Filed 12/5/14 In re Jaiden G. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.



           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


In re JAIDEN G. et al., Persons Coming Under
the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF                                                                F069150
SOCIAL SERVICES,
                                                                            (Super. Ct. No. 05CEJ300052)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
GABRIEL G.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Fresno County. Brian M. Arax,
Judge.

         Janette Freeman Cochran, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Daniel C. Cederborg, County Counsel, and Amy K. Cobb, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
       Appellant Gabriel G. (father) is the alleged father of Jaiden G. and Josiah G.
(children). Father’s parental rights were terminated pursuant to Welfare and Institutions
Code section 366.26.1 On appeal, father contends the Fresno County Department of
Children and Family Services (department) failed to use reasonable diligence in
searching for him and providing him with notice of the jurisdiction/disposition hearing on
a supplemental petition (§ 387) filed during the underlying dependency proceedings,
thereby depriving him of an adequate opportunity to elevate his status to presumed father
with the right to reunification services. We affirm.
                                        BACKGROUND
       In June 2012, the department filed a dependency petition on behalf of Josiah (then
12 months old) and Jaiden (then one month old) under section 300, subdivision (b)
(failure to protect). Specifically, the petition alleged the children’s mother, Esperanza D.
(mother), had a history of substance abuse that negatively affected her ability to care for
the children, she tested positive for marijuana and methamphetamine at the time of
Jaiden’s birth, and she admitted to using methamphetamine throughout her pregnancy.
The petition listed father as Josiah’s alleged father but indicated the identity of Jaiden’s
father was unknown.
       The department subsequently filed a first amended petition, which added
allegations that mother had received court-ordered family reunification services and
voluntary family maintenance services that included substance abuse treatment. The
department also filed a declaration of due diligence setting forth its unsuccessful efforts
to locate father.
       At the jurisdiction hearing in July 2012, the juvenile court found the allegations of
the first amended petition to be true and found the department had exercised due




       1All   further statutory references are to the Welfare and Institutions Code unless otherwise
specified.


                                                 2.
diligence in searching for father and his whereabouts remained unknown. The initial
finding of due diligence is not at issue on appeal.
       At the disposition hearing in August 2012, the court ordered Jaiden to remain in
foster care, Josiah to remain in mother’s custody at a residential treatment facility, and
granted mother family maintenance and reunification services.
       The department’s report for the disposition hearing noted the department
considered father to be an alleged father of both Josiah and Jaiden. Although mother had
identified father as Josiah’s father, father’s name was not on Josiah’s birth certificate and
father did not sign a voluntary declaration of paternity at the time of Josiah’s birth.
Mother said she and father lived together at some time, but they were not living together
at the time of the children’s removal from her care.
       The department further reported that, while Jaiden’s father was initially listed as
unknown, a man named “Gabriel” called the department on July 9, 2012, and said he was
Jaiden’s father and provided a phone number and mailing address. Later that month,
mother confirmed father was Jaiden’s father. However, the department’s attempts to
make further phone and mail contact with father were unsuccessful and his whereabouts
remained unknown.
       Father’s whereabouts continued to remain unknown until May 2013, when mother
reported father was incarcerated at the Fresno County jail. After verifying father’s
incarceration and jail booking number, the department sent father notice, on June 5, 2013,
of the 12-month review hearing then set for June 28, 2013.
       On June 28, 2013, the department requested a continuance and filed a
supplemental petition for more restrictive placement pursuant to section 387, alleging
mother had failed to demonstrate the ability to provide protection and supervision for
Josiah, who was removed from her care after she tested positive for methamphetamine on
June 26, 2013. In addition, mother had been noncompliant with court-ordered services
by failing to continue to participate in substance abuse treatment and random drug
testing, and failing to schedule an intake appointment for a domestic violence program.

