In re Pedro E.
Filed 5/7/08 In re Pedro E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re PEDRO E., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. RACHEL M., Defendant and Appellant. | D051826 (Super. Ct. No. J513632) |
APPEAL from a judgment of the Superior Court of San Diego County, Elizabeth A. Riggs, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.
Rachel M. appeals a juvenile court judgment terminating her parental rights to her minor son Pedro E. under Welfare and Institutions Code section 366.26.[1] Rachel contends her due process rights were violated when the San Diego CountyHealth and Human Services Agency (Agency) served notice of the section 366.26 selection and implementation hearing on her attorney without first using diligent efforts to locate her. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2000 nine-month-old Pedro became a dependent of the juvenile court under section 300, subdivision (b) based on findings Rachel was unable to provide regular care for him because of her methamphetamine abuse. The court removed Pedro from Rachel's custody, placed him with his father, Jorge E., and ordered Rachel to participate in reunification services. The court also ordered Rachel to designate a permanent mailing address to be used by the court and Agency for notification purposes. She was told this address would be used until she informed the court and Agency in writing of a new mailing address. The court advised Rachel her parental rights could be terminated and Pedro could be adopted if she did not make progress on her case plan within the time allowed by law.
Rachel participated in services, including drug treatment, and eventually progressed to unsupervised visits with Pedro. The court authorized Agency to allow Rachel to return to the family home if she showed 60 days of sobriety and continued to comply with her case plan. The court also confirmed its order requiring Rachel to designate a permanent mailing address.
In October 2001 Agency filed a supplemental petition on behalf of Pedro under section 387 because Jorge and Rachel were no longer complying with their case plans. The whereabouts of Pedro and his parents were unknown. The court found the previous disposition had been ineffective in protecting Pedro and ordered him detained in licensed foster care.
For the next four years, the whereabouts of Pedro and his parents remained unknown. During this period, Agency submitted eight reports outlining its efforts to locate the family.
Pedro was located in San Diego in January 2006. His two sisters informed the social worker that he had been living in Mexico for the past three or four years. The social worker also learned Rachel had been arrested at the border and was currently in a Tijuana jail. In a telephone conversation with the social worker, Rachel said she was aware of the court hearings but could not legally cross the border into the United States. She said she did not know her address in Tijuana, but agreed to give it to the social worker once she knew it. A week later, Rachel still did not know her address. Agency recommended reunification services for the parents. Pedro was having supervised visits with extended family members and telephone calls with Rachel.
In its report for the March 2006 jurisdiction and disposition hearing, Agency noted Rachel still had not provided her address. The social worker sent Rachel a letter at the address of Pedro's sister, informing Rachel of the hearing and giving her the contact information for her attorney. The social worker directed her to contact the Tijuana social services agency, Desarrollo Integral de La Familia (DIF), to begin services. Family members confirmed Rachel was living in Tijuana but they could not provide her address.
At the jurisdiction and disposition hearing, the court sustained the allegations of the supplemental petition, ordered Agency to provide services to Rachel in Mexico and gave Agency discretion to place Pedro with an approved relative. A trans-border services request was submitted to the international liaison in order to assist Rachel with accessing services in Mexico.
According to a six-month review report, Pedro had been placed with his maternal uncle. Rachel provided an address in Tijuana. She told the social worker she went to the DIF office but could not start services because she did not have identification. The social worker was unable to obtain any information from Rachel regarding her progress with services. The court ordered further reunification services for Rachel.
By the 12-month hearing, the social worker had not received any information from Rachel or her service providers regarding progress on her case plan. Pedro, who was now living with his adult sister, maintained telephone contact with Rachel. The court terminated services and set a section 366.26 selection and implementation hearing.
Pedro was assessed as adoptable. Several relatives expressed an interest in adopting him, and there were 12 other families in San Diego interested in adopting a child like Pedro. In the social worker's opinion, there was no beneficial parent-child relationship between Rachel and Pedro. Because Rachel's whereabouts were unknown, the court continued the selection and implementation hearing to address the issue of serving notice on Rachel.
Social worker Charlene Demus filed a declaration of due diligence, describing her efforts to locate Rachel, both in San Diego and Mexico. Demus focused her search efforts on the Tijuana area, where Rachel claimed she lived. Three months into the search, the international liaison informed Demus that Rachel could not be located. According to a DIF representative, the address in Tijuana that Rachel had previously given did not exist. Demus stated that without any additional information, such as Rachel's paternal and maternal last names, the city of her birth and the existence of any relatives in Mexico, further searching could not be conducted.
After reviewing Agency's declaration of due diligence, the court granted Agency's request to serve Rachel with notice through her attorney under section 294. Notice was sent to Rachel's attorney. At the selection and implementation hearing, the court found notice was provided as required by law. The court found Pedro was adoptable and none of the exceptions to adoption applied. The court terminated parental rights and referred Pedro for adoptive placement.
