In re Amanda M.
Filed 1/21/14 In re Amanda
M. CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re AMANDA
M. et al., Persons Coming Under the Juvenile Court Law.
B246246
(Los
Angeles County
Super. Ct. No. CK89927)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
P.M.,
Defendant and Appellant.
APPEAL
from orders of the Superior Court of Los
Angeles County, Rudolph Diaz, Juvenile Court Referee. Affirmed.
Cristina
Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and Jeanette Cauble, Senior Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Joann
H. (Mother) and P.M. (appellant) are the parents of Amanda M. (born 1996) and
C.M. (born 1998). Mother has two other
children with a different father, Jason G., who are not parties to these
proceedings. Appellant appeals from
orders of the juvenile court denying his Welfare and Institutions Code
he was not given adequate notice of the dependency proceedings.
FACTUAL & PROCEDURAL BACKGROUND
This
family was the subject of a prior appeal, case No. B240480, brought by Mother
and Jason G., the father of her two other children (J.G.-1 and J.G.-2). In that opinion, filed March 11, 2013, we set forth the tragic circumstances of this family. Mother and her five children were living with
Jason G. in July 2011 when one of the children (Jalyn, then 3 years old) died
from a cerebral palsy seizure. Mother
and Jason G. had left Amanda and C.M. at home alone to watch Jalyn the evening before
she died. Amanda and C.M. had severe pre-existing
emotional problems which
were exacerbated by the death of Jalyn. Amanda and C.M. cut themselves, and alleged
that Mother and Jason G. severely physically and emotionally abused all the
children and engaged in domestic violence against each other.
In
November 2011, when the Department of Children and Family Services (the
Department) filed a dependency petition
pursuant to section 300, subdivisions (a), (b), (c), and (j), Mother identified
appellant as the father of Amanda and C.M. and provided the Department his full
name and birth date. She said she had
not seen him for 10 years. On the
petition, appellant was listed as “whereabouts unknown.â€
After
a due diligence search was completed, the Department located appellant in March
2012. He had been incarcerated from 2000
until 2011 for false imprisonment and taking a vehicle without permission, and
was on parole until March 2013. He did
not have a permanent address but the Department investigator was able to reach
him by telephone and on two occasions told him about the adjudication hearing
of March 22,
2012. Appellant admitted to the social worker he had
used drugs in the past, had been a gang member, had verbally and emotionally abused
Mother, was suicidal, and had been diagnosed as bi-polar, depressed, and
no permanent residence.
At
the March 22, 2012 hearing, the juvenile court removed all four children from Mother
and Jason G.’s custody. Amanda and C.M.
were placed in foster care. The court
found notice was given to all appropriate parties. Appellant did not appear at the hearing. He was ordered to participate in parenting
classes and family counseling and awarded monitored visitation.
In
June 2012, the social worker reported that after a
residing in a sober living home in Los Angeles. Appellant had apparently been enrolled in the
program since April 2012. Appellant told
the Department that he would like to participate in counseling and visits as
soon as he received day passes from the program. However, in July 2012, the social worker
attempted to contact appellant by telephone, and twice received a “fax tone.†She stated she then gave notice of the hearing
via telephone and fax on July 6, 2012. The Department sent appellant a written notice
of the September
6, 2012 hearing to an address on South Grand Avenue in Los Angeles.
In
July 2012 Amanda and C.M. alleged they were sexually abused by Jason G.
On
September 6,
2012, appellant appeared in dependency
court for the first time and was appointed counsel. The matter had been set for a section 342
hearing. Appointed counsel indicated
that she was making a “special appearance†for appellant so she could check the
file with respect to notice. The court confirmed
with appellant the South Grand address was accurate. The court then advised him that he was
obligated to keep the social worker and attorney advised regarding his address
and telephone numbers and that the court could make decisions regarding his
parental rights, including termination of parental rights. Appellant stated he understood. The matter was continued until September 21, 2012 for trial.
