Filed 9/17/20 In re Genesis S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re GENESIS S., a Person B303489 (c/w B305174)
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. DK17503B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RIGOBERTO S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Marguerite D. Downing, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent, Los Angeles
County Department of Children and Family Services.
******
In these consolidated juvenile dependency appeals,
Rigoberto S. (father) appeals the juvenile court’s denial of his
2019 motion to vacate its 2016 dispositional order as well as the
court’s order terminating his parental rights over his now-10-
year-old daughter, Genesis S. We conclude that father’s
challenges on appeal lack merit, and affirm.
FACTS AND PROCEDURAL BACKGROUND
In November 2009, father and Lilian A. (mother) had
Genesis. During the first few years of Genesis’s life, father
engaged in domestic violence with mother. In 2011, he was
arrested and subsequently deported. Father returned to the
United States in 2011, and moved to New York in 2012.
In May 2016, the Los Angeles County Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
Genesis and her half siblings (then, nine-year-old Christopher
and infant Mia) on the basis of (1) domestic violence between
mother and Mia’s father, (2) mother’s physical abuse of
Christopher, (3) mother’s alcohol abuse, and (4) the parents’
neglect of Mia’s medical needs. The allegations did not accuse
father of any misconduct.
At the initial hearing in the dependency case, the juvenile
court declared father to be Genesis’s “presumed father.” Because
mother and father had stopped their weekly calls between father
and Genesis earlier that year, mother provided no contact
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information for father beyond the fact he was somewhere in New
York.
The juvenile court ordered the Department to conduct a
due diligence search to locate father so that he could participate
in the ongoing dependency proceedings involving Genesis. The
Department conducted two such searches—the first in June 2016,
and the second in October 2017. The June 2016 search turned up
no leads; the October 2017 search turned up a few leads, which
the Department pursued.
The juvenile court exerted dependency jurisdiction over all
three children, removed them from the custody of mother and
Mia’s father, and ordered the Department to provide them
reunification services. The court terminated those services in
August 2017, and set the matter for a permanency planning
hearing. The court continued the permanency planning hearing
several times to assure that the Department had time to pursue
the leads from its second, October 2017 due diligence search.
In 2018, father found mother on Facebook, learned of the
pending dependency case, and contacted the Department on July
9, 2018. Father indicated that he was in New York and wanted
custody of Genesis. At first, Genesis refused to talk with him
because she was “afraid” and “scared” of him because he “used to”
yell at and “hit [her] mom,” including in ways that made mother
bleed. Although Genesis eventually agreed to participate in
monitored telephone calls with father and father came to
California to see her in person, all contact stopped on December
4, 2019, after father—during that in-person visit—“became
agitated” with, used an “elevated” “tone of voice” with, “publicly”
yelled at, and used his “mean voice” with Genesis’s foster mother
when she would not let father drive with Genesis alone to the
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location of the monitored visit. The foster mother corroborated
Genesis’s account; father denied it. Prior to that incident, father
had told Genesis that he would be taking her “away” to New York
and that he would hurt her half brother Christopher if she told
anyone.
Two weeks later, father filed a petition under Welfare and
Institutions Code section 3881 to vacate the July 2016
dispositional order denying him reunification services due to his
unknown whereabouts because the Department’s efforts to locate
him were unreasonable and hence violated due process.
At a December 2019 hearing, the juvenile court found that
the Department “did use reasonable efforts” to find father and
denied his petition. The court acknowledged that the
Department “probably should have checked Homeland Security”
“given that . . . father previously had been deported,” but
concluded that the Department’s overall efforts were reasonable.
The court then ordered the Department to evaluate the
possibility of visitation and of placing Genesis with father, and
continued the permanency planning hearing until March 2020.
The Department in January 2020 reached out to its parallel
agency in New York to assess father’s living situation and
provided that agency with all necessary information, but the
agency did not respond despite the Department’s several follow-
up attempts.
