Calaveras Cty. Health & Hum. Serv. Agency v. T.K. (In re A.K.)

318 Cal.Rptr.3d 9

IN RE A.K., a Person Coming Under the Juvenile Court Law.

Calaveras County Health and Human Services Agency, Plaintiff and Respondent,

v.T.K. et al., Defendants and Appellants.

C097776

Court of Appeal, Third District.

Filed January 18, 2024

APPEAL from a judgment of the Superior Court of Calaveras County, David M. Sanders, Judge. Reversed. (Super. Ct. No. 22JD6438)

Mara L. Bernstein, under appointment by the Court of Appeal, San Rafael, for Plaintiff and Appellant C.B.

Lelah S. Fisher, under appointment by the Court of Appeal, San Diego, for Plaintiff and Appellant T.K.

Julie Spoljaric, Deputy County Counsel, for Plaintiff and Respondent.

BOULWARE EURIE, J.

Appellant C.B., the biological father of the minor A.K., appeals from the January 2023 order of the juvenile court terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)¹ He contends, among other things, that the juvenile court and the Calaveras County Health and Human Services Agency (the Agency) denied his due process rights to notice and an opportunity to participate in dependency proceedings to try to establish presumed father status. T.K., the minor’s mother (mother), joins in C.B.’s arguments. We agree. The juvenile court and the Agency did not comply with duties (1) to try to identify all of the minor’s alleged fathers (including C.B.) early in the dependency proceedings, (2) to give adequate notice to C.B. that his parental rights were at stake in the proceedings, or (3) to give C.B. notice of specific important hearings. Accordingly, we reverse the order terminating parental rights.

BACKGROUND

I Initial Dependency Proceedings

When the minor was born in April 2022, the Agency received a report that mother tested positive for methamphetamine, benzodiazepines, and sexually transmitted diseases. Consistent with mother’s disclosure to the Agency that she had used methamphetamine during her pregnancy, she tested positive for amphetamines in early December 2021 and mid-January 2022.

On April 20, 2022,² the Agency filed a juvenile dependency petition alleging the minor came within section 300, subdivision (b), due to prenatal exposure to methamphetamine, as well as mother’s lack of prenatal care, history of substance abuse, and history of arrests for possession of a controlled substance. The petition further alleged that the minor was at risk of abuse under section 300, subdivision (b), given the May 2019 removal of the minor’s half siblings due to mother’s substance abuse. At the April 21 detention hearing at which mother appeared, the juvenile court detained the minor from the care of mother and minor’s alleged father, D.C. The reporter’s transcript of the hearing reflects no inquiry by the juvenile court regarding the identity of any other alleged fathers.

II Jurisdiction and Disposition

On May 3, the juvenile court held a "continued detention hearing" at which mother and D.C. appeared. The court stated it "ha[d] some questions [it] ha[d] to ask of" D.C., which were "not asked at the first hearing." After D.C. answered a few of the court’s questions regarding the na- ture of his relationship with mother and whether D.C. signed any paperwork at the hospital when the minor was born, counsel for D.C. interjected: "Just to expedite this Your Honor … my client is actually requesting paternity testing … to establish whether or not he is the biological father." The court responded, "All right. Anything more that [D.C.] wants me to hear on parentage inquiry?" Counsel for D.C. replied, "No, Your Honor." The court asked, "Anything more [mother] wants me to hear on the parentage inquiry?" Mother replied, "No." Noting D.C.’s request indicated "some kind of doubt," the juvenile court granted D.C.’s request for paternity testing and stated, "at this point I will just designate [D.C.] as an alleged father." The reporter’s transcript of the hearing reflects no inquiry by the juvenile court regarding the identity of any other alleged fathers.

At a jurisdiction hearing two weeks later, on May 17, mother and D.C. were present and the juvenile court asked the Agency if the results of D.C.’s paternity test were known. Counsel for the Agency explained the results were not back. Conceding mother was "bypassable,"³ counsel for mother proposed the hearing be continued to a later date "for a combined juris[diction] disposition" hearing, which would (a) allow the parties to "know what we are looking at, what … the case plan would look like" and (b) "also give time to find out what [D.C.’s] status is." Counsel for D.C. agreed with that request, saying: "I agree that combined jurisdiction makes more sense especially if bypass is on the table because if my client is [the] biological father then potentially he will receive services and not [be] going to a [section 366.26 hearing⁴] or maybe not going to trial." The juvenile court granted the request, explaining, "there are enough moving parts where we don’t know father’s status, and we don’t know if the recommendation is going to be to bypass." Again, the reporter’s transcript of this hearing reflects no inquiry by the juvenile court regarding the identity of any other alleged fathers.

