Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment terminating the natural father's parental rights and related petition for writ of habeas corpus, Superior Court of San Diego County, Ct. No. A55046, Carol Isackson, Judge. Judgment reversed with directions; petition denied as moot.
IRION, J.
Anthony M. challenges the judgment terminating his parental rights under Family Code section 7662 on grounds of inadequate notice, lack of personal jurisdiction and violation of his right to procedural due process under the Fourteenth Amendment to the United States Constitution (due process clause). Because Anthony M. did not receive notice of the proceedings as required by statute, we reverse the judgment terminating the natural father's parental rights and remand with directions.
Unless otherwise specified, further statutory references are to the Family Code.
In his petition for extraordinary relief, Anthony requests this court vacate the order terminating parental rights and remand the case to the trial court with directions to make a proper inquiry under the Indian Child Welfare Act (ICWA), title 25 United States Code section 1901 et seq., and applicable state law. Because we reverse the judgment terminating parental rights, we deny the petition as moot.
By order of May 29, 2009, we ordered the consolidation of the writ petition with the appeal.
I
FACTUAL AND PROCEDURAL BACKGROUND
Anthony M. and L.D. met in July 2002 and began dating. Within two months, L.D. became pregnant. Anthony and L.D. intended to stay together, but the military transferred L.D. to Iceland, where she gave birth to a daughter, Erin G., in June 2003. Anthony was not present for the birth. He is listed on Erin's birth certificate as her father. At some point in time not in the record, L.D. married Tyrone D.
In her letter brief, minor's counsel states that L.D. and Tyrone married in August 2005.
L.D. told a social worker with the San Diego County Health and Human Services Agency (Agency) that she and Anthony maintained their relationship for approximately 18 months. L.D. travelled with Erin from Iceland to visit Anthony three times. Anthony did not visit Erin. He last saw her in July 2005. L.D. asserted that Anthony continued to telephone her every two or three months, but he did not attempt to visit Erin, support her, or send letters or gifts. She provided his home address in Mississippi (Address A) to the social worker.
On January 30, 2008, the social worker sent a letter by both first class and certified mail to Anthony at Address A. She informed Anthony he had been named as an alleged father and asked him to sign an enclosed form consenting to a proposed stepparent adoption and/or contact the Agency and/or juvenile court within 30 days. The first class letter was not returned to the Agency and the certified letter was unclaimed. Anthony did not contact the Agency or the social worker.
The social worker's letter of January 30, 2008, and enclosed form are not part of the appellate record.
On March 18, 2008, Tyrone petitioned in pro per to terminate Anthony's parental rights under section 7662 (petition). Tyrone attempted to have Anthony personally served in Mississippi.
Tyrone was in the military and scheduled to be deployed. With the court's permission, L.D. later added her name to the petition.
The court did not receive proof of service by the date set for hearing and continued the hearing to June 27, 2008. On June 23 the court received a signed statement from the Sheriff of Adams County, Mississippi. The deputy sheriff (deputy) stated he failed to find Anthony after a diligent search and was unable to serve the summons and complaint. L.D. filed a declaration under penalty of perjury in which she stated the deputy had made numerous attempts to reach Anthony at Address A. A man at that residence informed the deputy Anthony no longer resided there. Based on the deputy's description of the man, L.D. told the deputy that the man was Anthony. The deputy returned to Address A three more times and left cards asking Anthony to contact him. Anthony did not respond.
On June 27, 2008, the court stated it could not proceed without proof of service and continued the hearing until August 22. The court informed L.D. that she could keep trying to serve Anthony by personal service or serve him by publication. The clerk of court issued a new summons to Anthony that identified L.D. and Tyrone as petitioners and listed the date, time, and place of the hearing. The summons did not state the purpose of the hearing. It advised Anthony he had 30 days after the summons and legal papers were served to file a written response with the court and have a copy served on the plaintiffs.
On July 30, 2008, R.P. signed the form "Proof of Service by Mail," in which he stated he had mailed a copy of the summons by depositing it in the United States Postal Service at Lemon Grove, California. He did not list Anthony or Address A on the proof of service form.
The record contains a copy of a return receipt addressed to Anthony at Address A, and signed by Cynthia C. on a line labeled "Addressee."
