Opinion
Pеtitioner Kern County Department of Human Services (department) petitions for a writ of mandate after respondent Kern County Superior Court (juvenile court) refused to find the department properly noticed a parent of a jurisdictional/dispositional hearing on juvenile dependency supplemental and subsequent petitions (Wеlf. & Inst. Code, §§ 387, 342). 1 The juvenile court believed the department had to serve the dependent child’s father, who was living in Mexico, with notice pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (Hague Service Convention or Convention). The juvenile court also continued the hearing to October 2010 for compliance with the Convention.
Having reviewed the matter, we grant the department’s petition. We conclude the Hague Service Convention does not apply to supplemental and subsequent juvenile dependency proceedings in light of the juvenile court’s ongoing dependency jurisdiction and provided it has previously found proper notice to the parent. Alternatively, assuming arguendo the Convention could apply to supplemental and subsequent juvenile dependency proceedings, we conclude any duty to serve notice under the Convention was discharged in this case by the father’s general appeаrance in the juvenile court after the department filed its subsequent and supplemental petitions.
PROCEDURAL AND FACTUAL HISTORY
In September 2008, the juvenile court exercised its dependency jurisdiction over 23-month-old M.M., adjudged him a juvenile dependent, and removed him from parental custody. The dependency arose out of his parents’ substance abuse and dоmestic violence. The child’s father made a general
Indeed, a year later, both parents so participated and made such progress towards alleviating the causes for M.’s out-of-home placement that the juvenile court returned the child to parental custody subject to family maintenance services. The court also continued its dependency jurisdiction,
The department, however, redetained M. in Decеmber 2009 based on injuries his half sibling received, allegedly caused by the father and related to his drug relapse. The department consequently filed a supplemental petition (§ 387) to once again remove M. from parental custody and a subsequent petition (§ 342) to raise a new ground for the juvenile court’s jurisdiction over M., namely child abuse (§ 300, subd. (a)).
The father attended a December 21, 2009, detention hearing on the subsequent and supplemental petitions. He and the mother denied the petitions’ allegations and waived time. The court ordered the child detained and concluded by setting the matter for a February 2, 2010, jurisdictional/ dispositional hearing on both petitions.
At the time of the Deсember 2009 detention hearing, the father was in custody, having been arrested due to the harm suffered by M.’s half sibling. The father expected to be deported to Mexico after trial. However, the charges were soon dismissed. On December 31, 2009, the father was released from custody and voluntarily agreed to be deported to Mexico.
On Januаry 11, 2010, the department served father notice of the February 2, 2010, jurisdictional/dispositional hearing by first-class mail, pursuant to statute, at his last known address and the Lerdo Detention Facility in Kern County. Within a matter of days, the department also initiated a due diligence search for him.
In February 2010, a department social worker located the father in Mеxico and had a telephone conversation with him. During the conversation, the father provided his street address in Mexico. The department, in March 2010, used the Mexico address to send the father notice, in Spanish, of the jurisdictional/dispositional hearing, by international registered mail, return receipt requested. By that point, the juvenile сourt had continued the jurisdictional/dispositional hearing to a May 2010 date. The notice of hearing
The father was not present at the May hearing. The court trailed the matter to June 2. The father was also absent from the June 2 hearing.
According to a reporter’s transcript of the June 2 hearing, the court previously continued the jurisdictional/dispositional hearing, at least in part, for the departmеnt to provide proper notice to the father under the Hague Service Convention. Although it was once believed that service by international registered mail, return receipt requested, satisfied Mexican law and therefore the Convention, the father’s attorney apparently had argued that was no longer the case. Cоunsel cited a federal district court decision, OGM, Inc. v. Televisa, S.A. (C.D.Cal. 2009) 2009 U.S.Dist. Lexis 33409.
At the June hearing, the department claimed the father received proper notice under California law and that service of notice under the Hague Service Convention was not required. According to the department, the juvenile court already had jurisdiction by virtue of the fathеr’s previous general appearance in the dependency proceedings. The department relied on a very recent dependency case regarding the Convention,
In re Jennifer O.
(2010)
The father’s attorney oрposed the department’s request. He argued the department’s supplemental and subsequent petitions were akin to original petitions (§ 300) in that the code requires notice for supplemental and subsequent petitions according to the service requirements for an original petition (§§ 290.1, 290.2, 291). The attorney relied on decisions which held the Hague Service Convention must be complied with when serving an original petition and notice of jurisdictional and dispositional hearings on a parent who is a foreign national and resident of a signatory country, such as Mexico.