                                              3.
       According to the detention report, when the department attempted to provide
father with notice of the July 1, 2013 detention hearing, it learned father was no longer
incarcerated at the county jail. Since his release from jail, father had not been in contact
with the department, and his current whereabouts were unknown. The department
planned to request another parent search because “the due diligence in regard to this
father is set to expire shortly.”
       On July 29, 2013, the department filed a declaration of due diligence setting forth
its efforts on July 10, 2013, to search for father and provide him with notice of the
jurisdiction/disposition hearing on the supplemental petition then set for July 31, 2013.
Specifically, on July 10, 2013, the department sent letters to addresses obtained for father
through Zaba Search, the Department of Motor Vehicles, property rolls/assessor, and
sheriff’s records. However, the department had not received any responses to the letters.
The department also conducted fruitless searches for father through child support, prison
locator, parole, county jail, adult probation, CALWIN/HSS records, CWS/CMS records,
SSDI, and Meds Lite.
       On July 31, 2013, the juvenile court found the department had exercised due
diligence in its efforts to locate father, and father’s whereabouts continued to remain
unknown. The court then set the matter for a contested jurisdiction/disposition hearing,
which eventually took place on September 19, 2013. The court found the allegations of
the supplemental petition to be true, terminated services, and set the matter for a section
366.26 hearing on January 15, 2014.
       Notice of the section 366.26 hearing was served on father by publication. Father
appeared, in custody, at the hearing on January 15, 2014. The court appointed him
counsel and continued the hearing to February 19, 2014.
       At the February 11, 2014, settlement conference, father’s counsel informed the
court she had not yet received any discovery, except for the section 366.26 report, and
she requested copies of all the department’s reports.



                                             4.
       On February 19, 2014, father’s counsel requested a continuance of the section
366.26 hearing, observing that, although she had finally obtained all the reports the
previous week, she had not had the opportunity to speak with father until that day, at
which time she “became aware that there may be some serious issues with regard to
notice.” Counsel specifically noted that she sought a continuance for “an opportunity to
explore … and investigate … and file whatever moving papers I need to sway the Court
or opposition” regarding the issues of notice and whether father could have established a
different status than alleged father had he learned of the proceedings sooner.
       In granting father’s unopposed request for a continuance, the juvenile court
summarized some of the relevant circumstances, including that it now appeared father
had been transported from the Fresno County jail to the Wasco State Prison facility
around June 25, 2013, and was presumably in custody there on July 10, 2013, when the
department made its unsuccessful efforts to locate him and notify him of the upcoming
jurisdiction/disposition hearing on the supplemental petition filed on June 28, 2013.
       Father’s counsel also requested the paternal grandmother be allowed to visit with
the children and to be assessed for placement. In response to inquiry by the court,
counsel confirmed she was planning to file a statement regarding paternity (form JV-505)
and to explore whether there was a period when mother and father lived together. The
court denied father’s request for grandparent visitation and assessment for placement,
explaining:

                “I’ve had cases where we granted actual placement to … family of
       alleged parents and it created a mess and turned out to be a mistake …. If
       I’m going to ask you to assess for placement there’s a couple issues there.
       We’re putting the cart before the horse. We’re getting to an issue without
       dad being elevated and, secondly, I do know the children I think have had a
       single successful placement. The possibility of disrupting it would not be
       in best interest, but on the other hand, what we’re really trying to do is
       simultaneously figure what were dad’s rights on notice. Could he have
       been elevated and is there some other plan to entertain. Unless we know a
       little bit about father’s family we may not be able to preserve his rights
       about preparing and contrasting best interest on placement so my first
       instinct says I should not order you to go through that work. Alleged father

                                             5.
       has no such right until he’s elevated. Takes more delay which is
       unfortunate. So be it. My preference I think is to see if we can get to
       alleged father status and then do what [father’s counsel]’s asking for
       visitation and placement wise but there’s tremendous benefit to do
       everything at once.

