In re I.S and M.S.

Filed 3/6/07 In re I.S and M.S. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

The California Reports and the California Appellate Reports are filled with innumerable instances where an appellate court has had to wrestle with the text of a statute to ascertain its meaning and application. Far less common are cases where the court deals with a statute whose text is utterly without ambiguity, whose application is completely certain, and whose impact is dispositive. This is one of those cases.

The statute in question is subdivision (i)(1) of Welfare and Institutions Code section 366.26, which provides: Any order of the [juvenile] court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it . . . .[1]

O.I. is the conceded biological father of twins I.S. and M.S. Before he knew he was their father, and before he knew of the on-going dependency proceeding concerning the children, his parental rights were terminated in February 2005. Not surprisingly, he took no appeal from the termination order. Fifteen months later, in May 2006, Father moved to set aside the termination order. After the juvenile court denied his motion, O.I. appealed. As required by subdivision (i)(1), we affirm.

BACKGROUND

The salient details are undisputed.

In December 2002, shortly after their birth, the minors were the subjects of a petition filed by respondent San Francisco Department of Human Services (Department). The Department alleged in the petition that the minors came within section 300 because the mother had a substance abuse problem that prevented her from providing proper care or a home for them. The mothers problem had reached the point where she had recently surrendered custody of three other children to relatives. The mother identified the minors father as Darrell A. That same month, the minors were detained and placed with a cousin of the mother.

In January 2003, at the conclusion of an uncontested jurisdictional hearing, the juvenile court sustained the allegations of the petition and declared the minors dependents. The minutes of the hearing identify Darrell A. as the twins alleged father.

At the six-month review hearing held in July 2003, the court was advised by the Department that paternity testing had excluded Darrell A. as the childrens father. The fathers identity was currently unknown. The court adopted the Departments recommendations that reunification services to the mother be ended, and that a termination hearing be set.[2]

The termination hearing, originally set for November 2003, was continued until March 2004. On March 3, 2004, the court was advised by the Department that in November 2003 the mother had identified Daniel H., who was incarcerated in Michigan, as a possible father. The court appointed counsel for Mr. H., and continued the matter because We have to check this out. Two months later, the court ordered a paternity test for Mr. H., and again continued the termination hearing.

By September 2004, the court knew that Daniel H. was not the father. After finding that the Department had been duly diligent in attempting to locate the father, the court ordered that notice of the termination hearingnow set for February 9, 2005be given to the unknown father of [I.S.]and [M.S.] by publication, as authorized by section 294.

On February 9, 2005, the court designated adoption as the planned permanent placement of the twins, and terminated the parental rights of the mother . . . and of the unknown father and any and all persons claiming to be the father . . . .

By September 2005, matters were moving towards adoption of the twins by the mothers cousin, who had had uninterrupted custody since the children were detained in December 2002. The previous month, in its status review report, the Department had advised the court that There is no new information on the identity of the father.

In its next status report, prepared in February 2006, the Department anticipated finalizing the twins adoption in June. However, without explanation, the report identified appellant as the father. The report also noted that the twins have had no contact with birth father. On March 1, 2006, at the status review hearing, the courts minutes reflect that father appeared; the court appointed counsel for him.

On May 17, 2006, Father filed a motion to set aside the February 2005 order terminating his parental rights, and all subsequent findings and orders. He also requested that the court place the minors with [him], or in the alternative, grant him family reunification services. The grounds for the motion was that his due process rights had been violated because the Department had never provided him with timely notice of the dependency proceedings.

Father supported his motion with a declaration in which he stated: I first learned of my biological fatherhood to the minors when I received paternity test results from the Family Support Bureau sometime around September of the year 2005. [] I was contacted by the Family Support Bureau earlier that year after the mother of my children named me as the father of the twins. [] Prior to being contacted by the Family Support Bureau, I did not have any knowledge that I was the father . . . . I had a brief relationship with the childrens mother around the year 2001 or 2002. We only had intercourse one time.

Father further stated: Obviously, the mother . . . knew I could have been the father of the twins because she eventually named me as a possible father. I feel that the Human Service Agency did not make a reasonable attempt to question the mother as to any other possible fathers [sic] after ruling out the first two fathers [sic] the mother named. They just did a search for an unknown father. Had they asked the mother, obviously she would have provided my name as she later did to the Family Support Bureau.