(In re Jorge G.
(2008)
DISCUSSION
The Hague Service Convention is “intended to рrovide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.”
(Volkswagenwerk Aktiengesellschaft v. Schlunk
(1988)
Volkswagenwerk
held “[t]he only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part of service.”
(Volkswagenwerk, supra,
In a dependency proceeding, “parents are not served with process in the usual sense” although they are entitled tо notice and an opportunity to be heard.
(Jennifer O., supra,
Thus, a preliminary issue exists as to whether the Hague Service Convention applies at all to dependency proceedings.
(Jennifer O., supra,
Nonetheless, as the
Jennifer O.
court observed: “Neither
Alyssa F.
nor
Jorge G.
suggested that the Hague Service Convention procedures should be applied to еvery notice of hearing served in a dependency action or that subsequent notices must be served with the formality of the petition and notice of jurisdictional/dispositional hearing.”
(Jennifer O., supra,
In holding that the Convention does not apply to notices of status review hearings, the
Jennifer O.
court offered the following additional analysis. It cited the lack of authority for the proposition that Convention procedures must be followed whenever any judicial notice of any kind is served on a parent residing outside the United States.
(Jennifer O., supra,
The
Jennifer O.
court then turned “for guidance to the general rule: a court acquires jurisdiction over a party by proper service of process or by that party’s general appearance; once either occurs, jurisdiction continues throughоut the action and service of subsequent pleadings and papers can be by less formal means.”
(Jennifer O., supra,
184 Cal.App.4th at pp. 547-548.) It referenced
In re Larry P.
(1988)
The reasoning of
Jennifer O.
applies with equal force here even though this case involves service of notice of a jurisdictional/dispositional hearing on both subsequent and supplemental petitions. A subsequent petitiоn is filed when new, independent allegations of dependency can be made after the juvenile court has already declared a child a juvenile dependent. (§ 342; see
In re Barbara P.
(1994)
These principles are critical in this case because the juvenile court exercised its dependency jurisdiction over the child and found both parents received proper notice of the dependency proceedings in September 2008. In other words, the juvenile court already had dependency jurisdiction over the child and personal jurisdiction as to the father when the department, in December 2009, filed its subsequent and supplemental petitions. Thus, we first conclude the Hague Service Convention did not apply once the
Alternatively, assuming arguendo that the Hague Service Convention could apply notwithstanding the juvenile court’s existing and ongoing jurisdiction over the child, we nevertheless conclude compliance with the Convention was unnecessary undеr the facts of this case. The father attended the December 2009 detention hearing on the subsequent and supplemental petitions at which the juvenile court accepted both parents’ denials of the petitions’ allegations and set the date for the jmisdictional/dispositional hearing. There can be no doubt on this undisputed reсord that, before his deportation and return to Mexico, the father made a general appearance on the subsequent and supplemental petitions in the juvenile court. It is well established that a party’s general appearance is the equivalent to personal service of summons (Code Civ. Proc., § 410.50, subd. (a)). Moreover, in the dependency context, a parent’s general appearance at a detention hearing will be considered a waiver of the parent’s right to challenge adequacy of notice of the proceedings.
(Jennifer O., supra,
As previously mentioned, the
Jennifer O.
court relied on the parent’s general appearance in the dependency proceeding before it, in holding the Hague Service Convention did not apply.
(Jennifer O., supra,
184 Cal.App.4th at pp. 548-550.) We also observe that in both
Alyssa F.
and
Jorge G.,
the parents lived outside of the United States when the juvenile court exercised its dependency jurisdiction and ordered the children removed from parental custody. In
Jorge G.,
the parents were in Mexican custody.
(Jorge G., supra,
Accordingly, we conclude because the father made a general appearance at the December 2009 detention hearing on the subsequent and supplemental petitions, compliance with the Hague Service Convention was unnecessary and the notice provided pursuant to California dependency law was proper.
The petition for writ of mandate is granted. The clerk/administrator of this court is herеby ordered to issue a writ of mandate directing the juvenile court to vacate its June 2 ruling that proper notice was not provided to the father, enter an order that notice was provided to him as required by law, and proceed forward on the subsequent and supplemental petitions.
Gomes, J., and Hill, J., concurred.
On August 10, 2010, the opinion was modified to read as printed above.