Opinion
F051790
5-22-2007
In re M. S., et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. VINCENT S., Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Vincent S. (father) appeals from the juvenile courts order on his Welfare and Institutions Code section 388 petition with respect to his daughter, M., declaring him M.s presumed father but denying his request for sole legal and physical custody of her. Father contends the order must be reversed because due diligence was not exercised in attempting to locate him in the early stages of the dependency proceedings, which deprived him of due process. As we shall explain, we find no merit in fathers contention and consequently will affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, father legally married Samantha A. (mother) in Arkansas. The couple subsequently had two children, a son, Dillon, and a daughter, M. When M. was a few months old, mother moved to California, taking M. with her, while father remained in Arkansas with their son. The couple did not divorce or legally separate. After coming to California, mother gave birth in June 2000 to another daughter, Skylar M., whose father is John M.
In March 2005, then seven-year-old M. and four-year-old Sklyar were removed from mothers custody incident to her arrest for possession and sales of controlled substances. The Fresno County Department of Children and Family Services (Department) filed a dependency petition on the childrens behalf alleging their mothers drug use placed them at risk of harm. (§ 300, subd. (b).) According to the detention report, M. and Skylar previously had been the subject of dependency proceedings after Skylar tested positive for methamphetamine at birth. Mother received reunification services and was reunited with the girls in October 2002. In the prior proceeding, the juvenile court found that father was M.s alleged father and John M. her de facto father and Skylars presumed father.
At the time of the latest petition, John M. was in prison. As for father, the Department reported that his last known address "was in Arkansas, four years ago[,]" and it had initiated a parent search for him, but the results were not available when the report was written. The petition identified father as M.s alleged father and listed an address in Little Rock, Arkansas as his last known address. It was noted in the detention report that no criminal history was found for father in Fresno County. Mother told the social worker at the time that she was legally married to father for five to six years while in Arkansas, he was listed on M.s birth certificate, father never tried to get custody of M. when she was removed in the earlier dependency case, and mother didnt know where father was living, but it was somewhere in Arkansas.
In March 2005, a notice of involuntary child custody proceedings for an Indian child was sent listing fathers last known address in Little Rock, Arkansas, which advised of a March 30, 2005 jurisdictional hearing. The notice was sent by certified mail to father at his last known address, but the record does not include a signed return receipt. According to the June 3, 2005 jurisdiction report, father was given notice of the jurisdictional hearing via certified mail. The jurisdiction report does not refer to any further inquiry regarding, or due diligence search for, father.
At the jurisdictional hearing ultimately held in June 2005, the court found the petitions allegations, which the parties had amended at the hearing, true, after mother submitted "to the jurisdictional determination of the court." Father did not appear at the hearing. The court further found that notice of the hearing had been given to "all necessary persons as required by law."
Notice of the dispositional hearing was again sent to father at his last known address in Little Rock, via certified mail. In the disposition report, the Department recommended against placement of M. with father, as father had not contacted the Department since M.s removal from mothers care despite being notified of dependency court hearings regarding M, and had not elevated his paternity status from alleged to presumed. The Department also recommended that mother be ordered to participate in family reunification services, but father be denied services pursuant to section 361.5, subdivision (a).
At the July 7, 2005 dispositional hearing, which father did not attend, the court adopted the Departments recommendation that, as an alleged father, father be denied services under section 361.5, subdivision (a). In denying father services, the court stated it had a proof of service for father and notice of the hearing date was sent to him by certified or registered mail service to his last known address in Little Rock, Arkansas. At the request of the girls counsel for a contested hearing, the court continued the dispositional hearing.
In September 2005, another notice of involuntary child custody proceedings for an Indian child, advising of a September 28 settlement conference and October 5 contested dispositional hearing, was sent listing fathers last known address in Little Rock, Arkansas. The notice was sent by certified mail to father at his last known address, but the record does not include a signed return receipt.
The court subsequently found ICWA did not apply.
After multiple continuances, the dispositional hearing was conducted as a contested hearing in December 2005. The Department recommended that John M. be denied family reunification services due to his incarceration. Although the Department initially recommended mother receive reunification services, it now recommended she be denied services as she continued to test positive for controlled substances, did not appear to be benefiting from services, and the girls did not appear to benefit from visits with mother. The Department recommended the court set a permanency planning hearing. Mother submitted on the Departments recommendation, but requested a bonding study be performed, which the court ordered. The court adjudged the girls dependents, removed them from the custody of mother and John M., denied reunification services to mother pursuant to section 361.5, subdivision (b)(13) and to John M. pursuant to section 361.5, subdivision (e)(1), and set the matter for a permanency planning hearing.