              “[DEPARTMENT’S COUNSEL]: My response Your Honor, is just
       based on the need that the Department has to follow [its] ordinary practices
       which is not to do relative assessments for family that are not established as
       biological or when the father is not a presumed father. [¶] … [¶]

               “THE COURT: Let’s do this. I won’t order any visitation with
       paternal relatives and I won’t order you to assess for placement at this time.
       I’ll leave it to dad to exercise his rights to follow through with contact with
       his attorney and to fill out the JV505. But even though we’re coming back
       relatively soon, [father’s counsel], I’ll leave my door open if you want to
       ask for special ex parte shorter hearing to file that document and to have it
       assessed then I’ll make myself available for that purpose to have interim
       hearing on the JV505.”
       At the March 14, 2014, settlement conference, father’s counsel advised the
juvenile court that she had not had sufficient time to prepare a statement of issues or any
moving papers regarding their position, which was that the department “did not perform
due diligence in attempting to notify my client.” Counsel noted she likely would be able
to file something by the following Monday (i.e., March 17, 2014). The court confirmed
the matter was set for hearing on March 19, 2014, and was contested only as to father’s
issues; the court withdrew mother’s contest based on her unexcused failure to appear at
the settlement conference.
       Prior to the section 366.26 hearing, father’s counsel did not file a statement
regarding paternity or any written motions challenging either the juvenile court’s
previous finding of due diligence or seeking to elevate father’s status to presumed father,
as had been discussed at the previous hearings.
       At the section 366.26 hearing on March 19, 2014, father’s counsel submitted on
the department’s recommendation of adoption and termination of parental rights,
“objecting to any finding this Court has made with regard to either notice or due
diligence with regard to my client.” Counsel also made a number of requests on father’s

                                             6.
behalf, including that he be allowed at least one visit with the children. In making this
request, counsel noted father “did spend some[]time with the oldest boy before losing
contact with him” and “has seen the youngest child one time ….”
       Father’s request for an exit visit with the children and other forms of contact with
members of his family engendered the following remarks by the juvenile court and
argument by the department:

               “THE COURT: … For everyone and the record before we hear more I
       don’t know what to do with the notice issue because I don’t have briefing
       on it or analysis for me to examine without trying to take judicial notice of
       my whole file and look at every notice packet and try to revisit all of those
       to find out if we are without jurisdiction nunc pro tunc or something. So
       that’s important … because that’s the primary assertion on contest .… So I
       need to hear a lot of about notice and this idea of post-adoptive contact for a
       man who’s not been established as having a standing to do anything today
       as an alleged other than challenge alleged status. [¶] … [¶]

              “[DEPARTMENT’S COUNSEL]: [F]irst I want to say in a nut shell that
       our position is that the request for the various kinds of contact with the
       father should be denied because I did not establish a sufficient level of
       involvement or connection with the kids that the law for these cases
       requires. He’s still at the lowest level which is alleged father and there
       doesn’t seem to be evidence that he had more involvement to qualify for
       the higher level of father status.…

               “With respect to the notice issue, Your Honor, my first point is that
       this is essentially a request to revisit the Court’s finding in July of due
       diligence. It’s a motion and at this point originally to set aside the Court’s
       previous finding and I don’t think that’s properly before the Court. I think
       the Court can do a sua sponte but as I would like to go [on to] explain I
       don’t think the Court should do it sua sponte in this case for various
       reasons. Your Honor, in June of [last] year the Court held a hearing on
       June 28th. [¶] … [¶]

              “… As the Court may recall … the hearing was continued and the
       department filed a 387 report asking the Court to detain Josiah who had
       been in his mother’s care because she tested positive for controlled
       substance. I believe it was methamphetamine. That petition was filed
       June 28, 2013 and I’m referencing it now. It was methamphetamine. I
       mentioned that hearing because the Court should have in its file a notice
       packet for all the addresses that were known for [father] on that date. And
       it should have included the Fresno County Jail. I think we’ve stipulated

                                             7.
       previously that it appears [father] was transferred out of Fresno County Jail
       … to Wasco and so he wasn’t present when we held the hearing .… He
       was transferred June 25th. It appears that the Department in preparing …
       its search for [father] and preparing the declaration for July 31st was not
       able to locate or detect [father] in that transition period .… [¶] … [¶]