On August 22, 2008, the court stated it had received a certified mail card indicating Anthony was served at Address A. L.D. testified she spoke to Anthony by telephone before the hearing began, and he had received the summons and knew the nature of the proceedings.
The court found that notice had been given as required by law and terminated Anthony's parental rights.
On August 25, 2008, the clerk of the superior court filed a notarized letter, dated August 15, from Anthony to the San Diego County Superior Court. Anthony stated that his mother had received a summons on or about July 23, but he did not know the exact nature of the suit. He tried to contact the clerk of court's office to obtain a copy of the complaint but was not successful. Anthony asked the court to send a copy of the complaint to him at Address A, and to postpone the hearing scheduled for August 22.
On September 18, 2008, Anthony mailed a letter to the superior court requesting a list of attorneys to enable him to obtain legal representation. On October 8 the court appointed counsel to represent Anthony. Through counsel, Anthony filed a notice of appeal from the order terminating his parental rights and a petition for writ of habeas corpus. On January 14, 2009, this court ordered the petition for writ of habeas corpus to be considered at the same time as the pending appeal and granted Anthony's request for judicial notice of the record filed with the appeal.
II
DISCUSSION
A. The Parties' Contentions
Anthony contends he did not receive proper notice of the proceedings as directed by sections 7666 and 7881, and Code of Civil Procedure section 415.40, because he was not served with a copy of the petition. Anthony contends because service was inadequate, the court did not obtain personal jurisdiction over him and could not terminate his parental rights. He argues he was denied the right to notice and an opportunity to be heard as guaranteed by the federal due process clause, necessitating reversal of the order terminating parental rights.
Tyrone and L.D. contend that, as an alleged natural father, Anthony did not have a constitutional right to notice and an opportunity to be heard on the issue of termination of his parental rights. They assert Anthony was not denied the means to establish his paternity. Tyrone and L.D. also argue there is substantial evidence to support the court's finding that Anthony received proper notice; alternatively, they maintain that any notice error was harmless. Finally, they assert a judgment terminating parental rights cannot be set aside for lack of personal jurisdiction.
B. Constitutional and Statutory Framework for Adoption Proceedings of a Child Without a Presumed Father
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. Before depriving a parent of this interest, the state must afford the parent adequate notice and an opportunity to be heard. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 37-39 (Lassiter); Santosky v. Kramer (1982) 455 U.S. 745, 753; In re B.G. (1974) 11 Cal.3d 679, 688-689.) However, the state may accord fewer constitutional rights to a natural father who has never established a relationship with his child than it accords the child's presumed father or a natural father who has demonstrated a full commitment to his parental responsibilities. (Adoption of Kelsey S. (1992)1 Cal.4th 816, 823-825, 836-837, 849 (Kelsey S.), citing Lehr v. Robertson (1983) 463 U.S. 248, 256 (Lehr); cf. Lassiter, supra, at p. 37 ["due process allows for the adoption of different rules to address different situations or context"].)
The California Legislature has enacted a statutory framework for family law adoption proceedings that establishes different notice requirements for mothers and presumed fathers, on the one hand, and biological fathers who are not presumed fathers (natural fathers) and possible natural fathers, on the other. (§ 7666; see Kelsey S., supra, 1 Cal.4th at pp. 823-825 [mothers and presumed fathers have far greater rights].) This framework provides the natural father with an opportunity to appear and to assert his interests with respect to the child. (Kelsey S., supra, at p. 838; cf. In re Karla C. (2003) 113 Cal.App.4th 166, 179 [alleged biological father has limited rights but is entitled to notice of dependency proceedings and an opportunity to appear and assert a position].)
In California family law adoption proceedings, when a mother relinquishes for or consents to, or proposes to relinquish for or consent to, the adoption of a child who does not have a presumed father under section 7611, the court must cause an inquiry to be made into the identity of the child's natural father. (§§ 7662, subd. (a), 7663.) If the natural father is identified to the satisfaction of the court, or if more than one man is identified as a possible natural father, each shall be given notice of the proceeding in accordance with section 7666. With one exception (see Discussion, post, at p. 10 & fn. 6), notice of the adoption proceeding must be given to "every person identified as the natural father or a possible natural father in accordance with the Code of Civil Procedure." (§ 7666, subd. (a).)
For brevity, further reference in this opinion to "natural father" includes the phrase "the natural father or a possible natural father."
