In re Cesar C.

Filed 3/6/07 In re Cesar C. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Stanley Genser, Commissioner. Affirmed.

Tyna Thall Orren, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Judith A. Luby, Senior Deputy County Counsel for Plaintiff and Respondent.

Manuel J. appeals from the denial of his petition under Welfare and Institutions Code section 388.[1]Manuel did not receive actual notice of the dependency proceedings at his residence in Xalisco, Nayarit, Mexico. He argues that the lack of notice requires the juvenile court to begin anew the proceedings with respect to him. We find that Manuels arguments lack merit and that the best interests of the children would not be served by the change requested by him. We affirm the denial of his section 388 petition.

FACTUAL AND PROCEDURAL BACKGROUND

Cesar, Alondra, Daniela, and Mario are siblings or half-siblings. The juvenile court found that Manuel is the presumed father of Cesar, Alondra and Daniela. It is undisputed that he is the biological father of Alondra and Daniela.

All four children have been living with foster parents since 2001. After an initial period of adjustment, the Department of Children and Family Services (DCFS) regularly reported that the children were bonded with the foster parents who loved and cared for them. DCFS indicated that the care from the foster parents was excellent, and the children were very attached to their foster parents. The children have been incorporated into the [foster] family and they are treated with love and respect.

The initial section 366.26 hearing was set for June 2003, but it was taken off calendar and the children were ordered into longterm foster care with their current caretakers. The section 366.26 hearing was continued many times. The foster parents seek to adopt the four children.

Manuels Whereabouts Initially Are Unknown

DCFS filed a petition on November 30, 2001 alleging, with respect to Manuel, that his whereabouts were unknown and that he has failed to provide the children with the basic necessities of life including, but not limited to food, clothing, shelter and medical care. Such failure on the part of the childrens father endangers the childrens physical and emotional health and safety and places the children at risk of physical and emotional harm or damage. The court sustained these allegations. The allegations with respect to mother and two other alleged fathers are not relevant to this appeal. Mothers reunification services were terminated in February 2003 and she is not a party to this appeal.

In December 2001, Cesar reported to DCFS that Manuel lived in Mexico and Alondra believed that Manuel lived in Tijuana. Also in December 2001, mother completed a paternity questionnaire indicating that Manuel J. was the father of Alondra and Daniela and lived in Tepic, Nayarit, Mexico. Mother did not provide a street address, did not indicate Manuels telephone number, and did not provide his date of birth. She stated that she was not married to Manuel.

DCFSs declaration of due diligence dated December 26, 2001, indicated that it searched for Manuel J. using three names: Manuel J., Manuel J.R., and Jose Manuel J. It checked WCMIS, Voter Registration, County Jail, Probation, Parole, Parent Locator System, Directory Assistance, Department of Justice, Child Abuse Central Index, Parole, Corrections, Postal Service and Department of Motor Vehicles. The searches uncovered one address in Imperial Beach, California. DCFS served Manuel with the first amended petition at the Imperial Beach address. In December 2001, the Postmaster indicated that Manuel was not known at the Imperial Beach address.

It is undisputed that Manuel did not receive actual notice of the proceedings until December 2003.

The Parties Learn of Manuels Whereabouts

Juanita, who is referred to alternatively as the paternal aunt and as Manuels brothers wife, filed a section 388 petition in December 2003. She identified Manuel as having a last name beginning with the letter E, and different from the name given to DCFS. Juanita indicated that Manuel had attempted unsuccessfully to locate the children. Juanita requested that the children be placed in her custody. DCFS reported that removing the children from their foster home would be detrimental to them as they were very close to their foster parents.

On January 29, 2004, the Consulate General of Mexico notified the court that Manuel referred to as Jose Manuel J.-E., - had requested assistance in having his children placed with him in Mexico. The Consulate General indicated Manuel had a home study prepared and was requesting counsel. It provided his address in Xalisco, Nayarit, Mexico.

Manuel Files a Section 388 Petition

In March 2004, counsel for Manuel requested a continuance of the section 366.26 hearing. In June 2004, Manuel filed a section 388 petition. He stated that he did not receive notice in accordance with the Hague Service Convention. In a declaration, Manuel indicated that he moved in with mother in 1990 and they separated in 1996. In 1996, mother and the children went to live in California.

