KERN COUNTY DEPARTMENT OF HUMAN SERVICES v. >SUPERIOR > >COURT > >OF > >KERN > >COUNTY >,













Filed 8/9/10













CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA >

FIFTH APPELLATE DISTRICT


>

KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; M.M., Real Party in Interest.

F060314 (Super. Ct. No. JD117897) O P I N I O N

ORIGINAL
PROCEEDINGS; petition for extraordinary writ review. Robert J. Anspach, Commissioner.

Theresa A. Goldner, County
Counsel, and Jennifer E. Weissburg,
Deputy County Counsel, for Petitioner.

No
appearance for Respondent.

James V.
Sorena, for Real Party in Interest M.M.

-ooOoo-

Petitioner Kern County Department of Human Services
(department) petitions for a writ of mandate after respondent Kern County
Superior Court (juvenile court) refused to find the department properly noticed
a parent of a jurisdictional/dispositional hearing on juvenile dependency
supplemental and subsequent petitions (Welf. & Inst. Code, §§ 387
& 342).^[1] The juvenile court believed the department
had to serve the dependent child's father, who was living in Mexico, with
notice pursuant to the Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents in Civil and
Commercial Matters, November 15, 1965, 20 U.S.T. 361 (Hague Service Convention or
Convention). The juvenile court
also continued the hearing to October 2010 for compliance with the Convention.

Having reviewed the matter, we
grant the department's petition. We
conclude the Hague Service Convention does not apply to supplemental and
subsequent juvenile dependency proceedings in light of the juvenile court's
ongoing dependency jurisdiction and provided it has previously found proper
notice to the parent. Alternatively,
assuming arguendo the Convention could apply to supplemental and subsequent
juvenile dependency proceedings, we
conclude any duty to serve notice under the Convention was discharged in this
case by the father's general appearance in the juvenile court after the
department filed its subsequent and supplemental petitions.

PROCEDURAL AND FACTUAL HISTORY

In
September 2008, the juvenile court exercised its dependency jurisdiction over
23-month-old M., adjudged him a juvenile dependent, and removed him from
parental custody. The dependency arose
out of his parents' substance abuse and domestic violence. The child's father made a general appearance
at the child's earlier detention hearing, received proper notice of the
September 2008 jurisdictional/dispositional hearing, and otherwise participated
in M.'s dependency proceedings.

Indeed, a year later, both parents
so participated and made such progress towards alleviating the causes for M.'s
out-of-home placement that the juvenile court returned the child to parental
custody subject to family maintenance services.
The court also continued its dependency jurisdiction.

The department, however, redetained
M. in December 2009 based on injuries his half sibling received, allegedly
caused by the father and related to his drug relapse. The department consequently filed a
supplemental petition (§ 387) to once again remove M. from parental
custody and a subsequent petition (§ 342) to raise a new ground for the
juvenile court's jurisdiction over M., namely child abuse (§ 300, subd.
(a)).

The father attended a December 21, 2009, detention hearing
on the subsequent and supplemental petitions.
He and the mother denied the petitions' allegations and waived
time. The court ordered the child
detained and concluded by setting the matter for a February 2, 2010, jurisdictional/dispositional hearing on
both petitions.

At the time of the December 2009 detention hearing, the father was in
custody, having been arrested due to the harm suffered by M.'s half
sibling. The father expected to be
deported to Mexico
after trial. However, the charges were
soon dismissed. On December 31, 2009, the father was released from
custody and voluntarily agreed to be deported to Mexico.

On January 11, 2010, the department served father notice of
the February 2, 2010,
jurisdictional/dispositional hearing by first-class mail, pursuant to statute,
at his last known address and the Lerdo Correctional Facility in Kern
County. Within a matter of days, the department also
initiated a due diligence search for him.



In February 2010, a department
social worker located the father in Mexico
and had a telephone conversation with him.
During the conversation, the father provided his street address in Mexico. The department, in March 2010, used the Mexico
address to send the father notice, in Spanish, of the
jurisdictional/dispositional hearing, by international registered mail, return
receipt requested. By that point, the
juvenile court had continued the jurisdictional/dispositional hearing to a May
2010 date. The notice of hearing was
delivered to the father on April 8,
2010. Another department
social worker later made telephone contact with the father. He confirmed he received the notice of
hearing and stated his intention to return to the United
States in order to attend the May
hearing.

The father
was not present at the May hearing. The
court trailed the matter to June 2. The
father was also absent from the June 2 hearing.

According
to a reporter's transcript of the June 2 hearing, the court previously
continued the jurisdictional/dispositional hearing, at least in part, for the
department to provide proper notice to the father under the Hague Service
Convention. Although it was once
believed that service by international registered mail, return receipt
requested, satisfied Mexican law and therefore the Convention, the father's
attorney apparently had argued that was no longer the case. Counsel cited a federal district court
decision, OGM, Inc. v. Televisa, S.A.
(C.D. Cal. 2009) 2009 U.S. Dist. LEXIS
33409.

At the June hearing, the department
claimed the father received proper notice under California
law and that service of notice under the Hague Service Convention was not
required. According to the department,
the juvenile court already had jurisdiction by virtue of the father's previous
general appearance in the dependency proceedings. The

department relied on a very recent dependency case regarding
the Convention, In re

Jennifer O. (2010)
184 Cal.App.4th 539 (Jennifer O.). Jennifer
O. held the Convention does not apply
to service of notice of status review hearings in dependency matters. (Id.
at p. 542.)^[2]

The father's attorney opposed the department's request. He argued the department's supplemental and
subsequent petitions were akin to original petitions (§ 300) in that the
code requires notice for supplemental and subsequent petitions according to the
service requirements for an original petition (§§ 290.1, 290.2 &
291). The attorney relied on decisions
which held the Hague Service Convention must be complied with when serving an
original petition and notice of jurisdictional and dispositional hearings on a
parent who is a foreign national and resident of a signatory country, such as
Mexico. (In re Jorge G. (2008) 164 Cal.App.4th 125, 133 ( >Jorge G.); In re Alyssa F. (2003) 112 Cal.App.4th 846, 852 ( >Alyssa F.).) The father's attorney therefore claimed the department should be held to the Convention's
service requirements.

The juvenile court denied the department's request to find the father
received appropriate notice, adding it thought the department had to go through
the Hague Service Convention. The juvenile court continued the
jurisdictional/dispositional hearing to an October 2010 date.

DISCUSSION

The Hague Service Convention is
â€