Here, L.D. identified Anthony as Erin's natural father and informed the court that he resided in Mississippi at Address A.
The Code of Civil Procedure provides that service on a person outside California may be made by serving a copy of the summons and of the complaint on the person in any manner provided by Code of Civil Procedure, Title 5, Chapter 4, Article 3 (Article 3). (Code Civ. Proc., § 415.40.) Article 3 includes four methods for service within California: personal delivery, substitute service, service by mail with acknowledgment of receipt, or by publication. (§ 415.10 et seq.; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 4:292, p. 4-46.2 (rev. # 1, 2008) (Weil & Brown); but see § 7666, subd. (a) [publication not required in adoption proceedings involving a child who does not have a statutorily presumed father].) A person outside California may be served under the statute by sending a copy of the summons and complaint by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing. (Code Civ. Proc., § 415.40.)
Proof of the giving of notice shall be filed with the court before the petition is heard. (§ 7666, subd. (a).) When service is made by mail to an out-of-state defendant under Code of Civil Procedure section 415.40, the proof of service must show evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence. (Code Civ. Proc., § 417.20; Weil & Brown, supra, ¶ 4:379, at p. 4-60 (rev. 1, 2008.) Service by mail on a nonresident requires strict compliance with Code of Civil Procedure section 417.20, subdivision (a). (Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 1001; Weil & Brown, supra, ¶ 4:380, at p. 4-60.) However, if a person identified as a natural father cannot be located, or his whereabouts are unknown or cannot be ascertained, the court may issue an order dispensing with notice to that person. (§ 7666, subd. (b).)
If adequate notice has been given to an out-of-state natural father under section 7666 and Code of Civil Procedure sections 415.10 (excepting notice by publication) or 415.40, or if the natural father cannot be located, the court may proceed as is appropriate under the circumstances set forth in section 7664.
C. Standard of Review
The uncontested facts show that Anthony was not sent, and did not receive, a copy of the petition with the summons as required by Code of Civil Procedure section 415.40. When the facts are not disputed, the effect or legal significance of those facts is a question of law, and the appellate court is free to draw its own conclusions, independent of the ruling by the trial court. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Community Youth Athletic Center v. City of Nat. City (2009) 170 Cal.App.4th 416, 427.)
D. Under the Circumstances Presented Here, Anthony Has A Statutory Right to Service of a Copy of the Summons and the Complaint.
Tyrone and L.D. argue Anthony received adequate notice of the adoption proceedings because (1) the social worker mailed a letter on January 30, 2008, to Anthony advising him that he had been named as an alleged father and Anthony did not bring an action within 30 days after the service of notice to determine his paternity, (2) Anthony avoided personal service and the court could have dispensed with further notice, and (3) Anthony received the summons and had actual notice of the proceedings.
The record shows that Tyrone and L.D. did not ask the court to proceed under section 7664, subdivision (a), which allows the court to dispense with further notice when the natural father has been served with written notice alleging that he is or could be the natural father of the child to be adopted, or placed or relinquished for adoption, and has failed to bring an action to determine his paternity within 30 days of the service of notice. (§ 7666.) A party may not assert theories on appeal that were not raised in the trial court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 222, citing Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.)
Were we to consider the merits of the argument, we would find it problematic. The record does not contain a copy of the letter and form the social worker sent to Anthony. In her declaration, the social worker stated she informed Anthony he had been named as an alleged father and asked him to consent to Erin's adoption. (See Adoption of Aaron H. (2000) 84 Cal.App.4th 786, 788 [prospective adoptive parents sent notice to biological father advising him that he might be the child's father and had 30 days to file a paternity action].) The court did not make any findings concerning the adequacy of the social worker's notice to Anthony, and we would decline to imply such findings on this record. (Cf. In re V.F. (2007) 157 Cal.App.4th 962, 973.)
Similarly, Tyrone and L.D. did not ask the court to proceed under section 7666, subdivision (b), which allows the court to issue an order dispensing with notice to the natural father if he cannot be located or his whereabouts are not known or cannot be ascertained. This argument, too, has been forfeited on appeal.
