Filed 7/28/26 In re L.W. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.W., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E087971
Plaintiff and Respondent, (Super.Ct.No. J303791)
v. OPINION
C.F.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Conditionally reversed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant
and Appellant.
Laura Feingold, County Counsel, and Joseph R. Barrell, Deputy County Counsel,
for Plaintiff and Respondent.
1
INTRODUCTION
Alleged father Carlos F. (appellant) appeals the termination of his parental rights
over L.W. Appellant contends the San Bernardino County Department of Children and
Family Services (CFS) violated his due process rights by failing to exercise reasonable
diligence in attempting to locate him and serve him with notice of the proceedings. He
contends the error was structural and requires reversal of all orders pertaining to him,
including the jurisdictional findings, the dispositional order, and the termination of his
parental rights.
We agree the efforts CFS made to locate and notice appellant were constitutionally
deficient in light of case specific facts known to CFS. We conditionally reverse the order
terminating parental rights to allow CFS to exercise reasonable diligence to locate and
properly notice appellant. If appellant does not appear within a reasonable period
thereafter, the juvenile court shall reinstate the termination order. Our decision is without
prejudice to appellant filing an appropriate motion pursuant to Welfare and Institutions
Code1 section 388 on remand to challenge any additional orders and/or findings
previously entered against him.
BACKGROUND
On February 25, 2025,2 CFS received an immediate response referral alleging
general neglect. It was reported that Judy W. (Mother) tested positive for amphetamine
1 All further statutory references are to the Welfare and Institutions Code, unless
indicated otherwise.
2 All further date references are to the year 2025, unless indicated otherwise.
2
at a prenatal visit on February 14, and again in February when she gave birth to L.W. By
the time the social worker went to the hospital to interview Mother, L.W.’s urine had
been screened and L.W. also tested positive for amphetamine. Mother told the social
worker she had a six- or seven-year history of using drugs, and acknowledged that she
had used a few times while she was pregnant with L.W.
L.W. was Mother’s fifth child, and her third child to have tested positive for
amphetamine at birth. All four of Mother’s other children had been removed from
Mother’s care in prior dependency proceedings. Mother’s oldest child, M.W., was
removed from Mother in 2017 after testing positive for amphetamine at birth. Mother
failed to successfully reunify with M.W. and her parental rights were terminated.
Mother’s next two children, twin girls A.F. and M.F., were removed from Mother in
2018. Appellant was their father and was in prison during the course of the proceedings.
The girls were placed with appellant’s parents, Mr. and Mrs. W., and later adopted by the
W.’s after the court terminated Mother’s and appellant’s parental rights. Mother’s fourth
child, N.W. was removed from Mother in 2020 after testing positive for amphetamine at
birth. N.W.’s father was Steven P. Mother and Steven P. were both denied reunification
services and N.W. was later placed in a guardianship with Steven P.’s parents.
At the time Mother conceived L.W., she was seeing both appellant and Steven P.,
and she was unsure which of the two men was L.W.’s father. Mother initially refused to
provide CFS with the father’s information “due to there being a possibility of two
fathers.” No father is identified on L.W.’s birth certificate.
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CFS sought and obtained a detention warrant on February 26. L.W. was placed
with a nonrelated foster parent.
On February 27, CFS filed a dependency petition that identified Mother and
appellant as L.W.’s parents. The petition alleged that Mother had failed to protect L.W.
by having a substance abuse problem from which she failed to rehabilitate, and that
appellant had failed to protect L.W. because he knew or should have known about
Mother’s substance abuse problem, and he failed to provide adequate care for the child.
(§ 300, subd. (b)(1).) The petition further alleged that appellant’s whereabouts were
unknown and he had left L.W. without any provision for support (§ 300, subd. (g)); and
that Mother had prior dependency cases involving four of her other children, none of
whom she had reunified with, and that L.W. was at a similar risk of harm (§ 300, subd.
(j)).
At the detention hearing on March 3, the court conducted a paternity inquiry.