In his declaration, Manuel further stated that in 1997 he moved to Mexico. From 1997 to 2000, he spoke to the children every 3 months. Then mother disconnected the phone, and Manuel asked Juanita to look after the children. Manuel could not locate them but continued to search for them. He received a tip on October 1, 2003, that his children were taken away from mother, and when Juanita contacted the county agencies, she was able to locate the children.

The juvenile court denied Manuels section 388 petition without a hearing. Manuel appealed from that determination and the parties stipulated to a reversal which was accepted by this court. A second home study conducted in Mexico by the State System for the Integral Development of the Family indicated that Manuel worked as a taxi driver. He lived with his parents and a brother. The study indicated that they lived in a large house with four bedrooms and the house was clean and in good condition. The study found that Manuel did not have any criminal convictions. The study further reported that Manuel was eager to have the children with him. Manuel appears to have attempted unsucessfully to obtain a visa to appear at the section 388 hearing.

The children refused to have any telephone contact with Manuel and expressed a desire to remain in their foster care placement. DCFS reported that the children want to be adopted by their foster parents and do not want to live or talk to father [J]. They stated that they feel very upset, nervous and worried because father filed a 388 petition. In June 2005, DCFS reported that Manuel had been injured and had not been able to work for five months.

At a hearing on Manuels section 388 motion, the court concluded that Manuels whereabouts were unknown at the time the case entered the system. Theres no offer of proof from the father that had a search been made for him under the name [J.] he would have been found. Therefore, the court finds and concludes that the whereabouts of the father were unknown and theres no evidence to indicate any likelihood they would have found him under the name [J.] in Mexico. . . . The court also found it was not in the best interests of the children to be uprooted from a stable and permanent home. The children, who had not seen Manuel for almost a decade, do not view him as a father. The court noted that Manuel was not a presumed father of Mario and the court did not want to break up the sibling group. Manuel appeals from the denial of his section 388 petition.

DISCUSSION

Manuel, who has lived in Mexico since 1997, has made substantial efforts since 2003 to participate in the dependency proceedings. He requested and received assistance from the Mexican Consulate, who advocated on his behalf and secured representation for him. His appointed counsel then vigorously argued on his behalf. Manuel secured the reversal of the summary denial of his section 388 petition. Manuel also has attempted to speak to the children over the phone, but that effort has been unsuccessful because of their refusal to talk to him.

The issue, however, is not Manuels post-2003 efforts to obtain custody of the children, but instead the much narrower question of whether, in 2001, when the children were detained Manuel received adequate notice of the proceedings even though he did not receive actual notice. He argues that he was denied due process and that the requirements of the Hague Service Convention were not followed. According to Manuel, all orders pertaining to him are invalid and he is entitled to a new dispositional hearing.

I. Father Has Not Shown He Was Denied Due Process

 Since the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard. [Citations.]  (In re Emily R. (2000) 80 Cal.App.4th 1344, 1351.)  The fundamental requisite of due process of law is the opportunity to be heard. [Citation.] This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest. (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314 (Mullane).)

[W]hen notice is a persons due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, [citations], or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. (Mullane, supra, 339 U.S. at p. 315.)

An alleged father in a dependency or permanency proceedings does not have a known current interest because his paternity has not yet been established. Thus, when the address of an alleged father is unknown and cannot be determined with due diligence, notice by publication is sufficient for due process. (In re Emily R., supra, 80 Cal.App.4th at p. 1352.)

At the time of the detention, when Manuel complains that his notice was insufficient, he was an alleged father. He was entitled to notice for purposes of changing his paternity designation. (In re Alyssa F. (2003) 112 Cal.App.4th 846, 855.) At that time, DCFS did not have a known address for him or even an accurate surname. The conditions therefore did not reasonably permit notice to Manuel. [I]t has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. [Citations.] (Mullane, supra, 339 U.S. at p. 317.)