Although we do not reach the merits of this claim, we note L.D. filed a declaration in which she stated Anthony's whereabouts were known and the deputy had in fact located him. While the court could have relied on the deputy's statement that he was unable to locate Anthony after a diligent search and issued an order dispensing with notice, the court instead resolved the evidence in favor of L.D.'s statement and directed her to keep trying to serve Anthony. The trial court may have reached a different result had it believed other evidence, but we will not reweigh its findings. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
Tyrone and L.D. concede there were errors in the proof of service, but assert Anthony had adequate notice of the proceedings because he was notified of the date, time and place of the hearing and knew the proceedings involved Erin. They argue the court properly concluded Anthony had actual notice of the proceedings. We do not agree.
The statute that protects a natural father's limited due process right to notice is set forth in section 7664, which directs that notice to a natural father be made under the Code of Civil Procedure. (§ 7666.) Service by any method authorized under Code of Civil Procedure sections 415.10 (except publication) and 415.40 require service of a copy of the summons and of the petition on the defendant.
At the August 22, 2008 hearing, the record shows the court was informed the social worker had concerns about the validity of the proof of service. The court questioned L.D. about Cynthia C.'s identity and the failure to list either Anthony or his address on the proof of service. L.D. testified that she observed R.G. address the envelope to Anthony. She stated Anthony had telephoned her twice, once "before" and again immediately before the hearing. During their first telephone conversation, Anthony asked her about the time and place of the hearing, and she directed him to look at the bottom of the summons.
The court then asked L.D. "And do you have any information one way or the other as to whether he opposes your petition?" L.D. responded, "He didn't say when we talked. He knew what was going on, the whole legal matters [sic] and everything." The court found that Anthony was served on July 30, and that service was proper.
The summons Anthony received advised him that he had 30 days after the summons and legal papers were served to file a written response. (See Code Civ. Proc., § 418.10, subd. (d) [no default may be entered against the defendant before expiration of his or her time to plead].)
The court's query indicates it assumed Anthony received a copy of the petition, even though the summons did not indicate a copy of the petition was served and there was no evidence establishing actual receipt. Although L.D.'s testimony repaired technical defects in the proof of service, it could not overcome the failure to serve a copy of the petition, as required by statute. Knowledge by a defendant of a plaintiff's action does not satisfy the requirement of adequate service of a summons and complaint. (Waller v. Weston (1899) 125 Cal. 201; Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048; Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466-1467.) "[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service." (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414; see In re Claudia S. (2005) 131 Cal.App.4th 236, 247 [court obtains personal jurisdiction over a parent when the individual is properly noticed].)
We conclude Anthony did not receive notice as required by section 7666 and the applicable provisions of the Code of Civil Procedure. Because we resolve this case on statutory grounds, we do not reach the constitutional issues raised in this appeal. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230.)
III
Petition for Writ Relief
A. The Issue Raised
Anthony argues the court erred when it terminated his parental rights in the absence of inquiry into Erin's status as an Indian child. (§§ 170, subd. (c), 177 subd. (b); Welf. & Inst. Code, § 224.3.) Anthony declares that his paternal great-great-grandmother was of partial or full-blooded Native American Indian heritage, tribe unknown, and he was not asked whether he had any Native American heritage before the court terminated his parental rights.
B. ICWA Inquiry Was Not Required
Under ICWA, federal and state provisions expressly exclude from the definition of "parent" an "unwed father where paternity has not been acknowledged or established." (25 U.S.C. § 1903(9); Welf. & Inst. Code, § 224.1, subd. (b); In re Daniel M. (2003) 110 Cal.App.4th 703, 708.)
In his declaration, Anthony does not assert he "acknowledged or established" paternity. (25 U.S.C. § 1903(9).) Until paternity is acknowledged or established, an unwed father is not a parent of an Indian child, and the provisions of ICWA do not apply through the alleged paternal family. (25 U.S.C. § 1903(9); Welf. & Inst. Code, § 224.1, subd. (b); Daniel M., supra, 110 Cal.App.4th at p. 708.)
There was no error. Because we reverse the judgment terminating parental rights on appeal and remand with directions, we deny the petition as moot.
DISPOSITION
The judgment terminating parental rights is reversed and remanded to the trial court for further proceedings. If, after proper service of notice, Anthony appears and acknowledges paternity, and/or the court determines that Anthony is Erin's biological father, the court shall comply with applicable ICWA requirements for inquiry and notice, if so indicated. In view of the disposition of this appeal, the petition is denied as moot.
WE CONCUR: HALLER, Acting P. J., McINTYRE, J.