When does an alleged biological father become a “party” in a dependency proceeding? We answer this question, as well as due process inquiries, in the context of a minor father who has failed to personally assume any responsibility for his child. Here, appellant Michael U. became named as the alleged birth father of Emily R., the subject of already ongoing dependency proceedings. The juvenile court entered orders of detention, jurisdiction, disposition, and review; the court additionally made findings at several junctures determining sufficient efforts were made to notify appellant, eventually finding notice by publication adequate. Appellant claims that the proceedings violated his due process right to notice and that the court erred in failing to sua sponte appoint him a guardian ad litem before he appeared in the action. We affirm.
Factual and Procedural Background
Appellant was bom in June 1980. His alleged daughter, Emily R., was bom in December 1996. Appellant thus was 15 years old when he was sexually involved with Emily’s mother, Carmen D. Carmen originally identified Brooks R.
On January 8, 1997, one-month-old Emily was placed in protective custody after being found home alone without adult supervision. Two days later, the Kern County Department of Human Services (DHS) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300,
At the continued jurisdictional hearing on May 6, 1997, the court found, based on paternity testing, that Brooks R. was not Emily’s father. The court ordered Emily removed from the home of Brooks R.’s parents and placed in foster care.
According to a social study dated May 16, 1997, and filed with the court on May 20, 1997, Carmen indicated (for the first time) that appellant was the father of Emily.
Appellant did not attend the dispositional hearing on May 20, 1997, at which the petition was amended to reflect appellant as the alleged father. The court found that the whereabouts of appellant were unknown and that reasonable efforts had been made to locate and notify him. The court adopted the recommendations of the social worker denying appellant reunification services, as he was only an alleged father and had not sought to establish paternity.
A social study prepared by social worker Miriam Ocampo and dated November 7, 1997, stated appellant resided at “[street No.] Jasmine ST. Apt 4E, Delano, CA 93215”; to this address, Ocampo sent a notice by certified mail on November 6, 1997, notifying appellant of the upcoming review hearing. The report also set forth: “The alleged father of the minor, Emily [R.], Michael [U.], currently resides in Delano, California. Mr. [U.] has not had any contact or visits with the minor, nor has he requested visitation. Mr. [U.] has stated he wishes not to be involved in this matter.”
On December 16, 1997, the court held a six-month review hearing. Appellant was not present. When describing the efforts made to contact appellant, Ocampo remarked that a hearing notice had been sent but no receipt received. She did not state that she had spoken with appellant. The court found that reasonable efforts to notify appellant had been made and adopted the recommendation of the social worker that Emily’s placement continue as appropriate.
A social study dated June 4, 1998, again listed appellant’s address as that on Jasmine Street in Delano. Ocampo indicated that a hearing notice was sent to appellant by certified mail at the Jasmine Street address on June 3, 1998, notifying him of the 12-month review hearing on June 15, 1998. Appellant did not attend. Ocampo told the court that she had not received a receipt from appellant regarding the hearing notice. The court found that reasonable efforts to notify appellant had been made.
Nor did appellant attend the July 8, 1998, hearing to contest DHS’s report and recommendations. Again, Ocampo informed the court that DHS had sent appellant a hearing notice by certified mail but that no receipt had been received. The court found that DHS had made reasonable efforts to notify appellant of the hearing. A section 366.26 permanency planning hearing was set for November 5, 1998.
On October 22, 1998, DHS filed an ex parte application requesting a continuance of the section 366.26 hearing because DHS had been “unable to locate and/or effect service of notice upon [appellant]” concerning the section 366.26 hearing. According to the supporting declarations, (1) attempts to serve appellant at the Jasmine Street address in Delano on September 4, 1998, and October 5, 1998, and at an address on Princeton Avenue in Bakersfield on October 21, 1998, had been unsuccessful
Publication of notice of the section 366.26 hearing to be held on January 12, 1999, was made on November 7, 14, 21, and 28, 1998, in The Daily Report, a newspaper of general circulation in Kern County, California.
At the section 366.26 permanency planning hearing on January 12, 1999, appellant was again not present. The court found that proper notice by publication had been made, and that appellant’s whereabouts were unknown. The hearing was continued to February 2, 1999, March 2, 1999, March 23, 1999, April 8, 1999, and finally April 27, 1999.
In the meantime, it was on April 23, 1999, when he ran into, Carmen D. at a retail store, that appellant claims he first became aware of the proceedings.
In April 1999, appellant was working 46 hours a week at a shipping company, was able to support himself and was maintaining an apartment. He also taught Sunday school and belonged to a gospel recording group. Given his strong religious convictions, appellant was considering attending a Bible college. Appellant was willing and able to care and provide a good home for Emily if paternity testing established that he was her father.
Appellant attended his first hearing on April 27, 1999. The court appointed appellant counsel, who promptly requested a continuance to investigate whether appellant had received adequate notice of the proceedings. Counsel explained to the court that she was not prepared to go forward or cross-examine the social worker. The court denied the requested continuance. Counsel for appellant also requested paternity testing for appellant. The court heard evidence on the adoptability of Emily (and her three half siblings) and continued the matter for further hearing.
