Opinion
D042343.
11-25-2003
In re TRISTAN D., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. GARY P., Defendant and Appellant.
Gary P. appeals a judgment terminating his parental rights over Tristan D. (Welf. & Inst. Code, § 366.26.) Gary persuasively contends the juvenile court abused its discretion by denying his petition under section 388 to modify previous orders on the grounds the San Diego County Health and Human Services Agency (the Agency) neither made timely efforts to locate and notify him of the dependency proceedings nor advised his appointed counsel when it did locate him. We reverse the judgment with directions.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When Tristan was born to Sheila D. in October 2002, the Agency placed him in protective custody because she tested positive for illegal drugs. On October 22 the Agency filed a petition on Tristans behalf under section 300, subdivision (b), naming Gary as the alleged father. The Agencys report for the detention hearing shows that on October 21, Sheila told the social worker Gary was in jail for "transporting illegal aliens," and on the same date a friend of Sheilas told the social worker Gary was "in prison at the Metropolitan Correction Center [MCC] awaiting sentencing for `running aliens."
Sheila did not appear at the October 23 detention hearing, and her whereabouts were unknown. The court ordered the Agency to conduct a reasonable search to locate both parents and notify them of the proceedings. On November 1 the court appointed counsel for Gary.
At the November 13 jurisdiction and disposition hearing, the court noted that "[w]ith regard to [Gary], there was information that he was at [MCC]." The court asked Garys counsel whether she had located him, and she said no. The court did not question the Agency about its search efforts. The Agencys report included a parent search form dated November 5, in which the Agency instructed the parent search clerk to check with enumerated sources, including MCC. The form, however, does not indicate the clerk actually contacted MCC. The Agencys report also stated it checked with the California and federal prison locator services. The former service advised the Agency it had no listing for a Gary P., and the latter service advised the Agency it needed other identifying information such as a birth date or social security number.
The locator services inability to locate Gary may have been attributable to the misspelling of his last name in the petition.
The court found the Agency made reasonable efforts to locate Gary and Sheila. The court declared Tristan a dependent child, removed him from Sheilas custody, denied her reunification services, and scheduled a section hearing 366.26 for March 13, 2003.
On November 14, the Agency sent MCC a letter requesting information on Gary. On November 21, MCC responded that Gary was incarcerated there. On December 3, the Agency personally served Gary at MCC with notice of the section 366.26 hearing. However, the record does not suggest the Agency notified Gary he had appointed counsel and the right to establish paternity, or notified his counsel it had located him at MCC.
On January 23, 2003, an investigator for Garys counsel telephoned the social worker and asked if she had located Gary. The social worker told the investigator he was incarcerated at the Victorville Medical Facility. The same date, the social worker telephoned Gary there, and he objected to having his parental rights terminated. Gary also said he would be released from prison on June 13 and the social worker confirmed the date with the facility. The facility also advised her Gary was attending drug abuse and parenting classes.
On February 14 Gary caused a special hearing to be set on the ground his counsels investigator located him at the Victorville Medical Facility and he wished to establish paternity. Gary submitted a statement regarding paternity and a paternity questionnaire, claiming to be Tristans biological father. At the February 19 hearing, the court ordered paternity testing.
The court continued the section 366.26 hearing scheduled for March 13, and on March 17 it received paternity test results showing Gary is Tristans biological father. On April 3 the court changed Garys status from alleged father to biological father and scheduled a contested section 366.26 hearing for May 2. The court later continued the matter to May 13 so Gary could participate by telephone.
On May 13 Gary, now represented by new counsel, filed a petition for modification under section 388, seeking vacation of the order setting the section 366.26 hearing, a new disposition hearing and reunification services. Gary argued the Agencys efforts to locate him were unreasonable, since it learned before it filed its October 22, 2002 petition that he was incarcerated locally at MCC, but it did not serve him there with notice until the following December 3. Further, Gary criticized the Agency for not notifying his counsel when it located him at MCC.
The court denied the section 388 petition, stating that based on the parent search form the "Agency . . . did something to locate this father." At the later selection and implementation hearing, Gary testified he requested visitation, but the Agency denied the request pending the results of his paternity testing. Gary also testified he told the social worker his sister may be willing to care for Tristan, as she had adopted his older child. The court determined Tristan is adoptable and none of the exceptions of section 366.26, subdivision (c)(1) is applicable. The court found adoption is in the childs best interest, and terminated all parental rights.