A notice of intent to file a writ petition, which advised that a permanency planning hearing had been set for April 12, 2006, was mailed to father at his last known address in Little Rock, Arkansas, via first class mail. After the permanency planning hearing was continued to July 19, 2006, notice of the hearing was sent to father by certified mail at his last known address in Little Rock, Arkansas on April 26, 2006. The Departments report prepared for the July 19 permanency planning hearing listed the Little Rock address as fathers address, and stated that notice of the hearing had been sent to him at that address by certified mail. The report further stated father had failed to contact the Department regarding his daughter and his whereabouts were unknown. The Department recommended a permanent plan of long-term foster care because the social worker did not believe the girls were generally adoptable at that time, as they continued to struggle with ongoing behavioral problems which led to their second foster home placement in two months.
At the July 19, 2006 hearing, the court granted the Departments request for a three week continuance "to complete due diligence" for father. The Department subsequently filed a "Declaration of Search" for father dated August 4, 2006. Various Fresno County records were searched, which revealed that fathers name was found in family support and "CWS/CMS" records. Family support records listed fathers full name, date of birth, social security number, and his last known address in Little Rock, Arkansas, as well as what was described as an "employers address" in Minneapolis, Minnesota. Letters dated July 24, 2006 were sent to father at his last known address in Little Rock, Arkansas, where notices had previously been sent, and the "employers address" in Minneapolis, Minnesota, which advised that proceedings were taking place in juvenile court that could result in termination of parental rights and requested the addressee to contact the social worker. A message was also left at a telephone number in Arkansas for father to call the social worker. The declaration stated that after reasonable diligence, father could not be located and served. At the continued hearing on August 9, 2006, the court stated that it had reviewed the declaration of search and attached documents, and based on that review found the Department had exercised due diligence in attempting to locate and notify father, who was either choosing not to respond or his whereabouts remained unknown. The court set a status review hearing for August 16, 2006.
In an addendum report the Department prepared for the August 16, 2006 hearing, the social worker reported that on August 10, 2006, she received a call from father, who was residing with his mother in Mulberry, Arkansas. Father requested he be appointed an attorney. The social worker told father she would advise the court of fathers whereabouts and request an attorney for him. Father told the social worker he last saw his daughter when she was four months old and he "would very much like to see" her again. The social worker advised father he would be called with the hearing results.
At the August 16, 2006 hearing, the court appointed an attorney for father. On September 19, 2006, fathers attorney submitted a section 388 petition requesting a change to the December 7, 2005 dispositional order where "the court adjudged M[.] a dependent of the court without notice to non-offending parent, resident of and domiciled in the State of Arkansas." The petition related the following facts that father claimed would change the judges mind with respect to that order: "Father [], at all times domiciled in the State of Arkansas, was and is lawfully married to [mother], M[.]s mother. He received his first notice of these proceedings on or about August 10, 2006. He seeks custody." It was further stated in the petition that father wanted the court to make an order awarding "sole legal and physical custody of M[.] to non-offending Arkansas parent [father]" of Mulberry, Arkansas, and the changes he was requesting would be better for M. because it would reunite her with her father and brother, as well as her extended family, and "provid[e] a stable permanent home for her in a healthy and stable environment." Attached to the petition were copies of M.s birth certificate, which listed father as the father, father and mothers marriage certificate, and Dillons birth certificate.
The girls court appointed special advocate filed a report prepared for the permanency planning hearing, in which she stated her belief the girls were good candidates for adoption. The advocate further stated that if possible, the girls needed to stay together in an adoptive home, since they have a close relationship that is the one stable factor in their lives. The advocate noted father was interested in obtaining custody of M., but recommended he be denied custody as "the fact that so much time has lapsed in their relationship indicates that his interests are too new to evaluate at this time and at this late stage."
