In re Earl D.

Filed 1/18/07  In re Earl D. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO

            APPEAL from orders of the Superior Court of Los Angeles County. 

Debra L. Losnick, Commissioner.  Reversed.

            Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Nicole D.

            Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant C. A., Sr.

            Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Jerry M. Custis, Deputy County Counsel for Plaintiff and Respondent.

_________________________

            Nicole D. and C.A., Sr., the parents of Earl D., appeal from juvenile court orders declaring Earl a dependent child of the court; denying the parents reunification services; identifying adoption as Earl's permanent plan; and ordering permanent placement services for the child.  Mother and father contend they were denied due process because they were not given adequate notice of the detention hearing.  We agree, and reverse all orders.

FACTUAL AND PROCEDURAL BACKGROUND

1.  Case History

            Nicole D. (mother) is the mother of eight children.  Two of the children, C.A., Jr. (C.), born January 2004, and Earl D. (Earl), born December 2004, were fathered by C.A., Sr. (father).  Earl is the only subject of this appeal.

            In early 2004, a dependency petition was filed on behalf of C. because of a positive toxicology for drugs.  Later, the juvenile court released the child to father.  Shortly thereafter, the child's whereabouts became unknown.  The Los Angeles County Department of Children and Family Services (DCFS) suspected father of transporting C. out-of-state to the home of paternal relatives.  On March 19, 2004, the juvenile court issued a protective custody warrant for C.

            Although mother was pregnant with Earl while the dependency proceedings concerning C. were ongoing, DCFS was unaware of the pregnancy.  When mother gave birth to Earl in late December 2004, she did not inform DCFS.  After learning of Earl's birth, DCFS wanted to assess the baby's well-being.  However, mother's whereabouts were unknown.

2.  Dependency Petition Filed on Behalf of Earl

            On January 18, 2005, DCFS filed a petition to declare Earl a dependent child of the court under Welfare and Institutions Code section 300, subdivisions (b) and (j),[1] alleging mother had a history of drug use and used drugs during her pregnancy with Earl; father had a substance abuse history and was a current user of marijuana; mother had a criminal history; the whereabouts of mother, father and Earl were unknown; father had abducted and concealed C. during his attempted detention; and father had been incarcerated due to his unwillingness to disclose C.'s location.  It was also alleged that one of Earl's siblings[2] was a dependent of the San Luis Obispo County Dependency Court; five siblings[3] were dependent children of the Los  Angeles County Juvenile Court because of their parents' drug abuse and failure to comply with court orders; four of the five siblings were receiving permanent placement services; and mother and father had failed to reunify with Earl's siblings.  Mother and father were advised pursuant to section 361.5 that DCFS would seek an order that no reunification services be provided to the family.

3.  Detention Hearing

            On January 18, 2005, the juvenile court conducted a detention hearing.  Earl was not in DCFS custody.  Neither mother, father nor Earl were present for the hearing.  Counsel for mother claimed that the juvenile court did not have jurisdiction to proceed.  Counsel for father joined in the argument.  The juvenile court found that notice of the proceedings had been given as required by law.

            In a report prepared for the hearing, DCFS detailed the attempts made to locate mother prior to the hearing.  On January 11, 2005, the social worker went to mother's last known address in Lynwood, California because mother had advised the social worker that she lived at that address with her aunt.  When the social worker arrived, a cousin informed her that mother was not there and that he had not seen her recently.  On January  12, 2005, the social worker again went to mother's last known address.  Mother's cousin answered the door and advised the social worker that mother did not live at that address.  The social worker than went to a second former address, which was a motel.  The office receptionist stated that mother had not lived there in over a year.  The social worker then went to a third former address.  No one answered the door and the social worker left a business card.

            The detention report did not state what efforts were made by DCFS to locate father.  However, evidence contained within the record shows that on January 11, 2005, seven days prior to the detention hearing, DCFS checked with the county jail, contacted prison and probation/parole authorities, and utilized a â€