In a disposition report filed on June 16, a social worker reported that on May 31, the Agency learned that D.C. was not the minor’s biological father, and that mother told the social worker that C.B. "may be the biological father of [the minor]." This is the first time that C.B. appears in the record. The June report listed C.B. as an alleged father, provided his street address and phone number and recommended bypassing mother for reunification services and holding a section 366.26 hearing in October. The record indicates the June 16 disposition report was not sent to C.B.

On June 17, a social worker sent a letter and Judicial Council form JV-505 to C.B. by first-class mail. Relevant here, the substance of the letter stated: "I am a social worker with [the Agency]. This letter is to inform you that the agency has been informed that you may be the biological father of [the minor], whom is a dependent of our court. Please contact me at the numbers provided below."

"Judicial Council form JV-505 is entitled ‘Statement Regarding Paternity.’ The form has check boxes next to preprinted statements through which an alleged father can indicate his position with regard to paternity and representation by counsel. Concerning paternity, the form provides the alleged father with the following options: He can deny he is the father of the subject child; he can indicate he does not know if he is the father and can either consent to or request paternity testing; he can indicate he believes he is the child’s father and request that the court enter a judgment of paternity; or, he can indicate that he has already established paternity by either a voluntary declaration or a judgment of paternity." (In re Paul H. (2003) 111 Cal. App.4th 753, 761, 5 Cal.Rptr.3d 1, fn. omitted (Paul H.).)⁵

Four pages in length, the Judicial Council form JV-505 that the social worker sent to C.B. provided the minor’s first and last name, the case number of the matter, and the location of the Calaveras County Superior Court. The following language appeared in capital letters at the bottom of the first page of the form: "IMPORTANT NOTICE ON PAGE 4. READ BEFORE SIGNING." The notice on page four of the form provides:

"To the alleged parent of the child:

"As the child’s alleged parent, you will not get services to help you get your child back. You will not automatically get the child to live with you or your relatives.

"If the judge finds that you are the child’s parent, the judge may order services to help you get the child back, but does not have to order services for you.

"If you say that you are not the child’s parent and will not take a test to find out if you are the parent, and do not want services to help you get the child back, you can fill out this form and not be a part of this case.

"You can have a trial and ask the judge to decide if you are the child’s parent. You can pay a lawyer to be at the trial. If you cannot afford a lawyer, the judge may appoint one for you for free. At a trial, you can ask witnesses questions and give evidence to the judge.

"If you want the court to decide if you are the child’s parent, fill out this form."

At the June 21 combined jurisdiction and disposition hearing, counsel for the Agency and the juvenile court discussed the Agency’s declaration of due diligence in trying to locate C.B. The filed declaration reflects the Agency began searching for C.B. on June 9, and that on that date three different sources of information (including Medi-Cal, California’s Medicaid program) indicated the same active address for C.B., which was the address noted in the June 16 disposition report and to which the social worker sent the June 17 letter and Judicial Council form JV-505. The court continued the combined jurisdiction and disposition hearing for one week. On June 23, the Agency filed an amended dependency petition alleging the minor came within section 300, subdivision (b), and C.B. was identified as the father. At the June 28 continued combined jurisdiction and disposition hearing, the juvenile court noted C.B. was an alleged father and scheduled a contested disposition hearing for July 13. The record indicates that neither a copy of the amended petition nor notice of the two late-June hearings were mailed to C.B.

At the July 13 contested disposition hearing, the juvenile court sustained the allegations in the amended petition, bypassed reunification services for mother, and scheduled the section 366.26 hearing for October. C.B. was not present at the July 13 contested disposition hearing and the record indicates notice of it was not mailed to him.

III C.B,’s Interactions with the Agency, the Minor, and the Results of His Paternity Test

On August 18, C.B. had a supervised visit with the minor and took a paternity test. For roughly...