The Department submitted an interim review report dated November 1, 2006, which stated it opposed fathers petition. The social worker explained that she spoke with fathers attorney and advised him the Department would complete an ICPC evaluation to assess fathers suitability, and while the evaluation had been initiated, the Department did not have any information regarding fathers suitability. The social worker noted that while father was interested in placement of M., M. was part of a sibling group with her sister, Skylar, with whom she had been placed most of her life, and the social worker believed the girls shared a strong sibling relationship that would be difficult to terminate. The social worker further noted that because father had not seen M. since she was four months old, she believed no parent/child relationship existed, although the social worker had contacted M.s therapist to speak with M. about her father.
ICPC is the Interstate Compact on the Placement of Children. (Fam. Code, § 7900, et seq.) The ICPC is an agreement between California and other party states to facilitate cooperation in the placement and monitoring of dependent children. (Fam. Code, § 7901, art. 1.)
The social worker concluded that too little was known about father to decide if placement of M. was appropriate, but M.s relationship with Skylar was most important, since they had grown up and lived with one another, and it would be detrimental to separate them. The social worker stated that M. was attending weekly therapy sessions, and her therapist stated she was working with M. on issues concerning anger, sadness, defiance, passive and withdrawn behaviors, and hyperactivity, and M. was being prescribed medication for ADHD. Both the social worker and therapist felt stability was most important to work with M. regarding these behaviors, and her current placement with Skylar was providing that stability, therefore M. should remain placed in her current foster home with Skylar.
On October 25, 2006, the court set the section 388 petition father filed, as well as a section 388 petition mother filed, by which she sought reunification services and increased visitation, for a contested hearing on November 2, along with the permanency planning hearing. Fathers attorney requested visitation with both of the girls, asserting that visitation with both girls was appropriate because father was coming to the court from Arkansas with the "expectation and hope" of going home with his daughter, and since M. and Skylar were a sibling group, he wanted to provide a home for Skylar as well. The court denied the request for visitation with Skylar without prejudice. With respect to M., the court ordered reasonable and supervised visitation when the therapist determined M. had made sufficient progress, with the Department to provide an update from the therapist at the next court hearing.
Fathers counsel filed a statement of issues for the upcoming hearing, which explained the contested hearing was to "determine whether the court has cause or power to select and implement a permanent plan" for M. and Skylar, and "[w]e submit that the court lacks such power as to M[.], and in view of our purpose to provide a permanent home for M[.]s sister S[.], by adoption or guardianship, it should not do so in the case of either child." Father stated the Department did not locate him at his home in Mulberry, Arkansas, until August 11, 2006, when he received his "very first notice that anything was amiss in California, and that the authorities of this state had removed his daughter and her sister from his wifes custody and control, and had, without notice to him, adjudicated those children dependents of the Juvenile Court of a sister State. He asked for California counsel. He moves by JV180 for custody." Father stated his position is (1) he is the natural, legal and presumed father of M., and any adjudication or finding to the contrary is void as to him and in excess of the courts jurisdiction as to him, (2) father is entitled by law to custody of M., (3) father is ready, willing and able to provide Skylar a permanent home, and (4) there is no clear and convincing evidence that returning M. to his custody is detrimental. Father framed the legal issues as (1) whether he is M.s presumed father, and (2) whether there is clear and convincing evidence demonstrating that placing M. and Skylar with him would be detrimental to them. Finally, father stated the relief he sought was a finding that he is M.s presumed father and custody of M. and Skylar.
At the November 2 contested hearing, father testified that he and mother were married in Arkansas in 1996, Dillon and M. were both born in Arkansas, and when M. was four months old, mother left him. Father stated they agreed mother would keep M. when she moved to California, while father would keep Dillon. Father admitted he had not seen M. since 1997, when mother left with her. Father claimed the only address and telephone number he had for mother since then was her mothers address and telephone number, and he tried calling her mother more than once, but her mother never told him where she was. Father said he was employed as a subcontractor and lived in a three bedroom home in Mulberry, Arkansas. The home has a game room which he planned to convert to a bedroom. Father lives in the house with his son, Dillon, his girlfriend and her two daughters.
Father first learned about the dependency proceedings two or three months before, when a manager on one of his old jobs forwarded to him the letter asking whether he was M.s father. He immediately called and spoke with a social worker. Father told her he is M.s father and he would be willing "to do whatever I had to do[,]" which included taking M. and providing her with a home. In talking with the social worker, father also learned about Skylar. After thinking it over, he decided it would be wrong to separate Skylar and M., and he could give them both "a good home" if he kept them together. Father testified he knew "a little bit" about attention deficit disorder and had spent a lot of time with his brothers stepsons, who have it.
