IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
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,
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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  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.
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 California and Florida to provide appellant notice of the jurisdictional hearing.
In October 2010, the Department asked for a contested hearing in order to cross-examine appellant. The court ordered the parents to personally appear. A copy of the court's order to appear was sent to appellant at his designated address.
The Department filed a third addendum in December 2010, which gave additional information about appellant. He told the social worker he lived at the Defuniak Springs, Florida address in 2008 but his apartment number was different from that found in the Department's search. He further stated he moved to Fort Walton Beach in 2009. He described his efforts in 2007 to contact the minor and the mother in California and his relationship with the mother. He discussed his criminal history including robbery, assault and theft and minimized his responsibility for the Alabama murder charge, claiming the death was ruled to be accidental. He stated he was currently employed and willing to let the minor get to know him gradually and take time to get over her fears.
The addendum also stated that the Department gave Calserve the Defuniak Springs, Florida address to attempt service of notice of the section 366.26 hearing on appellant but Calserve was unable to serve him there. Calserve found appellant's current address by searching Florida drivers' license and public utilities records. Calserve was also able to reconstruct a history of appellant's addresses and found the Defuniak Springs, Florida address was valid from 2004 to 2006 and the Leonard Road, Walton Beach address was valid from July 2007 to November 2010. A search of appellant's criminal record in California disclosed he was convicted of a violation of Penal Code section 245, subdivision (a)(1) in 1997 and sentenced to four years in state prison; he had three parole violations; and he had a juvenile history of burglary. Alabama confirmed appellant was in custody between 2005 and 2006 on a charge of murder; that the charge was amended to second degree assault by means of a deadly weapon; and that appellant was sentenced to 17 months in state prison and given credit for time served. Appellant also had earlier convictions for spousal battery, drug possession and child endangerment.
The addendum further stated that, in 2004, a dependency case was initiated in Florida based on allegations of risk to the minor from physical abuse and exposure to domestic violence. The minor was returned to appellant with a case plan, but, after father was arrested on the murder charge, the minor was eventually placed with the mother, who was involved in services. In 2005, the Florida court terminated supervision, ordered the minor to remain in the mother's custody with supervised visits for father and retained jurisdiction until jurisdiction was transferred to the Sacramento County juvenile court. The addendum observed appellant had not been entirely forthcoming on his criminal and dependency history and his second degree assault conviction, a violent offense. The addendum concluded appellant did have a history of violence and the minor's fear of him was based on some valid information.
At the December 2010 hearing, appellant's counsel requested a continuance, representing that appellant had been injured in a car accident and was unable to attend. The court granted the continuance and ordered appellant to provide medical documentation to his counsel to be provided to the court prior to the continued hearing. Appellant was ordered to appear at the continued hearing. A copy of the court's order was mailed to appellant at his designated address.
Prior to the January 2011 hearing, the Department filed a fourth addendum. The Department acknowledged appellant was entitled to reunification services and had submitted an ICPC (Interstate Compact on the Placement of Children) request to Florida to evaluate appellant's home, background and criminal history, for the purpose of assessing services and potential placement. However, the Department assessed that placement of the minor with appellant would be detrimental to her. In support of this conclusion, the Department cited appellant's failure to complete services in the Florida case; his extensive criminal history of violence including domestic violence, robbery, and two assault convictions; lack of evidence of any remediating services such as counseling or anger management; his convictions for drug possession and child endangerment in Arkansas and no evidence of substance abuse treatment or parenting; his need for updated training to deal with the minor's medical condition and counseling to address the minor's behavioral issues. Further, the minor had expressed a desire to be adopted and would need therapeutic support to transition to a father with whom she had no relationship and actively feared. Nonetheless, if the court was inclined to order services, the Department recommended domestic violence counseling, anger management and parenting classes and gradual reintroduction of the minor to appellant. The minor would also need therapy. Recommended findings and orders attached to the addendum included a finding that the return of the minor to appellant would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the minor. The recommended orders included the goal of returning the minor home.