(§ 316.2, subd. (a); Cal. Rules of Court, rule 5.635(b).) Mother identified appellant as
L.W.’s father. Mother told the court that she and appellant were not married and do not
live together, although they have two other daughters together. Mother said appellant
knows about L.W. but does not acknowledge that L.W. is his daughter; he was not at the
hospital when L.W. was born and is not listed on the birth certificate. Mother said she is
in contact with appellant “all the time” through Facebook Messenger, but she did not
know where he lived. Mother also identified Steven P. as a possible father. Mother
provided Steven P.’s date of birth, but she did not have any contact information for him.
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The court ordered L.W. detained, authorized supervised visitation and pre-dispositional
services for Mother, and ordered Mother to take a drug test. Mother later failed to attend
an on-demand drug test on March 14.
Leading up to the jurisdiction and disposition hearing, the whereabouts of
appellant and Steven P. remained unknown. CFS filed declarations of due diligence on
March 17 summarizing their efforts to locate the men. CFS searched various databases
and found three addresses and five phone numbers associated with Steven P., and seven
addresses and 13 phone numbers associated with appellant. CFS called and ruled out
each of the phone numbers, and sent notice of the hearing, along with a copy of the
petition and multiple forms (ICWA-020, JV-505 and JV-140) to each of the addresses by
certified mail, return receipt requested.
Steven P. appeared at the courthouse on the day the jurisdiction and disposition
hearing was initially scheduled. He provided CFS with his mailing address, but left
before the matter was called. The court appointed counsel for him, authorized a paternity
test, and continued the hearing.
On May 7, CFS filed an amended petition. The amended petition contained the
same allegations as the initial petition, along with additional allegations as to Steven P.
under section 300, subdivisions (b)(1), (g), and (j). The jurisdiction and disposition
hearing was continued again in light of the amended petition. CFS attempted to contact
Steven P. multiple times to arrange the paternity testing, but he did not respond.
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On May 14, CFS filed three declarations of due diligence, one for Mother, one for
Steven P., and one for appellant. CFS served notice of the jurisdiction and disposition
hearing on each of the parents at the addresses identified in the due diligence
declarations. For appellant, that included the same seven addresses identified in the
initial due diligence declaration.
The jurisdiction and disposition hearing was held on June 30. None of the parents
attended. The court found notice had been given as required by law. The court then
found all of the allegations in the amended petition true and declared L.W. a dependent
child under section 300, subdivisions (b), (g), and (j). The court bypassed Mother’s
reunification services under section 361.5, subdivisions (b)(10), (11), and (13), and found
that appellant and Steven P. were alleged fathers, not entitled to reunification services.
The court set the section 366.26 hearing for October 28.
CFS personally served Steven P. with notice of the section 366.26 hearing, and
served Mother by substituted service. (§ 294, subd. (f)(3), (4).) CFS was unable to serve
appellant because his whereabouts remained unknown.
On August 12, CFS filed an application for an order to serve appellant by
publication. (§ 294, subd. (f)(7).) The application included a due diligence declaration
setting forth the efforts CFS made in their attempt to locate and serve appellant. CFS
searched various government databases and identified 10 possible addresses and 16
possible phone numbers associated with appellant. Of the 10 addresses, CFS ruled out
nine. Three of the addresses were not viable—one was to an apartment complex without
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a unit number, one was to the Los Angeles Department of Public Services, and one was
to a state prison, and CFS confirmed that appellant was not in custody. Six of the
addresses were potentially viable residential addresses. CFS attempted to personally
serve appellant at each of those addresses but was told by the resident that appellant did
not live there. The final address was to a general delivery address. CFS sent notice of
the hearing to that address by certified mail, return receipt requested. CFS also called
and ruled out each of the 16 possible phone numbers. One of the phone numbers
belonged to appellant’s uncle. CFS left callback information at that number.
On August 14, the court granted the request to serve appellant by publication and
found notice of the section 366.26 hearing was complete. CFS later provided proof that
they had served appellant by publication in the San Bernardino County Sun newspaper.