Fathers girlfriend testified she had lived with father in the house in Mulberry for three and a half years, and they were planning on marrying after father obtained a divorce from mother. Fathers girlfriend was willing to have M. and Skylar come live with them and if they had exceptional needs, she "would give it a shot."
M.s grandmother, who is fathers mother and lives in the same town as father, testified the social workers letter was forwarded to her post office box in August, and she and father immediately called the social worker. On September 12, 2006, M.s grandmother called the social worker and told her "we were willing to take S[.] and not separate the two of them." She explained that she and her three children, and some of her grandchildren, talked about the situation and decided it was the best thing for both of the girls to be together with family.
The girls therapist, Kerri Freeman, testified the girls suffer from severe attachment related disorders, including reactive attachment disorder, and are on medication for ADHD. The girls were moved to their current foster home placement three to four months before the hearing. In their prior placement, they engaged in behaviors that included harming themselves, each other, and animals, as well as being destructive, defiant and withdrawn. In their current placement, the girls behavior was improving to the point where they were no longer self-harming, and were not acting out or fighting as badly, and they were forming healthy friendships. Freeman was concerned about alternative parental placement because although the girls wanted a parental figure, negative behaviors could result if the parent is introduced and then leaves again for an extended period of time. If the girls were placed in a home which did not know how to manage the negative behaviors and did not understand the girls issues with respect to reactive attachment, the girls could regress to self-harming and negative behaviors. Before Freeman would recommend placing the girls with father, father would need to understand the girls behaviors and their history, be educated on their disorder and how it may play out in a new placement, which would include a different home and state, so he could handle the girls appropriately. Freeman testified that if not treated properly, reactive attachment disorder can affect the girls relationships for the remainder of their lives.
In his closing argument, fathers counsel asked the court for four things: (1) that father be declared the presumed father of M. and Skylar; (2) reasonable visitation with both M. and Skylar as therapeutically advised; (3) placement and custody as the case plan and goal for M. and Skylar; and (4) prompt status reviews to check the progress of the home study. Fathers counsel argued that because father did not receive notice of the proceedings until August 11 and he was not a party to the dispositional hearing, his rights were not adjudicated previously and the court did not act within its jurisdiction in making its past orders regarding fathers dispositional rights and obligations. Fathers counsel claimed that for this reason, father was denied due process and the court was deprived of the power to select a permanent plan that could eventually lead to termination of his parental rights. Accordingly, fathers counsel asserted the hearing should be treated as a dispositional hearing with respect to father, and since father had presented a changed circumstance, i.e. that he is a non-custodial, non-offending parent ready to assume custody, the court was obligated to determine whether he was entitled to custody under section 361.2, subdivision (a), which requires the court to award him custody unless it finds doing so would be detrimental to the girls. Fathers counsel argued there was no detriment to placing the girls with father, but "[w]here the detriment comes in is the assertion[,]" which he thought was reasonable and supported, "that any sudden change or any introduction of a new relationship with these children must be done slowly, deliberately under therapeutic supervision." Consequently, fathers counsel asked for placement and custody "subject to a plan of gradual introduction as therapeutically advised and visitation should be conducted in a way that we do not exacerbate the ... attachment disorder of the children" with the goal of preservation of the family.
The court took the matter under submission. In a subsequent hearing, the court issued its decision. The court noted father had made two requests for relief by way of his section 388 petition: (1) sole custody of M.; and (2) presumed father status. The court found father to be M.s presumed father. With respect to the request for custody, the court noted that "the testimony in the course of this trial establishes that, first of all, any claim of any due process issues, I take it, has been adequately addressed by your timely filing of a 388 petition. I think that the case law on the subject as well as interpretations of the existing statutes clearly establish that any due process issues you have have been adequately addressed and preserved through your filing of the 388 petition." The court then denied fathers request for sole physical and legal custody. The court found that removing the girls from their foster placement would have a serious detrimental effect to their emotional well-being, and the appropriate permanent plan for them was to remain in long-term foster care with the permanency goal of a less-restricted foster care placement. The court ordered visitation with father "be orchestrated as therapeutically advised through Ms. Freeman or other therapeutic input[,]" and completion of the ICPC evaluation of father.
