Daniel H. v. Super. Ct.

Filed 6/30/08 Daniel H. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jamileh Schwartzbart, Commissioner.

Daniel H., in pro. per., for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing^[1]as to his two sons and daughter. He claims his due process right to notice was violated. We concur and will grant relief.

STATEMENT OF THE CASE AND FACTS

In March 2007, petitioners then six and four-year-old sons and five-year-old daughter were taken into protective custody by the Fresno County Department of Children and Family Services (department) after their mother Brandi^[2]and newborn half-brother tested positive for drugs. The department filed a dependency petition on the childrens behalf identifying petitioner as the childrens presumed father and indicating his whereabouts were unknown. The department also initiated a search to locate petitioner.

The juvenile court detained the children pursuant to the petition and set the jurisdictional hearing for April. Meanwhile, the departments search produced a possible match through databases of the family support and sheriffs department, which identified a man with petitioners name along with a date of birth, social security number, drivers license number and an address at 4665 E. Nevada (the Nevada address), which was last used in March 2005. The sheriffs department records also listed a previous address on Dwight Way for the same individual. The department mailed letters to the Nevada and Dwight Way addresses as well as to 13 other addresses it located in telephone directories for men bearing petitioners name. The letter advised the recipient that dependency proceedings had been initiated and asked the recipient of the letter to contact the department. No responses were received and the department either did not search the Department of Motor Vehicles (DMV) for an updated address or did not receive a response.^[3]

In its jurisdictional report, the department listed the Nevada address as petitioners address and indicated it would provide a due diligence report at the dispositional hearing. The department did not serve petitioner notice of the jurisdictional hearing at the Nevada address.

In April 2007, at the jurisdictional hearing, the juvenile court adjudged the children dependents of the court and, in May, ordered reunification services for Brandi and the babys father. Petitioners children were placed together in foster care.

The dispositional hearing with respect to petitioner was continued twice so that the department could notify the Bureau of Indian Affairs (BIA) of the dependency proceedings pursuant to the Indian Child Welfare Act (ICWA)^[4]because Brandi believed petitioner may have American Indian heritage.

In June 2007, the department served the BIA notice listing the Nevada address as petitioners current or former address. It also listed the childrens paternal grandparents by name and listed the address on Dwight Way. The department sent the notice to petitioner by certified mail at the Dwight Way address.

In its dispositional report, the department reported that petitioners whereabouts were unknown but that Brandi stated he was living with his sister in Fresno. The department listed the Nevada address as petitioners address but did not serve petitioner notice of the hearing at that address. The agency attached its due diligence report to the dispositional report.

The juvenile court conducted the dispositional hearing as to petitioner in July 2007. The court found ICWA did not apply and denied petitioner reunification services. The court also found the department exercised due diligence in attempting to locate and notify petitioner and concluded [he was] either choosing not to respond or his whereabouts [remained] unknown.

In September 2007, the juvenile court conducted the six-month review hearing and continued reunification services for Brandi. Petitioner was not served notice of the hearing at the Nevada address and did not appear. The court set the 12-month review hearing for March 10, 2008, and on March 6, 2008, the department served petitioner notice of the hearing by first class mail addressed to the Nevada address.

In its status report for the 12-month review hearing, the department reported that Brandi had not complied with her court-ordered services and that petitioner had not contacted the department. Consequently, the department recommended the court terminate services and proceed to permanency planning.

On March 10, 2008, the juvenile court convened a combined 12-month review hearing as to petitioners children and a section 366.26 hearing as to their baby brother. The court continued the section 366.26 hearing as to the baby but terminated Brandis reunification services as to petitioners children and set a section 366.26 hearing as to them. This petition ensued.

DISCUSSION

Petitioner argues the department failed to exercise due diligence in its attempt to locate him at his current address of 4668 E. Nevada. While petitioner does not explain how he received notice of the March 10 hearing, he states in the petition that he received notice on the day of the hearing. He contends that, because the department did not exercise reasonable diligence in attempting to locate him, he was denied his due process right to notice. We agree.

In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend. (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.) Section 316.2, subdivision (b) requires that a presumed father, such as petitioner, be provided notice at his last and usual place of abode by certified mail return receipt requested. The notice must state that the child is subject to proceedings under section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. ( 316.2, subd. (b).) If the presumed fathers whereabouts are unknown, the child welfare agency must act with diligence to locate him. (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) Reasonable diligence implies a thorough, systematic investigation and an inquiry conducted in good faith. (Ibid.) Further, since the court found the department exercised due diligence to locate petitioner and since petitioner bears the burden of demonstrating error on appeal (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632), he must show the courts finding was not supported by substantial evidence. On review, we conclude substantial evidence does not support the juvenile courts due diligence finding.

The problem in this case is that the department simultaneously treated petitioner as a missing parent yet felt sufficiently comfortable with the Nevada address to list it as his current address in its reports for the hearings and in its notice to the BIA. Despite that, it did not send its initial letter to that address by certified mail as required by law. Nor did it make any attempt to serve him notice at that address until the 12-month review hearing at which point he effectively received notice of the dependency proceedings for the first time.

Further, the department had other information with which to search that it did not pursue. For example, there is no evidence the department attempted to contact petitioners sister to determine if he was living with her. Nor did the department search DMV records for a more current address using the drivers license number it obtained through its initial search.

Real party argues that petitioner lived at the Nevada address all along and is being deceptive because, while he provides his current address, he does not reveal where he was living during the underlying proceedings. That may be the case and certainly one has to wonder why petitioner did not receive the initial letter or the copy of the ICWA notice sent certified to his parents home. Nevertheless, we cannot affirm the juvenile courts due diligence finding in this case. The department failed to fully utilize the information it had and inexplicably waited until 12 months into the proceedings to certify mail to an address it had been listing all along as petitioners current address. Moreover, in light of the undisputed evidence that petitioner qualified as a presumed father, the courts error was prejudicial. As a presumed father, he is entitled to reunification services pursuant to section 361.5, subdivision (a),^[5]absent the applicability of any one of the exceptions enumerated therein. Consequently, the juvenile court could not properly proceed with the section 366.26 hearing.

DISPOSITION

Let an extraordinary writ issue directing respondent court to vacate its order of March 10, 2008, setting the section 366.26 hearing. Respondent court is further directed to conduct a hearing to consider granting petitioner reunification services. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Levy, J., and Kane, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Brandi did not file a writ petition.

^[3] The DMV is listed on the departments checklist of databases to search and there is a date in the block designated for the DMV. However, there is no indication that results from a DMV search were received.

^[4] 25 U.S.C.  1901 et seq.

^[5] Section 361.5, subdivision (a) provides in relevant part: [W]henever a child is removed from a parents ... custody, the juvenile court shall order the social worker to provide child welfare services to the child and the childs mother and statutorily presumed father....