In re B.G.

Filed 9/24/07 In re B.G. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

B. G. (appellant), the alleged father of B. G. (the minor), born in 2003, appeals a juvenile court order denying his petition to change a court order. (Welf. & Inst. Code,  388.)^[1] He contends he did not receive proper notice of the detention hearing and reports by Alameda County Social Services Agency (respondent) and was therefore foreclosed from participating in the proceedings, establishing his status as a presumed father and obtaining reunification services. He also contends the court erred in denying his section 388 petition without a hearing. We affirm.

Background

On May 6, 2005, the original dependency petition was filed on behalf of the minor and his half-sister, Jasmine,^[2]alleging, pursuant to section 300, subdivision (b), their mothers failure to protect them due to her substance abuse problems and that she was a victim of domestic violence.^[3] It also alleged pursuant to section 300, subdivision (d) that there was no provision for the minors support, appellant was the minors alleged father, and appellants whereabouts were unknown. The May 9 detention report also listed appellant as the minors alleged father with his address as unknown. The minute order from the May 9 detention hearing states, Notice has been given as required by law.

Respondents May 20, 2005, jurisdiction/disposition report again stated that appellants whereabouts were unknown, he had not contacted respondent and that respondent had initiated a search request for him.

An amended section 300 petition, dated May 27, 2005, listed appellants address as being at a specific address on 90th Avenue in Oakland. It alleged that appellant had several drug-related convictions and a history of domestic violence, and was not suitable to provide care and support for the minor. The May 31 jurisdiction/disposition report stated appellant suffered a drug conviction on May 25 and would be sentenced to jail and formal probation. The report noted that because appellant was an alleged father, respondent was not required to provide reunification services to him unless he established a legal basis for receiving such services.

On June 24, 2005, appellant was served by certified or registered mail with notice of the June 28 jurisdiction/disposition hearing at the 90th Avenue address. The June 28 jurisdiction/disposition report stated that appellants position regarding the dependency was unknown. The matter was continued to July 28, and appellant was notified by certified mail or return receipt requested of at the 90th Avenue address on July 19. Appellant did not appear at the July 28 hearing at which the court found true the petitions allegations, adopted respondents findings and stated no reunification would be provided to appellant until his paternity was established.

A September 9, 2005 memorandum by respondent noted that appellants whereabouts were known until August 2005, after which the social worker telephoned appellants last known residence address and was informed by a girlfriend that appellant was in jail and [would] be away for a long time. The social worker telephoned the prison locator and Santa Rita and noted that there was no record that appellant was incarcerated and appellant may be in transit. The memorandum stated that another attempt would be made to determine where appellant was incarcerated.

Respondents October 13, 2005 status review report again noted that appellants position was unknown since he had not maintained contact with respondent. It also stated that appellant and the minor were scheduled to undergo paternity testing but given appellants failure to respond to written correspondence sent to his last known address, he would probably not participate. He had not been provided with reunification services. The minor and Jasmine were placed with Jasmines paternal aunt on October 15.

Respondents January 11, 2006 memorandum again noted appellants position was unknown given his failure to maintain contact with respondent, and listed his address as Santa Rita Jail (Santa Rita). It also stated that notice of the January 11 hearing had been mailed (albeit incorrectly addressed) to appellant at Santa Rita on December 28, 2005.^[4] Written notices were also mailed to appellant at Santa Rita on February 27, June 7, and August 25, 2006, but again bore an incorrect address. Respondents August 30 status review report stated that Santa Rita would not permit appellant to be paternity tested because his social security number was not provided or available. It also stated there was no known information about appellant.

On September 6, 2006, the court appointed counsel for appellant and ordered a due diligence hearing regarding appellants whereabouts. Respondents social workers declaration of due diligence stated that on October 16, she contacted Santa Rita and the ID Warrants Unit and was informed that appellant was incarcerated at Pelican Bay State Prison (Pelican Bay). Appellant was served at Pelican Bay with written notice of the October 25 hearing.