DISCUSSION
Father contends the order denying his section 388 petition, "in which he sought to set aside all prior judgments and orders pertaining to him," must be reversed because he "was deprived of the basic notice requirements fundamental to due process of law under Article 1, section 7 of the California Constitution as well as the Fourteenth Amendment to the United States Constitution." Father argues his "due process right to proper notice was violated because he was not notified properly of all of the hearings in these dependency proceedings." Specifically, father asserts substantial evidence does not support the trial courts findings made at the jurisdictional and dispositional hearings, and in preparation for the permanency planning hearing, that he received proper notice of the dependency proceedings.
At the outset, the Department contends father forfeited the notice issue by failing to raise it when he first appeared before the juvenile court. We note that father did not present the argument he now raises on appeal to the juvenile court. While father argued the case should be treated as being at the dispositional phase with respect to his rights and obligations, the basis for his argument was not that the court erred in concluding in prior proceedings that he had received proper notice of the proceedings or the Department did not exercise due diligence earlier in the proceedings in trying to locate him for notice purposes. Instead, father argued to the juvenile court that because he received notice so late in the proceedings, he should be treated as having appeared at the dispositional phase and the court should apply section 361.2, which requires the court, before ordering removal of a child, to award custody to a non-custodial, non-offending parent who desires to assume custody unless it would be detrimental to do so.
Thus, it is at least arguable that father has forfeited the opportunity to claim error on the grounds he now asserts. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) Parents are not permitted to raise for the first time on appeal issues that could have been raised in the trial court. Any other rule would allow a party to play fast and loose with the administration of justice by deliberately standing by without making an objection, of which he is aware, and thereby permit the proceedings to conclude, which he may acquiesce in, if favorable, and which he may avoid, if not. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) In any event, as discussed below, we conclude there is no merit to his appellate contentions.
As he was an alleged father at the outset of the proceedings, father was entitled to notice of the proceedings and an opportunity to appear and establish his paternity. Once this occurs, both the constitutional requirements of due process and the statutory requirements are satisfied. (In re Karla C. (2003) 113 Cal.App.4th 166, 179; In re Paul H. (2003) 111 Cal.App.4th 753, 760 (Paul H.); see § 316.2, subd. (b); see also §§ 290.2, subd. (a)(2), 291, subd. (e)(1).) To satisfy these limited due process rights, the juvenile court must ask the mother at the detention hearing or soon afterward about the identity of an alleged father. (See § 316.2, subd. (a); Cal. Rules of Court, rule 5.635(b); Paul H., supra, 111 Cal.App.4th at p. 760.) Here, father was identified as an alleged father in the petition at the outset of these proceedings.
Section 291, the statute governing notice of the jurisdictional and dispositional hearings, requires that where, as here, the parent of a detained minor is not present at the detention hearing, the department notify the parent of the jurisdictional hearing by personal service or by certified mail, return receipt requested. (§ 291, subd. (e)(1).) Notice to an alleged father must be given "at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child." (§ 316.2, subd. (b).) When an alleged fathers address is unknown and cannot be determined with due diligence, notice by publication is sufficient for due process. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1352 (Emily R.).) If supported by substantial evidence, a trial courts findings that notice by mail and by publication were proper will be upheld on appeal. (Id. at p. 1354.)
Here, the Department had a last known address for father in Little Rock, Arkansas. Notices of both the jurisdictional and dispositional hearings were sent to father at this address by certified mail, return receipt requested, in compliance with the statutes. Father argues, however, that the Department should have known the Little Rock address was incorrect because it never received a signed return receipt. Essentially, father contends there must be some evidence that he actually received the notices in order for the notices to be effective. The problem with this argument is that we cannot presume on this record that a signed receipt was never returned. While there are no signed receipts in the record, that does not necessarily mean they were not returned. Absent sufficient evidence in the record that signed receipts had not been returned at the time the juvenile court found proper notice of the jurisdictional and dispositional hearings was given, we cannot make that presumption. It is fathers burden to show error on appeal, which burden he has failed to carry here. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995 [rejecting argument as based on speculation where record is silent on the issue, citing Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72 [it is appellants burden to affirmatively show error on the record]].)