The court conducted a permanency planning hearing in
March 2020. By that time, Genesis had been living with her
foster parents and her half sister Mia since April 2018; Genesis
and her foster parents had a “strong bond.” The court noted
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
4
Genesis’s desire to be adopted by her foster parents as well as her
fear of father. The court made the following findings: “The court
finds by clear and convincing evidence that this child is
adoptable. The court finds it would be detrimental for the child
to be returned to the physical custody of the parents and the
court finds that no exception to adoption applies.” Father did not
object to the sufficiency of these findings. The court then
terminated father’s and mother’s parental rights over Genesis.
Father filed separate appeals from the denial of his 388
petition and the order terminating his parental rights. On our
own motion, we consolidated those appeals.
DISCUSSION
I. Denial of Section 388 Petition
A. Pertinent facts
The Department asked mother several times for father’s
contact information—at the initial detention hearing, prior to the
jurisdictional hearing, and following the termination of
reunification services. Each time, she said she no longer had his
contact information, but that he was in New York when they lost
contact in 2016.
Within weeks of filing its petition asking the juvenile court
to exert dependency jurisdiction over Genesis, the Department
conducted its first search for father. Using the search
parameters of father’s name and date of birth, the Department
searched 20 different databases, including the branches of the
military, the California and federal prison systems, the California
welfare database, the California Department of Motor Vehicles
(database), the child support database, the Postal Service, a voter
registration database, the AnyWho telephone Directory, and a
nationwide database of publicly available information searchable
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by name and date of birth (known as the CLEAR database).2 The
Department did not search the Department of Motor Vehicles
database for New York, but New York does not grant other states
access to that database. The Postal Service search revealed an
address that came back to a state welfare agency and a phone
number that the Department repeatedly called, but which yielded
no answer. The CLEAR database had “no information” beyond “a
possible photo.” At the time these database searches were
conducted, father was living on 92nd Street in the Jackson
Heights neighborhood of New York.
The Department’s second search for father was similar to
its first. Using the search parameters of father’s name, his date
of birth and “Last Known Address: Unknown; New York,” the
Department searched the same 20 databases, plus the New York
and Florida prison systems. This time, however, the CLEAR
database found 13 AKAs (also known as), two Social Security
numbers, six telephone numbers, and three possible addresses—
namely, (1) the 92nd Street/Jackson Heights address (reported as
father’s address from July 2015 to February 2017), (2) an 88th
Street address in the East Elmhurst neighborhood of New York
(reported as his address from February 2017 to April 2017), and
(3) an address in Miami, Florida (reported as his address from
January 2014 to October 2015). The Department submitted
Postmaster inquiries for all three addresses.
2 Both parties point us to State v. Lebrick (Conn. App. Ct.
2018) 179 Conn.App. 221, 232, reversed on other grounds in State
v. Lebrick (Conn. 2020) 334 Conn. 492, which briefly discusses
the CLEAR database.
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B. Analysis
Father argues that the trial court erred in denying his 388
petition to vacate the court’s July 2016 dispositional order on the
grounds the Department’s efforts to find him prior to that July
2016 order were not reasonable. We review the denial of a 388
petition for an abuse of discretion. (In re Alayah J. (2017) 9
Cal.App.5th 469, 478.)
As pertinent to this appeal, section 388 empowers a
“parent” to petition the juvenile court “to change, modify, or set
aside” any of its previous orders. (§ 388, subd. (a)(1).) Before a
juvenile court may grant such a petition, the parent must
establish (1) the existence of “new evidence” or a “change of
circumstance,” and (2) that altering the court’s previous order is
in the best interest of the child. (§ 388, subd. (a); In re Stephanie
M. (1994) 7 Cal.4th 295, 316-317; In re S.J. (2008) 167
Cal.App.4th 953, 959.) Because “[p]arents have a fundamental
and compelling interest in the companionship, care, custody, and
management of their children” (In re DeJohn B. (2000) 84
Cal.App.4th 100, 106), the “state,” before depriving a parent of
this interest, must afford him due process—that is, “adequate
notice and an opportunity to be heard” (In re B.G. (1974) 11
Cal.3d 679, 688-689; Ansley v. Superior Court (1986) 185
Cal.App.3d 477, 483-488 (Ansley)). Evidence that a parent did
not receive constitutionally adequate notice constitutes “new
evidence” that may qualify him for relief under section 388.