On August 13 and September 26, the social worker attempted to contact the
adoptive parents of L.W.’s siblings and half-siblings (including appellant’s parents, Mr.
and Mrs. W.) to conduct an ICWA3 inquiry and to inquire if they had any interest in
being a possible placement for L.W. The social worker left voicemails but did not
receive any return calls.
The section 366.26 hearing was eventually held on January 27, 2026. Mother
attended the hearing; appellant and Steven P. did not. Mother’s counsel and Steven P.’s
counsel both objected to the court terminating their parental rights, but neither offered
any affirmative evidence. The court found L.W. was generally and specifically
3 Indian Child Welfare Act of 1978. (25 U.S.C. § 1901 et seq.; see Cal-ICWA,
§ 224, et seq.)
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adoptable, and that the parental-benefit exception did not apply. (See In re Caden C.
(2021) 11 Cal.5th 614, 625.) The court terminated the parents’ parental rights and set
adoption as L.W.’s permanent plan.
Appellant timely filed a notice of appeal. It is unclear from the record how
appellant learned his parental rights were terminated. The address and phone number he
provided on the notice of appeal were not included in any of the due diligence
declarations. Mother did not appeal, nor did Steven P.
DISCUSSION
A. Applicable Legal Standards
The right to be notified of juvenile court proceedings “is both a constitutional and
a statutory imperative” that applies to all parents, including alleged fathers. (In re
Jasmine G. (2005) 127 Cal.App.4th 1109, 1114; In re A.K. (2024) 99 Cal.App.5th 252,
263-264.)
Dependency law differentiates “between ‘alleged,’ ‘biological,’ and ‘presumed’
fathers.” (In re H.R. (2016) 245 Cal.App.4th 1277, 1283; In re A.K., supra, 99
Cal.App.5th at p. 263.) A presumed father is one who “receives the child into their home
and openly holds out the child as their natural child.” (Fam. Code, § 7611, subd. (d);
In re J.W.-P. (2020) 54 Cal.App.5th 298, 301.) “A biological father is one whose
paternity of the child has been established, but who has not established that he qualifies
as the child’s presumed father.” (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.)
“An alleged father is just that—a man alleged to be the father, but who has not yet
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established either presumed father status or biological paternity.” (In re A.K., at p. 263.)
“A presumed father is afforded standing, the appointment of counsel, and reunification
services, while a biological father’s access to appointed counsel and services is
discretionary.” (Ibid.) Alleged fathers have fewer rights than presumed or biological
fathers. They are not entitled to custody, reunification services or visitation (In re J.W.-
P., at p. 301) but “they nonetheless possess due process rights to be given notice and an
opportunity to appear, to assert a position, and to attempt to change their paternity
status.” (In re Daniel F. (2021) 64 Cal.App.5th 701, 712; In re Mia M. (2022) 75
Cal.App.5th 792, 807.)
“[A]n alleged father’s rights (and/or corresponding duties on the part of the state),
fall into essentially four categories: (1) the right to notice of the proceedings and of
certain hearings (see [§§] 290.1, 290.2, 291, 294, subd. (a)(2)); (2) the right to notice of
his rights as an alleged father and the steps necessary to elevate his status to that of a
presumed father (see § 316.2, subd. (b)); (3) the court’s corresponding duty to inquire
into an individual’s possible parentage through various extrinsic sources apart from the
individual’s own self-reporting (see § 316.2, subd. (a)); and (4) if the whereabouts of an
alleged father are unknown, the state’s constitutional duty to exercise reasonable
diligence to find him, so that he may be given proper notice of the proceedings.” (In re
A.H. (2022) 84 Cal.App.5th 340, 350, fn. omitted.)