On
September 20,
2012, appellant filed a section 388
petition requesting the dependency court to vacate all prior adjudication and
dispositional orders because he had not been properly noticed.
At
the trial date on September 21, 2012, appellant’s
counsel and appellant appeared, and his counsel again stated she was “specially
appearing.†Appellant’s counsel then
informed the court that he was having trouble setting up visitation, and the
court indicated it would order the Department to set up a visitation
schedule.
The
section 388 petition was heard on October 5, 2012,
and the court denied it. At the time,
appellant had been in telephone contact with but had still not visited Amanda
and C.M. because they were not ready.
CONTENTIONS ON APPEAL
Appellant
contends the Department did not properly notice him until eight months after
the dependency proceedings commenced, violating his due process rights and
prejudicially affecting his reunification with his daughters. He also contends that the failure to notify
him resulted in a jurisdictional defect in the judgment of the juvenile court,
and requests to vacate all orders issued after the detention hearing.
DISCUSSION
1.
Notice
The
court is required, at its earliest opportunity, to inquire of the identity of
any alleged father and provide notice to that man that he is or could be the
father of a child who is the subject of proceedings under section 300 and that
the proceedings could result in termination of parental rights and adoption of
the child. (§ 316.2, subds. (a), (b).) Even if his paternity has not yet been
established, he is entitled to notice of the proceedings. (§ 316.2, subd. (b); In re Joseph G. (2000) 83 Cal.App.4th 712, 715.)
Section
291, subdivision (e) provides that if a child is detained, notice to parents
not present at the initial petition hearing should be by personal service or by
first-class mail. “At each hearing under
section 300 et seq., the court must determine whether notice has been given as
required by law and must make an appropriate finding noted in the
minutes.†(Cal. Rules of Court, rule
5.534(k).) The notice must give an
alleged father an opportunity to appear and assert a position. It must afford him a reasonable time to make his
appearance so that he may establish himself as a presumed or biological father
and seek services. (In re Joseph G., supra, 83 Cal.App.4th at p. 715;
1344, 1351.)
Clearly,
the statutory requirements were not met in this case since appellant did not
receive written notice of the March 22, 2012 hearing. Despite this statutory violation, however, we
cannot conclude that appellant’s due process rights were violated.
“[T]here
is no due process violation when there has been a good faith attempt to provide
notice to a parent who is transient and whose whereabouts are unknown for the
majority of the proceedings.
[Citations.]†(
181, 188.)
The
Department is required to act “with diligence†to locate a missing parent. (In re
Justice P., supra, 123
Cal.App.4th at p. 188.) “Reasonable
diligence denotes a thorough, systematic investigation and an inquiry conducted
in good faith. [Citation.]†(Ibid.)
“Due
process requires that a parent is entitled to notice that is reasonably
calculated to apprise him or her of the dependency proceedings and afford him
or her an opportunity to object.
[Citation.]†(
at p. 188.) If the Department employs a
method of notice which is reasonably aimed to actually inform the parent, it is
sufficient. (In re J.H. (2007) 158 Cal.App.4th 174, 183.)
Here,
the Department had little information upon which to proceed. When the children were detained, Mother only
provided appellant’s name and birthday and his whereabouts were unknown. Appellant was released from custody sometime
in 2011 (the record does not disclose when), presumably before the petition was
filed. Once the Department located him,
the adjudication hearing had not yet taken place. The social worker did a search and located
him in March 2012. Once they located
him, she talked to him over the telephone and told him about the March 22nd
hearing. Appellant admits he had no
permanent residence in March 2012. In
this situation, oral notice was clearly reasonable and the best way to make
sure he actually received the information.
Appellant
then moved in April to a sober living house and apparently did not inform the
Department. Nevertheless, the social
worker located him again in July 2012 and after unsuccessfully attempting to
reach him by telephone, she sent him written notice of the September 6, 2012 hearing. Appellant later
confirmed that the address she used was accurate.
