Filed 2/10/15 In re Evelyn H. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re EVELYN H. et al., Persons Coming B255852
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK88230)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Marilyn
Kading Martinez, Commissioner. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
J.H. (father) appeals from juvenile court orders (1) denying his Welfare and
Institutions Code section 3881 petition, and (2) denying his request for more frequent
visitation with his children, Evelyn H. (Evelyn, born Aug. 2010) and Jacob H. (Jacob,
born Sept. 2011). He contends that the Department of Children and Family Services
(DCFS) failed to exercise reasonable due diligence in locating and notifying him of the
detention, jurisdiction, and disposition hearing on the section 300 petition filed on behalf
of his children. Thus, all orders issued after the detention hearing should be vacated and
a new hearing held. Secondarily, father argues that the juvenile court abused its
discretion in denying his request for more frequent visits with Evelyn and Jacob.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Detention
On December 3, 2012, DCFS filed a section 300 petition concerning the four
children of Melody H. (mother). Father was alleged to be the father of Evelyn and Jacob
only. His whereabouts were unknown and he was not named as an offending parent in
the petition.
On November 30, 2012, DCFS initiated a due diligence search request for father.
Jurisdiction/Disposition
DCFS conducted another due diligence search in anticipation of the
jurisdiction/disposition hearing on January 3, 2013. At that time, DCFS still listed
father’s whereabouts as “unknown.” Although DCFS sent notices to mother and to the
father of her two older children, DCFS did not send any notices to father.
All of the children were physically with mother at the time of the hearing, except
Jacob, who was visiting his paternal grandmother in San Diego. However, mother did
not have the paternal grandmother’s address and telephone number to give to the social
worker. Mother expected Jacob to return home on December 28, 2012. There was no
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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due diligence report attached to the jurisdiction/disposition report, but the dependency
investigator attached the request for search form, which had already been submitted to the
juvenile court. The information on the form included a driver’s license number for
father, information regarding a child support case involving him out of San Joaquin
County, and a list of three addresses in Modesto, California, and one in Phoenix, Arizona.
Mother stated that the fathers of the children had not visited the children or called them in
about two years. The jurisdiction/disposition report did not include any attachments
documenting that notices were sent to father at any of the addresses listed on the form.
Father did not appear for the jurisdictional hearing on January 3, 2013. The
juvenile court found that notice had been given as required by law, sustained the section
300 petition, as amended, and declared all four children to be dependents of the court.
However, the court declined to make any paternity findings at that time. The clerk of the
juvenile court mailed a certificate of the court’s minute order to mother at her last known
address. The clerk’s certificate listed the address of each father as “unknown.”
Section 342 Proceedings
On February 6, 2013, DCFS filed a subsequent petition (§ 342), adding allegations
against mother, but not against father. At that time, mother claimed she did not have any
information about father, nor did DCFS have any contact information for him.
In its report prepared for the March 12, 2013, jurisdiction/disposition hearing on
the subsequent petition, DCFS reported that father was living on Mace Place in
Los Angeles. DCFS sent a notice of that hearing to father at the address on Mace Place.2
Despite the address and telephone number, DCFS continued to state that father’s
whereabouts were unknown and reported that a due diligence search had been initiated
for him. DCFS did not attach a copy of the due diligence report for father to its report,
but attached a copy of notice to father at the Mace Place address. DCFS recommended
that father not be offered reunification services.
2 At the six-month review hearing on January 14, 2014, father told the juvenile
court he had never lived on Mace Place.
3
The juvenile court continued the hearing several times, and sustained the
subsequent petition, as amended, on May 13, 2013. Father was not present for that
hearing.
Six-month Status Review Hearing
Father made his first juvenile court appearance at the six-month status review
hearing on November 7, 2013. Steve Lory, an attorney from Los Angeles Dependency
Lawyers 2 (LADL2), informed the court that he was available for appointment for father,
but requested that if he were appointed, his appearance be a special appearance only
because there were several issues, including notice, that needed to be investigated. The
juvenile court continued the matter to January 14, 2014.
DCFS prepared a status review report in anticipation of the January 14, 2014,
hearing. DCFS interviewed father on December 31, 2013. At the time of his interview,
father was living in Wilmington. Father said he was interested in caring for his children,
but the place where he was staying was not suitable for them. When asked how he would
provide for the children financially, father replied that he had no job. Father had not
visited the children since they had been placed in their current foster home. DCFS
opined that it would not be in the children’s best interest to give father reunification
services because of his unstable living arrangements and lack of income.
On January 14, 2014, father appeared in juvenile court for the continued six-month
hearing. Attorney Carolina Villamil of LADL2 made a special appearance on behalf of
father. Father asked to have visits with his children. Ultimately, the juvenile court
ordered monitored visits at the DCFS office once every other month as requested by the
children’s attorney. Father was advised to contact the social worker for visits.