Reasonable diligence in this context “ ‘denotes a thorough, systematic
investigation and an inquiry conducted in good faith.’ [Citation.] It includes searching
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not only ‘standard avenues available to help locate a missing parent,’ but ‘ “specific ones
most likely, under the unique facts known to the [Agency], to yield [a parent’s]
address.” ’ ” (In re Daniel F., supra, 64 Cal.App.5th at p. 712.) Child protective
agencies “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; In re Mia M., supra, 75 Cal.App.5th at p. 808.) “Due process
notice requirements are deemed satisfied where a parent cannot be located despite a
reasonable search effort.” (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
The same standard of reasonable diligence governs service by publication. (In re
D.R. (2019) 39 Cal.App.5th 583, 592.) Provided other statutory requirements are met,
the juvenile court may authorize notice of the section 366.26 hearing to be served by
publication “when a person’s whereabouts remain unknown despite [a] reasonably
diligent inquiry.” (In re D.R., supra, at p. 592; § 294, subd. (f)(7)(A).)
We review the juvenile court’s finding that the child protective agency exercised
reasonable diligence in attempting to locate a missing parent for substantial evidence.
(In re Sarah C. (1992) 8 Cal.App.4th 964, 974; In re S.K. (2018) 22 Cal.App.5th 29, 36.)
We review de novo the legal question of whether the court’s finding of reasonable
diligence violated the missing parent’s due process rights. (In re J.H. (2007) 158
Cal.App.4th 174, 183; In re Mia M., supra, 75 Cal.App.5th at p. 806.)
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B. Application to the Present Case
Appellant contends his due process rights were violated because CFS failed to
exercise reasonable diligence in attempting to locate him and serve him with notice of the
proceedings. Specifically, appellant contends CFS failed to search for him on Facebook
and failed to timely contact his parents to inquire about his whereabouts. CFS counters
that it conducted a thorough and systematic search for appellant, as documented in the
three due diligence/absent parent searches. As we explain, we agree with appellant.
In In re Arlyne A. (2000) 85 Cal.App.4th 591, 598, the child protective agency
“filed declarations of due diligence that, in and of themselves, demonstrated a reasonable
degree of diligence in trying to locate the father.” But what was not reflected in the
declarations was that the agency ignored information from the child that the father lived
in Rialto and instead called directory assistance in a city where the father lived five years
earlier in an effort to obtain his contact information. (Id. at pp. 598-599.) The agency
had also failed to “thoroughly and systematically” follow up on information from the
maternal grandmother that the father’s contact information was listed on a Colton police
report. (Id. at p. 599.) The court concluded that “[a]lthough the Department searched the
standard avenues available to help locate a missing parent, it failed to search the specific
ones most likely, under the unique facts known to the Department, to yield [the father’s]
address. Accordingly, the trial court’s finding of reasonable diligence [was] not
supported by the record.” (Id. at p. 599.)
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Similarly, in In re D.R., supra, 39 Cal.App.5th at page 591, the agency searched
almost two dozen government databases to obtain the father’s contact information, but
that was insufficient to establish reasonable diligence because the agency was aware that
the father had been deported to Mexico, and the databases the agency searched were all
based in the United States. The agency was also aware that two of the father’s older
children, both of whom were cooperative and available, were in contact with the father on
Facebook, yet the agency failed to ask the older children for assistance in contacting the
father through Facebook. (Ibid.) The court concluded that although the agency had
“facially complied with the requirements of searching government databases, mailing
notice to previous known addresses, and following up at said addresses,” it “did not take
steps a reasonable person would have if it were truly trying to give notice, such as asking
for help from the half sibling(s) who told the department they were in contact with Father
through social media.” (Id. at p. 592.) When the agency “ignores the most likely means
of finding the defendant, [service by publication] is invalid, even if the affidavit of
diligence is sufficient.” (Ibid.)
Here too, the due diligence declarations CFS submitted were facially sufficient—
CFS had searched several government databases, mailed the petition and notice of the
proceedings to appellant’s previous known addresses, and followed up in-person at those
addresses in an effort to locate appellant and serve him with notice of the section 366.26
hearing. Based on that evidence, the juvenile court found CFS exercised reasonable
diligence in searching for appellant, and it approved the request to serve appellant by
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publication. But what was not reflected in the declarations was that CFS had not pursued
the avenues most likely under the unique facts known to the agency to yield appellant’s
contact information. It had not followed up on information from Mother that appellant
could be contacted through Facebook, and it had not taken the very basic step of
attempting to contact appellant’s parents to inquire about appellant’s whereabouts.