In January 2011, the court held a hearing on appellant's motion, trailed by the section 366.26 hearing. Appellant was present by telephone. The court stated it had read and considered the report for the section 366.26 hearing, the four addendum reports, appellant's motion and the minor's opposition. The court asked appellant why he had not complied with the court's order to provide medical documentation for his previous absence. Appellant stated he had just found out about the order and was having the information faxed to his attorney. The court asked when he had contacted his attorney to find out what happened to his request to continue. Appellant said he waited for his attorney to contact him and did not receive the court's order in the mail. The court pointed out that the order was mailed to him at the address he provided. Appellant's trial counsel told the court she had tried to contact appellant by telephone but the voice mail was unable to receive messages so she sent a letter, which was returned. Appellant said he had moved and it slipped his mind to let the court and his attorney know the new address, but he did put in a change of address and did not know why his attorney could not leave a message on the telephone. The court found his explanations were not credible.
Appellant's counsel asked for a continuance so that appellant could attend the hearing. The court denied the request finding no good cause was shown. The court explained appellant was currently in violation of the court's directive to provide verification of his medical condition and to keep the court informed of his address. Further, while appellant was able to contact his attorney to request a continuance of the December 2010 hearing, he did nothing to find out the results of the hearing and is solely responsible for not having an adequate opportunity to appear.
The court addressed appellant's motion to return to disposition. Appellant's counsel argued that lack of due diligence in the initial service justified an order returning the case to disposition and, even if that notice was sufficient, notice for the six- and 12-month review hearings was not. Deputy county counsel argued that appellant's declaration in support of the motion should be stricken because he was not present to be cross-examined. Appellant's counsel noted the declaration was not under penalty of perjury and opposed the motion to strike. The court granted the motion to strike both because appellant was not present in violation of court orders to appear and because the declaration was not under penalty of perjury. The court addressed appellant's alternative request that the case go back to the review hearing dates and found that would functionally be the same as returning to disposition. The court denied the motion, finding nothing defective in the declaration of due diligence at the time of the jurisdictional and dispositional report. The court said the evidence was unclear whether appellant was at the Defuniak Springs address at that time and appellant failed to provide evidence about when and where he was at the time service was attempted.
The court proceeded to the section 366.26 hearing. Appellant generally objected to termination of his parental rights. The court adopted the recommended findings from the original report, which related only to the mother, and found that there had previously been a denial or termination of reunification services to "the parent." The court terminated parental rights as to both parents. On the judicial council form (JV-320), the box next to the statement--that "The court previously made a finding denying or terminating reunification services" as to both parents--was checked.
I. The Department Urges Application of Disentitlement Doctrine
The Department contends the disentitlement doctrine applies to bar this appeal because appellant was in violation of court orders to appear at the section 366.26 hearing in January 2011 and to provide evidence of his medical condition, which justified a prior continuance.
A reviewing court has inherent power to dismiss an appeal when the appealing party has refused to comply with the orders of the trial court. (People v. Puluc-Sique (2010) 182 Cal.App.4th 894, 897.) This disentitlement doctrine prevents a party from seeking assistance from the court while that party is in an attitude of contempt to legal orders and processes of the court. (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 [the appellant challenged attorney fees and costs after absconding with the minor children and holding them outside the country].) Appellate disentitlement "is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction . . . ." (People v. Puluc-Sique, supra, 182 Cal.App.4th at p. 897.) In criminal cases it is often applied when the appellant is a fugitive from justice. (Ibid.) In dependency cases, the doctrine has been applied only in cases of the most egregious conduct by the appellant, which frustrates the purpose of dependency law and makes it impossible to protect the child or act in the child's best interests. (In re C.C. (2003) 111 Cal.App.4th 76, 84 (refusal to submit to a psychological evaluation); In re Kamelia S. (2000) 82 Cal.App.4th 1224, 1229 [father absconded with minor]; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293, 1299 [grandparents--denied placement and guardianship--absconded with minor]; Adoption of Jacob C. (1994) 25 Cal.App.4th 617, 623-624 [mother abducted child].)