We
conclude the Department acted with diligence to locate him, particularly since
they had very little information to work with and because he was
transient. The notice by telephone in
March was the best way of ensuring that he received the information about the
hearing.
Even
if telephonic notice did constitute a due process violation, reversal of the
orders is not required. In dependency
proceedings, due process violations are subject to the harmless beyond a
reasonable doubt standard. (
183; In re Justice P., supra, 123
Cal.App.4th at p. 193.)
Despite
being told of the March 22, 2012 adjudication
hearing appellant did not appear. He
does not argue that he would have appeared if he had been given written
notice. Furthermore, there was nothing
which appellant could have argued at the hearing which would have caused a
different result. The court’s assertion
of jurisdiction over and removal of the children from Mother and Jason G.’s
custody was clearly warranted. At that
point in time, appellant could not have been awarded custody with no permanent
residence and his recent release from prison.
And even in absentia, appellant was awarded reunification services.
As
far as the September 6 hearing held pursuant to section 342, the social worker
sent notice by fax, and a written notice to appellant’s last known address,
which appellant later confirmed as accurate.
“It
is not always possible to litigate a dependency case with all parties
present. The law recognizes this and
requires only reasonable efforts to search for and notice missing parents.
Where reasonable efforts have been made, a dependency case properly
proceeds. If a missing parent later
surfaces, it does not automatically follow that the best interests of the child
will be promoted by going back to square one and relitigating the case. Children need stability and permanence in
their lives, not protracted legal proceedings that prolong uncertainty for
them.†(In re Justice P., supra, 123 Cal.App.4th at p. 191.) Here, in light of the traumatic events which
had affected Amanda and C.M., their age, and their lack of a relationship with
appellant, any notice violation was harmless beyond a reasonable doubt. (In re
J.H., supra, 158 Cal.App.4th at pp. 184-185.)
Section 388 petition
Section
388 permits a parent to petition the court to change, modify, or set aside a
previous court order on the grounds of changed circumstances or new evidence. A court may order a hearing if the parent can
demonstrate why “the best interests of the child . . . may be
promoted by the proposed change of order.
(§ 388, subd. (c).) If there is
no showing of a change of circumstances or new evidence or that the requested
change would promote the bests interests of the child, the court may summarily
deny the petition. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.) The court may consider the entire factual and
procedural history of the case in determining whether that showing has been
met. (In re Justice P., supra, 123
Cal.App.4th at pp. 188-189.)
We
review a determination to deny a section 388 hearing under the abuse of
discretion standard. (
799, 808.)
“The
presumption favoring natural parents by itself does not satisfy the best
interests prong of section 388. The
cases that state a child may be better off with his or her biological parent
rather than with strangers do so when the biological parent has shown a
sustained commitment to the child and parenting responsibilities. “ (In re
Justice P., supra, 123 Cal.App.4th at
p. 192.)
“[A]
child in the dependency system requires a . . . time-critical response. Once a child is placed in that system, the
father’s failure to ascertain the child’s existence and develop a parental
relationship with that child must necessarily occur at the risk of ultimately
losing any ‘opportunity to develop that biological connection into a full and
enduring relationship.’ (
[816], 838.)†(In re Zacharia D. (1993) 6 Cal.4th 435, 452.)
In
this case, the best interests of Amanda and C.M. would be met by providing them
with a stable safe environment so they can heal their emotional wounds and
receive constant safe supervision. Appellant
had unresolved substance abuse issues and no permanent home. To vacate the proceedings now and to start
over would be fraught with peril as the girls are in such fragile emotional
states. We find the court did not abuse
its discretion in denying the section 388 petition.
DISPOSITION
The
October 5,
2012 orders of the juvenile court as they
relate to appellant P.M. are affirmed.
J.
We
concur:
PERLUSS, P. J.
ZELON, J.
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[1] All
subsequent undesignated statutory references shall be to the Welfare and
Institutions Code.