CFS was aware that appellant could be contacted through Facebook based on
Mother’s statement at the detention hearing that she was in contact with appellant “all the
time” through Facebook Messenger, but it made no effort to search for appellant on
Facebook. CFS also had contact information for appellant’s parents, Mr. and Mrs. W.,
who were the adoptive parents of L.W.’s siblings (or half-siblings) A.F. and M.F. Yet
the social worker made no effort to contact appellant’s parents until after CFS submitted
its request to serve appellant by publication. The record reflects that the social worker
left a total of two voicemails for appellant’s parents. It is unclear what information, if
any, was conveyed in the voicemails, but the purpose of the calls was to conduct an
ICWA inquiry and to inquire if they had any interest in being a possible placement for
L.W. There is no indication in the record that CFS ever contacted or attempted to contact
appellant’s parents to inquire about appellant’s whereabouts. It certainly did not do so
before requesting to serve appellant by publication.
Service by publication is a last resort, available only when the agency has
demonstrated reasonable diligence, i.e., that it conducted a thorough, systematic
investigation and inquiry into the whereabouts of the missing parent. (In re D.R., supra,
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39 Cal.App.5th at p. 592; Watts v. Crawford (1995) 10 Cal.4th 743, 749, fn. 5.) When
the child protective agency has contact information for an immediate family member of a
missing parent but fails to use it, service by publication is not warranted because the
agency has not conducted a thorough, systematic investigation and inquiry into the
whereabouts of the missing parent.
We therefore agree with appellant that CFS did not sufficiently discharge its
obligation to use reasonable diligence to locate appellant using the case-specific
information available to it. The juvenile court’s conclusion to the contrary, which was
based solely on the declarations of due diligence, is not supported by the record. We
further conclude the failure of CFS to exercise reasonable diligence in its effort to locate
appellant rendered the service by publication invalid (In re D.R., supra, 39 Cal.App.5th at
p. 592) and violated appellant’s right to due process of law. (In re B.G. (1974) 11 Cal.3d
679, 688-689 [“the state, before depriving a parent of [his parental] interest, must afford
him adequate notice and an opportunity to be heard”].)
C. Prejudice
Having concluded appellant’s due process rights were violated, we now address
whether the error was prejudicial. The parties dispute which standard of prejudice
applies. Appellant contends the error was structural, or alternatively that the harmless
beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S.
18, 24 (Chapman) applies. Either way, appellant contends, reversal is required. CFS
asserts the error is subject to harmless error analysis but does not take a position on
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whether the applicable standard is that of Chapman or People v. Watson (1956) 46 Cal.2d
818, 836 (Watson), which requires the appellant to show a reasonable probability of a
more favorable outcome. CFS contends the error was harmless under either standard.
When the child protective agency has made no attempt to serve notice on a parent,
the error has been held to be reversible per se. (In re J.H. (2007) 158 Cal.App.4th 174,
183; see e.g., In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 [“the failure to
attempt to give a parent statutorily required notice of a selection and implementation
hearing is a structural defect that requires automatic reversal”].) Conversely, courts have
applied harmless error analysis to errors that arise when the agency has attempted notice,
although courts are divided on whether the Chapman or Watson standard of prejudice
applies. (In re A.H., supra, 84 Cal.App.5th at p. 372; see e.g., In re J.R., supra, 82
Cal.App.5th at p. 591; In re Mia M., supra, 75 Cal.App.5th at p. 806; In re Marcos G.
(2010) 182 Cal.App.4th 369, 387; In re J.H., supra, 158 Cal.App.4th at pp. 183-184; In
re Justice P. (2004) 123 Cal.App.4th 181, 193 [applying the Chapman standard]; In re
Al.J. (2019) 44 Cal.App.5th 652, 665-666; In re Daniel F., supra, 64 Cal.App.5th at
p. 716 [applying the Watson standard].)