At that time, the juvenile court commented that although LADL2 did not presently
represent father, if LADL2 later did undertake to represent father “they should file a
[section] 388 petition seeking appointment and asking for any modification of orders that
I’m not modifying today. I am authorizing the visitation.” The court ordered father to
keep the court informed of his whereabouts, and directed Ms. Villamil to give father a
copy of the appropriate form. The court advised father that if he changed his address and
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did not keep the court informed of his current address, the “court could proceed in your
absence and resolve issues against you, including terminating your parental rights.” Later
on in the hearing, father said he had been living in shelters for over a year until he moved
to Wilmington two months before the hearing. Father said he had been “relocating for
years already. Never been stable.” Father also asked if he “could get some family
reunification services so I could get some help.” The court denied the request, stating,
“We are beyond reunification.”
Significantly, the juvenile court found father to be an alleged father of Jacob only.
Finally, the juvenile court then set a section 366.26 hearing. Father was ordered
back for the hearing on April 22, 2014. He was also personally served with written
notice of the next hearing.
Section 388 Petition
On February 24, 2014, father filed a section 388 petition alleging that the juvenile
court, in the absence of proper notice and without appointing an attorney for father,
declared the children dependents of the court and then pursuant to a subsequent petition
and in the absence of proper notice removed the children from his custody and failed to
address reunification services for him. He alleged that he had never lived on Mace Place,
had only resided in Wilmington for two months, had lived in shelters, and was in San
Diego for over a year prior to his current residence in Wilmington. He requested the
juvenile court vacate all dispositional findings and orders regarding his children, thereby
allowing his constitutional right to participate in proceedings.
A hearing was set on father’s section 388 petition for April 10, 2014.
On February 27, 2014, DCFS provided the juvenile court with a copy of the due
diligence report regarding father, dated March 12, 2013, and postmaster reports.
Ms. Villamil was appointed generally to represent father, but she reserved the right to
question prior notice to him.
On April 3, 2014, county counsel filed a response to father’s section 388 petition.
County counsel responded to father’s case citations, argued that due process may be
satisfied if there are efforts made reasonably calculated to provide notice, and asserted
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that failure to comply with notice requirements may be harmless beyond a reasonable
doubt.
DCFS also filed a formal response to father’s section 388 petition. DCFS
acknowledged that father had not been notified of the disposition hearing held pursuant to
the 2012 section 300 petition, but said that his whereabouts were unknown. DCFS stated
that the record revealed efforts were made by DCFS to obtain contact information for
father. DCFS reminded the juvenile court that mother had said that father had not had
any contact with the children or her for six months and that he lived in Tijuana, Mexico.
Mother stated that she did not have contact information for father.
Attached to its response was a copy of the March 12, 2013, due diligence report.
That report, which was prepared for the March 12, 2013, jurisdiction/disposition hearing,
but was not signed until May 7, 2013, revealed that DCFS had postmaster responses
regarding numerous possible addresses for father; not one turned out to be father’s
address.
DCFS also pointed out that father had advised the social worker that he had been
informed about the court hearing regarding his children that was held on November 7,
2013, by the previous social worker. But, he failed to contact DCFS because he thought
mother would maintain custody of the children.
Further, DCFS reminded the juvenile court about a prior case and reported that
father had engaged in physical violence with mother while she was pregnant with Jacob.
DCFS indicated that father also had a history of illicit drug use and there was no proof
that he was free from that drug use. In short, father did not address the issues that
brought the family to the attention of the court and did not comply with a treatment plan.
On April 10, 2014, the juvenile court addressed father’s section 388 petition. His
attorney argued that DCFS failed to present evidence of due diligence for the
adjudications of the sections 300 and 342 petitions. She also argued that he was
nonoffending under both petitions and that the juvenile court would have been required to
consider section 361.2 at the disposition hearings. While she admitted that father had not
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had a lot of visitation with his children, he had lost contact with mother. Finally, there
was no evidence that he posed any risk to the children.
The children’s attorney requested that the juvenile court deny father’s section 388
petition. She argued that he knew there was a case, but he did not request custody of the
children, assuming mother would get the children back. She also argued that there had
been a due diligence completed, and she did not believe that it was in her clients’ best
interests to remove them from their current caregiver. She stated that the children were
stable, that their caretaker wanted to adopt all of the children, and that her clients were
receiving Regional Center services. She also noted that they had not had any contact
with father.
In response, father’s attorney argued that it was DCFS’s duty to provide notice to
father; it could not simply say that father was not involved with the children. She
reiterated her client’s request that the juvenile court return to the disposition hearing,
allow father a contest on the disposition and custody of his children or, in the alternative,
reunification services.
