Opinion
C063186 No. FL357936
08-05-2010
BARRY K., Petitioner and Respondent, v. NATHANAEL D., Objector and Appellant.
NOT TO BE PUBLISHED
BUTZ, J.
Nathanael D. appeals from a judgment terminating his parental rights in the minor, and from a pendent adoption order. He contends the record does not support service by publication, and the trial court did not comply with the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.). We agree. We reverse and remand with directions to the trial court to ensure the ICWA compliance and conduct a new hearing on the petitions to terminate Nathanaels parental rights and to adopt the minor.
For ease of reference, the parties will be referred to by their first names. No disrespect is intended.
FACTUAL BACKGROUND
On October 10, 2008, Barry K., as "stepfather," filed a verified petition ("request") to adopt the minor, age 6, alleging he had cared for the minor, the child of Melissa K. and Nathanael, since birth. The petition sought to terminate Nathanaels parental rights, alleging abandonment. Melissa, Barrys wife, consented to the adoption.
On April 6, 2009, Barry filed a verified petition to terminate Nathanaels parental rights under Family Code section 7662. He alleged the minor had no presumed father, and sought "an order of this court that the parental rights of [Nathanael] and any other possible natural father be terminated and that only the consent of [Melissa], mother of the minor, be required for the adoption."
On April 22, 2009, the probation department filed an adoption report (see Fam. Code, § 9001) stating that the minors natural parents are Melissa and Nathanael, who had no contact with the minor and made no support payments. In 2002, Nathanaels mother unsuccessfully sought visitation, and in connection with that proceeding, Nathanael gave Melissa a letter "expressing his disinterest in any contact with" the minor, and purporting to waive his parental rights. In 2005, Melissa spoke with Nathanael, who expressed no interest in the minor. The report finds the minors "best interests" would be served by the adoption. The report recommends termination of Nathanaels rights and the petition for stepparent adoption be granted. This report does not mention the ICWA.
On June 25, 2009, the San Joaquin County Human Services Agency filed a report that also concludes Nathanael has no relationship with the minor, and "it is in the best interest" of the minor to grant the adoption and terminate Nathanaels parental rights. This report does not mention the ICWA.
On June 29, 2009, the trial court questioned Barry and Melissa informally about their efforts to locate Nathanael, and their completion of necessary documents. The court then signed an order allowing Barry to serve Nathanael by publication.
On August 10, 2009, Barry filed a proof of service setting forth the publication of notice, and a declaration in which Barry states that during the publication period, Nathanaels address "was not ascertained." The trial court signed an order terminating Nathanaels parental rights "pursuant to" Family Code section 7664. On August 31, 2009, the court granted the pendant adoption petition. On October 5, 2009, Nathanael appealed.
The general rule--that a defaulting appellant who did not seek trial court relief may only attack jurisdiction and the adequacy of the pleadings (see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 361, p. 416 (Witkin))--does not apply in parental termination cases. (In re Clarissa H. (2003) 105 Cal.App.4th 120, 124; In re Matthew S. (1988) 201 Cal.App.3d 315, 319-320 (Matthew S.).) In any event, Nathanael challenges jurisdiction, claiming that invalid service voids the judgment.
DISCUSSION
I. No Valid Service of Process
Nathanael correctly contends the order directing service by publication did not comply with statutory requirements, and therefore the judgment is void.
"Whether a judgment is void due to improper service is a question of law that we review de novo." (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) A void judgments invalidity appears on the face of the record, including the proof of service. (Morgan v. Clapp (1929) 207 Cal. 221, 224-225; Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)
The Family Code incorporates the methods of service of process applicable to civil actions, although the court may dispense with notice in some cases. (Fam. Code, § 7666.)
Code of Civil Procedure section 415.50, subdivision (a) provides in part that "A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article...." (Italics added.)
The due diligence affidavit "in proper form... is a jurisdictional basis of the order for publication[.]" (3 Witkin, supra, Actions, § 1035, p. 1248.) The affidavit must state facts known to the declarant, not hearsay or conclusions about diligence. (Sanford v. Smith (1970) 11 Cal.App.3d 991, 998-999 (San_ford).) "The term reasonable diligence denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. [Citation.] [¶] The basic test is whether the affidavit shows plaintiff took those steps a reasonable person who truly desired to give notice would have taken under the circumstances." (1 Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group 2010) Summons, ¶ 4:252, p. 4-41 (rev. #1, 2007) (Weil & Brown); see Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41-43 (Olvera); 3 Witkin, supra, Actions, §§ 1037-1039, pp. 1250-1252.)
To achieve valid service by publication, a party must strictly comply with the statutory requirements. (County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450; Olvera, supra, 232 Cal.App.3d at p. 41; Sanford, supra, 11 Cal.App.3d at p. 998, 1 Weil & Brown, supra, ¶ 4:245, p. 4-39 (rev. #1, 2007).)