               “… So I think … the legal issue is whether that circumstance of
       searching for a parent during that transition period between a county jail
       and prison system and failing to detect the parent[’]s presence in the prison
       system whether that failure drags the Court’s finding or the Department’s
       efforts down from diligence and I don’t think it should. At least when the
       Court also has a prior finding of notice which the Court has from June 28th.
       So I recognize there may be an appropriate case and that the Court may
       draw a line for a parent who was caught in that transition period … but in
       this case the Court has a previous finding which was the law of the case
       from June 28th resting upon a notice packet that was submitted to the Court
       in June showing a notice mailed to the Fresno County Jail during a time
       that he was there and I think it was June 5th the notices were sent. [¶] …
       [¶]

              “… The Department and the Court didn’t hear from [father] so the
       parent must [bear] some burden in that respect and I don’t think especially
       absent a motion and points and authorities to the contrary that the Court
       should sua [sponte] disturb that finding from July 31st.”
       When this argument concluded, the children’s counsel expressed agreement with
the department’s position that the court’s previous finding of due diligence should not be
set aside. Father’s counsel offered no further argument. The court then declined to set
aside its July 31, 2013, finding of due diligence. The following excerpt is taken from the
court’s detailed explanation for its ruling:

              “[THE COURT:] Now I have that [notice] packet. I reviewed it. I
       reviewed it once more today and it does establish that all the traditional
       sources of locating a party—potential party. An alleged father including
       this gentleman were searched and none turned up anything. That could be
       used if including that was a search of prison locator and it says none. Now
       I’m asked if I disturb the notice findings to date to suspect under penalty of
       perjury that a sworn officer of the Court, that is some representative of the
       Department of Social Services, falsified [the] declaration and not check the
       prison locator. The interesting issue that arises is if this gentleman was in
       the custody of the state in some fashion. I am employed by the state. This
       Court is an organ of this county but also an organ of the state should be put
       on duty of notice of those in our own custody so to speak but we are

                                               8.
       independent branches of government and I have the executive branch that
       maintains the prison system I believe certainly maintains the Department of
       Social Services and they operate independently to provide notice. I’m the
       arbiter of notice and I protect the Constitutional rights but we make those
       efforts—[duly] diligent efforts to locate and I’m told by the executive
       branch that on July 10th they could not locate in the prison locator. I don’t
       fault the Court for that and I do not rule now that those efforts were not
       made.

               “So due diligence declaration is in order. Now was dad in custody.
       Sounds like it. Stayed in custody. Sounds like it. Would it have been
       better if it was provided some different notice or located him. Absolutely,
       but am I prepared to say the executive branch did not exercise due diligence
       and finding was not appropriately made. There was some fundamental
       negligence. Failure to act not proven to me now or fundamental
       representation not proven to me now. I’m not in the position from briefing
       or evidence to make that finding. I simply have the documents which were
       ordered was, in fact, noticed in jail and at the appropriate time the hearing
       and he did not follow through once transferred to custody and the
       department could not locate at this time.

                “So I do not disturb the notice issues nor for the permanence and
       stability of these children at this late date believe we are to nunc pro tunc or
       reconsider for non party possible elevation. This gentleman for purposes of
       avoiding their adoptability or maintain contact which was not regularly or
       established in the first place. Clearly regularly established contact for these
       children of tender age was not happening and clearly father had not played
       a role in their lives such as to keep track of their whereabouts nor were we
       able to keep track of him and all father did was find himself in custody at
       critical juncture. That’s not to say a person in custody is at fault
       dependency wise. It’s the most vulnerable people that need to be protected
       the most. We must place some duty or burden on parties to know what’s
       happening with the children to be aware and involved and protect their
       rights or present me some evidence in which by[]way of firm reliable
       evidence I may disturb the sound finding of this Court and I don’t have that
       evidence before me other than father was apparently in custody at this time
       of due diligence execute. That’s enough to reverse these Court’s orders.
       I’ll allow an appellate jurisdiction to do that.”
                                       DISCUSSION
       Father now contends the juvenile court committed reversible error at the section
366.26 hearing by failing to set aside its previous finding that the department exercised



