In re Edward K.

Filed 3/29/07 In re Edward K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 orders of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

William K. contends the court erred when it denied his petition for modification under Welfare and Institutions Code section 388.^[1] William also appeals orders made at the six-month review hearing denying his request for custody of his son or, alternatively, for reunification services. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Edward K. was born in October 2001. His father, William, and mother, C.G.,^[2]lived together for three months after Edward's birth. Before William met C.G., he was convicted of domestic violence and sentenced to five years in prison. William was incarcerated on parole violations in 2002 and 2003 for incidents of domestic violence with C.G. and for refusing to participate in a court-ordered domestic violence program. During Edward's first two years, William was incarcerated for a total of 12 months. Following his release, William saw Edward periodically but found it difficult to maintain regular visitation.

On August 1, 2005, the San Diego County Health and Human Services Agency (the Agency) investigated allegations of child abuse based on an incident of domestic violence between C.G. and her boyfriend. Social worker Michael McDermott offered C.G. a voluntary services plan. On September 1, C.G. informed McDermott she could not care for Edward. At C.G.'s request, the Agency removed Edward from her custody. McDermott telephoned William at a number provided by C.G. and left a message asking him to call the Agency.

On September 6, 2005, the Agency filed a petition alleging Edward was at substantial risk of serious harm because of an extensive history of domestic violence in the home, including 10 documented altercations between C.G. and her boyfriend, resulting in the arrests of both parties, and earlier incidents of domestic violence between C.G. and William. ( 300, subd. (b).)

The case was transferred to social worker Stefanie Garcia on September 2, 2005. C.G. told Garcia that William did not spend much time with Edward and last saw him in July. William was homeless and was living out of his car, and C.G. did not know his whereabouts.

On September 6, 2005, Garcia initiated a parent search for William. She tried to find William's last known address, and then filled out and sent a parent search request to another department within the Agency. She did not include William's date of birth or social security number on the search request because C.G. did not provide that information at the initial interview.

The detention report, signed by Garcia on September 6, 2005, contains William's date of birth, telephone number and an address. The clerk of court sent a copy of the detention order to the address listed for William in the Agency's report, but it was marked returned on the certificate of service.

On September 7, 2005, C.G. completed a paternity inquiry form. She stated that in 2002, a San Diego court adjudicated William as Edward's father and issued a child support order. C.G. provided William's date of birth, social security number, and cellular telephone number, which was the same telephone number she provided the Agency in August 2005.

The jurisdiction and disposition hearings were held on September 27, 2005. C.G. submitted to jurisdiction. The court removed Edward from C.G.'s custody, placed him in foster care, and ordered a plan of family reunification. The court found that the search efforts for William were pending.

On September 30, 2005, William telephoned social worker Garcia seeking information about Edward. He did not reach her but left a message and his cellular telephone number. On October 3, Garcia tried to telephone William but no one answered and she could not leave a message. She did not try to contact him again because she transferred the case to another social worker on October 4.

In December 2005, the case was transferred to social worker Elizabeth Cooper. William telephoned her in January 2006. They met, and she offered William reunification services and informed him of the next hearing date.

William appeared in court on February 8, 2006. The court authorized supervised visitation between William and Edward. On March 24, the court found that William was Edward's previously adjudicated father. On May 1, William filed a petition under section 388 requesting the court modify its prior finding that proper notice had been provided, hold a new disposition hearing, and place Edward in his care and custody.

The court set the hearing on the petition for modification to coincide with the contested six-month review hearing. At the hearing, social worker Garcia testified she did not update the parent search request form after C.G. provided William's date of birth and social security number. Garcia did not try to telephone William before he left her a telephone message on September 30, 2005.

Social worker Cooper testified the Agency's case log did not contain a record of the parent search request, and no results were returned from the parent search unit. William telephoned Cooper in January 2006. She offered William services and provided referrals for parenting classes, a domestic violence program, and individual counseling. William was not interested in participating in services. He believed he did nothing wrong and wanted Edward placed in his custody.

William testified he learned of Edward's dependency case through his cousin in Arkansas, who was a friend of a friend of C.G.'s. He dialed 411 and was directed to social worker Garcia. William had the same cellular telephone number throughout the case, and never received any messages from the Agency. William began living with a girlfriend at his current address in November 2005. Before that time, he was homeless and lived in various locations. William used his brother's address for mail delivery and received letters from child support services at that address.

William had not seen Edward since July 2005. He did not want to visit him in foster care because Edward would cry and his behavior would deteriorate when William left. William was willing to participate in a parenting class but would not participate in anger management or a domestic violence program.