Set against the conduct found to justify the sanction of disentitlement in other cases, appellant's conduct does not measure up. Appellant is not appealing the denial of a further continuance; he is appealing denial of his motion to return to disposition and the order terminating his parental rights. Neither decision depended upon his physical presence in the courtroom or his medical records. To the extent that appellant should be sanctioned for these lapses, the juvenile court has done so in denying his request for a continuance. We will not apply the disentitlement doctrine to the facts in this case.
II. Motion to Return Case to Disposition Hearing
Appellant contends the juvenile court erred in denying his motion to return the case to the disposition hearing. Appellant argues the evidence shows a lack of due diligence in notifying him of the dependency proceedings prior to the section 366.26 hearing. He asserts that, overall, the search for his address and lack of efforts to notify him of the proceedings constituted a denial of due process. We disagree.
Because a parent's interest in caring for his or her child is a basic civil right, the state must give a parent adequate notice and an opportunity to be heard before severing this interest. (In re B. G. (1974) 11 Cal.3d 679, 688-689.) Notice must be "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." (Mullane v. Central Hanover B. & T. Co. (1950) 339 U.S. 306, 314 [94 L.Ed. 865, 873].) In California, procedures for giving parents notice of dependency proceedings to comply with due process are codified. (§§ 290.1-294.) The specific procedures differ depending upon the stage of the proceedings, being most stringent prior to the hearing to terminate parental rights. (Ibid.) However, regardless of the stage of the proceeding, the state must demonstrate that reasonable efforts were made to ascertain a parent's name and whereabouts and provide adequate notice. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.)
Thus, according to statute, notice of the proceeding by first-class mail must be given to the parent as soon as possible after filing the petition if his or her whereabouts are known or become known prior to the initial hearing on the petition. (§§ 290.1, subds. (a)(2), (c); 290.2, subds. (a)(2), (c)(2).) No such notice was given here, doubtless because the Department had no information on appellant's current whereabouts. However, at the initial hearing on December 10, 2008, the mother provided a name and some information on appellant's possible whereabouts and the court ordered a paternity inquiry, which was made.
After the initial hearing, if the father did not appear, service of notice is by personal service or first-class mail. (§ 291, subds. (a)(2), (e)(3).) Service by publication is not required at this early stage. (§ 291, subd. (e).)
At the end of December 2008 and prior to the jurisdictional hearing, a social worker, over several days, made an extensive inquiry of multiple agencies and other resources in three states, using the information provided by the mother, and located seven addresses and several telephone numbers for appellant. The social worker followed up by mailing certified letters to the addresses and calling the telephone numbers but got no response from appellant. The social worker filed a declaration of due diligence documenting the efforts made to find and serve appellant. At the disposition in February 2009, the court ordered the clerk to send notice of the proceeding to the addresses located in the due diligence search. The notices were sent by certified mail to the Defuniak Springs address in Florida and an address in Sacramento, California. There was no response from appellant.
Up to this point, there was no lack of due diligence. The investigation by the social worker was wide-ranging and included sources likely to provide relevant information. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016 [department should have inquired of the U.S. Marines]; In re Megan P. (2002) 102 Cal.App.4th 480, 489 [department should have inquired of child support services].) The search did produce addresses appellant had used both in California and Florida over several years, the most recent being in Florida in 2007. However, notices sent to these addresses produced no response.
As a presumed father, appellant was also entitled to notice of the review hearings served either by first-class mail or personal service. (§ 293, subds. (a)(2), (e).) It is true that no notice of the review hearings was given to appellant. Whether this was due to confusion about his status or some other reason is unknown. What is clear is that the Department was not in possession of any new information on appellant's whereabouts and could not be expected to continue to mail notices to addresses that were increasingly out-of-date without some hope that doing so would produce a positive result.*fn2  Appellant does not contend that mailing notice to either the Defuniak Springs address or the last California address would have resulted in notice (cf. In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419), only that failure to try to find him and provide notice of the review hearings was further indication of the overall inadequate effort made by the Department to provide notice.
Given the state of the record, we cannot agree that failure to comply with the statutory requirement to provide notice of the review hearings rendered the efforts made up to that point by the Department inadequate. The Department had made a comprehensive search at the beginning of the proceedings without result. The fact that a second search made by a private process server, which focused on Florida, was successful does not mean that the Department's earlier search was lacking in due diligence. Indeed, the starting point for the process server's success was an address found by the Department. The juvenile court did not err in concluding the Department made a diligent search for appellant; he was not denied due process and the facts did not justify returning the case to disposition or any of the review hearings.