On June 21, 2006, Fathers motion was the subject of a brief hearing before Commissioner William Gargano.[3] After hearing argument, he denied the motion because overturning the termination decision with the children now four years of age and on a path of permanence, I do not think this would be in their best interest. He also found that the Department made a reasonable search and . . . that people who engage in intercourse with a woman of child bearing age [have] some responsibility to follow up on that.

Pursuant to section 252, Father requested rehearing of Commissioner Garganos order by a judge of the superior court. Such hearing was held before the Honorable Donna Hitchens who, after a brief argument, denied rehearing on July 25, 2006. The judge explained the basis for her ruling as follows: [B]ased on my review of this, as well as the law in this case, the court will exercise its own independent judgment on these issues, and it is the judgment of court that the application for rehearing has to be denied. [] I just think that is the law.

That same day Father filed a timely notice of appeal from the order of Commissioner Gargano denying his motion, and from the order of Judge Hitchens denying rehearing.

DISCUSSION

Knowing that subdivision (i)(1) would be the most formidable authority arrayed against him, Father deploys a multi-pronged series of arguments to ward it off.

He first attacks the predicate for judicial actionthe notice of the pending proceeding. Father argues that subdivision (i)(1) and rule 5.25(f)(2) (quoted at note 1, ante) cannot be controlling, because the published notice was defective in that it provided no information beyond the childrens names, which would not satisfy the statutory standard of naming and otherwise describing the child. ( 294, subd. (g)(2), italics added.) Father then argues that subdivision (i)(1) and rule 5.25(f)(2) are unconstitutional if their application would deny him his due process right to timely notice, and thus deprive him of the opportunity to assert his parental rights. Moreover, Father contends subdivision (i)(1) does not apply because he was the victim of extrinsic fraud, which justified setting aside the termination in the exercise of the courts inherent equitable jurisdiction.

Continuing on the general issue of notice, Father argues that Judge Hitchens erred in believing she had no jurisdiction by reason of subdivision (i)(1), as evidenced by her statement that such was the law. Father also contends that the lack of proper notice amounts to structural constitutional error that mandates automatic reversal.

On the assumption that a violation of his due process rights did occur, Father moves on to argue that the best interests of the child test was inapplicable. Even if the best interests test was proper, Father contends that Commissioner Gargano erroneously concluded that Father did not satisfy it.

Father also attacks other rulings and omissions made by Commissioner Gargano: that substantial evidence does not support his finding in November 2004 that the Department had exercised due diligence in attempting to locate him; and that he failed to comply with his duty under section 316.2 to himself question the mother to ascertain the fathers identity. Returning to the notice issue, Father argues that there is no substantial evidence to support the commissioners finding at the termination hearing that proper notice had been given. Father also claims structural error in the termination of reunification services to the mother at the six-month review that was held in July 2003. Finally, Father argues that subdivision (i)(1) could not cut off his right to apply to the courts inherent equitable jurisdiction to set aside the termination order because of extrinsic fraud.

As we explain, not all of these arguments have to be addressed. Moreover, of the ones we do consider, none will prevail in obtaining reversal. We begin with Fathers principal argument, which is the denial of his constitutional right to notice requires that the termination decision must be rolled back.

I

The notice issue, and its ramifications, is virtually resolved by a single decision that considered the same questions more than a decade agoDavid B. v. Superior Court (1994) 21 Cal.App.4th 1010 (David B.), a decision from Division Four of this District. The mother there essentially abandoned the minor, who was made a dependent of the San Francisco juvenile court. The parental rights of both the mother and the childs father were terminated in December 1992. The Department had advised the court at the 12‑month review hearing that it could not locate the father. The court found that reasonable efforts had been made to locate the father, and it approved publication of notice. About this time it was discovered that the San Francisco District Attorney had been trying for more than a year to recover the amount of public support payments from the father, whom it knew was in the United States Marine Corps. In its social review prepared a month before the termination hearing, the Department informed the court for the first time that the minors birth certificate listed the father as a Marine. Six months after the termination, the father contacted the court, which appointed counsel for him. (Id. at pp. 1013-1015.)

