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In Re K.T., A Person Coming Under the Juvenile Court Law. v. R.T

October 31, 2011

IN RE K.T., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
R.T., DEFENDANT AND APPELLANT.



(Super. Ct. No. JD228771)

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

In re K.T. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

R.T., father of the minor, appeals from orders of the juvenile court denying his motion to return to jurisdiction and terminating his parental rights. (Welf. & Inst. Code, §§ 388, 366.26, 395.)*fn1 [1] Appellant contends the court erred in denying his motion to return to disposition because the Sacramento County Department of Health and Human Services (the Department) did not exercise due diligence in searching for him to provide notice of the proceedings. Appellant further asserts that the court lacked jurisdiction to terminate his parental rights because there was never any finding he was an unfit parent. Agreeing with his second argument, we shall reverse.

FACTUAL BACKGROUND

The Department filed a non-detaining petition in December 2008 alleging the seven-year-old minor, who suffered from Type I diabetes, was at risk because the mother did not adequately care for the minor's medical issues. At the initial hearing, the court found appellant was a presumed father. The mother's supervision and management of the minor's condition did not improve and the court issued a warrant to place the minor in protective custody in January 2009.

The jurisdiction/disposition report stated appellant's whereabouts were unknown but that efforts had been made to locate him. According to a declaration of due diligence, the social worker made significant efforts to find and serve appellant. The social worker questioned the mother and the minor. No paternal relatives were known or available to provide information on appellant's whereabouts. The social worker searched the records of multiple agencies, including the California welfare system, Sacramento child support, Department of Justice, local law enforcement, prisons and jails in several counties in California and Florida as well as the federal prison system, the California Department of Motor Vehicles and Bureau of Family Support. The social worker also conducted searches on five different websites. The social worker located a possible place of employment in Texas but discovered no record of his employment there. The search produced seven addresses and several telephone numbers. The social worker called the telephone numbers and sent a certified letter to appellant at seven addresses, including one in Defuniak Springs, Florida, but had no success in contacting appellant.

At the jurisdictional/dispositional hearing, the court sustained the petition, found that a reasonably diligent search had failed to locate appellant and ordered notice be sent to appellant at all of the addresses found by the social worker. The court removed the minor from the mother and ordered reunification services for the mother. There were no orders denying services to appellant for any reason.

During the reunification period, the father's whereabouts remained unknown. The mother, but not appellant, had notice of the review hearings. Because the mother failed to reunify, the court terminated her services and set a section 366.26 hearing in July 2010. In an effort to serve appellant with notice of the hearing, the Department used the services of a private process server, Calserve, Inc. (Calserve), which ultimately personally served appellant in Fort Walton Beach, Florida.

The report for the section 366.26 hearing stated that appellant had contacted the social worker. Appellant said he wanted custody of his daughter and intended to appear at the hearing. Appellant further said the mother had taken the minor when he was in custody and he had looked for the minor without success after his release. The social worker was unable to re-establish contact with appellant after the first telephone call. The minor said that she wanted to be adopted by her current family. She did not know appellant's name and, based on what the mother told her about appellant's violent behavior, said she did not like him and would "run out" if he came. The Department's assessment was that the minor was specifically adoptable due to her medical issues and recommended termination of parental rights.

An addendum provided information from a family member who had witnessed physical violence between appellant and the mother. The family member stated Child Protective Services in Defuniak Springs, Florida became involved and eventually the minor was placed with the mother when appellant was incarcerated.

Appellant appeared at the scheduled hearing on July 15, 2010, and designated a mailing address in Fort Walton Beach, Florida. The juvenile court confirmed that he was a presumed father, appointed counsel for him and set a hearing to assess visitation. Appellant appeared with counsel at the next hearing and confirmed his mailing address.

The Department filed a second addendum informing the court that there was a pending dependency case in Florida and that the minor was still subject to Florida jurisdiction. The last order from the Florida court in 2005 gave physical custody of the minor to the mother with supervised visitation for appellant and terminated supervision, but retained jurisdiction over the minor. There was information from the Florida case that indicated ongoing violence had occurred between appellant and the mother and that appellant was arrested on a murder charge from Alabama. The Department assessed that visitation was not in the minor's best interests due to her heightened anxiety when appellant was mentioned and her exposure to domestic violence when she lived with the mother and appellant. Appellant returned to Florida and did not meet with the social worker.

The case was continued to permit the Department to request a transfer of the Florida case to California and to allow time for appellant to file a motion to return to disposition.

In the motion, appellant contended the Department did not make reasonable efforts to find him and noted that Calserve found him within a month. The motion was supported by a statement by appellant. The minor opposed the motion, arguing extensive efforts were made in both ...


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