(Ansley, at pp. 481, 487-488; In re Justice P. (2004) 123
Cal.App.4th 181, 189 (Justice P.).)
As a general matter, notice is constitutionally adequate if it
is “‘reasonably calculated, under all circumstances, to apprise
interested parties of the pendency of the action and afford them
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an opportunity to present their objections.’” (In re Melinda J.
(1991) 234 Cal.App.3d 1413, 1418, quoting Mullane v. Central
Hanover Tr. Co. (1950) 339 U.S. 306, 314). Where, as here, “the
whereabouts of a parent are unknown, the issue becomes
whether due diligence was used to locate the [missing] parent.”
(In re Claudia S. (2005) 131 Cal.App.4th 236, 247 (Claudia S.).)
Due diligence “‘denotes a thorough, systematic investigation and
inquiry conducted in good faith.’” (David B. v. Superior Court
(1994) 21 Cal.App.4th 1010, 1016 (David B.); In re Antonio F.
(1978) 78 Cal.App.3d 440, 450 [“‘mere gesture’” at tracking down
parent insufficient].) Due diligence requires “a reasonable search
effort”—not a Herculean one. (Claudia S., at p. 247; Justice P.,
supra, 123 Cal.App.4th at p. 191.) A search effort is reasonable if
it is the type of effort that a person “desirous of actually
informing the [parent], might reasonably adopt to accomplish it”
(Claudia S., at p. 247); a search effort is not reasonable if it
“‘ignores the most likely means of finding the [parent].’” (In re
Arlyne A. (2000) 85 Cal.App.4th 591, 598-599, quoting David B.,
at p. 1016.) What matters is whether what the Department did
was reasonable, not whether its search might have been done
differently. (See People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
The juvenile court did not abuse its discretion in finding
that the Department’s efforts to find father prior to the July 2016
dispositional hearing were reasonable. By that time, the
Department had twice asked mother for his contact information
and had conducted a search for him in 20 different databases,
and followed up on the one address and phone number that came
up. These efforts were reasonable.
Father mounts what boils down to two challenges to the
trial court’s finding.
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First, he argues that the Department’s searches of the
CLEAR and California DMV databases were deficient and hence
unreasonable. With regard to the CLEAR database, father
asserts that the Department must have done something wrong
with its first database search because its second database search
(16 months later) turned up his 92nd Street/Jackson Heights
address and cell phone number. The necessary premise of
father’s assertion, of course, is that his 92nd Street/Jackson
Heights address and his cell phone number were in the database
in July 2016 rather than added at some point after July 2016 and
before October 2017. But he provides nothing to support this
premise. Indeed, the key elements of the Department’s search
parameters—father’s name and date of birth—were the same for
both searches. With regard to the California DMV database,
father asserts that the Department must have done something
wrong with its search because that search did not turn up the
DMV “ID card” he was issued back in 2012. The necessary
premise of this assertion is, again, that his ID card was in the
database at the time. Further, he provides no evidence that his
California DMV ID card would have contained the out-of-state
address where he was residing four years later.
Second, father contends that the Department knew father
had been deported and thus should have checked the federal
immigration databases. Its failure to do so, he continues,
impermissibly ignored the most likely means of finding him.
(David B., supra, 21 Cal.App.4th at p. 1016.) The juvenile court
also noted that the Department “probably should have checked
Homeland Security.” Although the Department probably should
have taken this step, it is not “the most likely means” of finding
father given that he was deported five years earlier and had first
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returned to California, before relocating to New York. Thus, the
court did not abuse its discretion in determining that the
Department’s failure to search the immigration database did not
render unreasonable its otherwise reasonable efforts to locate
father by searching 20 other databases.
In light of the sufficiency of the juvenile court’s findings
regarding the reasonableness of the Department’s efforts, we
have no occasion to reach father’s further challenge to the court’s
comment that father knew about the case back in 2016, whether
vacating the dispositional order in December 2019 would have
been in Genesis’s best interests (see Justice P., supra, 123
Cal.App.4th at p. 190 [requiring this showing, notwithstanding
that Ansley, supra, 185 Cal.App.3d at pp. 490-491 had dispensed
with it in this context]), or whether father’s 17-month delay in
filing his 388 petition bars such relief.