DISCUSSION
I
Request for Dismissal
Preliminarily, we dispose of the Agencys contention the juvenile courts termination of Garys parental rights renders moot issues related to the courts earlier ruling on the section 388 petition. When a parent does not appeal the termination of parental rights, and the order becomes final, the appellate court lacks jurisdiction to consider an appeal of an order denying a petition under section 388, because no relief from the termination is available. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1317; § 366.26, subd. (i) [final judgment of termination of parental rights is conclusive].) However, when a parent does appeal the termination of parental rights, as here, appealing the termination ruling preserves appeal of a section 388 petition raised at or shortly before the section 366.26 hearing. (See In re Jessica K., supra, at pp. 1315-1317; see also § 366.26, subd. (b)(1) [adoption may not go forward until parents appellate rights are exhausted].)
II
Section 388 Petition
A
"While a biological father is not entitled to custody under section 361.2, or reunification services under section 361.5 if he does not attain presumed father status prior to the termination of any reunification period, he may move under section 388 for a hearing to reconsider the juvenile courts earlier rulings based on new evidence or changed circumstances." (In re Zacharia D. (1993) 6 Cal.4th 435, 454.)
In a footnote at this point, the court noted section 388, subdivision (a) provides in part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . ."
"`Section 388 provides the "escape mechanism" that . . . must be built into the process to allow the court to consider new information. " (Id. at p. 455.) Under section 388 the moving party must prove by a preponderance of evidence there is new evidence or a change of circumstances demonstrating it is in the childs best interest that the previous order be changed, modified or set aside. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
"The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O., supra, 8 Cal.4th at pp. 415-416.) "`Discretion is abused in the legal sense "whenever it may be fairly said that in its exercise the court in a given case exceeded the bounds of reason or contravened the uncontradicted evidence."" (Esgro Central, Inc. v. General Ins. Co. (1971) 20 Cal.App.3d 1054, 1064, citing Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527.) "`. . . When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
B
Gary contends the court abused its discretion by denying his section 388 petition, because the uncontradicted evidence shows the Agency was dilatory in locating and notifying him of the dependency proceedings. We agree with Gary.
"`[T]he state, before depriving a parent of [his parental] interest, must afford him adequate notice and an opportunity to be heard. " (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016, citing In re B. G. (1974) 11 Cal.3d 679, 688-689.)
"An alleged father in dependency proceedings is entitled to notice, because notice provides him an opportunity to appear and assert a position and attempt to change his paternity status. [Citation.] Notice affords him a reasonable time to make his appearance. [Citation.] The right to be heard has `"little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest."" (In re O.S. (2002) 102 Cal.App.4th 1402, 1408.)
"A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . . A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an `alleged father." (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) Biological fathers have fewer rights in dependency proceedings than presumed fathers. A biological father may become a presumed father if he receives the child into his home and openly holds him or her out as his natural child, and the juvenile court has the authority to grant a biological father custody of the child so he may qualify as a presumed father. (Ibid.) If an alleged father establishes he is the biological father, the court may order reunification services if it is in the childs best interests. (In re O. S., supra, 102 Cal.App.4th at p. 1409.)
"[T]he failure to give notice carries . . . grave consequences in the dependency court, where parent-child ties may be severed forever. Social services agencies, invested with a public trust and acting as temporary custodians of dependent minors, are bound by law to make every reasonable effort in attempting to inform parents of all hearings. They must leave no stone unturned." (In re DeJohn B. (2000) 84 Cal.App.4th 100, 102.) "`[T]he dependency system as a whole [is] ill-served by . . . defective procedures. " (Ibid., citing In re Anna M. (1997) 54 Cal.App.4th 463, 467.)
We conclude the evidence is susceptible to only one interpretation, that the Agency did not adequately discharge its duties. Before the Agency filed the petition on October 22, 2002, it had information that Gary was incarcerated locally at MCC. Yet, the Agency made no effort to locate him at MCC until after the November 13 jurisdiction and disposition hearing. Further, the Agency did not serve him with notice of the section 366.26 hearing until December 3, more than six weeks after it filed the petition. "[I]n dependency proceedings, time is of the essence. [Citation.] Therefore, to act with due diligence, the Agency must undertake a `thorough, systematic investigation and inquiry conducted in good faith. [Citation.]" (In re O.S., supra, 102 Cal.App.4th at p. 1409.) In David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016, the court held a social services agency did not act with due diligence when it knew of the alleged fathers employer but did not promptly contact the employer. Similarly, the Agency did not act with due diligence when it initially ignored the most likely means of finding Gary. (See ibid.)
