In re Angel C

Filed 3/21/06 In re Angel C. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Carlos C. appeals a judgment of the juvenile court declaring that his daughter Angel is adoptable, and terminating his parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

In April 1999, Carrie H. gave birth to her daughter Angel. Carlos C. declared that he was Angel's father, and her birth certificate so states. Carrie H. and Carlos C. were not married.

During the first three years of Angel's life, Carrie H., Carlos C., and Angel lived together as a family. Carrie H. and Carlos C. had a violent relationship, however, and he was frequently arrested for domestic violence and incarcerated.

In June 2002, Carlos C. was incarcerated following a domestic violence conviction and probation violation. Later that year, Carrie H. died from a heroin overdose. Her brother, Christopher H., obtained legal guardianship of Angel. Carlos C. remained incarcerated.

On May 14, 2004, the Ventura County Human Services Agency ("HSA") filed a petition on behalf of five-year-old Angel. Angel's day-care provider reported to police officers that Angel suffered bruises inflicted by her legal guardian's girlfriend. In the dependency petition, HSA alleged that Angel suffered serious physical harm and that her guardian had not protected her. (§ 300, subds. (a) & (b).)

HSA also alleged that Carlos C. had a long history of substance abuse, a domestic violence conviction, and that his whereabouts were unknown. (§ 300, subds. (b) & (g).) Angel's legal guardian informed HSA that Carlos C. visited Angel in March or April 2004, and that he was "on the run" from his parole officer. The petition stated that Carlos C. was the alleged, not presumed, father of Angel.

The juvenile court ordered Angel detained. HSA placed her in the home of her great aunt and uncle. The court later sustained the allegations against her legal guardian. He waived reunification services and the court dissolved the guardianship.

HSA mailed notice of the detention hearing and the juvenile court's ruling thereon to Carlos C. at 126 N. 12th Street in Santa Paula. Thereafter, it mailed notice of the jurisdiction and disposition hearing to him at 435 Hume Drive in Fillmore. HSA performed a due diligence search to locate Carlos C. He did not contact HSA, nor did he appear at either hearing. The "return receipt requested" cards did not contain Carlos C.'s signature. His parole officer informed HSA that Carlos C.'s whereabouts were unknown and that he had violated parole.

Prior to the next hearing in November, 2004, HSA learned that Carlos C. was incarcerated in the Victor Valley Correctional Facility. It mailed notice of the hearing, but not the status report, to Carlos C. at the Victor Valley Correctional Facility. At the hearing, the juvenile court set a permanent plan hearing for March 22, 2005. Carlos C., still incarcerated, did not appear at the review hearing nor did he contact HSA.

In March 2005, HSA sought a continuance of the permanent plan hearing to allow Carlos C. to appear. The juvenile court appointed an attorney to represent Carlos C., and it continued the hearing several times at his request.

On August 10, 2005, the juvenile court held the permanent plan hearing. Carlos C. appeared and demanded reunification services as Angel's presumed father. He contended that he did not receive notice of the detention and jurisdiction and disposition hearings because he did not live at 126 N. 12th Street or 435 Hume Drive when HSA mailed notice. Carlos C. conceded, however, that Angel's legal guardian informed him in June 2004, that HSA had removed Angel from his care. Carlos C. also stated that he received notices regarding the dependency hearings during his incarceration.

The juvenile court found that Carlos C. received notice of the dependency hearings, including the detention hearing. The court also found that Carlos was the presumed father of Angel, pursuant to Family Code section 7611, subdivision (d). It denied his request for reunification services because reunification services with Carlos C. were not in Angel's best interests. The trial judge stated that Carlos C. was "indifferent to his responsibilities and duties as a father." The court then concluded by clear and convincing evidence that Angel is likely to be adopted, and it terminated Carlos C.'s parental rights. (§ 366.26, subd. (c)(1).)

Carlos C. appeals and contends that 1) due process of law requires that he receive notice of the proceedings; 2) the juvenile court erred by not conducting a paternity inquiry at the detention or jurisdiction hearing; and 3) due process of law requires that he receive reunification services when HSA located him at the Victor Valley Correctional Facility prior to the permanent plan hearing.

DISCUSSION

I.

