Alameda Cnty. Soc. Servs. Agency v. Daniel F. (In re Daniel F.)

64 Cal.App.5th 701

279 Cal.Rptr.3d 161

IN RE DANIEL F., a Person Coming Under the Juvenile Court Law.

Alameda County Social Services Agency, Plaintiff and Respondent,

v.Daniel F. et al., Defendants and Appellants.

A160929

Court of Appeal, First District, Division 3, California.

Filed May 24, 2021

Certified for Partial Publication.^*

First District Appellate Project, Jacob I. Olson ; for Plaintiff and Appellant (Mother) Appellate Defender's Inc. Pamela Rae Tripp for Plaintiff and Appellant (Father).

Office of County Counsel, Alameda County; Donna R. Ziegler, County Counsel, Samantha Stonework-Hand, Senior Deputy County Counsel, Hannah L. Reed, Associate County Counsel.

Fujisaki, Acting P.J. Monica Z. (Mother), mother of minor Daniel F. (Daniel), and Daniel F. (Father), alleged father of Daniel, appeal after the juvenile court declared the child a dependent, terminated parental rights, and placed him for adoption.

In the unpublished portion of our opinion, we affirm the juvenile court's order denying Mother's oral request to continue the permanency planning hearing ( Welf. & Inst. Code,¹ § 366.26 ), as Mother failed to demonstrate good cause for both the oral nature of the request and the requested continuance.

In the published portion of our opinion, we reverse the juvenile court's order denying Father's petition under section 388 to vacate the disposition order. Father, who resides in Mexico, was never served with the dependency petition, or notice of the jurisdiction and disposition hearing, or the statutorily required form for asserting paternity ( § 316.2, subd. (b) ). While the Alameda County Social Services Agency (Agency) maintains that Father's whereabouts were unknown until late in the proceedings, the Agency was in contact with Father's sister early on, and it was she who eventually put the Agency in contact with Father. Liberally construing Father's petition, we conclude Father was entitled to an evidentiary hearing as to whether the Agency ignored the most likely means of finding him and thereby denied him due process. ( In re D.R. (2019) 39 Cal.App.5th 583, 591–592, 252 Cal.Rptr.3d 283 ( D.R. ).) Accordingly, we reverse the order denying Father's section 388 petition and remand for an evidentiary hearing.

FACTUAL AND PROCEDURAL BACKGROUND

A. Section 300 Petition and Detention

On January 29, 2019, the Agency filed a dependency petition alleging that Daniel, three and a half years old at the time, came within the juvenile court's dependency jurisdiction under section 300, subdivisions (b)(1) and (g). The petition alleged Mother had a history of untreated substance abuse that rendered her incapable of providing care, protection, and support for Daniel. It was further alleged that Mother's use of alcohol endangered Daniel's health and safety, as Mother, her boyfriend Carlos, and Daniel had been involved in an automobile accident during which Mother and Carlos were intoxicated, and Daniel was unrestrained in the car. The petition alleged that Father's whereabouts and ability and willingness to care for Daniel were unknown.

The Agency further reported that Mother and Daniel were transient and occasionally slept at the home of Mother's husband, I.Z. Monica M., Daniel's adult sibling, told the Agency that Mother did not have contact information for Father but believed he resided in Mexico. At the detention hearing, the juvenile court ordered Daniel detained and set the matter for a jurisdiction and disposition hearing.

B. Jurisdiction and Disposition

In its jurisdiction and disposition report, the Agency recommended that Daniel be declared a dependent of the juvenile court and remain in out of home placement, with family reunification services provided to Mother. The Agency further recommended supervised visitation until Mother obtained substance abuse treatment and demonstrated the ability to live sober. Father was again listed as Daniel's alleged father with whereabouts unknown.

The Agency reported Mother's child welfare history, including referrals it began receiving in 2001 alleging general neglect of Daniel's siblings. At the time of the report, Mother had five other minor children who were not in her care. Mother admitted using marijuana and cocaine, and she indicated willingness to participate in alcohol testing and substance abuse treatment.

In an addendum report, the Agency reported that Daniel expressed anger towards his family and one of the foster parents when a visit with his sisters ended. The foster parents reported increasing tension between Daniel and their son.

