In re J.G.
Filed 4/11/13 In re J.G. CA3
NOT TO
BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento)
----
>
In re J.G., a Person Coming Under the Juvenile Court Law. | |
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. JIMMIE G., Defendant and Appellant. | C071634 (Super. Ct. No. JD231901) |
Jimmie
G., the father of one-year-old J.G., appeals from an order of the Sacramento
County Juvenile Court terminating his href="http://www.mcmillanlaw.com/">parental rights. ( ADDIN BA xc <@st> xl 34 s
EDNAPC000002 xpl 1 l "Welf. & Inst. Code, §§ 366.26, 395"
name="_BA_Cite_86">Welf. & Inst. Code, §§ 366.26, 395; unless otherwise stated, all statutory references that
follow are to the ADDIN
BA xc <@ost> xl 29 s EDNAPC000020 xpl 1 l "Welfare and
Institutions Code" name="_BA_Cite_87">Welfare and Institutions Code.)
On appeal, father contends the order terminating parental
right must be reversed because efforts by the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Sacramento County Department of Health
and Human Services (Department) to locate and serve father prior to the
jurisdiction and disposition hearing were not reasonable. We affirm the juvenile court’s order.
Facts and Proceedings
>Originating Circumstances
In September 2011, mother gave birth to J.G. several
weeks prematurely while father was away on vacation. Two days later, father returned to Sacramento and visited J.G. at the hospital. Two days after the visit, mother was released
from the hospital. Father’s name does
not appear on J.G.’s birth certificate.
On the day of J.G.’s birth, the Department received a
Child Protective Services (CPS) referral.
Mother had tested positive for cocaine; J.G. had tested positive for
benzodiazepine; mother had received poor prenatal care; and J.G. was born
prematurely. Mother admitted to hospital
staff that she had used cocaine two to three times per day during her
pregnancy. Mother’s extensive CPS
history includes loss of parental rights to three children, loss of physical
and legal custody to a fourth child, and long-term placement of a fifth child.
After mother’s release from the hospital, father talked
to her and learned that J.G. had been born prematurely and was still
hospitalized.
On October 4, 2011 (and again on October 11, 2011), social worker Ana Romero spoke to maternal cousin D.W.,
who had brought mother home from the hospital.
D.W. explained that mother “usually calls her once a year for
transportation,†“when she needs to be picked up from the hospital,†after she
“deliver[s] her babies.†D.W. said she
would call around to see if mother could be located.
Also on October 4, 2011, Social Worker Romero tried unsuccessfully to locate mother
at an address provided on the referral.
On October 5, 2011, Social Worker Romero learned that mother had called the
hospital and had left a telephone number.
Romero called the number and left a detailed message. Mother did not return Romero’s call.
That same day, Social Worker Romero received a telephone
call from maternal relative S.S., requesting placement of J.G. in her
home. S.S. said she had last spoken with
mother two months previously and had no contact information for mother or
knowledge of her whereabouts. S.S. said
she would drive around the areas where mother had been known to hang out and
would call back with any new information.
The next day, Romero telephoned S.S. who reported she had not been able
to locate mother.
On October 7, 2011, Maria Velasco, a Department staff person, had contact with
relatives D.W. and S.G. Velasco asked
these relatives to advise mother to contact the Department.
On October 11, 2011, a hospital social worker advised
Social Worker Romero that mother and father had visited the hospital on October
7, 2011, looking for J.G. The parents
were informed that J.G. had been taken into protective custody and were given
Social Worker Romero’s name and telephone number. Mother had indicated she was aware of the
court hearing. Father was identified as
“Jimmy [G.]†and described as “about 30 years old.†Romero called the telephone number that
mother had given to the hospital social worker and discovered the number had
been disconnected.
Petition
On October 11, 2011, the Department filed a petition
alleging that J.G. came within ADDIN
BA xc <@osdv> xl 43 s EDNAPC000021 l "section 300,
subdivisions (b), (g), and (j)" name="_BA_Cite_88">section 300, subdivisions (b), (g), and (j), in that mother had a long history of substance abuse; she
and the child had tested positive for drugs at the time of the birth; mother’s
whereabouts were unknown; and mother had failed to reunify with five other
children.