At the October 25, 2006 hearing, appellant appeared by counsel. The court reviewed the efforts made by respondent to locate appellant and found that respondent exercised due diligence in making its search. Respondent recommended legal guardianship as the permanent plan for the minor and a section 366.26 hearing (.26 hearing) was set for January 3, 2007. Written notice of the .26 hearing was sent to appellant at Pelican Bay on December 20. Respondents .26 report recommended that the minor and Jasmine remain in the home of Jasmines paternal aunt, that she be appointed their legal guardian and the dependency be dismissed. The report stated that appellants position regarding the recommendation was unknown due to his lack of contact with respondent.

Appellants Section 388 Petition

On December 29, 2006, appellant moved to continue the .26 hearing and filed a form Request to Change Court Order pursuant to section 388^[5](hereafter section 388 petition), verified by his counsel, requesting that the court set aside its July 2005 jurisdictional order declaring the minor a dependent of the court and denying appellant reunification services until his paternity was established. The petition stated that he had been incarcerated since May 2005 and, while at Santa Rita, did not receive notice of the dependency proceedings or a copy of respondents reports. It also stated appellant met the presumed father requirements under Family Code section 7611 because he believes he may be listed as the father on the minors birth certificate, is obligated to pay child support under an existing child support order, received the minor into his home and openly held the minor out to the community as his natural child, lived with the minor and the minors mother as a family unit and provided housing and financial support; and, the minor is named after him. The petition also stated that while incarcerated appellant made efforts to modify his previously destructive behavior, i.e., drug involvement and domestic violence.

Appellants counsels supporting declaration stated that after being appointed to represent appellant on September 6, 2006, she mailed correspondence to him at Santa Rita which was not returned or responded to. She learned on October 25 that appellant was at Pelican Bay and contacted him immediately thereafter. Appellant contacted counsel on December 11, 2006, and said he wanted to attend the January 3, 2007 hearing, but was concerned about transportation issues and was scheduled to take the General Equivalency Diploma (GED) exam the week of January 6. Appellant also told counsel there were some factual discrepancies in the complaint. Because counsel was unable to view respondents case file she did not know the extent of respondents contacts with appellant. Appellant also told counsel he was unaware of the dependency proceedings when jurisdiction was taken, made several phone calls to respondents social worker and wrote a letter inquiring about the minor after becoming aware of the dependency case, was never contacted by respondent, was never appointed counsel, and was unable to speak with the minor.

The following were attached to appellants section 388 request form: (1) a December 2006 letter from appellants GED tutor stating that appellant would soon be taking the GED exam; (2) a March 2006 certification following appellants successful completion of an employability/life prep class; (3) an undated certificate following appellants successful completion of a food services class; and (4) a November 2006 certification of appellants completion of a parenting class.

January 3, 2007 Hearing

Appellant, who remained incarcerated at Pelican Bay, did not appear at the January 3, 2007 hearing, but was represented by counsel. The court granted appellants request for a continuance of a contested .26 hearing until February 20, and took his section 388 request under submission.

On January 4, 2007, the court summarily denied appellants section 388 request on the ground that the request did not show that change of the order would be in the minors best interest. The written order stated, Although [appellant] has complied with some aspects of [the] case plan while incarcerated, he will remain incarcerated until some unknown date in 2007. He has not established paternity and is only [an] alleged father. He has not demonstrated how setting aside the courts order and stopping permanency for the child will promote the childs best interests. [] From review of the case file in considering this motion, the court finds no due process violation with regard to notice to the alleged father. However, even if notice was not always provided by [respondent], the court finds that any prejudice to the incarcerated alleged father does not warrant the court changing its order, as it is not in the best interest of the [minor].

Appellant timely appealed the courts January 4, 2007 order.

Discussion

I. Due Process

Appellant contends his due process rights were violated because respondent or the court failed to give him notice of the May 9, 2005 detention hearing and made no attempt to locate him until October 2006 following the courts due diligence order. He contends that had he been given notice earlier, he could have appeared and asserted that he should be the minors presumed father and be entitled to reunification services.

Parents are entitled to due process notice of juvenile court proceedings affecting the care and custody of their children. (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.) 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. [Citation.] The means employed to give a party notice for due process purposes must be such as one, desirous of actually informing the party, might reasonably adopt to accomplish it. [Citation.]. (Ibid.)