                                              9.
due diligence in its efforts to locate father and provide him with notice of the
jurisdiction/disposition hearing on the supplemental petition. We disagree.
        “Since the interest of a parent in the companionship, care, custody, and
management of his children is a compelling one, ranked among the most basic of civil
rights [citations], the state, before depriving a parent of this interest, must afford him
adequate notice and an opportunity to be heard. [Citations.]” (In re B.G. (1974) 11
Cal.3d 679, 688-689.) “The notice must comport with due process. [Citation.] ‘Due
process requires “notice 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.” [Citation.]’ [Citation.]” (In re DeJohn B. (2000) 84 Cal.App.4th 100,
106.)
        Due process is satisfied where a parent cannot be located despite the exercise of
“‘reasonable or due diligence,’ [which] ‘“denotes a thorough, systematic investigation
and inquiry conducted in good faith.”’ [Citation.]” (In re Claudia S. (2005) 131
Cal.App.4th 236, 247.) “[T]here is no due process violation when there has been a good
faith attempt to provide notice to a parent who is transient and whose whereabouts are
unknown for the majority of the proceedings. [Citations.]” (In re Justice P. (2004) 123
Cal.App.4th 181, 188.) However, if the party conducting the search ignores the most
likely means of finding the missing parent, the service is invalid even if the affidavit of
diligence is sufficient. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598-599.)
        A section 388 petition is a proper vehicle to raise a due process challenge based on
lack of notice. (In re Justice P., supra, 123 Cal.App.4th at p. 189.) Section 388 provides
for a procedure to petition the juvenile court to set aside or change a prior court order on
the ground of change of circumstances or new evidence. (§ 388, subd. (a); In re D.B.
(2013) 217 Cal.App.4th 1080, 1089.) The petitioning party has the burden to prove not
only the changed circumstance, but also that a modification of the court’s prior orders
would be in the child’s best interests. (§ 388, subd. (b); In re Justice P., supra, at pp.
188-189.)

                                              10.
       “A ruling on a section 388 petition is ‘committed to the sound discretion of the
juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an
abuse of discretion is clearly established. [Citations.]’ [Citation.] Thus, we may not
reverse unless the juvenile court exceeded the bounds of reason, and we have no
authority to substitute our decision for that of the lower court where two or more
inferences can reasonably be deduced from the facts. [Citation.]” (In re D.B., supra, 217
Cal.App.4th at pp. 1088-1089.)
       Our review of the record establishes that, once father appeared in the dependency
proceedings, the juvenile court continued the section 366.26 hearing twice, in part, to
afford father and his counsel the opportunity to research and file an appropriate challenge
based on the alleged defects in notice. Despite this opportunity, father did not file a
section 388 petition or submit any evidence to prove the department failed to exercise due
diligence in searching for him prior to the jurisdiction/disposition hearing on the
supplemental petition. Nonetheless, father now asserts the court had a sua sponte duty to
set aside its previous finding of due diligence because it was unsupported by the record.
       Contrary to father’s assertion, the facts in the record support the juvenile court’s
determination that the department exercised due diligence in its unsuccessful efforts to
locate father in July 2013, when father was apparently in custody at Wasco State Prison.
As the court observed at the section 366.26 hearing, the department’s declaration of due
diligence established a thorough search was conducted of “all the traditional sources” one
would expect to reveal father’s location if he were in the state prison system, yet none of
these sources, including the prison locator, yielded any information about father’s
whereabouts.
       Father claims the department “ignored the most likely means of finding him” by
failing “to take the simple step of searching father’s criminal history, such as through the
CLETS system.” But he points to no evidence establishing that, had the department
checked his criminal history, it would have ascertained he was in custody at Wasco,
while the other customary sources for locating prisoners searched by the department