Detention
Neither parent was present at the detention hearing on
October 12, 2011. The juvenile court
found a prima face showing had been made that J.G. came within name="_BA_Cite_33"> ADDIN
BA xc <@osdv> xl 11 s EDNAPC000022 l "section 300"
name="_BA_Cite_89">section 300.
Jurisdiction and
Disposition
In preparation for the jurisdiction and disposition
hearing, the Department filed a “Declaration of Due Diligent Search†for
father. The only identifying information
known to the Department was the name, “Jim [G.]†or “Jimmy [G.],†and the
approximate age of 30 years.
On October 11, 2011, social worker Gisella Wolfe
submitted a “Record Search/Locate Request†for the parents to the
Investigations Division of the Sacramento County Department of Human
Assistance.
On October 12, 2011, Social Worker Romero and intern
Social Worker Perez attempted to deliver letters regarding a court date to the
parents at a recovery home but the parents were not present.
On October 17, 2011, a Department investigator performed
a criminal history check for father.
Responses received from the California Department of Justice (DOJ),
local law enforcement, Medi-Cal, and Sacramento County child support officials,
did not yield information for father. A
Wanted Persons search could not be completed due to lack of information. Department of Motor Vehicles (DMV) records
could not be searched due to lack of information.
On October 18, 2011, Social Worker Wolfe spoke to
maternal cousin S.S., who indicated she did not know mother’s whereabouts.
On October 21, 2011, Social Worker Wolfe spoke to
maternal cousin L.D. After conversing
with family members, L.D. told Wolfe that neither she nor her relatives knew
mother’s whereabouts.
On October 25, 2011, the Sacramento County Probation
Department stated that, although father was not on probation, he was known to
that agency. A registered letter was
sent to the address provided by probation but it drew no response.
On October 25, 2011, the Department searched the Megan’s
Law website and found no listing for father.
On October 25, 2011, the Department made inquires with
the Sacramento Main Jail, the Department of Corrections and Rehabilitation, and
the Federal Bureau of Prisons. Father
was not located in any of their databases.
On October 25, 2011, the Department performed a search on
the CalWIN public assistance computer that yielded three persons with names
similar to father but none with a consistent date of birth. The Department was unable to search the
Medi-Cal database because father’s Social Security number was unknown.
On October 25, 2011, the Department searched several
internet telephone directories and person search web sites for “Jim [G.]†and
“Jimmy [G.].†The searches yielded
telephone numbers that were for wrong persons, were not answered, or had been
disconnected.
On October 25, 2011, the Department obtained from the
county elections department two addresses at which father had been registered
to vote. Certified letters sent to these
addresses garnered no response.
Requests for information sent to three local United
States Post Offices similarly drew no response.
On November 2, 2011, Social Worker Wolfe spoke to
maternal great-aunt J.S., who said she had no clue as to mother’s whereabouts
and had been unaware that mother had had another baby. J.S. said she would try to find mother and,
if she succeeded, she would tell mother to contact Wolfe.
The Department filed a declaration of due diligent search
for mother. She was not located and her
whereabouts remained unknown.
At the jurisdiction and disposition hearing on December
1, 2011, the parents’ whereabouts remained unknown. The juvenile court found that the notice
required by ADDIN
BA xc <@osdv> xl 11 s EDNAPC000023 l "section 291"
name="_BA_Cite_90">section 291
for both parents had been accomplished.
The court considered a statement regarding parentage (form JV-505),
signed by “Jim [G.],†stating he is not the parent of “[J.G.]†and does not
wish to participate in the proceeding.
The court sustained the petition; bypassed mother’s reunification
services pursuant to ADDIN
BA xc <@osdv> xl 63 s EDNAPC000024 l "section 361.5,
subdivision (b), paragraphs (10), (11), and (13)" name="_BA_Cite_91">section 361.5, subdivision (b), paragraphs (10), (11), and
(13); and set the matter for
a selection and implementation hearing.