This case is distinguishable from In re Megan P. (2002) 102 Cal.App.4th 480. Here, DCFS did not know Manuels actual name. In contrast, in Megan P. DCFS knew the fathers name but used the wrong name to search for father and searched for him in the wrong state. (Id. at p. 482.) The distinction is important because, whereas the conditions in Megan P. permitted DCFS to locate father, the conditions of this case did not similarly permit such notice. While Manuel argues [a]nyone truly desirous of finding Appellant would have searched records in Tepic, a major city, Manuels address as ultimately provided indicates he lives in Xalisco, not Tepic.

Manuel argues that DCFS could have made inquiry of his relatives. But he identified no relative known to DCFS who could have provided his accurate name and address at the pertinent time. Juanita became known to DCFS when she filed a section 388 petition with the court and informed DCFS of Manuels location. However, there is no evidence that Juanita was known to DCFS prior to this time and Manuel does not argue otherwise.

II. Father Has Not Shown The Hague Service Convention Applies to This Case

Failure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person. (In re Alyssa F., supra, 112 Cal.App.4th at p. 852.) The Hague Service Convention   shall not apply where the address of the person to be served with the document is not known.   (People v. Parcel No. 056-500-09 (1997) 58 Cal.App.4th 120, 125.) Hence, the Convention does not apply to situations in which the whereabouts of the defendant cannot be ascertained despite reasonable diligence. (Id. at p. 125.)

Manuel argues that he was not properly served under the Hague Service Convention. However, the juvenile court found that the requirements of the Hague Service Convention did not apply because DCFS did not know Manuels address and could not ascertain it with reasonable diligence because it did not have his correct last name. Manuel does not show that the juvenile courts findings are incorrect. The record indicates that DCFS had three aliases for Manuel at the time of the detention hearing but had no information regarding his accurate surname. In addition, at the time of the detention hearing DCFS had no information that he lived in Xalisco or that he resided with his parents. Because DCFS did not have Manuels address, the trial court correctly concluded that the Hague Service Convention did not apply.

III. Father Has Not Shown A Change Would Be In The Childrens Best Interest

A section 388 petition is the proper mechanism to raise a challenge based on lack of notice. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) A section 388 petition is a request that a court set aside a prior order because of a change in circumstances. (Id. at p. 188.) The petition must allege why the requested change is in the best interest of the dependent child.  (Ibid., quoting section 388, subd. (b).) The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388. (Id. at p. 192.)

Here, the juvenile court expressly found that sending the children to Mexico as Manuel requested was not in the best interest of the children. As the juvenile court recognized, the siblings had a continued interest in their sibling relationships and were living together with a foster family who wanted to adopt all four children. While Manuel eventually was found to be the presumed father of three of the children, he had no status with respect to the fourth. The court was concerned that the children did not want to be separated from their youngest sibling.

The juvenile court also found that the children have been well taken care of by their foster parents since 2001. They have never lived in Mexico and Manuel has been unable to come to the United States to reunify with them had such reunification services been offered to him. The juvenile court expressly found that its been 10 years since Manuel has seen the children and they do not see this man as their father now. These findings are amply supported by the record.  [C]hildrens interests in family relationships comprise more than the emotional and social interests which adults have in family life; childrens interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each childs mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring.  (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1315.)

Manuel argues that the best interest of the child is not the appropriate standard because he did not have notice of the dispositional hearing. He argues that there is no evidence the children would be subject to more than transitory stress if returned to their fathers care and custody. However, assuming that the correct inquiry is whether it would be detrimental to the children to return them to Manuels care, the findings made by the juvenile court indicate such detriment. The court found Mr. [E.] had not seen his children in 10 to 12 years. . . . They are American citizens. . . . They dont want to have any contact with their father. The court further found that Manuel would be a stranger to the children. The court also discussed the potential difficulties posed by sending children who have never lived in Mexico to live with Manuel. The findings made by the court indicate that returning the children to his care would subject them to more than transitory stress because they have not seen him since 1997, no longer know him as their father, and have not lived in Mexico. Thus, although Manuel has made substantial efforts since 2003 to participate in these proceedings, he has not shown that the court erred in denying his section 388 petition requesting that the children be sent to his care in Mexico.

DISPOSITION

The order denying Manuels section 388 petition is affirmed.

COOPER, P. J.

We concur:

RUBIN, J.

BOLAND, J.

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[1] All undesignated statutory citations are to this Code.