                                             11.
failed to disclose this information. (See In re Emily R. (2000) 80 Cal.App.4th 1344, 1353
[alleged father bears burden of showing search measure would have some chance of
success].)
       Because the facts in the record support a reasonable inference the department
exercised due diligence in its attempts to locate and provide notice to father, the juvenile
court did not err in declining to set aside its prior finding of due diligence. However,
even if the court erred, errors in notice do not automatically require reversal. (In re
Angela C. (2002) 99 Cal.App.4th 389, 393-394; but see In re DeJohn B., supra, 84
Cal.App.4th at pp. 102, 110 [reversal is mandated where no effort has been made to
provide notice].) We review such errors to determine whether they are harmless beyond
a reasonable doubt. (In re Angela C., at pp. 392-395.)
       Applying this standard here, we conclude any error in notice was harmless. The
purpose of notice in dependency cases is to allow the parent to choose whether to appear
and to assert a position. (In re O.S. (2002) 102 Cal.App.4th 1402, 1408.) Father seems
to argue that had he been given notice earlier, he could have appeared sooner and asserted
he be found to be the children’s presumed father. However, father cannot establish he
would have been able to elevate his status to presumed father at any time during the
dependency proceedings. Accordingly, he suffered no prejudice as a result of the
inadequate notice of the jurisdiction/disposition hearing on the supplemental petition.
       Only a presumed father enjoys the panoply of rights set forth by the dependency
statutes, and a father who is an alleged or a biological father is entitled to fewer rights.2
(In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) The Family Code sets forth the
criteria for determining presumed father status, which are, in pertinent part: a man
marries or attempts to marry the child’s mother, he and the mother execute a voluntary
declaration of paternity, or he receives the child into his home and openly holds out the

       2The court  in In re Crystal J. (2001) 92 Cal.App.4th 186, 190, also recognized “de facto
fathers,” persons who assume the role of parent on a day-to-day basis. The evidence in the
record does not support any assertion that father was a de facto father.


                                               12.
child as his natural child. (Fam. Code, §§ 7571, 7573, 7611, subds. (a)-(d).) A biological
father is one whose paternity of the child has been established, but who has not
established that he qualifies as the child’s presumed father. (In re Zacharia D., supra, at
p. 449, fn. 15.) An alleged father is a man who may be the father of the child but who
has not established biological paternity or presumed father status. (Ibid.)
       In dependency proceedings, a man’s status as a presumed father is critical. (In re
O.S., supra, 102 Cal.App.4th at p. 1410.) “[P]resumed fathers possess far greater rights
than alleged or biological fathers. [Citation.] Only a presumed, not a mere biological,
father is a ‘parent’ entitled to receive reunification services, and only a presumed father is
entitled to custody of his child. [Citation.] In contrast, the juvenile court ‘may’ order
reunification services for a biological father if the court determines that the services will
benefit the child.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596; see
In re A.A. (2003) 114 Cal.App.4th 771, 779-780.)
       In the present case, the juvenile court expressed a willingness to make an
expedited determination of paternity and to elevate father’s status from alleged to
presumed father as soon as he filed the mandatory form JV-505 and made the requisite
factual showing. Despite being granted a number of opportunities, father never made a
formal request to be elevated to presumed father, presumably because his counsel, after
being given time to explore the issue, was unable to find sufficient facts to support such
request. Father did not argue in the lower court, and he does not claim now, that he met
the criteria for presumed father status set forth above.
       Indeed, the only relevant information we can glean from the record tends to
suggest father only qualified as an alleged father. The department specifically reported
father’s name did not appear on Josiah’s birth certificate nor did father sign a voluntary
declaration of paternity for Josiah, and there is no evidence father signed the birth
certificate or a voluntary declaration of paternity for Jaiden. Although father and mother
lived together at some unspecified point in time, they did not live together at the time the
dependency proceedings were initiated, and there is no evidence they were ever married

                                             13.
or attempted to marry, or that father ever received the children into his home and openly
held them out as his natural children. Finally, according to father’s counsel, although it
appeared Josiah had spent some undefined amount of time with father, Jaiden and father
met only once. In the absence of evidence father could have qualified for presumed
father status, his prejudice argument fails.
                                      DISPOSITION
       The order terminating parental rights is affirmed.

                                                         ___________________________
                                                                             PEÑA, J.
WE CONCUR:


 ________________________________
LEVY, Acting P.J.


 ________________________________
DETJEN, J.




                                               14.