II. Termination of Father’s Parental Rights
Natural parents have a “fundamental liberty interest . . . in
the care, custody, and management of their child[ren].”
(Santosky v. Kramer (1982) 455 U.S. 745, 753.) Consequently,
due process guarantees that the state may not terminate a
parent’s rights with respect to his child without first (1) making a
showing of parental unfitness—that is, a showing that placing
the child with that parent would be detrimental to the child, and
(2) doing so by clear and convincing evidence. (Id. at pp. 747-748,
758, 760, fn. 10; Guardianship of Ann S. (2009) 45 Cal.4th 1110,
1130; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254; In
re Dakota H. (2005) 132 Cal.App.4th 212, 224.) Where, as here,
the parent at issue is non-offending and there has been no prior
finding of detriment by the juvenile court, the court must make
10
the requisite detriment finding at the permanency planning
hearing. (In re Z.K. (2011) 201 Cal.App.4th 51, 65-66.)
Father argues that (1) the juvenile court failed to make a
finding of detriment at the permanency planning hearing and,
alternatively, (2) any finding of detriment is not supported by
substantial evidence.
A. Finding of detriment
Contrary to what father urges, the juvenile court made a
finding of detriment at the permanency planning hearing when it
stated: “The court finds it would be detrimental for the child to
be returned to the physical custody of the parents and the court
finds that no exception to adoption applies.”
Father offers three reasons why this finding is insufficient.
First, he argues that the finding was not made by clear and
convincing evidence. We reject this argument. Where, as here,
the standard of proof is “well settled,” appellate courts “presume[]
that [the] trial court applied the proper standard of proof.” (In re
Bernadette C. (1982) 127 Cal.App.3d 618, 625; In re Katrina C.
(1988) 201 Cal.App.3d 540, 547; Evid. Code, § 664 [“It is
presumed that official duty has been regularly performed.”].)
Applying this presumption is particularly appropriate here,
where the likely reason the juvenile court did not recite the words
“by clear and convincing evidence” as part of its finding is
because it had just stated those words, seconds before, when
finding that Genesis was adoptable.
Second, father contends that a careful parsing of the court’s
finding suggests that it does not apply to him because he never
had physical custody of Genesis, so a finding that “it would be
detrimental for [her] to be returned to [his] physical custody”
must be referring solely to mother. We reject this contention. To
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begin, the court’s finding referred to “the parents”—plural.
Further, the question of detriment turns on whether placement—
that is, physical custody—would be detrimental to the child.
Although the word “return” could be read to suggest a return to
somewhere Genesis had been before, we decline to give this word
choice dispositive weight in light of the court’s otherwise
unambiguous reference to both “parents” and in light of the lack
of any need for a detriment finding as to mother (from whom
Genesis had been removed on the grounds of detriment). Indeed,
reading the finding as referring solely to mother would render it
entirely a duplicative and unnecessary “idle act.” (Covarrubias v.
James (1971) 21 Cal.App.3d 129, 135 [courts generally do not
perform “idle act[s]”].)
Lastly, father asserts that the juvenile court ordered the
Department to investigate whether it was suitable for father to
take custody of Genesis but did not wait for the Department’s
investigation to be completed. Father continues that, without
that investigation, the court’s finding of detriment is speculative.
This argument seems directed more at lack of substantial
evidence to support the detriment finding; it does not negate the
existence of the finding.
Because we conclude that the juvenile court made the
required finding, the authority father cites regarding the
consequences of not making a finding are irrelevant. (E.g., In re
T.G. (2013) 215 Cal.App.4th 1, 16-23; In re Gladys L. (2006) 141
Cal.App.4th 845, 848-849; In re Frank R. (2011) 192 Cal.App.4th
532, 538-539; In re Z.K., supra, 201 Cal.App.4th at pp. 67-69; In
re G.S.R. (2008) 159 Cal.App.4th 1202, 1211-1215.) We
accordingly turn to father’s argument that the finding is not
supported by substantial evidence.