On the ground of insufficient notice, counsel for appellant filed a motion on May 7, 1999, to set aside the dispositional finding that appellant would not receive reunification services. On May 11, 1999, counsel for appellant filed a request for modification pursuant to section 388 based on changed circumstances and an ability to care for Emily, sought to set aside the court’s order setting a section 366.26 hearing, and requested that the court order family maintenance services for appellant.
On May 18, 1999, appellant attended the continued hearing on the section 366.26 matter and Carmen D.’s section 388 motion. Counsel for appellant again requested paternity testing. The matter was continued to May 21, 1999.
Appellant attended the May 21, 1999, hearing, at which the court took the section 388 matter under submission and again continued the section 366.26 matter. The court requested further briefing on the issue of lack of notice to appellant.
Counsel for appellant filed additional points and authorities on May 24, 1999,
On June 11, 1999, the court denied both appellant’s and Carmen D.’s section 388 petitions. On July 9, 1999, the court summarily denied appellant’s motions to set aside the dispositional findings, to dismiss the petition pursuant to section 390, and to modify previous orders pursuant to section 385. The court found appellant’s motion to establish paternity moot.
Appellant filed a notice on August 9, 1999, appealing the July 9 orders.
Discussion
I.
Due Process
Appellant claims the trial court erred in denying his motion to set aside the dispositional findings for lack of notice. According to appellant, even as a minor, his due process rights were violated because he had no actual notice of the proceedings and DHS failed to exercise due diligence in notifying him.
“Since the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard. [Citations.]” (In re B. G. (1974)
“But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, [citations], or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.” (Mullane v. Central Hanover Tr. Co., supra,
The United States Supreme Court “has not hesitated to approve of resort to publication as a customary substitute . . . where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, 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. [Citations.]” (Mullane v. Central Hanover Tr. Co., supra,
In Mullane v. Central Hanover Tr. Co., supra,
An alleged father in dependency or permanency proceedings does not have a known current interest because his paternity has not yet been established. Thus, when the address of an alleged father is unknown and cannot be determined with due diligence, notice by publication is sufficient for due process.
In In re B. G., supra,
Relying on In re B.G., supra,
Appellant also claims that the representations of DHS concerning its attempts to serve appellant with notice lack accuracy, thereby casting doubt upon the reasonableness of the agency’s actions. Not only are these credibility issues for the trial court to determine (see People v. Huston (1943)
Because appellant was a minor at the time DHS determined he was an alleged father and because DHS knew that his parents were hostile to the proceedings, argues appellant, notifying him by way of his parents was insufficient. Instead, appellant asserts DHS was required to provide him with actual notice. This argument is unpersuasive because, for purposes of due process, actual notice does not require actual receipt or actual knowledge; notice by mail or other means reasonably calculated to provide actual notice is sufficient. (See Tulsa Professional Collection Services v. Pope, supra, 485 U.S. at pp. 490-491 [108 S.Ct. at pp. 1347-1348]; see also Mennonite Board of Missions v. Adams, supra, 462 U.S. at pp. 799-800 [103 S.Ct. at pp. 2711-2712].)
In any event, DHS did more than attempt to notify appellant “by way of his parents.” DHS sent notices addressed to appellant at his parents’ house because that was his last known address. DHS also sent notices to addresses on Jasmine
We find no violation of appellant’s due process right to notice. Because DBS’s efforts were reasonably calculated under the circumstances to apprise appellant of the proceedings, substantial evidence supports the trial court’s findings concerning proper notice by mail and by publication. The trial court did not err in denying the motions to set aside the dispositional findings, to dismiss the petitions and to modify the orders.
Appellant’s reliance on Jeffrey S. II v. Jeffrey S. (1977)
The conclusion we reach is’tempered by appellant’s inquiry notice that he may have fathered a child as a result of his sexual relationship with Carmen D. As the California Supreme Court explained: “While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the father’s failure to ascertain the child’s existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any ‘opportunity to develop that biological connection into a full and enduring relationship.’ (Adoption of Kelsey S. [(1992)
Moreover, “only a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services.” (In re Zacharia D., supra,
Appellant was, and according to the record on appeal still is, only an alleged father with no right to reunification services. Although appellant had a window of opportunity to assume a parental role, that time had long since passed without appellant asking the woman with whom he had sexual relations whether he had fathered a child. Even if appellant could establish that he is Emily’s biological father, he would not achieve the status of a presumed father because the period for offering reunification services had expired.
“[T]o be declared a presumed father [appellant] must first show he has assumed parental responsibilities for the minor. A parent, by definition, is someone who protects, guards, and nurtures a child, physically and emotionally. Equally obvious is that a child cannot parent a child. . . .