Even if signed receipts were not returned, a court may determine that an alleged fathers failure to return the certified mail receipt is not good cause to continue a jurisdictional or dispositional hearing. (§ 316.2, subd. (c).) Although father argues the fundamental principles of due process require a returned receipt, he is wrong. As this court has explained, "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. [Citations.]" (Emily R., supra, 80 Cal.App.4th at p. 1353.) As the notices here were sent to fathers last known address by certified mail, return receipt requested, they complied with the statutory requirement. Even if no return receipt ever was received, it does not mean notice was ineffective or that father was deprived of due process.
In contrast to notices for the jurisdictional and dispositional hearings, section 294, subdivision (f)(2) provides that if notice of the permanency planning hearing is sent by certified mail, return receipt requested, to the parents last known mailing address, the "notice shall be sufficient if the child welfare agency receives a return receipt signed by the parent." No similar requirement is contained in the notice provision for jurisdictional or dispositional hearings. (See § 291, subd. (e)(1).)
Father also asserts the juvenile court erred when it found at the August 9, 2006 permanency planning hearing that the Department had exercised due diligence in attempting to locate him. Notice of the permanency planning hearing may be served by certified mail, return receipt requested, but the statue specifically provides that for the notice to be sufficient, the child welfare agency must receive a return receipt signed by the parent. (§ 294, subd. (f)(2).) If the parents residence is outside the state, service may be made by either personally notifying the parent if the parent is present at the hearing at which the court sets the permanency planning hearing, personal service, delivery to a competent adult at the parents usual place of residence or business, or by certified mail, return receipt requested. (§ 294, subd. (f)(5).) The statute further provides that if a parents whereabouts are unknown and the parent cannot, with reasonable diligence, be served in any of the specified manners, the Department must file an affidavit with the court stating the parents name and describing the efforts made to locate and serve the parent. (§ 294, subd. (f)(7).) Where, as here, the social worker recommends long-term foster care, and the court determines there has been due diligence in attempting to locate and serve the parent, no further notice to the parent is required, but the court shall order notice be given to the childs grandparents if their identities and addresses are known. (§ 294, subd. (f)(7)(B).)
Significantly, section 294, subdivision (f)(5) does not specifically state that for notice to be sufficient, the child welfare agency must receive a return receipt signed by the parent.
Here, in April 2006, the Department served father notice of the July 19, 2006 permanency planning hearing by certified mail, returned receipt requested, to fathers last known address in Little Rock, Arkansas. By the time of the July 19 hearing, the Department stated fathers whereabouts were unknown and asked for a continuance to complete due diligence for him. Accordingly, the Department attempted to locate father by searching local records. That search turned up two addresses for father — the Little Rock address to which the Department had been sending notices and an employers address in Minnesota. The Department sent letters to each address advising of the dependency proceedings and requesting father contact the Department. While the court found the Department exercised due diligence in this search, the courts finding is irrelevant, since the search ultimately resulted in locating father and in his participation in the proceedings.
While father asserts the Department should have known the Little Rock address was incorrect from the outset of the proceedings and done more to search for him before the permanency planning hearing, there was nothing to put the Department on notice that the address it had for father was incorrect. Even if a signed return receipt never was received, that does not mean the address to which the notices were sent was incorrect, particularly since the notices themselves apparently were never returned to the Department. Although the Department stated in its detention report that it had initiated a parent search for father, there is nothing to suggest that the Department in fact had information that showed the Little Rock address was incorrect. Because the Departments efforts were reasonably calculated under the circumstances to apprise father of the proceedings, substantial evidence supports the juvenile courts findings concerning proper notice by mail. (See Emily R., supra, 80 Cal.App.4th at p. 1354.)
Even if the Department should have done more to locate father earlier in the proceedings, or the notices were otherwise defective, fathers due process rights were satisfied when the juvenile court provided him with an opportunity to be heard through the contested hearing on his section 388 petition. By this petition, father asked for two things: (1) to be found M.s presumed father, and (2) for custody of M. pursuant to section 361.2. The court granted fathers first request by finding him to be M.s presumed father.