The father then moved for relief under Code of Civil Procedure section 473.5. In his supporting declaration, the father stated that he had been told by the mother that he was the father, and he had been trying to see the child, but his efforts had been blocked by the mother. The next he knew, San Francisco was trying to garnish his wages to pay for the childs support. He tried to get the San Francisco prosecutor to set up a paternity test, but all efforts ceased when the prosecutor told him the support case was being dropped because the child was being adopted. Another declaration submitted by the father showed that the Department either actually or constructively knew of the fathers whereabouts since July 1991. Judge Hitchens denied the fathers motion on the ground that she had no jurisdiction to halt the impending adoption. The father then petitioned for extraordinary relief by writ. (David B., supra, 21 Cal.App.4th 1010, 1015.)

Division Four opened its analysis by discussing the issues of notice ant the Departments efforts to provide it:

A judgment is void for lack of jurisdiction of the person where there is no proper service of process on or appearance by a party to the proceedings. This fundamental principle of jurisdiction applies to juvenile dependency proceedings. [Citations.] [T]he state, before depriving a parent of [his parental] interest, must afford him adequate notice and an opportunity to be heard. [Citation.] Service by publication is sufficient to meet the requirements of jurisdiction only when a persons whereabouts remain unknown despite reasonably diligent inquiry [Citations.]

We reject the contention of [the Department] that its efforts were reasonable given the information it had on petitioner. Petitioners name was on the birth certificate as was the fact that he was in the United States Marines. [The Department] failed to take the one step which patently appeared to hold the most promise of locating petitioneran inquiry addressed to that organization. That such an inquiry would have been fruitful is evidenced by the fact that the district attorney was able to find petitioners address by the time the child was three months old.

The term reasonable diligence as used to justify service by publication denotes a thorough systematic investigation and inquiry conducted in good faith . . . . [Citation.] . . . . [T]he search efforts undertaken by [the Department] were woefully deficient and a finding of reasonable diligence is wholly unsupportable. (David B., supra, 21 Cal.App.4th 1010, 1016.)

But the lack of notice only led to the more difficult questionwhether petitioner lost the right to move to challenge jurisdiction, as that court found, because the order terminating his parental rights was final before his challenge was made. (David B., supra, 21 Cal.App.4th 1010, 1017.) All of the interested parties had strong interests in how that question was resolved: A parents interest in the custody, care, and management of his or her children is a compelling one, ranked among the most basic of civil rights. [Citation.] However, the state also has an urgent interest in child welfare . . . . Further, the child has a compelling right to a stable and permanent placement in a family unit which will allow the caretaker to make a full emotional commitment to the child. [Citation.] In order to evaluate the balance of these often competing interests, an analysis of the statutory scheme is necessary. (Id. at pp. 1018-1019.)

The court explained why the parents interest could not be treated as paramount: Under the California statutory scheme, an order terminating parental rights, unlike a default judgment, cannot arise from the failure to answer an initial pleading. A detention hearing must be held, followed by a jurisdictional hearing and a dispositional hearing. Even when reunification services are not required because the whereabouts of the parent is unknown, at least six months must pass before action to terminate parental rights may be taken. ( 361.5, subd. (d).) Until parental rights have been terminated, both parents must be given notice at each step of the proceedings. ( 302, subd. (b).).

In the instant case, notice was first required to be given to petitioner approximately 18 months before parental rights were terminated, and the challenge to jurisdiction could have been filed anytime after that until the termination order became final. Unfortunately, petitioner did not obtain sufficient information to exercise his right to challenge jurisdiction until after the time had expired, but this is not a unique situation. Any defendant who has a judgment entered against him or her, which is void for lack of reasonable diligence to give notice, has a finite time to move to vacate the judgment. A motion to vacate a void judgment, whether pursuant to Code of Civil Procedure section 473 or to the courts inherent power, must be made within a reasonable period not to exceed two years. [Citations.]

The dependency statute provides a significantly shorter time in which to challenge the courts jurisdiction. Without the restriction of subdivision (h) [the predecessor version of subdivision (i)(1)], a parent would have up to two years after the termination order was entered to challenge that order for lack of personal jurisdiction. However, that would be an additional two years in which a child and the childs caretakers would have to live with uncertainty, a fact which implicates the states interest in the welfare of the child and the childs own right to a stable environment. Under the statutory scheme parental rights may not be terminated until a significant period of time has passed, during which a parent may apply to the courts inherent power to vacate an order or judgment for lack of personal jurisdiction. Given the need for stability and certainty in child dependency matters, we do not believe that the Legislature acted arbitrarily in its restriction of the time in which juvenile court orders may be attacked for lack of notice. (David B., supra, 21 Cal.App.4th 1010, 1019-1020.)