Moreover, when the Agency located Gary it neither told him he had appointed counsel nor advised his counsel of his whereabouts. The Agency located Gary on November 21, 2002, yet did not advise his counsel of his whereabouts until January 23, 2003. Although it appears Garys counsel was also aware the Agency had information Gary was incarcerated at MCC, and had a duty to ensure the Agencys compliance with notice requirements (In re O.S., supra, 102 Cal.App.4th at p. 1408), we are reviewing the Agencys conduct. Contrary to the Agencys suggestion, Gary was not required on appeal to argue ineffective assistance of counsel; such a claim arises when counsel fails to object to inadequate notice, thereby waiving appellate review of the issue. (See ibid.) Here, Gary objected at the juvenile court.
The Agency asserts Garys inaction after it notified him on December 3, 2002, of the section 366.26 hearing shows any error was harmless. We find the assertion unsound, however, because the record does not show the Agency served Gary with a copy of the dependency petition, or notified him of his right to establish paternity. (§ 316.2; In re Paul H. (2003) 111 Cal.App.4th 753, 760; In re O.S., supra, 102 Cal.App.4th at p. 1408.) Section 316.2, subdivision (b) requires that notice to an alleged father include "Judicial Council form Paternity-Waiver of Rights (JV-505)." (See also Cal. Rules of Court, rule 1413(g).) "If a man appears in a dependency matter and requests a finding of paternity through Judicial Council form JV-505, `the court shall determine whether . . . he is the biological father of the child. (Rule 1413(h).) The court may make such determination either by ordering blood testing or based on testimony, declarations or statements by the mother and alleged father. (Rule 1413(e)(1) & (2).)" (In re Paul H., supra, 111 Cal.App.4th at p. 761.)
In In re Paul H. (2003) 111 Cal.App.4th 753, 761, the court explained: "Judicial Council form JV-505 is entitled `Statement Regarding Paternity. [Fn. omitted.] The form has check boxes next to pre-printed statements through which an alleged father can indicate his position with regard to paternity and representation by counsel. Concerning paternity, the form provides the alleged father with the following options: He can deny he is the father of the subject child; he can indicate he does not know if he is the father and can either consent to or request paternity testing; he can indicate he believes he is the childs father and request that the court enter a judgment of paternity; or, he can indicate that he has already established paternity by either a voluntary declaration or a judgment of paternity. The Judicial Council form also contains an advisement to alleged fathers regarding reunification, the right to a court trial to determine paternity and the right to be represented by counsel at such trial. Further, the form instructs the alleged father: `If you wish the court to determine paternity or if you wish to admit that you are the father of the child, complete this form according to your intentions."
Because the Agency did not serve Gary with Judicial Council form JV-505, he was initially "denied access to a procedure by which he could have compelled court-ordered paternity testing, as well as assistance from the [Agency] in arranging for such testing." (In re Paul H., supra, 111 Cal.App.4th at p. 761.) The problem was compounded by the Agencys oversight in not notifying Garys counsel when it located him at MCC. Gary did seek to establish paternity when his counsel finally located him, and thus we infer he would have done so earlier had the Agency notified counsel it located him at MCC.
The Agency asserts reversal is unwarranted because Gary did not demonstrate entitlement to reunification services as a presumed father. However, to show prejudice he need not show he could do so, because the court has discretion to order services for a biological father if doing so is in the childs best interests. (§ 361.5, subd. (a); In re O.S., supra, 102 Cal.App.4th at p. 1411.) Despite Garys incarceration, and prior dependency proceedings in which Gary failed to reunify with his older child, we are unpersuaded by the Agencys claim we should assume the court would have denied him services even if he had established paternity earlier.
Lastly, the Agency asserts Gary did not meet his burden of showing a modification of the courts orders is in Tristans best interests. However, when notice is deficient, thereby delaying a paternity finding, the court must focus on the alleged fathers interest in establishing paternity in addition to the childs best interest. (See In re Julia U. (1998) 64 Cal.App.4th 532, 543.) Further, the child suffers a loss when the rights of a biological parent are terminated. "The child has a genetic bond with its natural parents that is unique among all relationships the child will have throughout its life." (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 848.) In our view, given the notice deficiencies Tristans best interests were not served by the termination of Garys parental rights.
DISPOSITION
We reverse the judgment terminating Garys parental rights and remand the matter to the superior court for further proceedings, including a new jurisdiction and disposition hearing.
WE CONCUR: NARES, J., HALLER, J.