With respect to the custody request, father asserted the court was required to make its determination pursuant to section 361.2, which provides that following removal of a child from her custodial parent, the juvenile court must first determine whether there is a non-custodial, non-offending parent who wishes custody of the child. (§ 361.2, subd. (a).) If such a parent exists, the court is required to place the child with that parent unless it finds by clear and convincing evidence placement with that parent would be detrimental to the childs safety, protection, or physical or emotional well-being. (Ibid.; In re Luke M. (2003) 107 Cal.App.4th 1412, 1425-1426 (Luke M.); In re Marquis D. (1995) 38 Cal.App.4th 1813, 1827 (Marquis D.).) Clear and convincing evidence requires a high probability, such that the evidence is so apparent as to leave no substantial doubt. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) If the court does not find detriment, the court may award the child to the parent and terminate jurisdiction or the court may place the child in the parents custody subject to the courts supervision and guidance. (§ 361.2, subd. (b).)
Here, after denying father custody, the court found it was detrimental to the girls emotional well-being to remove them from their foster care placement. The evidence underlying this finding is sufficient to sustain a finding that it would be detrimental to place M. in fathers custody. The social worker stated in the Departments interim report that M. and Skylar had a strong sibling relationship that provided the only stability in their lives, and if that relationship were terminated, it would be detrimental to M. A detriment finding can be supported by the emotional harm arising from the loss of sibling relationships. (Luke M., supra, 107 Cal.App.4th at pp. 1426-1426.) In addition, M.s therapist testified that M. suffered from severe reactive attachment disorder and ADHD, and it was imperative for M. to be placed in a home that could manage her negative behaviors and understand her special needs. Fathers familiarity with ADHD extended only to having spent time with his brothers stepsons, who had been diagnosed with the condition, and he admitted he knew only "a little bit" about it. Moreover, father had absolutely no relationship with M., and although he apparently had expressed an interest in obtaining custody of M. during the earlier dependency proceeding, he did not attempt to become a presumed father at that time, did not follow through with his request for custody, and never initiated visitation with M.
The juvenile court took judicial notice of the January 22, 2001 review status report from the earlier dependency proceeding. During arguments on fathers section 388 petition, the Departments counsel related the pertinent contents of the report, which included that father had spoken to a social worker regarding possible placement of M., an ICPC was initiated in September 14, 2000, father did not contact the social worker further until January 2001, when he again requested placement and a second ICPC evaluation was initiated. The report, however, is not part of the appellate record.
Although the juvenile court did not make an express finding that placement of M. with father would be detrimental to her emotional well-being, as required by section 361.2, subdivision (c), its failure to do so was not prejudicial. The evidence of detriment was so clear that it would have been an abuse of discretion for the juvenile court to place M. in fathers custody. (Compare Marquis D., supra, 38 Cal.App.4th at p. 1825.) Significantly, father does not contend on appeal that the evidence is insufficient to support a detriment finding, instead arguing simply that reversal is required because he did not receive prompt notice and the Department did not exercise due diligence in attempting to locate him.
By applying section 361.2 to fathers request for custody, the juvenile court granted what father now requests on appeal — that he "be restored to the legal position in which he would have been absent the orders made in his absence." Since father had the opportunity to present his case as if he had appeared in these proceedings from the outset, his due process rights were not violated even if notice was improper or insufficient.
Father now argues he at least should have been provided reunification services. Father, however, never requested such services as an alternative to custody. Other than his request for custody, father received precisely what he asked for, i.e. presumed father status and visitation. In addition, the court ordered the ICPC evaluation process of father continue. While father correctly points out that compliance with ICPC is not required for placement with an out-of-state parent, the ICPC process may be used to obtain information about the suitability of fathers home as a placement for M. (In re John M. (2006) 141 Cal.App.4th 1564, 1575-1576; see alsoIn re Johnny S. (1995) 40 Cal.App.4th 969, 977; Tara S. v. Superior Court (1993) 13 Cal. App.4th 1834, 1837-1838.) We note that since the court ordered long-term foster care as the permanent plan, father retained his right to file a section 388 petition in the future for custody of M. should he establish a relationship with M. through visitation and the ICPC process establish his suitability for placement.
Finally, father asserts the court should have given preferential consideration to other paternal relatives who expressed an interest in custody. (§ 361.3, subd. (a).) Father, however, never asked for such consideration by way of his section 388 petition, and none of the relatives who appeared at the hearing on the petition specifically requested they be considered for custody should father be denied it.
DISPOSITION
The courts order on fathers section 388 petition is affirmed.
We Concur:
Vartabedian, Acting P.J.
Levy, J.