As a mere alleged father at the time, father was not entitled to
reunification services. (name="_BA_Cite_36"> ADDIN BA xc <@cs> xl 43 s
EDNAPC000003 xhfl Rep xpl 1 l "In
re Zacharia D. (1993)
Selection and
Implementation
On December 21, 2011, father was arrested and
incarcerated at the Sacramento Main Jail.
He was released from incarceration on January 5, 2012.
Four days later, the Department notified the juvenile
court that a person named “Derius Antwon Shares AKA Jimmie Russell [G.]†had
been located at the Rio Cosumnes Correctional Center.
At a juvenile court status conference on January 12,
2012, Shares explained that he is not the child’s father, but he is a friend of
the child’s father and had been in possession of father’s identification when
he was arrested; thus, he was given father’s name as an “aka†at the time of
the arrest. Shares explained that he did
not know mother and was not J.G.’s father.
Shares provided father’s date of birth, which he recalled from father’s
identification; and he provided father’s nickname, “Red.â€
The juvenile court bailiff checked the jail inmate
information system and learned that father recently had been, but no longer
was, in custody. The court asked Shares
if he knew how to contact father; Shares responded, “If he is out--Red is a
crack head, man. He hangs out in front
of one of the stores like right around 47th Avenue. That’s all I could say. I don’t know.
He’s a drug addict. He hangs
around that area, man. That’s it. And I don’t think he has a home. I think he’s transient.â€
On January 25, 2012, father was given notice of the
selection and implementation hearing set for March 29, 2012, via substituted
service on his paternal great-grandmother, A.W.
The next day, a copy of the notice was mailed to her address.
Father attended the March 29, 2012, hearing and
designated A.W.’s address as his mailing address for purposes of the
proceeding. Father requested a paternity
test. On April 19, 2012, the Department
advised the court that, per the paternity test, father was the biological
father of J.G. The court appointed
counsel for father. The court also
ordered its records corrected to reflect father’s name listed on the child’s
birth certificate.
In an April 27, 2012, interview, father told the social
worker he had resided with the paternal grandmother and paternal
great-grandmother at their address for about a year prior to January 20, 2012,
when he moved to a boarding house where mother also resides. That same day, the paternal grandmother told
the social worker that father has a drug problem and has been residing in a
“rehabilitation program for drugs†since January 2012.
The paternal grandmother told Social Worker Wolfe about
her contacts with CPS. She said sometime
in October 2011 she telephoned CPS to inquire about J.G. She gave the name “[J.W.]†and the child’s
birth date. She said CPS was unable to
locate the child in its system. She then
provided mother’s name, date of birth, and Social Security number, but CPS
still was not able to locate J.G. The
grandmother also gave CPS her son’s (father’s) name, and they still were unable
to locate the child’s name in the system.
Social Worker Wolfe reported that a “search of the
mother’s name and date of birth automatically populates the mother in the
CWS/CMS system additionally showing all her CPS referrals, related to each
child. The system would show every child
this mother gave birth to and their dates of birth. It would show a referral on September 28,
2011, and that she gave birth recently to a child in September 2011.
Social Worker Wolfe reported that she had spoken to a CPS
intake supervisor and an intake worker.
They informed her that, when a relative telephones with an inquiry about
a child in the CPS system, the intake worker will ask for the mother’s name and
identifying information to conduct a proper search for a child and to identify
the assigned social worker. The intake
worker will notify the proper social worker about the telephone call and will
document the telephone call in the CWS/CMS system. There is no documentation that father or the
paternal grandmother had contacted CPS.
At his April 2012 interview, father told the social worker
that he wanted J.G. placed with his sister.
He would like J.G. adopted by a family member “so she can eventually
live with him.†Father has three other
children who live in Michigan and have never lived full time with him.
Father stated he has not been employed since 2007 and
receives General Assistance of $190 per month.
Beginning in January 2012, he resided at the boarding house along with
eight other men and women including mother.
He was asked to leave the boarding house in May 2012 following an
argument with the pastor who operates the house.