The court stated that the Agency should have submitted a new parent search form with William's date of birth and social security number. The court determined that, had a proper search been conducted, William's mailing address would have been located and the petition could have been properly served. Nevertheless, William had actual notice that his son was in the dependency system. Because William was homeless, the social worker's attempt to contact him by telephone was reasonable under the circumstances.

The court found that William had sufficiently reasonable notice of the dependency proceedings, and the evidence presented did not constitute a change of circumstances or new evidence as required by section 388. The court also determined it was not in Edward's best interest to grant William's petition for modification. William had not seen Edward in almost one year. The court denied the petition for modification.

With respect to the six-month review hearing, the court found there would be a substantial risk of detriment to Edward were he returned to parental custody, and extended the reunification period to the 12-month review date. The court inquired whether William was willing to participate in reunification services. William informed the court he did not need to address issues of domestic violence or anger management. The court did not order the Agency to provide reunification services to William.

DISCUSSION

I

The Court Did Not Abuse Its Discretion When It Denied

William's Petition For Modification

A

Any Notice Error Was Harmless Beyond Reasonable Doubt

William contends that his constitutional and statutory rights to due process were violated when the Agency failed to conduct a reasonable search for him and did not provide adequate notice of the detention, jurisdiction and disposition hearings. He asserts the court abused its discretion when it denied his petition for modification under section 388 because the evidence showed the Agency did not conduct a diligent search for him, notice was insufficient, and it was in Edward's best interests for the court to hold a new disposition hearing and place Edward in William's care and custody.

We review whether the Agency's efforts to locate William 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.)

Parents, including alleged fathers such as William, are entitled to due process notice of dependency proceedings affecting the care and custody of their children. (Stanley v. Illinois (1972) 405 U.S. 645, 651.) Due 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." (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) Notice provides an alleged father an opportunity to appear and assert a position and attempt to change his paternity status. (In re O.S. (2002) 102 Cal.App.4th 1402, 1408.)

The child welfare agency must act with due diligence to locate an absent parent. (See In re Zacharia D. (1993) 6 Cal.4th 435, 452-453 (Zacharia D.); 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." (In re Justice P., at p. 188, citing In re Arlyne A. (2000) 85 Cal.App.4th 591, 598-599.) The Agency must use the most likely means of finding an absent parent. (See In re Arlyne A., supra, at p. 599; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.)

A section 388 petition is a proper vehicle to raise a due process challenge based on lack of notice. (In re Justice P., supra, 123 Cal.App.4th at p. 189, citing Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481, 487-488.) In order to prevail, even on constitutional issues, at trial the petitioner must show by a preponderance of the evidence there is a change of circumstances or new evidence and the proposed modification is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re Justice P., at p. 189.)

Substantial evidence must be reasonable, credible and of solid value. (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Here, the trial court criticized the Agency for not conducting a reasonably diligent search for William. The court found that had a diligent parent search been conducted, the Agency would have discovered William's mailing address at his brother's home, and "at some point" William would have received a copy of the petition.

We agree with the trial court's assessment. A reasonably diligent search to locate an absent parent must be thorough and systematic. (In re Justice P., supra, 123 Cal.App.4th at p. 188.) When the Agency receives timely information that may help locate an absent parent (especially when the Agency has specifically requested that information), a responsible party in the Agency should review the material and employ any relevant information in its search for the absent parent. That did not occur in this case.

Here, social worker Garcia asked C.G. to complete a paternity inquiry form. C.G. promptly and thoroughly complied with the request. She provided the Agency William's date of birth and social security number 20 days before the jurisdiction and disposition hearings. Garcia testified she saw the paternity inquiry form in the case file at some point during the proceedings but did not initiate another parent search request.

The record reveals other deficiencies in the Agency's efforts to locate and notify William of the jurisdiction and disposition hearings. From the beginning of the case, Garcia had William's correct telephone number. She did not attempt to contact William using his telephone number before the jurisdiction hearing to ascertain his whereabouts and provide notice as required by sections 290.2 and 291. Garcia testified she did not conduct a criminal background check on William because the only information she had for him was his name, an assertion contradicted by the September 6, 2005 detention report that bears her signature and the paternity inquiry form filed on September 7. Both documents contain William's date of birth. William was on probation for a DUI conviction. A criminal check might have revealed information about his whereabouts. The record shows the Agency did not conduct a reasonably diligent investigation, and William did not have proper notice of the jurisdiction and disposition hearings.^[3]

Errors in notice do not automatically require reversal unless the court or Agency made no attempt to serve notice on a competent party. (In re Daniel S. (2004) 115 Cal.App.4th 903, 912; In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116.) When Edward was detained, social worker McDermott telephoned William and left a message. Throughout the case, social workers asked C.G. about William's whereabouts. The clerk of court mailed a copy of the detention order, with notice of the date for the jurisdiction hearing, to the address for William listed in the detention report. The record shows the court and the Agency attempted to provide William notice of the proceedings. Therefore, we determine whether the error was harmless beyond a reasonable doubt. (In re Jasmine G., supra, at p. 1116; In re Sara D. (2001) 87 Cal.App.4th 661, 673.)