After entertaining oral argument, the juvenile court found that although DCFS did
not submit a completed due diligence form and there were notice errors, DCFS did make
some reasonable efforts to locate father. It found that the failure to provide actual notice
was harmless error as the outcome of the hearings would not have been different. The
juvenile court also noted that father had some contact with mother and that he could have
gone to the court to obtain visitation with his children.
As for father’s claim that he was nonoffending, the juvenile court stated that he
did not have an automatic right to custody and that he did not have any relationship with
the children. Thus, relitigation of the jurisdiction and disposition issues would not
reasonably change the outcome. Moreover, father was often homeless and lacked a
stable lifestyle.
Finally, the juvenile court commented that DCFS does not always have to provide
actual notice, but must make reasonable efforts to do so. Meanwhile, the children were
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enjoying permanence, mother’s reunification services had been terminated, a section
366.26 hearing had been set, and father had surfaced late in the case.
Father was ordered to return on April 22, 2014, for the section 366.26 hearing.
Section 366.26 Proceedings (Father’s Request for More Visitation)
DCFS reported that the four children continued to reside with their prospective
adoptive parent, Ms. A.
After father’s initial visit on February 10, 2014, DCFS reported that at another
visit on April 15, 2014, father threatened Ms. A. and suggested that he would get
someone to stalk her. Law enforcement was contacted about the incident. Ms. A. was
fearful for her safety and the safety of her family and the children. She was reconsidering
her commitment to permanency for the children. DCFS recommended that father’s visits
be monitored at the DCFS office.
Father appeared for the section 366.26 hearing. He submitted on the
recommendation to continue the section 366.26 hearing, but asked for more frequent
visitation. He disputed that he had threatened Ms. A. The juvenile court ordered that
further visits occur at the DCFS office and ordered father not to have any contact with
Ms. A. His visits remained at every other month.
The section 366.26 hearing was continued to August 4, 2014.3
Appeal
Father’s timely appeal from the order denying his section 388 petition and the
order denying more frequent visitation ensued.
DISCUSSION
Preliminarily, we note that DCFS argues in its respondent’s brief that father
should be precluded from raising the issue of improper notice because he failed to raise it
in his petition for extraordinary writ. Admittedly, father delayed in requesting the relief
3 The section 366.26 hearing has been continued several times. At the hearing on
December 16, 2014, the juvenile court gave DCFS the discretion to liberalize visits as to
frequency and duration. The hearing was then continued once again.
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he now seeks. But, in the interest of resolving issues on the merits, we decline to
consider this argument and turn directly to the substance of father’s claims.
I. The juvenile court rightly denied father’s section 388 petition
Father contends that he was denied due process by the failure to provide him with
notice of the proceedings. This lack of due process to father requires the setting aside of
all orders made after the December 3, 2012, detention hearing and returning the case to
jurisdiction and disposition.
A. Applicable law
“‘Parents have a fundamental and compelling interest in the companionship, care,
custody, and management of their children. [Citation.] “[T]he state also has an urgent
interest in child welfare and shares the parent’s interest in an accurate and just decision.
[Citation.]” [Citation.] To ensure that result, “[u]ntil parental rights have been
terminated, both parents must be given notice at each step of the proceedings.
[Citation.]”’” (In re J.H. (2007) 158 Cal.App.4th 174, 182, quoting In re DeJohn B.
(2000) 84 Cal.App.4th 100, 106; see also § 291, subd. (a)(2).)
“‘At each hearing under section 300 et seq., the court must determine whether
notice has been given as required by law and must make an appropriate finding noted in
the minutes.’ (Cal. Rules of Court, rule 5.534(k).)” (In re J.H., supra, 158 Cal.App.4th
at p. 182.)
“Notice is both a constitutional and statutory imperative. In juvenile dependency
proceedings, due process requires parents be given notice that is reasonably calculated to
advise them an action is pending and afford them an opportunity to defend.” (In re
Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.) “The child welfare agency must act
with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a
thorough, systematic investigation and an inquiry conducted in good faith. [Citation.]
[¶] 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 proceedings. [Citations.]” (In re Justice P. (2004) 123 Cal.App.4th 181,
188.) “Thus, where a parent cannot be located notwithstanding a reasonable search
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effort, the failure to give actual notice will not render the proceedings invalid.” (In re
J.H., supra, 158 Cal.App.4th at p. 182, citing In re Claudia S. (2005) 131 Cal.App.4th
236, 247.)
“It is not always possible to litigate a dependency case with all parties present.
The law recognizes this and requires only reasonable efforts to search 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
proceedings 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.” (In re
Justice P., supra, 123 Cal.App.4th at p. 191; see also In re J.H., supra, 158 Cal.App.4th
at pp. 182–183.)