We agree with CFS that the error in this case was not structural because CFS
attempted to locate appellant and serve him with notice of the proceedings. As to
whether the Chapman or Watson standard of prejudice applies, we need not resolve that
issue, because under either standard we conclude the error was not harmless.
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In a similar case where the child protective agency failed to locate and properly
notice the alleged father until just before the section 366.26 hearing, the court in In re
Daniel F., supra, 64 Cal.App.5th at page 716, applied the Watson standard and concluded
the error was not harmless. The court reasoned as follows: “Notice of a relatively
inconsequential hearing was not at issue here. Rather, Father was deprived critical notice
of the dependency proceedings and his rights as an alleged parent until just before the
hearing in which parental rights were subject to termination. Meanwhile, there was
minimal information in the record regarding Father’s circumstances and background … .
‘We cannot assume, based on this dearth of information, that had [appellant] established
his paternity and been appointed counsel, he would not have received reunification
services’ or otherwise been able to assert and protect his parental rights.’ ” (Id. at p. 716,
quoting In re Paul H. (2003) 111 Cal.App.4th 753, 761-762; see In re A.H., supra, 84
Cal.App.5th at p. 372 [“To demonstrate prejudice, the record does not need to show that
an alleged father would be elevated to presumed father status, ‘because a biological
father may get services if doing so is in the child’s best interest.’ (§ 361.5, subd. (a))”].)
The reasoning of In re Daniel F. applies equally here. The failure of CFS to
exercise reasonable diligence in locating appellant and serving him with notice of the
proceedings resulted in the court terminating appellant’s parental rights without appellant
having been given the opportunity to appear, to assert a position, and to attempt to change
his paternity status to protect his parental rights. (In re Daniel F., supra, 64 Cal.App.5th
at pp. 712, 716.) And we cannot assume, given the lack of information about appellant’s
16
current circumstances, that had appellant been notified in a timely manner and
established his biological paternity that the court would have denied him reunification
services. L.W. was detained from Mother soon after she was born, and the only
information in the record about appellant’s lack of interest in asserting his parental rights
came from Mother. Appellant should be given the opportunity to present his side of the
story to the juvenile court before his parental rights are terminated. “[It] is implicit in the
juvenile dependency statutes that it is always in the best interests of a minor to have a
dependency adjudication based upon all material facts and circumstances and the
participation of all interested parties entitled to notice.” (Ansley v. Superior Court (1986)
185 Cal.App.3d 477, 490-491.) Accordingly, whether we apply the Watson standard as
the court did in In re Daniel F., or whether we apply the more stringent Chapman
standard, the failure to properly locate appellant and serve him with notice of the
proceedings was not harmless, and reversal is required.
Finally, although we agree with appellant that reversal is required, we conclude a
conditional reversal of the order terminating parental rights is the most appropriate
disposition in this matter, as appellant has not yet appeared before the juvenile court.
(See In re J.R. (2022) 82 Cal.App.5th 569, 593-596.) Conditional reversal will give
appellant the relief he seeks: the opportunity to appear, to assert a position, and to
attempt to change his paternity status. However, should appellant choose not to appear
after being afforded proper notice, the juvenile court will have the ability to reinstate the
termination order and proceed with the matter.
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DISPOSITION
The order terminating parental rights is conditionally reversed and CFS is directed
to exercise reasonable diligence as described in this opinion to locate and serve appellant
with proper notice of the dependency proceedings. If appellant fails to appear in the
proceedings within a reasonable period of time after CFS has discharged this obligation,
then the juvenile court shall reinstate its order terminating parental rights.
Our decision is without prejudice to appellant filing an appropriate motion
pursuant to section 388 on remand to challenge any additional orders and/or findings
previously entered against him, including but not limited to the jurisdictional and
dispositional findings and orders.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RAPHAEL
J.
LEE
J.
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