The jurisdiction and disposition hearing was continued twice during February and March 2019 due to Mother's continued hospitalization after the car accident. In a further addendum report, the Agency again listed Father as Daniel's alleged father and stated that Father "has not established a legal basis for services at this time." The Agency reported that visits between Mother and Daniel had been going well. Additionally, Daniel's relationship with his foster parents’ son had improved, and the foster parents had been in communication with Mother.

At the March 20, 2019, contested jurisdiction and disposition hearing, the juvenile court declared Daniel a dependent and found that Mother had made no progress towards alleviating or mitigating the causes necessitating placement. The court ordered that reunification services be provided to Mother.

C. Initial Contact with Ana N.

The Agency identified Father's sister, Ana N., as the only paternal relative among potential relative caretakers. It appears from the record that the Agency first began trying to contact her in April 2019. A social worker called and left messages for Ana N. on April 3, 26, and May 7, 2019. The social worker finally spoke with Ana N. on May 9, 2019. According to the Agency, when Ana N. was asked about possible placement of Daniel, she stated "she didn't think that her family would be able to have placement but she would follow up with her husband and get back to the undersigned. [Ana N.] shared that she had only met Daniel once when he was born." The social worker followed up with Ana N. on May 16, 2019, "and left a voicemail message requesting a call back to discuss her decision regarding placement."

D. Absent Parent Search Request

The Agency reported that on February 6, 2019, a child welfare worker had submitted an "Absent Parent search request" for Father. However, when the Agency conducted a follow up inquiry on August 28, 2019, it was informed that the initial request "wasn't received or processed." The Agency resubmitted the search request that same day.

E. Agency's Section 388 Petition

On September 3, 2019, the Agency filed a section 388 petition seeking termination of reunification services to Mother and the scheduling of a section 366.26 permanency planning hearing. The Agency reported that Mother had not participated regularly in services and failed to maintain consistent communication with the Agency. She did not make substantive progress towards completion of her case plan and failed to participate consistently in visitation with Daniel. Father was not identified in the Agency's petition as a parent, nor was he listed among the persons legally entitled to notice.

F. Six-Month Status Review

In its six-month status review report, the Agency reported that Mother had not cooperated with her case plan, which included drug testing and participation in family therapy and substance abuse services; nor had she enrolled or participated in a substance abuse treatment program. Mother did not maintain consistent contact with Agency staff, did not regularly attend scheduled meetings, and missed visits with Daniel. Daniel was doing well in his foster placement, where he had been since January 2019. Mother's inconsistent visitation had been harmful to Daniel, as he was distressed and felt sad and conflicted about his relationship with his biological and foster families.

At the six-month review hearing in September 2019, Father was designated "not present," and Mother appeared through counsel. A contested hearing and a hearing on the Agency's section 388 petition were scheduled for October 2019, and Mother was ordered to return and be present.

In an addendum report, the Agency reported that Father's whereabouts remained unknown, despite reasonable efforts to locate him. The Agency attached a "Declaration of Search Efforts," executed in September 2019, stating that Father's last known address was in Mexico, that his precise whereabouts were unknown, and that the Agency had searched various government and other databases of records for California and Alameda County, none of which provided sufficient information to locate Father.²

At an October 2019 hearing, the juvenile court found that the allegations of the Agency's section 388 petition were true, and that Mother had made minimal progress towards alleviating the causes necessitating Daniel's out of home placement. The court further found that returning Daniel to Mother's home would create a substantial risk of detriment to his safety, protection, or physical and emotional wellbeing. The court terminated reunification services to Mother and set the matter for a permanency planning hearing in February 2020.

G. Due Diligence Efforts and Hearing

In describing its efforts to locate Father, the Agency first noted that there was no father named on Daniel's birth certificate, and that Mother had informed several child welfare workers that Father was Daniel's biological father. Mother believed Father was in Mexico but had no contact information for him.

Mother further stated that she married I.Z. in 2000, "but that they are separated, and [I.Z.] is not the minor's biological father." I.Z. likewise told a child welfare worker in January 2019 that he was not Daniel's father. Believing I.Z. might legally be the presumed father of Daniel, the Agency left a message with I.Z.’s adult daughter and sent I.Z. a "JV-505 (Declaration of Paternity) form and...