DISCUSSION
Rachel contends Agency improperly served notice of the selection and implementation hearing on her attorney under section 294, subdivision (f)(7)(A) without first exercising due diligence in attempting to locate her. She asserts this resulted in a due process violation and requires reversal of the judgment terminating her parental rights.[2]
A
"Notice is both a constitutional and statutory imperative. 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.) Further, notice of a selection and implementation hearing is mandated by statute. (Ibid.) If a parent's whereabouts are unknown, and the parent cannot, with reasonable diligence, be served with notice of the selection and implementation 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. ( 294, subd. (f)(7).) If the court finds there has been due diligence in attempting to locate and serve the parent and the recommended permanent plan for the child is adoption, notice must be served on the parent's attorney of record. ( 294, subd. (f)(7)(A).)
"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.) The law requires only reasonable efforts to search for and give notice to missing parents. (Id. at p. 191.) If a parent cannot be located despite a reasonable search effort, the failure to give actual notice will not render the proceedings invalid or result in a due process violation. (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
Service of notice to a parent depends, in large part, on the court and Agency having an address to which notice can be sent. In this regard, section 316.1, subdivision (a) requires the parent to provide the court with a permanent address. Once the parent has been located and is made aware of the proceedings, the social services agency is not responsible for continuing to track a parent throughout the dependency proceedings. (In re Raymond R. (1991) 26 Cal.App.4th 436, 441.)
B
Rachel admittedly was aware of the dependency hearings but claimed her undocumented status prevented her from attending. The record shows she received proper advisement that she must provide a current address at which she could receive notice. Rachel had the "burden to notify the court of changes in her address or risk failing to receive notices." (In re Rashad B. (1999) 76 Cal.App.4th 442, 450.) She evaded Agency for more than four years despite efforts to locate her and the only address she provided was a nonexistent one. Rachel cannot blame Agency for her disappearance. (See In re Raymond R., supra, 26 Cal.App.4th at p. 441.)
In its declaration of due diligence, Agency described its efforts to locate and serve Rachel. With the limited information she had, the social worker conducted a diligent search, attempting to locate her in San Diego and Tijuana. Even with the help of the international liaison and the DIF, Agency was unable to find and personally serve Rachel. The court was convinced Agency could not, with reasonable diligence, personally serve Rachel.
Rachel asserts Agency should have undertaken additional search efforts in Mexico. She also criticizes Agency for not contacting relatives who possibly could have provided information about her whereabouts. However, Rachel makes no convincing argument Agency could have found her at any particular address in Mexico had it been more diligent in its efforts. Rachel does not identify any source of information as to her whereabouts that was available to, but ignored by, Agency and that would have resulted in locating and serving her. (See In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419; cf. In re Jasmine G., supra, 127 Cal.App.4th at p. 1116 [social services agency made no attempt to give mother notice of selection and implementation hearing despite having mother's current address and telephone number]; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016 [social services agency would have located father had it contacted his employer]; In re DeJohn B. (2000) 84 Cal.App.4th 100, 108-109 [social served agency never tried to notify parent of six-month review hearing]; In re Arlyne A. (2000) 85 Cal.App.4th 591, 598-599 [social services agency ignored current information that would have resulted in locating parent]; In re Megan P. (2002) 102 Cal.App.4th 480, 489 [social services agency ignored information about parent's current state of residence and continued to use wrong last name despite knowing correct one; searching in correct state and using correct last name would have resulted in locating him].) Having exercised due diligence in attempting to locate and serve Rachel, Agency properly served notice of the selection and implementation hearing on Rachel's attorney. ( 294, subd. (f)(7)(A).)
C
We review de novo whether Agency's efforts to locate Rachel and provide notice satisfied constitutional requirements. (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433 [constitutional issues are reviewed de novo].) "[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., supra, 234 Cal.App.3d at p. 1418; In re Justice P., supra, 123 Cal.App.4th at p. 188.) "The essence of due process is fairness in the procedure employed." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.)
Due process is not violated when "there has been a good faith attempt to provide notice to a parent . . . whose whereabouts are unknown for the majority of the proceedings." (In re Justice P., supra, 123 Cal.App.4th at p. 188; see also In re Melinda J., supra, 234 Cal.App.3d at p. 1419 [when parent's whereabouts are unknown, using " 'an indirect and even a probably futile means' " of notice is sufficient to satisfy due process].) Rachel, who knew Pedro was a dependent of the court, did not meet her obligation to communicate with Agency and participate in reunification. She was expressly told her parental rights could be terminated if she did not reunify with Pedro within a limited time period. Agency used all available resources in its attempt to locate Rachel throughout the dependency proceedings. The court properly authorized service on counsel when Agency's good faith attempts to find and serve Rachel were unavailing. Rachel's due process rights were not violated.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P.J.
IRION, J.
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[1] Statutory references are to the Welfare and Institutions Code.
[2] Agency asserts Rachel's argument is barred by the doctrine of forfeiture because neither she nor her counsel objected in the trial court to the lack of Agency's due diligence in searching for her. However, because application of the forfeiture rule is not automatic (In re S.B. (2004) 32 Cal.4th 1287, 1293) and the issue here involves a due process challenge, we proceed to address the issue on the merits. (See In re Enrique G. 2006) 140 Cal.App.4th 676, 683 [forfeiture rule will be enforced unless due process forbids it].)