The hearing on the publication order was informal. The court asked Barry and Melissa what they had done to find Nathanael. When the court stated they had to file a declaration, they replied that they had completed paperwork, but what they had completed was not made clear. The trial court signed a publication order Barry prepared, which recites in part: "On reading the declaration of [Barry] on file herein and it satisfactorily appearing to me therefrom that the residence of [Nathanael], the father of the minor..., is unknown to the petitioner," service by publication would be made.
We presume the trial court would not sign an order stating it read something unless it had done so. (Bullard v. Superior Court (1930) 106 Cal.App. 513, 517 ["it must be presumed, in the absence of anything to the contrary, that the court both read and filed the affidavit before making" the publication order], overruled on another point by Jardine v. Superior Court (1931) 213 Cal. 301, 304-305; see Evid. Code, § 664.)
But in this case, the presumption is dispelled. First, we granted Nathanaels motion to augment the record to include the due diligence affidavit, but the superior court clerk declared that the court file contained no such document. Second, Barry effectively concedes he did not file an affidavit. Although at one point he says, obliquely, that the "record does not contain the declaration," in defense of the publication order he relies on the declaration filed after publication of notice in the newspaper, and statements made by Barry and Melissa at the hearing preceding the publication order. More importantly, Barry explicitly argues that "[d]espite the lack of an affidavit filed establishing" due diligence, the court properly found Nathanael abandoned the minor. Thus, Barry concedes in his brief that he did not file the required due diligence affidavit.
We note that if the affidavit (or declaration) had merely been lost, Barry could have provided a copy, in lieu of the original, after the superior court clerk indicated no such document was found in the court file. He did not do so.
We have repeatedly held that admissions by a party in a brief may be accepted as true. (County of El Dorado v. Misura (1995) 33 Cal.App.4th 73, 77; Federer v. County of Sacramento (1983) 141 Cal.App.3d 184, 186.) ""[W]hile briefs and arguments are outside the record, they are reliable indications of a partys position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party."" (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1152.)
Accordingly, we accept that no due diligence affidavit was filed. In such circumstances, Nathanael was not properly served. (See People v. Pearson (1888) 76 Cal. 400, 400-401 [failure to file affidavit voids judgment]; cf. William Wilson Co. v. Trainor (1915) 27 Cal.App. 43, 44 [appellant showed affidavit was missing from the record, not that no affidavit had been filed in the trial court].)
Even if we could disregard the lack of an affidavit, the evidence in the record on appeal does not show an adequately diligent search for Nathanael was made. "Service by publication is sufficient to meet the requirements of jurisdiction only when a persons whereabouts remain unknown despite reasonably diligent inquiry." (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016 (David B.).) The publication order and post-publication declaration merely state that Nathanaels residence was unknown. That is not sufficient. (In re Beebe (1974) 40 Cal.App.3d 643, 644-646; cf. Matthew S., supra,
201 Cal.App.3d at p. 319 [detailing efforts to serve father in parental termination case].) At the hearing preceding the publication order, Barry and Melissa--though not under oath--said that Nathanaels relatives and Nathanaels "babys mom" did not give them information about his whereabouts, Internet searches and in-custody checks proved unfruitful, and Nathanaels brother-in-law told them Nathanael was "not taking anything. He doesnt want to deal with it." However, they did not speak with Nathanaels mother, nor did they mention consulting city directories, property records or court records. Further, the most effective step would have been to use a process server or the sheriff, but they did not do so. (See Olvera, supra, 232 Cal.App.3d at p. 42.) Based on this record, we cannot say their efforts--while apparently earnest (see fn. 5, post)--satisfied the required standard of due diligence. (See 1 Weil & Brown, supra, 1 4:252, p. 4-41 (rev. #1, 2007).)
In defense of the judgment, Barry refers to Family Code section 8604, which provides that the consent of a presumed father to an adoption may be dispensed with where he has abandoned the child. But as Barry asserts elsewhere, the record does not show that Nathanael meets the definition of a presumed father. Further, the referenced statute still requires notice to the abandoning father. (Fam. Code, § 8604, subd. (b).)
California statutes "differentiate between "alleged," "natural," and "presumed" fathers" and a mans rights may turn on the kind of father he is. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) By statute, "to become a presumed father, a man who has neither married nor attempted to marry his childs biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home." (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051 (Michael H.).) So far as the current record shows, Nathanael is a natural father, not a presumed father.
Barry also contends that Family Code section 8606, subdivision (c) obviates the need for notice. That section provides a birth parents consent to adoption is not required if the parent "has deserted the child without provision for identification of the child." This applies when a child is abandoned in the classic sense, as when an infant is placed in a basket and set afloat on a river. The minor has been with his mother since birth, and his "identification" has never been doubted. Nor would it be permissible to dispense with notice where, as here, the identity of the birth father is known. (See Adoption of Rebecca B. (1977) 68 Cal.App.3d 193, 199-200.)