Some things are said so well they only have to be said once. David B. clearly held that even a clear violation of due process because of a lack of timely notice does not overcome the plain command of subdivision (i)(1). That holding has never been called into doubt by a single reported decision. Indeed, there are a number of decisions that are equally emphatic in the same conclusion, although some also allow for the possibility of a limited form of collateral attack by appeal to the courts inherent equitable jurisdiction. (In re Jacob E. (2004) 121 Cal.App.4th 909, 925; In re Jerred H. (2004) 121 Cal.App.4th 793, 797-798; In re Heather B. (2002) 98 Cal.App.4th 11, 15; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1161; In re David H. (1995) 33 Cal.App.4th 368, 378; In re Ronald V. (1993) 13 Cal.App.4th 1803, 1806.)

Our Supreme Court has not squarely addressed the issue of subdivision (i)(1)s scope, but it has repeatedly emphasized the very strong interests supporting the finality of dependency and adoption proceedings. (In re Zeth S. (2003) 31 Cal.4th 396, 412-413; In re Sade C. (1996) 13 Cal.4th 952, 993; Adoption of Alexander S. (1988) 44 Cal.3d 857, 868.) It has accepted that error in a dependency may become irremediable. (Inre Sade C., supra, at p. 990.) Moreover, it has also emphasized that by the point in a dependency where termination of parental rights has occurred, it is the childs interests that are paramount. (Inre Zacharia D. (1993) 6 Cal.4th 435, 447; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) All of these considerations are consistent with the reasoning and result of David B.

In some respects, David B. was a much harder case than that before us here. The dependency there took only 17 months until the termination; the one here required 26 months. The identity of the father in David B. was easily discoverable by the Department from the start. Here, Fathers name does not make its first appearance until February 2006, 39 months after the dependency was commenced in December 2002, and 364 days after Fathers parental rights were terminated in February 2005. The fathers motion to set aside the termination in David B. was made within 6 months of the termination; the motion here came much later15 months after Fathers parental rights were terminated. As between the two situations, the equities were clearly more advantageous to the father in David B. Nevertheless, the equities counted for nothing when measured against the command of subdivision (i)(1). Even with its conclusions that the Department had not used reasonable diligence to locate the father, and had not given constitutionally sufficient notice, the David B. court nevertheless held that subdivision (i)(1) divested the juvenile court of all jurisdiction (save that under its inherent equitable power) to set aside the termination order.

The David B. decision has the support of tight reasoning, as well as the conspicuous lack of subsequent disagreement. We are persuaded by its logic, and we concur with its ultimate result. Thus, it does not matter here whether, as Father argues, the published notice was inadequate to get his attention because it provided no information describing the child[ren] ( 294, subd. (g)(2)) beyond their first names; even it the notice is accepted as inadequate, and therefore not enough to satisfy due process, it would bring no relief to Father from subdivision (i)(1). Father is in essentially the same situation as the father in David B., and that situation could not escape subdivision (i)(1). Similarly moot are subsidiary matters such as Fathers attacks on Commissioner Garganos November 2004 finding concerning the Departments due diligence, and the finding at the termination hearing that proper notice had been provided by the Department. In addition, by correctly following David B. because it was the law, Judge Hitchens did not err when she denied Fathers request for rehearing.

David B. makes it plain that application of subdivision (i)(1) according to its plain language does not violate the constitutional rights of a parent who does not receive proper notice. (David. B., supra, 21 Cal.App.4th 1010, 1018-1020.) Because that application does not amount to error, it obviously does not amount to structural error as Father asserts.[4]

II

The remainder of Fathers contentions do not require extensive comment.

His claim of error in the termination of reunification services to the twins mother in July 2003 fails because: (1) he was not aggrieved by that decision (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1503); (2) he did not raise this issue before Commissioner Gargano (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Elijah H. (2005) 127 Cal.App.4th 576, 582); and (3) the time for appealing from that ruling has long since expired (In re Jesse W. (2001) 93 Cal.App.4th 349, 355; In re Janee J. (1999) 74 Cal.App.4th 198, 206-207).

The second and third of these grounds are also applicable to Fathers claim that back when the minors were detained in December 2002 Commissioner Gargano failed to discharge his duty to inquire of the mother as to the fathers identity, as required by section 316.2 and California Rules of Court rule 5.635. Moreover, there is nothing to suggest that, if questioned, mother would have brought up Fathers name; at that time she was still naming Darrell A. as the twins father.