Father was reluctant to discuss his criminal history but
acknowledged he had been convicted of selling drugs.
On May 10, 2012, father’s counsel indicated she would be
making a motion for a new disposition hearing.
In June 2012, father signed a declaration of paternity. In his pretrial statement, father requested
that the matter be returned to the disposition hearing. The Department and the child filed opposition
to father’s motion.
Father’s motion was heard on July 17, 2012. Father did not attend the hearing. The juvenile court denied the motion,
stating: “It’s hard for the Court to
imagine what more the Department could have done to locate this
individual. [¶] The Court at the time found that--that the
Department acted with due diligence. And
looking at it again in hindsight, having heard arguments from counsel the Court
still concludes that the Department did everything it reasonably could to try
to locate the father.â€
The selection and implementation hearing immediately
followed the denial of father’s motion.
The parents’ rights to J.G. were terminated.
Discussion
Father contends the Department’s efforts to locate him
prior to the December 1, 2011, disposition hearing were not reasonable. Father argues the Department had the same
information in October 2011 and in January 2012, specifically, father’s “name
and date of birth,†but the results of the searches were “quite different.†Father argues the record fails to explain why
he could not have been located in October 2011 in time to receive notice of the
disposition hearing.
Standard of Review
A juvenile court’s determination that adequate efforts
were made to provide notice of the proceedings is reviewed for substantial
evidence. ( ADDIN BA xc <@cs> xl 48 s
EDNAPC000004 xhfl Rep xpl 1 l "In
re Justice P. (2004)
name="_BA_Cite_93">In re Justice P. (2004) 123 Cal.App.4th 181, 189 ( ADDIN BA xc <@$cs> xl 10 s
EDNAPC000004 xpl 2 >Justice P.).) The reviewing court does not evaluate the
credibility of witnesses, reweigh the evidence, or resolve evidentiary
conflicts. Rather, the reviewing court
draws all reasonable inferences in support of the findings, considers the record
most favorably to the juvenile court’s order, and affirms the order if
supported by substantial evidence even if other evidence supports a contrary
conclusion. ( ADDIN BA xc <@cs> xl 46 s
EDNAPC000005 xhfl Rep xpl 1 l "In
re L. Y. L. (2002)
name="_BA_Cite_94">In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
Law Regarding
Sufficiency of Notice
Parents are entitled to due process
notice of juvenile proceedings affecting their interest in custody of their
children. ( ADDIN BA xc <@cs> xl 49 s
EDNAPC000006 xhfl Rep xpl 1 l "In
re Melinda J. (1991)
name="_BA_Cite_95">In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) Due process
“requires ‘notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.’ †( ADDIN BA xc <@$id> xl 5 s ID xpl
1 >Ibid., quoting name="_BA_Cite_40"> ADDIN
BA xc <@cs> xl 80 s EDNAPC000007 xhfl Rep xqt xpl 1 l ">Mullane v. Central Hanover Tr. Co.
(1950)
Hanover Tr. Co. (1950) 339 U.S. 306,
314 [94 L. Ed. 865, 873].)
If the whereabouts of a parent are unknown, the issue
becomes whether due diligence was used to locate the parent. ( ADDIN BA xc <@cs> xl 48 s
EDNAPC000008 xhfl Rep xpl 1 l "In
re Claudia S. (2005)
name="_BA_Cite_97">In re Claudia S. (2005) 131 Cal.App.4th 236, 247; ADDIN
BA xc <@cs> xl 47 s EDNAPC000009 xhfl Rep xpl 1 l ">In re Emily R.
(2000)
‘reasonable or due diligence’ ‘ “denotes a thorough, systematic investigation
and inquiry conducted in good faith.†’
[Citation.] Due process notice
requirements are deemed satisfied where a parent cannot be located despite a
reasonable search effort and the failure to give actual notice will not render
the proceedings invalid.
[Citation.]†( ADDIN BA xc <@$cs> xl 50 s
EDNAPC000008 xhfl Rep xpl 1 >Claudia S., at
p. 247.)