Barry asserts Nathanaels failure to promptly try to assume his paternal obligations forfeits any constitutional right he may have had to stop the adoption. (See Michael H., supra, 10 Cal.4th at pp. 1052-1060.) But he was entitled to notice so that he could, if he chose, appear and litigate the facts about his efforts regarding fatherhood.
There is a final point to consider, although not raised by Barry. Nathanael appeared for the first time in this action when he filed his notice of appeal. Generally, a defaulting party attacks service by moving to set aside the judgment. (Code Civ. Proc., §§ 473, 473.5; see, e.g., Sanford, supra, 11 Cal.App.3d at p. 998.) That way, the facts about service--including whether a party had actual notice--can be litigated. (See, e.g., Olvera, supra, 232 Cal.App.3d at p. 40.)
However, the Legislature precludes motions to set aside termination orders, to prevent delays in adoptions. (See David B., supra, 21 Cal.App.4th at pp. 1016-1020 [discussing former statute]; In re Manuel J. (1984) 150 Cal.App.3d 513, 520-521.) The current Family Code requires efforts to identify the natural father, and allows the court to order an adoption without his consent. (Fam. Code, §§ 7663, 7664; see Michael H., supra, 10 Cal.4th at p. 1049.) Such an order is appealable, but "After making the order, the court has no power to set aside, change, or modify that order." (Fam. Code, § 7669, subd. (b), italics added.)
The petition sought an order "that only the consent of" Melissa was required and the judgment had that effect. (See Michael H., supra, 10 Cal.4th at p. 1051.) Because Nathanael could not move to set aside the judgment, his only avenue of relief was by this appeal.
Because the record shows Nathanael was not properly served, the judgment terminating parental rights and the pendent order granting the adoption petition must be reversed. (See Olvera, supra, 232 Cal.App.3d at p. 41.)
II. No ICWA Compliance
Nathanael contends that the record on appeal fails to show compliance with the ICWA. We agree.
The ICWA applies to many actions involving minors, including private adoption proceedings where parental rights may be terminated. (See In re Suzanna L. (2002) 104 Cal.App.4th 223, 229; Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 406-409.)
Barry concedes the ICWA applies, but contends any error is harmless because the adoption petition alleged the minor lacks Indian heritage, and Nathanael does not claim otherwise.
Barry notes Nathanaels failure to allege Indian heritage, which may show a purpose to trifle with the courts and thwart these proceedings. (In re N.E. (2008) 160 Cal.App.4th 766, 770; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.) But the trial court has a duty to ensure the ICWA compliance. (See In re J.N. (2006) 138 Cal.App.4th 450, 460-461 (J.N.); In re S.B. (2005) 130 Cal.App.4th 1148, 1158.)
Although the adoption petition checked a box indicating the minor lacked Indian heritage, the mother did not sign the petition and neither investigative report addressed the ICWA. (Cf. In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941-942.)
Further, Barry had a duty to attach an ICWA form to the petition. (Cal. Rules of Court, rule 5.481(a)(1).) If Nathanaels whereabouts were unknown, Barry could have inquired of Nathanaels relatives about possible Indian heritage, and included that information on the form. (See Information Sheet on Indian Child Inquiry Attachment, Judicial Council Form ICWA005-INFO.)
Finally, the trial court did not ask Melissa at either hearing if the minor may have Indian heritage. (Cf. Cal. Rules of Court, rule 5.481(a).) Barry acknowledges that "If the court fails to ask a parent about his or her Indian heritage, a limited reversal of an order or judgment and remand for proper inquiry and any required notice may be necessary." (In re A.B. (2008) 164 Cal.App.4th 832, 839; see J.N., supra, 138 Cal.App.4th at pp. 461-462.)
Therefore, on remand the trial court must ensure compliance with the ICWA: Absent a proper inquiry, we cannot know whether any tribes rights may be affected in this case. (See J.N., supra, 138 Cal.App.4th at p. 461 ["We refuse to speculate"].)
We add the following observations. First, in many cases there is a concern about the impact on the minor of a delay in an adoption. (See Michael H., supra, 10 Cal.4th at pp. 1056-1057.) Here, however, the minor does not know he is being adopted, he was only told that his last name was being changed. Therefore the delay--and Nathanaels presence in the subsequent chapter in this litigation--should not affect him. Second, so far as the record shows, Barry acted with high motives. Our conclusion that he did not satisfy all procedural niceties reflects no personal criticism. He lacked counsel until this appeal was filed, and it appears he did his best to comply with the applicable procedural rules.
DISPOSITION
The judgment is reversed with directions to the trial court to comply with the ICWA, and conduct a new hearing on Barrys petitions to terminate Nathanaels parental rights and adopt the minor.
BUTZ, J.
We concur:
BLEASE, Acting P. J.
NICHOLSON, J.