When the whereabouts of a parent are unknown, the issue becomes whether due diligence was used to locate the parent. Due diligence suggests a thorough, systematic investigation and inquiry that is conducted in good faith. Due process notice requirements are satisfied where a parent cannot be located despite a reasonable search effort, and the lack of actual notice to the parent will not render the proceedings invalid. (In re Claudia S., supra, 131 Cal.App.4th at p. 247.)

Appellants due process rights depend on the nature of his status as a father. Dependency law recognizes three types of fathers: presumed, alleged and biological. (In re T. R. (2005) 132 Cal.App.4th 1202, 1208.) An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. [Citation.] A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the childs presumed father. [Citation.] A presumed father is one who meets one or more specified criteria listed in [Family Code] section 7611. (In re T. R., supra, at p. 1209.) The criteria are intended to distinguish those fathers who have entered into some familial relationship with the mother and child from those who have not. (Ibid.; In re Sabrina H. (1990) 217 Cal.App.3d 702, 708.) A presumed father denotes a father who promptly comes forward and demonstrates a full commitment to his parental responsibilities-emotional, financial, and otherwise. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.)

A fathers status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. [Citation.] Presumed father status ranks the highest. [Citation.] Presumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan. [Citations.] (In re T. R., supra, 132 Cal.App.4th at p. 1209.) Reunification services may be provided to a biological father if the court determines that this would benefit the child. ( 361.5, subd. (a).) An alleged father is not entitled to appointed counsel or to reunification services. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) However, for an alleged father, due process requires that he be given notice and an opportunity to appear, assert a position and attempt to change his paternity status. (Ibid.)

Appellant contends he did not receive any notice of the May 9, 2005 detention hearing. Section 316.2, subdivision (b) provides that each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity-Waiver of Rights (JV-505) shall be included with the notice. Since at the time of the detention hearing appellant was identified as an alleged father, he was entitled to notice of the hearing, the name of the child, a copy of the section 300 petition, and an opportunity to appear and establish his paternity. ( 316.2, 290.1, 290.2, subds. (a)(2), (c)(1) & (d); In re Claudia S., supra, 131 Cal.App.4th at p. 248; In re Paul H., supra, 111 Cal.App.4th at p. 760.) Where as here, the identity and address of an alleged father cannot be discovered after exercising due diligence, due process is satisfied by publishing notice of the proceedings. (Claudia S., supra, 131 Cal.App.4th at p. 248.) Although the minute order from the May 9 detention hearing states, Notice has been given as required by law, the record before us contains no evidence that respondent made any attempt to notice appellant of the detention hearing.^[6] Thus, we cannot say that respondent exercised due diligence in attempting to notice appellant of the detention hearing.

Appellant next correctly contends the record does not indicate that respondent mailed him a copy of its June 28, 2005 jurisdiction/disposition report. Section 302, subdivision (b) provides for general notice of all dependency petitions to parents whose parental rights have not been terminated. It states: In any case where the social worker is required to provide a parent . . . with notice of a proceeding at which the social worker intends to present a report, the social worker shall also provide both parents, whether custodial or noncustodial, . . . or the counsel for the parent . . . a copy of the report prior to the hearing, either personally or by first-class mail. There is no indication that appellant was sent a copy of the June 28 jurisdiction/disposition report.

However, the record contains a proof of service establishing that appellant was sent notice of the June 28 jurisdiction hearing on June 24 by certified mail at the 90th Avenue address in Oakland. In addition, the record reflects that respondent sent appellant notice at the 90th Avenue address that the jurisdiction/disposition hearing was continued to July 27, and of the second amended section 300 petition filed August 3. Significantly, appellant does not contend that he did not receive mailings by respondent at the 90th Avenue address, and there is no evidence that these mailings were returned.^[7] As we noted, ante, appellant did not appear at the July 27 or 28 hearings. The court sustained the petitions allegations, adopted respondents finding and ruled that no reunification would be provided to appellant until his paternity was established at the July 28 hearing.^[8]

A September 2005 memorandum indicated that respondent had learned that appellant was incarcerated and respondent would continue to attempt to ascertain where he was incarcerated. Although the record establishes that written notices were mailed to appellant at Santa Rita in December 2005, and in February, June and August 2006, the notices all bore an incorrect address for Santa Rita. Therefore, we cannot assume the improperly addressed notices were received by appellant.