“ ‘Remember Horton the elephant? One day he stumbles upon Mayzie, a bird who has no interest in hatching her egg. After coaxing Horton to mount a tree and sit upon her nest, she vanishes. As events unfold in Dr. Seuss’s whimsical Horton Hatches the Egg, Horton sits resolutely,unbudged by jeers, inclement weather or nasty humans, who cart him off, tree and all, to be a sideshow in a circus. When Mayzie happens by Horton’s tent and sees that most of the work is done, she demands her egg back. Just then, the egg cracks open and out pops a tiny elephant with wings. Horton triumphantly returns home to cheers with his baby. It’s perfectly clear to all (save Mayzie) who the real parent is.
“ ‘. . . [S]mall children still love [this story]. That’s because the Mayzie vs. Horton dustup affirms what they already know: real parents are people who are dedicated and unshakably there for you, day in and day out. Period. In their limited world view, the parent-child connection is not spun from DNA. Rather, it’s woven with the mundane strands of everyday life, the countless gestures, large and small, that repeatedly reaffirm: I see you, I love you; I am yours, you are mine.’ ” (In re Ariel H. (1999)73 Cal.App.4th 70 , 74-75 [86 Cal.Rptr.2d 125 ], quoting Smolowe, Baby Knows Best: Parenthood is Made of More Than Genetic Material (Aug. 17, 1998) Time, at p. 66.)
While appellant deserves commendation if it is true he has made strides toward becoming a responsible adult, the dependency proceedings at issue were simply too far advanced by the time appellant appeared.
II.
Guardian Ad Litem
Appellant argues that the court erred in failing to appoint a guardian ad litem to protect his interests.
“When a minor . . . is a party, that person shall appear . . . by a guardian ad litem appointed by the court in which the action or proceeding is pending, . . . .” (Code Civ. Proc., § 372, subd. (a), italics added.) “When a guardian ad litem is appointed, he or she shall be appointed as follows: [^] • • • [11] (b) If the minor is the defendant, upon the application of the minor, if the minor is of the age of 14 years, and the minor applies within 10 days after the service of the summons, . . . or if the minor neglects to apply, then upon the application of a relative or friend of the minor, or of any other party to the action, or by the court on its own motion.” (Id., § 373.) Generally, a trial court has the discretion to accept or deny an application for appointment of a guardian ad litem. (In re Marriage of Caballero (1994)
As an alleged father in a dependency proceeding, however, appellant was not a party to the proceedings until he appeared and asserted a position. Until that time, he was simply an “interested person” entitled to notice of the proceedings. Because appellant was not a party to the action, which is a prerequisite to the court’s authority under the statute, the court had no duty to appoint a guardian ad litem. (See In re Christina B. (1993)
An analogous situation arises in probate proceedings where people potentially interested in a decedent’s estate are entitled to notice. In that context, the California Supreme Court has held that creditors who do not enter an appearance in probate court are not entitled to notice of an appeal because they are not parties to the action. (See Lilienkamp v. Superior Court (1939)
This explanation applies equally well to dependency and permanency proceedings involving an alleged father who, like a creditor in a probate proceeding, is an interested party entitled to notice. Although the name of the alleged father generally appears on the papers filed with the court, the alleged father has the option of appearing. Notice alone does not make him a party.
Interpreting the word “party” to require an appearance is especially appropriate where an alleged parent is involved in dependency and permanency proceedings because the issues are necessarily fact-specific. It would be impracticable for a guardian ad litem to protect the rights and the interests of an alleged parent when the guardian ad litem has not even met that alleged parent and, consequently, does not know his desires or current life circumstances. For instance, without contacting the alleged parent, the guardian ad litem could not answer the following questions: Is your client the actual father of this child? Does your client wish to obtain custody? Is your client capable of exercising parental care and control over the child? Is your client capable of providing a fit home for the child?
Appellant relies upon Jeffrey S. II v. Jeffrey S., supra,
Citing In re Marriage of Caballero, supra,
Similarly, In re Christina B., supra,
We conclude that a court has no duty to appoint a guardian ad litem for an alleged father who has not appeared in a dependency proceeding. We also conclude that to become a party within the meaning of section 372 of the Code of Civil Procedure, an alleged father in a dependency proceeding must enter an appearance.
The judgment is affirmed.
Ardaiz, P. J., and Moffat, J.,
Appellant’s petition for review by the Supreme Court was denied August 23, 2000.
Notes
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
It is unclear whether the report was referring to appellant’s father or to appellant.
There is some question whether this comment means Ocampo actually spoke with appellant, or spoke with his father, or simply reiterated what the previous social worker had written regarding contact with appellant’s father on May 16, 1997. Although the record does indicate that Ocampo apparently received the Jasmine Street address from speaking with a “Mr. [U.],” the record does not tell us whether this person was appellant or appellant’s father.
Appellant’s claims described in this paragraph, as well as the next paragraph, were asserted in appellant’s motions to set aside dispositional findings and for modification filed in May 1999. Nowhere in the record are these assertions supported by any declaration or oath personally made by appellant.
The most logical guardian ad litem would have been a parent of appellant. As already noted in the history of this case, appellant’s father apparently was aware of these proceedings early on and took a position contrary to the then minor appellant asserting parental rights. By the time of the 12-month review hearings in June and July 1998, appellant was no longer a minor.
Judge of the Madera Superior Court, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.