In re N.G.

Filed 9/14/07 In re N.G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Carol Isackson, Judge. Affirmed.

Hugo G. appeals an order terminating his parental rights to his daughter, N.G. He contends that he was denied due process because he was not provided with notice of the Welfare and Institutions Code section 366.26 hearing.^[1] We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On February 6, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant N.G. under section 300, subdivision (b), alleging that N.G.'s mother, Beatriz G., tested positive for methamphetamine at the time of N.G.'s birth, admitted using drugs, and had received no prenatal care.

The parents attended the detention hearing. The court-certified Spanish interpreter was present to assist Hugo. The court appointed counsel for each parent and ordered N.G. detained in out-of-home care. Hugo's counsel stated that he and Hugo had reviewed the petition, Hugo had received a copy, and they had discussed the importance of Hugo keeping in contact with his attorney. The record includes a JUV-153 form signed by Hugo in which he requested appointed counsel and initialed the following statement:

"I understand that I must promptly notify the Court in writing of any change in my address or phone number. I understand that the Court will send all notices and orders only to the last address I have provided to the Court."

The social worker reported that Hugo was very cooperative and that he had attended some NA meetings with Beatriz, to support her. N.G. was placed with her maternal great aunt (the aunt), who is the legal guardian of Beatriz's two older children.

Hugo was present at the February 28, 2006 jurisdictional/dispositional hearing, where he was represented by counsel and again had the assistance of an interpreter. He submitted to the court's jurisdiction and stated that he had initialed places on the form that indicated the rights he was waiving and that he understood the consequences of doing so. He said that he had talked with his attorney, with the help of the interpreter, about the provisions on the form. The court explained that if the parents did not make progress in reunification services, the court had the power to terminate parental rights. The form JV-190 that Hugo signed included the following acknowledgment:

"For a child under three at the time of initial removal, I understand that if the court assumes custody of the child, and I fail to participate regularly in court-ordered treatment, at the review in six months, services may be terminated, and the court may make a permanent plan for the child, which could result in termination of parental rights and placement of the child for adoption."

The court sustained the petition, declared N.G. to be a dependent child, placed N.G. in relative care, and ordered the parents to return to court for the six-month review hearing on August 14, 2006.

On March 19, 2006, Hugo was detained on an outstanding warrant from 1998. The charges were dropped, but he was held and reportedly deported to Tijuana, Mexico. Subsequently, Hugo and Beatriz failed to maintain contact with the Agency. Beatriz left telephone messages for the social worker, but the social worker was unable to contact her at the number she provided. Because the parents' whereabouts had become unknown, the Agency conducted a formal parent search at the address the parents had initially provided. The Agency determined that the parents no longer lived there.

At the six-month review hearing on September 11, 2006, Hugo was not present, but was represented by his attorney. The court continued N.G. as a dependent child, placed N.G. in relative care, terminated reunification services and set a section 366.26 hearing.

The social worker submitted a declaration of due diligence, in which she stated that she had conducted a search for Hugo. She had contacted the aunt, who said Hugo had been deported to Mexico in April 2006. The aunt believed that both parents were living in Tijuana, but she did not have an address for them. The maternal grandmother also said that she did not know where the parents were. The social worker reported that Desarollo Integral de la Familia (DIF) officials in Tijuana had informed the Agency that it was not possible to initiate a search in Mexico without an address or a point of contact. Searches through county, state and federal agencies revealed past addresses for Hugo, but the social worker was not able to locate him. The social worker also requested information from the United States Immigration and Naturalization Service (INS), which indicated that it had forwarded her request to the Law Enforcement Support Center (LESC) in Williston, Vermont. The social worker received no further information.

On November 16, 2006, the court reviewed the declaration of due diligence, found that Hugo could not with reasonable diligence be served in any other manner, and authorized service of notice for the section 366.26 hearing on Hugo's counsel of record.

The social worker reported that N.G. is adoptable because of her young age, good physical health and normal development. The aunt wanted to adopt her, and there were 22 other adoptive families willing to adopt a child like her.

At the section 366.26 hearing on January 19, 2007, Hugo was not present. His counsel argued that Hugo had not received proper notice of the hearing, and that the Agency's search had been inadequate. The court found that proper notice had been provided. After receiving evidence and hearing argument, the court found that N.G. was likely to be adopted if parental rights were terminated, and that none of the statutory exceptions to adoption existed. The court terminated parental rights, designated adoption as the permanent plan, and identified the aunt as the prospective adoptive parent.

