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In re Jennifer O.

May 6, 2010


APPEAL from an order of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Affirmed. (Los Angeles County Super. Ct. No. CK73398).

The opinion of the court was delivered by: Manella, J.


Appellant Martin O., father of Jennifer, Brian and Jesus, appeals the juvenile court order issued at the six-month review hearing which terminated his reunification services.*fn2 Appellant, a resident of Mexico, contends service of notice of the hearing was governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the Hague Service Convention or the Convention) and that the Convention required service by registered mail. Appellant further contends that the Department of Family and Children's Services (DCFS) failed to provide adequate reunification services. We affirm. In the published portion of the opinion, we hold that the Hague Service Convention does not apply to service of notice of review hearings.


A. Prior Appeal

This is the second time this case has been before us. As discussed in our prior opinion, appellant's three children were detained in June 2008, along with three half-siblings, as a result of the alleged physical and sexual abuse of Jennifer, then 16 years old.*fn3 The court sustained findings under Welfare and Institutions Code section 300, subdivision (a) (serious physical harm), subdivision (b) (failure to protect), subdivision (d) (sexual abuse) and subdivision (g) (no provision for support).*fn4 Under subdivision (a), the court found that Mother "used a safety pin and a knife to scrape ink marks, which [Mother] believed to be tattoos, from the skin on [Jennifer's] wrist and leg" and had on prior occasions "inappropriately and excessively physically disciplined [Jennifer] by pulling [her] hair and striking [her] face." Under subdivision (d), the court found that the children's stepfather, Carlos, "made sexual comments and gestures toward [his step-daughter Jennifer], causing the child to feel sexually threatened," including "fondling her legs and vaginal area over her clothing." In two findings that pertained to appellant, the court found under section 300, subdivisions (b) and (g), that appellant "failed to provide the children with the necessities of life including food, clothing, shelter and medical care."

In multiple interviews, Mother informed the caseworker that appellant was the father of the children and that he was living in Mexico. The caseworker located appellant in Mexico and spoke with him by telephone in July 2008. He confirmed that he was the children's father. The children referred to appellant as their father. DCFS obtained the birth certificates for the children, which identified appellant as their father. Prior to the June 23, 2008 detention hearing, Mother filled out a paternity questionnaire under penalty of perjury which stated that although appellant had not signed papers establishing paternity at the hospital and had never been married to Mother, Mother and appellant were living together at the time of the children's birth, and appellant held himself out as the children's father and accepted the children openly in his home.*fn5

Although the court found true that appellant had held himself out as the children's father and openly accepted the children into his home, creating a presumption of fatherhood under Family Code section 7611, subdivision (d), the court concluded the presumption had been dissipated by appellant's subsequent abandonment of the children. In In re J.O., case no. B211535, we concluded that the section 7611, subdivision (d) presumption had not been rebutted and reversed the juvenile court's finding that appellant was not entitled to presumed father status.*fn6

B. Current Appeal

1. Notice to Appellant of Juvenile Proceedings

At the time of the June 2008 detention hearing, appellant's whereabouts were unknown. Located and contacted by the caseworker in July 2008, appellant told the caseworker he was interested in obtaining custody of the children.*fn7 In time for the jurisdictional/dispositional hearing, the caseworker obtained an address for appellant in Mexico and served multiple notices of the hearing on him in English and Spanish by certified or registered mail. Copies of the section 300 petition were attached to the notices. At a hearing on July 22, the court appointed counsel for appellant and noted that although appellant had been served with notice of the hearing and a copy of the petition, notice was inadequate because the petition itself had not been translated into Spanish. Accordingly, the court continued adjudication and disposition with respect to appellant and ordered that he be re-noticed. DCFS re-noticed appellant in English and Spanish at his Mexican address by registered or certified mail. The proofs of service stated that copies of the petition translated into Spanish had been attached to the notices. The caseworker also called appellant's telephone number and left a detailed message concerning the upcoming court dates.

At the jurisdictional/dispositional hearing on August 26, 2008, the court stated that appellant, though not present, had been properly served with notice. Appellant's counsel did not object or raise any issue related to notice. Counsel contended on appellant's behalf that he should be declared the presumed father. Counsel also argued that the petition should be dismissed as to appellant and that the children should be released to him.*fn8

2. Reunification Period

Although the court found appellant to be the alleged father only, it ordered reunification services for him. Appellant was to participate in drug testing and if he tested positive, to complete a drug rehabilitation program. Appellant was also ordered to complete a parenting course, and ...

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