As we noted previously, in September 2006 the court appointed counsel for appellant and ordered a due diligence search for appellant, who was finally located in October at Pelican Bay.

Based on the record before us we conclude that appellant was not given the requisite notice of the May 2005 detention hearing, respondents jurisdiction/disposition reports, and of the memoranda and status review reports and status review hearings between December 2005 and August 2006. While we in no way condone this failure to give proper notice, the lack of strict compliance with the notice statutes is reviewed under the harmless beyond a reasonable doubt standard under Chapman v. California (1967) 386 U.S. 18, 24. (In re Angela C. (2002) 99 Cal.App.4th 389, 393-395; accord, In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1132.) Applying that standard, we conclude the error is harmless. Appellant appears to argue that had he been given notice earlier, he could have appeared sooner and asserted that he be found to be the minors presumed father and be provided reunification services. However, the record reflects that appellant was incarcerated in May 2005 and was to remain incarcerated until sometime in 2007. Thus, even if appellant had appeared sooner and established his paternity, he would have been incarcerated throughout the entire 18-month reunification period and, therefore, could not have benefited from reunification.^[9](See In re Justice P. (2004) 123 Cal.App.4th 181, 193.) Consequently, the court correctly ruled that any due process error was harmless.

II. Section 388 Petition

Appellant next argues his right to due process was violated by the trial courts denial of a hearing on his section 388 petition. He argues the petition made out a prima facie case that 1) respondent failed to make any effort to find him and 2) he was entitled to presumptive father status.

Section 388 provides, in relevant part: (a) Any parent . .  may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. The party seeking modification of a prior court order has the burden of showing changed circumstances or new evidence. (California Rules of Court, rule 5.570(h).) The court may summarily deny the petition if it fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the childs best interests. (In re Justice P., supra, 123 Cal.App.4th at pp. 188-189.) The court may consider the entire factual and procedural history of the case in determining whether the section 388 petition makes the requisite showing. (Id. at p. 189.) A section 388 petition may properly raise a due process challenge based on lack of notice. (Ibid.)

The courts section 388 determination is reviewed for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re S. M. (2004) 118 Cal.App.4th 1108, 1119.)  The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Since the length of appellants prison sentence precluded him from reunifying with the minor within the statutory time limit, appellants section 388 petition failed to demonstrate that the proposed modification would be in the minors best interest. Consequently, there is no error in the courts summary denial of the petition without a hearing. (In re Justice P., supra, 123 Cal.App.4th at p. 192.) Moreover, as we held, ante, the delay in notice to appellant was harmless beyond a reasonable doubt.

Disposition

The order is affirmed.

_________________________

SIMONS, J.

We concur:

_________________________

JONES, P. J.

_________________________

GEMELLO, J.

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^[1] All undesignated section references are to the Welfare and Institutions Code.

^[2] Appellant is not the father of Jasmine, and she is not the subject of the instant appeal.

^[3] Mother is not a party to this appeal.

^[4] On appeal, appellant correctly notes that although the correct address for Santa Rita is 5325 Broder Boulevard, Dublin, California, 94568, notice was sent to 53256 Broder Boulevard, Dublin, California, 94658.

^[5] California Rules of Court, rule 5.570(b) provides that a petition under section 388 must be made on a request to change court order form.

^[6] Pursuant to rules 8.404(a) and 5.502(19), notice, including a proof of service, is to be included in the record for a juvenile appeal.

^[7] This is confirmed by respondents September 9, 2005 memorandum which noted that appellants whereabouts were known until August 2005.

^[8] The reporters transcript from the July 28, 2005 hearing is not included within the appellate record.

^[9] The minor was removed from parental custody on May 4, 2005. Pursuant to section 361.5, subdivision (a)(2), the maximum reunification period would have terminated in December 2006.