Father relies on ADDIN
BA xc <@cs> xl 41 s EDNAPC000010 xhfl Rep l ">In re DeJohn B.
(2000)
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.†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 >Id. at p. 102.) For reasons we explain, father has not shown
that the Department failed to make a reasonable effort to find him prior to the
disposition hearing.
Father relies on ADDIN
BA xc <@cs> xl 53 s EDNAPC000011 xhfl Rep l ">David B. v. Superior Court
(1994)
Court (1994)
21 Cal.App.4th 1010 ( ADDIN BA xc <@$cs> xl 8 s
EDNAPC000011 xpl 1 >David B.), at page 1016, for the proposition that notice is defective
“[w]hen the agency ignores the most likely means of finding a parent.†In ADDIN
BA xc <@$cs> xl 7 s EDNAPC000011 name="_BA_Cite_101">David B, the child’s birth certificate revealed the father’s name and
the fact he was in the United States Marines.
Notice to the father was deemed inadequate because the social service
agency “failed to take the one step which patently appeared to hold the most
promise of locating petitioner--an inquiry addressed to that
organization.†( ADDIN BA xc <@$id> xl 5 s ID xpl
1 >Ibid.) But as we explain, here the Department did
not fail to take a step that held substantial promise of locating father.
Analysis
Analogizing to ADDIN
BA xc <@$cs> xl 8 s EDNAPC000011 >David B., father claims the
inadequacy of the first search, prior to the disposition hearing, is
demonstrated by the successful second search, prior to the selection and
implementation hearing, “using the same search parameters.†But not all the parameters were the same.
The affidavit of due diligence showed that multiple
databases, including DMV, could not be searched due to the lack of identifying
information. At the time, the only
information available was father’s name and approximate age.
In his opening brief father claims the Department knew,
not only his name and approximate age, but also his date of birth. Father
has forfeited the point by failing to identify any evidence that the Department
knew his date of birth ( ADDIN
BA xc <@cs> xl 56 s EDNAPC000013 xhfl Rep xpl 1 l "Atchley v. >City of Fresno (1984)
Cal.App.3d 635" name="_BA_Cite_103">>Atchley v. City of Fresno (1984)
151 Cal.App.3d 635, 647; ADDIN
BA xc <@cs> xl 50 s EDNAPC000012 xhfl Rep xpl 1 l ">People >v. Dougherty
(1982)
278, 282), and by failing to
supply appropriate citations to the record ( ADDIN BA xc <@ru> xl 40 s
EDNAPC000014 xpl 1 l "Cal. Rules of Court, rule 8.204(a)(1)(C)"
name="_BA_Cite_104">Cal. Rules of Court, rule 8.204(a)(1)(C); ADDIN
BA xc <@cs> xl 61 s EDNAPC000015 xhfl Rep xpl 1 l ">Ingram >v. City
of Redondo Beach (1975)
45 Cal.App.3d 628, 630).
In his reply brief father makes the same claim in greater
detail, citing to the record and claiming the affidavit of due diligence shows
the Department’s knowledge of his date of birth. But father’s delay in properly setting forth
his argument has deprived the Department of an opportunity to respond to
it. For this reason, too, father has
forfeited the issue. (name="_BA_Cite_50"> ADDIN BA xc <@cs> xl 54 s
EDNAPC000016 xhfl Rep xpl 1 l "Garcia >v. McCutchen
(1997)
482, fn. 10; name="_BA_Cite_51"> ADDIN
BA xc <@cs> xl 47 s EDNAPC000017 xhfl Rep xpl 1 l ">People >v. Dunn
(1995)
1055; name="_BA_Cite_52"> ADDIN
BA xc <@cs> xl 74 s EDNAPC000018 xhfl Rep xpl 1 l ">Neighbours >v. Buzz
Oates Enterprises (1990)
217 Cal.App.3d 325, 335, fn. 8.)
In any event, the record does not support father’s
argument. The affidavit of due diligence
is, at best, ambiguous as to whether the Department had known father’s date of
birth in October 2011. The affidavit
states that the Sacramento New Main Jail and California State Prison had no
person with father’s name “and date of birthâ€; the Bureau of Federal Prisons
had no person with father’s name “and ageâ€; the CalWIN database had three
individuals with father’s name but none with “the same date of birthâ€; and a
web site had been searched for persons with father’s name and “date of
birth.†From these passages, father
infers that the Department had known father’s date of birth in October
2011.