The trial court determined that had William been properly noticed, the outcome of the jurisdiction and disposition hearings would not have been different. We believe the court's conclusion is correct. William could not have refuted the court's jurisdictional finding that Edward was at substantial risk of harm due to multiple incidents of domestic violence in the home. ( 300, subd. (b).) The record shows the court had no option but to remove Edward from parental custody at disposition. At that time, William was homeless. He did not have the means to properly care for Edward, who not only needed a stable home free from violence, but also required support services for his acting-out behaviors and learning disabilities.

In addition, William insisted he did not need reunification services. In February 2006, the social worker sent William referrals for services. He declined to participate. In May 2006, when the court queried him about cooperating with a court-ordered case plan, William indicated he would participate only in services of his choice. On this record, we cannot conclude the court would have ordered the Agency to provide reunification services at disposition. We conclude that had William received proper notice of the jurisdiction and disposition hearings, the outcome of those hearings would have not been different. Therefore, any notice error was harmless beyond a reasonable doubt. (In re Jasmine G., supra, 127 Cal.App.4th at p. 1116; In re Sara D., supra, 87 Cal.App.4th at p. 673.)

A court's denial of a section 388 petition is reviewed for abuse of discretion. While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e. in the 'legal principles governing the subject of the action. . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)

Because any notice error was harmless beyond a reasonable doubt, we conclude the court did not abuse its discretion when it determined that William did not show a change in circumstances or new evidence as required by section 388.

B

The Court Reasonably Determined It Was Not In Edward's Best Interests

To Grant William's Petition For Modification

Even had William shown a change in circumstances or new evidence as required by the first prong of section 388, the court did not abuse its discretion when it concluded that the proposed modification was not in Edward's best interests. ( 388; In re Jasmon O., supra, 8 Cal.4th at pp. 415-416; In re Justice P., supra, 123 Cal.App.4th at p. 189.) William was seeking custody of Edward. The record shows that, three days after the disposition hearing, William knew that Edward was in the dependency system. Although the Agency made a minimal effort to return his telephone message of September 30, 2005, William did not try to contact the Agency again until January 2006, more than three months after he first learned of Edward's circumstances. By the time of the section 388 hearing, William had not seen Edward in 10 months. He refused to visit Edward in foster care.

The court found that William was rigid and lacked empathy for Edward, and reasonably determined it would not be in Edward's best interests to be placed in William's care and custody. The trial court did not abuse its discretion when it denied William's section 388 petition in its entirety.

II

The Trial Court Did Not Err When It Denied William's Requests For Custody Or Reunification Services At The Six-Month Review Hearing

A

The Issue of Whether William Is Edward's Presumed Father Is Forfeited On Appeal

The parties' arguments concerning custody and reunification services are based on William's paternity status. William argues he is Edward's presumed father and is therefore entitled to custody and to reunification services. ( 361.2, subd. (a), 361.5, subd. (a), 361.2, subd. (e)(1).)

The court determined that William was an "adjudicated father." A judgment of paternity is a judicial determination designed to settle the primary question of biology and does not automatically confer upon the parent all of the rights to which a presumed parent is entitled in a dependency proceeding. (See Zacharia D., supra, 6 Cal.4th at pp. 447-449; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597; In re Sarah C. (1992) 8 Cal.App.4th 964, 974;  361.2, subd. (a), 361.5, subd. (a).)

To be a presumed father, the father must promptly come forward and prove a total commitment to his parental responsibilities. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.) A presumed father is one "who has held the child out as his own and received the child into his home . . . ." (Id. at p. 801; see Fam. Code,  7611.)

William argues that he made that commitment to Edward and should be considered a presumed father entitled to custody and reunification services. The Agency asserts the issue is forfeited.

The record shows that William did not ask the trial court to determine his status as a presumed father at any time during the proceedings, and did not object to the court's finding that he was Edward's previously adjudicated biological father. Instead, William argued at trial that he did not have to obtain status as a presumed father to be considered for custody under section 361.2. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) Therefore, for purposes of this appeal, William is a previously adjudicated biological father, not a presumed father. (See  361.2, subd.(a), 361.5, subd. (a); Zacharia D., supra, 6 Cal.4th at pp. 447-449.)