The Department contends appellant has forfeited his reliance on the particulars of the statutory notice procedures for failing to raise them in the trial court. It is apparent in the arguments in the trial court and in his brief on appeal that appellant's reference to the statutory procedures, including time frames, does not constitute a separate claim of error but is an attempt to demonstrate the overall inadequacy of the notice process relied upon by the Department. This aspect of appellant's argument has not been forfeited; it is simply unconvincing.
III. Unfit Parent Finding
Appellant contends the juvenile court lacked jurisdiction to terminate his parental rights because there was never a finding that he was an unfit parent.
"Parents have a fundamental interest in the care, companionship, and custody of their children. (Santosky v. Kramer (1982) 455 U.S. 745, 758 [71 L.Ed.2d 599] . . . .) Santosky establishes minimal due process requirements in the context of state dependency proceedings. 'Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.' [Citation.] 'After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge.' [Citation.] 'But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.' [Citation.]
"California's dependency system comports with Santosky's requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) 'The number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the fact finder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child.' [Citation.] The linchpin to the constitutionality of the section 366.26 hearing is that prior determinations ensure 'the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child, with which the state must align itself.'" (In re Gladys L. (2006) 141 Cal.App.4th 845, 848, first and last italics added; accord, In re Frank R. (2011) 192 Cal.App.4th 532, 537.)
California's dependency scheme does not use the term "parental unfitness," requiring instead that the juvenile court find that awarding custody of a dependent child to a parent would be "detrimental to the child." (In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.)
In the average case, where both parents are known, or become known, during the reunification period and repeated findings that placing or returning the child to the parent would be detrimental to the child have been made, no further finding of detriment is required at the section 366.26 hearing. However, to comport with due process, such a finding must be made at some point in the dependency prior to termination of parental rights. (In re Gladys L., supra, 141 Cal.App.4th at pp. 848-849.)
In this case, none of the multiple findings contemplated by the statutory procedure, which led to the section 366.26 hearing, were made as to appellant. The petition contained no allegations as to him. The minor was never removed from his custody. There were no findings that returning custody to him would be detrimental to the minor. Appellant's position at the time of the section 366.26 hearing was no different than that of a parent under the New York system discredited in Santosky. Termination of appellant's parental rights was a violation of due process.
The Department asks this court to imply the necessary finding of detriment. However, doing so would require the court to act as petitioner and fact finder and deny appellant notice of, and an opportunity to respond to, specific charges against him. (In re Gladys L., supra, 141 Cal.App.4th at p. 848.)
The Department also contends that appellant forfeited the issue by failing to raise it in the juvenile court. We disagree.
As we have seen, in order to proceed to termination, the Department had to show either that one of the circumstances set forth in section 366.26 subdivision (c)(1)*fn3  was previously found or that there was clear and convincing evidence that awarding custody of a dependent child to a parent would be detrimental to the child. None of the reports preceding the section 366.26 hearing suggested which facts would support such a finding. While the last two addenda contained a great deal of information about appellant, it was presented in the context of selecting which services should be provided to appellant in the event that the court granted his motion. Appellant never had notice of what facts the Department relied on to show detriment nor did he have an opportunity to be heard on those facts. "To accept [the Department's] argument would be to violate appellant's due process rights." (In re Gerardo A. (2004) 119 Cal.App.4th 988, 993.) Even assuming the detriment issue was squarely presented, appellant's trial counsel could have "had no rational tactical purpose" for failing to object to termination of parental rights in violation of appellant's due process rights. (People v. Fosselman (1983) 33 Cal.3d 572, 581; People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on a different ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) We conclude the issue was not forfeited by failing to raise it in the juvenile court.
The order denying appellant's motion to return the case to disposition is affirmed. The order terminating parental rights is reversed and the case is remanded to the juvenile court to determine whether returning the minor to appellant's custody is detrimental to the minor.
We concur: RAYE , P. J. MAURO , J.