Fathers contention that Commissioner Gargano erroneously employed the best interests of the child must fail. As part of his moving papers Father specifically urged the court to use that standard, asking for a finding that it would be in the best interest of the minors to grant family reunification services with the father and an immediate visitation order for the . . . father . . . should be instituted. Thus, if there was error it was invited by Father, who is not allowed to attack the trial court for doing what he requested. (E.g., Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1414, 1415; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  383, p. 434.)

Finally, it is equally unavailing for Father to claim the support of the juvenile courts inherent equity jurisdiction to overturn the order. When Father asked Commissioner Gargano to set aside the termination, and when he sought rehearing from Judge Hitchens, he never invoked this part of the courts jurisdiction. The issue was thus forfeited for appeal. (In re S.B., supra, 32 Cal.4th 1287, 1293; In re Elijah H., supra, 127 Cal.App.4th 576, 582.) Put another way, because its equity jurisdiction is discretionary (see Rappleyeav. Campbell (1994) 8 Cal.4th 975, 981), the court cannot be held to have abused a discretion the court was never requested to exercise. (E.g., People v. Partida (2005) 37 Cal.4th 428, 435; Helfand v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 17.)

Moreover, even if Father had invoked the aid of the courts discretionary equity jurisdiction, that aid would not be extended where it is shown that the party requesting equitable relief has been guilty of inexcusable neglect or that laches should attach. (Inre Marriage of Park (1980) 27 Cal.3d 337, 345.) Laches is a defense that will bar equitable relief if there is unreasonable delay and prejudice resulting from the delay. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69.) Both of these elements are present here.

Father acknowledged in his declaration that he knew of his paternity more than eight months before he moved in May 2006 to set aside the termination order of February 2005. As quoted above, Father expressly admitted that he received the paternity results sometime around September . . . 2005 and, less precisely, had been contacted by the Family Support Bureau at some unspecified time earlier that year. Because Father presented no explanation for not acting sooner, his delay would hardly evidence a prompt acknowledgement of paternity and  full commitment to his parental responsibilities  (In re Jesusa V. (2004) 32 Cal.4th 588, 611; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849-850.) It is hard to imagine how this delay would not qualify as unreasonable.

During the period of Fathers delay, the twins had become even more attached to the maternal relative with whom they had been placed since December 2002 and who was prepared to adopt them. By the time Father made his motion, Fathers rights had become subordinate to the twins needs for almost three years, i.e., since the court had set the termination hearing in July 2003. (E.g., Inre Zacharia D., supra, 6 Cal.4th 435, 447; In re Marilyn H., supra, 5 Cal.4th 295, 309-310.) In light of these circumstances, it verges on the unimaginable that a juvenile court would have exercised its equitable power to set aside the termination order and disturb the twins progress towards a stable and permanent home life.

In addition to his appeal, Father also filed a petition for a writ of supersedeas, mandate, prohibition, or habeas corpus, accompanied by a request for a stay of proceedings, including to prevent the adoption, all of which we deny.

DISPOSITION

The orders are affirmed and Fathers petition is denied.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] Statutory references are to this code unless otherwise indicated. For purposes of clarity, subdivision (i)(1) of section 366.26 will hereafter be cited simply as subdivision (i)(1). The substance of subdivision (i)(1) is reiterated in rule 5.725(f)(2) of the California Rules of Court: An order of the court terminating parental rights under section 366.26 is conclusive and binding on the child, the parent, and all other persons who have been served under the provisions of section 294. The order may not be set aside or modified by the court . . . .

[2] Father and the Department in their briefs correctly note that the record does not include either minutes or a reporters transcript of this hearing. However, in light of the subsequent progression of termination proceedings, there is no doubt as to what occurred at the hearing.

[3] Commissioner Gargano had been the judicial officer who made all previous rulings and orders in the dependency proceeding.

[4] Structural error is a species of error deemed so fundamental that it is subject to a per se rule of reversal. An error is structural if it distorts the trial process itself, as opposed to ordinary errors that occur during the trial process. (See Arizona v.Fulminante (1991) 499 U.S. 279, 309-310.) In any event, the failure of a social services agency to provide notice to an absent or unknown parent in a dependency proceeding does not appear to qualify as structural error. (See In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1117-1118; In re Angela C. (2002) 99 Cal.App.4th 389, 394-395.)