B

Substantial Evidence Supports The Court's Finding That Return To Parental Custody Would Create A Substantial Risk Of Detriment To Edward

William contends the court erred when it denied him custody of Edward. He argues that, as a noncustodial, nonoffending parent, he is entitled to custody of Edward under section 361.2. He argues there was insufficient evidence to support a finding of detriment under section 361.2 or section 366.21, subdivision (e).

The Agency, citing Zacharia D., supra, 6 Cal.4th 435, responds that only a presumed father is a parent with a right to custody under section 361.2. The Agency further argues there is sufficient evidence to support a finding that return to parental custody would be detrimental to Edward.

Section 361.2 states in pertinent part: "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing . . . who desires to assume custody of the child." ( 361.2, subd. (a).)

In Zacharia D., supra, 6 Cal.4th 435, the California Supreme Court held that the words "parent" and "custody" indicate that only the presumed father (and mother) are entitled to assume immediate custody of the child under section 361.2. (Id. at p. 454.) As discussed ante, William was a previously adjudicated biological father, not a presumed father. The Supreme Court's analysis in Zacharia D. suggests the use of the word "parent" in section 366.21 also refers to a presumed father, and not to a biological father who does not have a current relationship with the child. Thus, under the principle enunciated in Zacharia D., William was not entitled to immediate custody of Edward under section 361.2 or to physical custody under section 366.21.

Even had the court determined that William was Edward's presumed father, the trial court is required to determine whether the child's return to parental custody of Edward would be "detrimental to the safety, protection, or physical or emotional well-being of the child" before it places a child with a parent. ( 361.2, subd. (a), 366.21, subd. (e).)

Here, substantial evidence supports the court's finding that Edward's return to William's custody would be detrimental to Edward under section 361.2, subdivision (a), or would create a substantial risk of detriment to him under section 366.21, subdivision (e). William's circumstances were not stable. He was homeless in August, September and October 2005. William was fired from his job in December for not disclosing his criminal history. He had been unemployed for five months.

William refused to visit Edward in foster care and had not seen him in 10 months. He declined an offer of reunification services, and specifically refused to participate in a program to address issues of domestic violence. William was on probation for a DUI conviction. The court could reasonably conclude the risks to Edward if placed in William's custody included unresolved issues of domestic violence and substance abuse, lack of stability in housing and employment, and William's resistance to participating in services.

The court did not err when it did not immediately place Edward in William's custody under section 361.2 or return him to parental custody under section 366.21.

C

The Court Did Not Abuse Its Discretion When It Ordered

No Reunification Services Be Provided To William

William contends he is Edward's presumed father and is therefore entitled to reunification services as mandated by section 361.5, subdivision (a). As explained in section II, A ante, we reject that assertion. Nevertheless, the court has the discretion to order services for the child and the biological father, if the court determines that the services will benefit the child. ( 361.5, subd. (a).) We examine whether the court abused its discretion when it declined to order reunification services for William.

While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e. in the 'legal principles governing the subject of the action . . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (City of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1297.)

Here, the pertinent determination before the trial court was whether providing reunification services to William would benefit Edward. ( 361.5, subd. (a).) William had not seen Edward in 10 months, and refused to visit his son. The trial court did not abuse its discretion when it determined Edward would not benefit by the provision of reunification services to a biological father who had made a conscious decision not to contact and visit his son.

In addition to the lack of a current parent-child relationship, the court had ample reason to conclude that William would not participate in a court-ordered case plan to the extent necessary to mitigate the risk of harm to Edward in his care. In January 2006, social worker Cooper offered William reunification services, which he rejected. Before making its findings and orders at the six-month review hearing, the court asked William whether he was willing to participate in reunification services. William informed the court he would only participate in programs of his own choosing. In the absence of any indication William was willing to address the problems that presented multiple risks to Edward's physical and emotional well-being, the court could reasonably determine that providing reunification services to William would not benefit Edward. ( 361.5, subd. (a).) The court did not abuse its discretion when it denied reunification services to William. There is no error.

DISPOSITION

The orders are affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^[1] Unless otherwise indicated, statutory references are to the Welfare and Institutions Code.

^[2] C.G. is not a party to this appeal.

^[3] At detention, social worker McDermott telephoned William at the number provided by C.G., and left a message. The Agency's attempt to contact William by telephone and to notify him of Edward's removal was reasonable. (See  290.1, subd. (e) [notice of detention may be written or oral].)