinguishable from this case. In Ansley, the social services agency made no efforts to give notice to the father (Ansley, supra, 185 Cal.App.3d at p. 481, 229 Cal.Rptr. 771); here, Agency initially made reasonable searсh efforts, but later did not follow through. The father in Ansley sought to challenge the jurisdiction of the court. (Id. at p. 482, 229 Cal.Rptr. 771.) Stephen is not challenging the court‘s jurisdiction; rather, he is requesting a new disposition hearing be calendared so he can receive reunification services.
Also, Ansley arose in a different procedural context. In Ansley, after two trial judges ruled that the father was entitled to an evidentiary hearing on his
In any event, we do not read the Ansley language nearly so broadly as Stephen does. In effect, Stephen is claiming that as a matter of law any
To us, the language in Ansley is a lofty expression of how the dependency system would work under ideal circumstances, but does not reflect the all too often harsh reality of how these cases proceed. It is not always possible to litigate a dependency case with all parties present. The law recognizes this and requires only reasonable efforts to sеarch 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 рroceedings 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.
The automatic rule Stephen urges on the basis of the Ansley language is not in keeping with
Moreover, when Ansley was decided in 1986, the statutory dependency scheme was different from the current streamlined statutory framework. Under the old legislative scheme, dependency cases sometimes went on for years before parental rights were terminated. The current legislative scheme recognizes the child‘s interest in having a stable and permanent home is paramount once the parents’ interest in reunification is no longer an issue. (See In re Marilyn H. (1993) 5 Cal.4th 295, 310, 19 Cal.Rptr.2d 544, 851 P.2d 826.) It imposes strict deadlines to resolve the child‘s future in a timely fashion; for example, at the 18-month deadline, parent and child are either reunified, or a permanent plan, such as adoption or guardianship, is implemented. (See
On appeal, Stephen argues that in addition to his per se notice violation theory, the record supports a best interests prima facie showing because: (1) he has been “a substantial fixture in the lives of his children“; (2) as the children‘s biological father, he is entitled to the presumption in favor of natural parents absent a showing of parental unfitness; and (3) he would keep all the children together, maintaining the sibling relationships. Agency urgеs us not to consider this appellate argument because Stephen waived it by not raising it below. (See, e.g., In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339, 63 Cal.Rptr.2d 562.) Putting aside the waiver issue, we conclude Stephen cannot prevail on the merits under his “best interests” appellate argument.
Stephen‘s point about being a “substantial fixture in the children‘s lives” is historical information that is relevant to his status as a presumed father, but not to the best interests of his children, who have not seen him since December 2001.
The presumption favoring natural parents by itself does not satisfy the best interests prong of
Finally, the interest in continuing relationships among siblings, which is recognized as an exception to adoption (
In sum, we reject the notion that every
As to the claim that the denial of an evidentiary hearing violated Stephen‘s due process rights to be heard in thesе dependency cases, we have already expressed our disapproval of Agency‘s five-month delay in giving notice to Stephen at the Durango Jail when it had knowledge of his custody in the facility. Nevertheless, Stephen‘s failure to demonstrate prejudice stemming from his delayed notice is dispositive.
In dependency proceedings, due process violations have been held subject to the harmless beyond a reasonable doubt standard of prejudice. (See In re Angela C. (2002) 99 Cal.App.4th 389, 120 Cal. Rptr.2d 922; In re Dolly D. (1995) 41 Cal.App.4th 440, 446, 48 Cal.Rptr.2d 691.)
The length of Stephen‘s prison sentence precluded him from reunifying with the children within the maximum 18-month time limit. That deadline would have occurred in May 2004. Stephen was not scheduled to be released until August 2005, well past the reunification period. We are convinced beyond a reasonable doubt that the delay in notifying him did not prejudice his rights.
DISPOSITION
Judgments are affirmed.
WE CONCUR: HUFFMAN, Acting P.J., and McDONALD, J.