But the affidavit does not state father’s date of birth
or otherwise indicate that the Department had known the exact date. Construed most favorably to the judgment (name="_BA_Cite_53"> ADDIN BA xc <@$cs> xl 48 s
EDNAPC000005 xhfl Rep xpl 1 name="_BA_Cite_109">In re L. Y. L., supra, 101 Cal.App.4th at p. 947), the affidavit simply means that the dates of birth of the
persons found in the prison, CalWIN and other databases did not correspond to
father’s approximate age of 30 years.
For example, the Department could fairly aver that a person whose birth
date revealed him to be 40 years old did not have “the same date of birth†as
father.
Moreover, the affidavit makes plain that the Department
had insufficient information to search the DMV database. As appellant, father bears the burden of
showing error affirmatively on appeal. (name="_BA_Cite_54"> ADDIN BA xc <@cs> xl 46 s
EDNAPC000019 xhfl Rep xpl 1 l "In
re Julian R. (2009)
name="_BA_Cite_110">In re Julian R. (2009) 47 Cal.4th 487, 498-499.) But father does
not identify any evidence that the DMV database requires information in addition to name and date of birth. Absent such evidence, the juvenile court
was entitled to deduce from the inability to search the DMV database that, in
October 2011, father’s date of birth had not been known.
Following the jurisdiction hearing, father was arrested
and incarcerated at the Sacramento Main Jail.
He was released from incarceration on January 5, 2012. Four days later, Shores was arrested while in
possession of father’s identification and was assigned father’s name as an
“AKA.†In juvenile court on January 12,
2012, Shores explained that he knew father, had been incarcerated with father,
had come into possession of father’s identification, and thus knew father’s
date of birth. The juvenile court was
entitled to conclude that the Department had not known father’s date of birth
until Shores made his appearance in this case.
Father claims this case is factually similar to name="_BA_Cite_55"> ADDIN
BA xc <@$cs> xl 38 s EDNAPC000004 xhfl Rep name="_BA_Cite_111">Justice P., supra, 123 Cal.App.4th 181, in which the agency “sent a letter to the Maricopa County
Sheriff in Phoenix seeking assistance in locating [the father.] A sheriff's employee wrote a note on the
letter that an individual with [the father’s] name and Social Security number
was in custody in the Durango Jail and mailed back the letter to the Agency. Apparently, Agency received the letter in
early December [2002]. The new social
worker did not pursue this lead, and as late as April 28, 2003, was reporting
to the court that [the father’s] whereabouts were unknown. [¶] On
May 1, 2003, Agency mailed a parent notification letter to [the father] at the
Durango Jail. The letter was returned to
Agency because [the father] was no longer in custody.†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 >Id. at p. 186.)
Father’s claim that ADDIN
BA xc <@$cs> xl 10 s EDNAPC000004 >Justice P. is factually similar
to the present case is based on his argument that the Department had the same
information in October 2011 that it later had in January 2012. As we have seen, that argument is not
correct.
The juvenile court expressly declined to consider whether
any error in the provision of notice was harmless beyond a reasonable
doubt. The court declined to find beyond
a reasonable doubt that, had father appeared at disposition, it would have
applied to him the bypass provision of ADDIN
BA xc <@osdv> xl 34 s EDNAPC000025 l "section 361.5,
subdivision (b)(13)" name="_BA_Cite_112">section 361.5, subdivision (b)(13). The court stated
“there’s no need for me to find harmless error because I’m not finding that
there’s error in this case.†For that
same reason, we have no occasion to consider the Department’s contention that
any lack of due diligence was harmless.
Disposition
The order terminating parental rights is affirmed.
HULL ,
J.
We concur:
RAYE , P. J.
MAURO , J.