DISCUSSION

Hugo contends that he was denied due process because he was not provided with notice of the section 366.26 hearing. He complains that the court never obtained a permanent mailing address for him or informed him that the address he provided would be used for notice purposes. He also argues that the Agency did not use due diligence in attempting to notify him of the section 366.26 hearing, and that the court erred in not ordering publication of notice in a Tijuana newspaper.

I. The Court Properly Advised Hugo of the Need to Provide a Permanent Mailing Address and to Notify the Court or the Agency if his Address Changed.

Section 316.1, subdivision (a) requires that at the beginning of the dependency proceedings, the parent designate a permanent mailing address for the court and the court advise the parent that the court and the Agency will use the designated mailing address to provide notice unless the parent notifies the court or the Agency in writing of a new mailing address.

Hugo was ordered to provide a permanent mailing address, and was informed of the need to keep the Agency and the court informed if his address changed. At the detention hearing, at which he had assistance of his attorney and a court-certified Spanish interpreter, Hugo initialed a statement that stated that he understood he must promptly notify the court of any change of address or telephone number and that the court would send all notices and orders to the last address he had provided. Hugo had the assistance of an attorney and an interpreter again at the jurisdiction/disposition hearing. The jurisdiction/disposition report, of which Hugo received a copy, stated that he was to designate a permanent mailing address, which the court and the Agency would use to notify him of all proceedings until he designated a different address. It is reasonable to assume that Hugo's counsel and the interpreter assisted him in understanding that the mailing address he was required to provide would be used to provide notice to him, and that he must advise the court or the Agency if his address changed. The record shows that Hugo received proper advisement that he must provide a current address at which he could receive notice.

II. The Court did not Err in Finding that the Agency Exercised Due Diligence in Attempting to Provide Notice to Hugo.

We review whether the Agency's efforts to locate Hugo and provide notice satisfied statutory and constitutional requirements. Constitutional issues are reviewed de novo. (Vo v. City of Garden Grove ( 2004) 115 Cal.App.4th 425, 433.)

"[D]ue 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.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418, quoting Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) "The essence of due process is fairness in the procedure employed." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.) "The child welfare agency must act with diligence to locate an [absent] parent." (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) "Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith." (Ibid.)

Section 294, subdivision (f)(7) requires that if a parent's whereabouts are unknown, and the parent with reasonable diligence cannot be served with notice of the section 366.26 hearing, the social services agency must file an affidavit, at least 75 days before the hearing, describing its efforts to locate and serve the parent.

As the social worker declared, the Agency conducted a thorough search in an attempt to locate Hugo. The social worker talked with the aunt and the maternal grandmother, who informed her that they did not have an address for the parents, although the aunt believed they were in Tijuana. Searches were conducted through county, state and federal governmental agencies. The Agency contacted DIF officials in Tijuana, but the DIF informed the Agency that because the Agency did not have an address or point of contact for the parents, the DIF could not perform a search. The Agency requested information on Hugo's whereabouts from the INS, which informed the Agency that because the request came within the jurisdiction of the LESC, the INS had forwarded the request to the LESC. The Agency reasonably followed standard procedures in conducting the search. The court did not err in finding that the Agency had exercised due diligence.

III. The Court did not Err when it Ordered Service of Notice on Hugo's Attorney.

Section 294, subdivision (f)(7)(A) provides that if a parent's whereabouts are unknown and the court determines that there has been due diligence in attempting to locate and serve the parent, and the recommendation for a permanent plan for the child is adoption, service must be on the parent's attorney of record, and, if there is no attorney of record, service must be by publication. ( 294, subd. (f)(7)(A).)

The court found that Hugo could not with reasonable diligence be served in any of the ways described in section 294, subdivision (f). The Agency's recommendation for a permanent plan was adoption. The court thus ordered that notice to Hugo be provided by certified mail, return receipt requested, to his counsel of record. Notice by publication was not required. The service of notice on Hugo's attorney of record was sufficient.

DISPOSITION

The order is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.

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^[1] All statutory references are to the Welfare and Institutions Code.