Carlos C. challenges the juvenile court's finding that HSA provided proper notice of the proceedings. (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 [due process requires that parents be given notice that is reasonably calculated to advise of dependency proceedings and afford an opportunity to defend].) He points out that he testified that he lived at 208 12th Street in Santa Paula, not 126 N. 12th Street, at the time of the detention hearing. Carlos C. also faults the notice sent to 435 Hume Drive because the due diligence search did not reveal that address, but another address (also invalid) to which HSA did not send notice. He asserts that the lack of proper notice deprived him of due process of law and is reversible error.

In written findings, the juvenile court specifically found that HSA gave notice "as required by law" to Carlos C., of the detention, jurisdiction, and disposition proceedings. Due process of law and statutory law require notice to parents "that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend." (In re Jasmine G., supra, 127 Cal.App.4th 1109, 1114.)

HSA made a diligent effort to locate Carlos C. and apprise him of the proceedings. When not incarcerated, Carlos C. moved frequently and did not maintain continuous contact with Angel. Angel's legal guardian described Carlos C. as "on the run" from authorities. His parole officer confirmed that Carlos C. had violated parole and would be incarcerated if found. The law requires HSA only to provide legally sufficient notice; it does not require that Carlos C. have received the notice given. "[A]ctual notice does not require actual receipt or actual knowledge; notice by mail or other means reasonably calculated to provide actual notice is sufficient." (In re Emily R. (2000) 80 Cal.App.4th 1344, 1353.)

II.

Carlos C. contends that the juvenile court did not conduct a paternity inquiry at the detention hearing pursuant to section 316.2. He points out that the court did not question the legal guardian or the great aunt and uncle regarding his whereabouts or Angel's paternity. Carlos C. asserts that the court's failure to conduct a paternity inquiry deprived him of his right to participate in the detention and jurisdiction and disposition proceedings.

Section 316.2 requires the juvenile court "[a]t the detention hearing, or as soon thereafter as practicable, [to] inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers." Although the juvenile court did not conduct a paternity inquiry at the detention hearing, Carlos C. could not have been prejudiced. Angel's mother was deceased and her legal guardian informed HSA that Carlos C. was "on the run."

Carlos C. eventually appeared in court and established that he is Angel's presumed father pursuant to Family Code section 7611, subdivision (d), by his testimony that he received Angel "into his home and openly [held] out the child as his natural child." (In re Emily R., supra, 80 Cal.App.4th 1434, 1354-1355 [to be declared presumed father, alleged father must show that he has assumed parental responsibilities for minor].) Until Carlos C. established his presumed parent status, he was not entitled to receive reunification services. (Id., at p. 1354 [only a presumed, not mere biological father, is entitled to receive reunification services].)

III.

Carlos C. argues that he was entitled to reunification services when HSA learned of his incarceration at the Victor Valley Correctional Facility in November, 2004. (§§ 361.5, subd. (a) & 366.21, subd. (e).) He asserts that he is a presumed father and that section 361.5, subdivision (a)(1), allows him 12 months of reunification services.

Carlos C. points out that the notice given by HSA recommended "No change in placement custody, or status," but that HSA's report recommended setting a section 366.26 hearing and legal guardianship with Angel's great aunt and uncle. He adds that HSA did not mail him a copy of the report, as required by section 366.21, subdivision (c). (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 558 [constitutional and statutory error not to provide parents with copy of status report prior to review hearing].) Carlos C. also asserts that due process of law required that he be given transport to the review hearing. Carlos C. asserts that the errors considered together denied him due process of law.

Although the notice HSA provided Carlos C. was in error regarding the recommendation, he suffered no prejudice thereby. The notice provided information regarding the proceedings and the social worker assigned to the dependency. Carlos C., an alleged father, did nothing in response; he did not contact HSA or Angel. Carlos C.'s prospective parental rights were not prejudiced by any action taken at the hearing, a post-permanency review hearing held to consider Angel's adjustment in the home of her great aunt and uncle.

Carlos C. was not entitled to be given to transport to the review hearing because the hearing did not involve jurisdiction, disposition, or termination of parental rights. (Pen. Code, § 2625, subd. (b); In re Barry W. (1993) 21 Cal.App.4th 358, 371.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Charles W. Campbell Jr., Judge

Superior Court County of Ventura

______________________________

Lawrence E. Fluharty for Defendant and Appellant.

Noel A. Klebaum, County Counsel, and Patricia McCourt, Assistant County Counsel, for Plaintiff and Respondent.

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[1] All statutory references are to the Welfare and Institutions Code unless stated otherwise.