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B. Substantial evidence in support of the finding of
detriment
A finding of detriment must be supported by substantial
evidence. (In re A.J. (2015) 239 Cal.App.4th 154, 160.) “In
conducting substantial evidence review, we review the evidence
in the light most favorable to the juvenile court’s finding[], and
draw all inferences and resolve all evidentiary doubts in favor of
those findings.” (In re D.M. (2015) 242 Cal.App.4th 634, 640.)
We undertake this review through the prism of clear and
convincing evidence as set forth by our Supreme Court.
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005; In re V.L.
(Sept. 1, 2020, B304209) __ Cal.App.5th __, 2020 Cal.App.LEXIS
833, *12-*13.)
Substantial evidence supports the juvenile court’s finding,
by clear and convincing evidence, that placing Genesis with
father would be detrimental to Genesis. On the one hand, both
mother and Genesis stated that father used to yell and hit
mother in front of Genesis. Although this domestic abuse
happened back in 2011 or 2012, Genesis and her foster mother
reported that father “became agitated” and starting yelling at
foster mother during a visitation in December 2019. In that
same time frame, father had threatened to harm Genesis’s half
sibling if she did not keep secret his plans to take her to New
York. The danger flowing from a parent who evinces a continued
willingness to engage in domestic abuse constitutes substantial
evidence of detriment. (E.g., In re F.S. (2016) 243 Cal.App.4th
799, 813 [so noting], overruled on another point as stated in
Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7; cf. In
re C.M. (2014) 232 Cal.App.4th 1394, 1403-1404 (C.M.) [no
detriment where domestic violence was in the past and there was
“no evidence of any recent, much less current, domestic
13
violence”].) This conduct by father—and Genesis’s fear of him
that flows from it—was why Genesis initially refused to talk with
father and why, after giving telephonic visits and an in-person
visit a try, she refused all further meetings with him. Although
father denies this conduct and complains on appeal that he was
not given the opportunity to rebut this evidence, he did not object
to the court’s consideration of any of this evidence at the time and
we must resolve all evidentiary conflicts in favor of the juvenile
court’s finding. On the other hand, Genesis had a strong bond
with her foster mother and younger sister Mia, with whom she
had been living for nearly two years by the time of the
permanency planning hearing. The emotional harm Genesis
would suffer by severing that bond and moving Genesis across
the continent to New York further contributes to the
substantiality of the evidence of detriment. (E.g., In re Luke M.
(2003) 107 Cal.App.4th 1412, 1426-1427 [so noting].)
Father makes three arguments in response.
First, father cites cases noting that a finding of detriment
cannot be based solely on a parent’s absence from a child’s life or
on a child’s wishes not to reside with the parent. (E.g., In re John
M. (2006) 141 Cal.App.4th 1564, 1570-1571; In re Patrick S.
(2013) 218 Cal.App.4th 1254, 1263-1264; C.M., supra, 232
Cal.App.4th at p. 1403.) In this case, however, the finding of
detriment rests on far more than father’s absence and Genesis’s
wishes.
Second, father argues that the juvenile court’s
unwillingness to wait for the Department’s investigation into the
suitability of his home impermissibly shifted the burden to him to
prove his fitness. The court asked the Department to acquire
additional information, the Department’s efforts were rebuffed by
14
the New York authorities, and the court decided it had sufficient
information to proceed even without this additional information.
This did not shift the burden and does not otherwise call into
question the substantiality of the evidence underlying the court’s
detriment finding.
Lastly, father asserts that placing Genesis with him would
not be a detriment to her because he has a good job, was
persistent in his efforts to have calls with Genesis, and would be
willing to work past his relationship with the foster mother
through conjoint counseling. What is more, father argues,
Genesis is developmentally on track and thus more resilient. At
bottom, father is asking us to give greater weight to the evidence
counseling against a finding of detriment. When we engage in
substantial evidence review, this is beyond our purview.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P.J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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