“Unless there is no attempt to serve notice on a parent, in which case the error has
been held to be reversible per se [citations], errors in notice do not automatically require
reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice.”
(In re J.H., supra, 158 Cal.App.4th at p. 183.) And, “[c]onstitutional issues are reviewed
de novo.” (Ibid.)
B. Analysis
Here, the juvenile court rightly determined that even if there had been notice
errors, DCFS made a diligent effort to locate and provide notice to father. The appellate
record establishes that father moved frequently, making it difficult for DCFS to track him
down.
And, there is no possibility that the result would have been different had father
received notice earlier in the proceedings. Regarding Jacob, father was never found by
the juvenile court to be anything other than an alleged father. As an alleged father, he
only had the right to notice of the dependency proceedings; he had no other rights beyond
the opportunity to bring an action to establish his identity as either a biological or
presumed father of the child. (§ 316.2, subds. (b) & (d); In re Ninfa S. (1998) 62
10
Cal.App.4th 808, 811–812.) And, because father was only an alleged father, the juvenile
court did not have the discretion to order reunification services for him. (Glen C. v.
Superior Court (2000) 78 Cal.App.4th 570, 584–586.) In light of father’s status as an
alleged father, there would have been no different result.
Even if the juvenile court had found that father was the biological father of Jacob,
he still would not have been entitled to reunification services automatically. It was
within the juvenile court’s discretion to order services if those services would benefit
Jacob. (§ 361.5, subd. (a).) Given that father did not have a relationship with Jacob and
father only had infrequent contact with him, there was no possibility that the juvenile
court would have found that it would benefit Jacob to have reunification services with
father.
Similarly, there is no possibility that the result would have been different for
Evelyn. The juvenile court found, by clear and convincing evidence, that it would have
been detrimental to place Evelyn with him. (§ 361.2, subd. (a); In re Abram L. (2013)
219 Cal.App.4th 452, 460–461.) And that finding is supported by the evidence. Father
had substantiated allegations against him in 2011; he also had a history of illicit drug use,
and there was no evidence that father was free from illicit drug use or that he completed
any classes or programs to address this problem. Moreover, father knew of the
dependency proceedings, but chose not to contact DCFS because he believed that mother
would retain custody of the children. Father’s lack of concern about his children’s
welfare amounts to negligence.
II. The juvenile court rightly crafted its visitation order
Father argues that the juvenile court abused its discretion by denying his request to
have more frequent visits with Evelyn and Jacob.
In crafting a visitation order, the juvenile court must balance the rights of the
parent with the best interests of the dependent child. (In re Jennifer G. (1990) 221
Cal.App.3d 752, 757.) Visitation orders are reviewed for abuse of discretion. (In re
Michael B. (1992) 8 Cal.App.4th 1698, 1704–1705.) The juvenile court has broad
discretion to set the frequency and length of the visits and to impose any other conditions
11
on visitation consistent with the child’s best interests. (In re Shawna M. (1993) 19
Cal.App.4th 1686, 1690.)
Here, the juvenile court allowed father visits every other month.4 While we agree
with father that visitation is an essential component of reunification, this case was not in
reunification at the time of the order, and father has never been afforded reunification
services.
Father argues that there is no evidence that he was a danger to the children. If
father is suggesting that there was no showing of detriment, that requirement only is
necessary if the juvenile court denies visitation altogether. (§ 361.5, subd. (f).) That is
not what the juvenile court did.
The order for visitation every other month was appropriate for both Evelyn and
Jacob.5 Father’s contact with the children had been infrequent at best. He had not had
any contact with them for most of the duration of the underlying dependency case, even
though he was aware of the proceedings, and his request for visits came at the same
hearing in which the juvenile court was terminating mother’s reunification services and
setting a section 366.26 hearing to determine a permanent plan for the children.
Since father did not have any relationship with the children, now was not the time
to try to establish one after the decision had been made to terminate efforts at
reunification. Worse, father had threatened the children’s stability and permanence by
threatening Ms. A. at a visit, causing her to reconsider her commitment to permanency
for the children. The children’s best interests lie in allowing them to establish a familial
relationship with Ms. A. or another appropriate caregiver, without interference from
father. Visitation every other month significantly reduces the opportunity for father to
interfere with that chance.
4 As noted above, on December 16, 2014, the juvenile court granted DCFS
discretion to liberalize those visits.
5 As noted above, father was only an alleged father to Jacob; thus, visits with him
were not legally required. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352; § 362.1,
subd. (a)(1)(A).)
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DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________, J.
ASHMANN-GERST
We concur:
_______________________________, P. J.
BOREN
_______________________________, J.
CHAVEZ
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