Filed 10/26/15 In re Christopher E. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re CHRISTOPHER E., a Person Coming
Under the Juvenile Court Law.
                                                                 D068290
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. SJ11763B)
         Plaintiff and Respondent,

         v.

WILLIAM E.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Sharon L.

Kalemkiarian, Judge. Affirmed.



         Neil R. Trop, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
       William E. appeals a judgment terminating his reunification services with his

child, Christopher E., following a review hearing under Welfare and Institutions

Code section 366.22, subdivision (e).1 William contends that he was denied due process

because the San Diego County Health and Human Services Agency (the Agency) failed

to provide adequate notice of the six-month review hearing. He also contends that the

Agency failed to exercise due diligence in trying to locate him. We affirm.

                     FACTUAL AND PROCEDURAL SUMMARY

       The Agency removed 13-year-old Christopher and his five half siblings from their

home on September 16, 2014, and filed a section 300 petition after finding drugs, drug

paraphernalia, and a nonregistered gun accessible to the children. Christopher had been

living with the paternal grandparents of his five half siblings. The father of his half

siblings, Matthew M., had recently been arrested for robbery and had a history of using

and selling drugs. Christopher's father, William, was incarcerated in Blythe, California.

The Agency served its Detention Report on William at that location, and William was

represented by court-appointed counsel at the September 17 detention hearing.

       The court held a jurisdictional hearing on October 22, 2014. The Agency filed a

report stating that it had not made contact with William. William's attorney informed the

court that she had sent William a copy of the Agency's petition and explained the process

to him in writing. William had told his attorney that he would be paroled prior to



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

                                              2
October 22 and would not attend the hearing. William's attorney filed three forms

executed by her client: a disclaimer of Indian status, a request for counsel, and a

parentage inquiry questionnaire. These are William's only submissions to the juvenile

court to date. William's request for counsel form provided a mailing address on

Moonmist Drive in Houston, Texas (hereafter, the Moonmist address). William initialed

next to line 6: "I understand that I must promptly notify the court in writing of any

change in my address or phone number. I understand that the court will send all notices

and orders only to the last address I have provided to the court." William never provided

an alternate address to the court or the Agency.

       During the October 22 hearing, William's attorney told the court that the

Moonmist address likely belonged to William's parents. She explained that she had

spoken with William's family and asked them to have William contact her with any

alternate mailing information. The court designated the Moonmist address as William's

mailing address, noting that it belonged to William's family. The clerk mailed the

Agency's petition and the court's minute order to the Moonmist address.

       William did not attend the settlement conference on October 30, 2014, but he was

represented by counsel. The court determined William to be Christopher's presumed

father based on a 2007 judgment in family court. The clerk mailed the minute order to

the Moonmist address.

       William did not attend the contested disposition hearing on November 12, 2014,

but was represented by counsel. William's attorney informed the court that she had left a

message for William, asking him to contact the Agency. She stated that William had

                                              3
called to tell her that his relatives could take care of Christopher if there were no

placement options. The court ordered reunification services for William, for

Christopher's mother, and for Matthew.

       On April 24, 2015, the Agency filed a Status Review Report, which noted that it

had been unable to contact William. The Agency had sent a letter to William's last

known address and attempted to call him on November 24, December 10, January 18,

February 23, March 19, and April 22. It had conducted an unsuccessful parent search and

discovered a recent felony warrant for William in California. The Status Review Report

incorporated a Declaration of Due Diligence by the social worker documenting results

from 17 search queries, including the Department of Motor Vehicles, state and federal

prisons, state medical assistance and child support records, and the U.S. Postal Service.

       On May 5, 2015, the court held a six-month review hearing pursuant to section

366.21, subdivision (e). The Agency filed a section 388 petition, seeking to modify the

court's November 12 order and terminate William's reunification services. In the petition,

the Agency stated that William had not tried to contact the Agency or provide the Agency

with contact information. Noting that William did not have a relationship with

Christopher and had not tried to contact him, the Agency recommended termination of

William's reunification services.

       William did not attend the six-month review hearing but was represented by

counsel. William's attorney opposed the Agency's section 388 petition but presented no

evidence. She told the court that she had lost contact with William and lacked means to

reach him. The court concluded that despite due diligence, William could not be located.

                                              4
The court granted the Agency's section 388 petition, terminated William's reunification

services, and relieved William's attorney.

       The court also addressed paternity at the six-month review hearing. The court

reviewed parentage questionnaires filed by William, Matthew, and Christopher's mother.

The court elevated Matthew as Christopher's presumed father under Family Code section

7611, subdivision (d). William's attorney objected but presented no evidence. She

confirmed that she had told William early in the case that another person sought to be

elevated as Christopher's presumed father. The court then weighed the claims of

Matthew and William under Family Code section 7612. The court determined that

Matthew had the stronger claim as Christopher's father. The clerk mailed the May 5,

2015, minute order to the Moonmist address.

       William's attorney filed a timely notice of appeal. Counsel for Christopher filed a

letter brief with this Court on October 5, 2015, joining in the Agency's arguments.

                                      DISCUSSION

       On appeal, William contends that the Agency failed to provide sufficient notice of

the six-month review hearing, at which his reunification services were terminated. He

also contends that the Agency failed to use due diligence to locate him. As discussed

below, we conclude that the Agency provided William with sufficient notice and

exercised reasonable diligence in trying to locate him.2



2       The Agency argues that William has waived the due process argument on appeal
by failing to object below. "In dependency litigation, nonjurisdictional issues must be the
subject of objection or appropriate motions in the juvenile court; otherwise those
                                             5
                                                I

                                 NOTICE REQUIREMENTS

       "Parents have a fundamental and compelling interest in the companionship, care,

custody, and management of their children." (In re DeJohn B. (2000) 84 Cal.App.4th

100, 106 (DeJohn B.).) "Notice is both a constitutional right and statutory imperative."

(In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 (Jasmine G.).) Section 366.21,

subdivision (b) requires notice of six-month review hearings pursuant to section 293,

except under circumstances not relevant here. In turn, section 293 specifies the required

contents of the notice, proper recipients, and the time and manner of service. (§ 366.21,

subd. (b); § 293, subds. (a), (c), (d), (e).)

       Beyond statutory requirements, "parents are entitled to due process notice of

juvenile proceedings affecting their interest in custody of their children. [Citation.] And

due process [notice] 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.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418 (Melinda

J.).) " '[I]n the case of persons missing or unknown, employment of an indirect and even

a probably futile means of notification is all that the situation permits and creates no


arguments have been waived and may not be raised for the first time on appeal."
(In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) William's attorney appeared at
the six-month review hearing and did not object to the adequacy of notice or file a section
388 petition to raise a due process challenge. (See In re Justice P. (2004)
123 Cal.App.4th 181, 189 (Justice P.) ["A section 388 motion is a proper vehicle to raise
a due process challenge based on lack of notice."].) Nevertheless, because William's
attorney lodged a general objection on William's behalf, we will address the merits of
William's due process challenge on appeal.
                                                6
constitutional bar to a final decree foreclosing their rights.' " (Id. at p. 1419 [citing

Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 317 (Mullane)].)

       "If the whereabouts of a parent are unknown, the issue becomes whether due

diligence was used to locate the parent." (In re Claudia S. (2005) 131 Cal.App.4th 236,

247 (Claudia S.).) "The term 'reasonable or due diligence' ' 'denotes a thorough,

systematic investigation and inquiry conducted in good faith.' ' [Citation.] Due process

notice requirements are deemed satisfied where a parent cannot be located despite a

reasonable search effort and the failure to give actual notice will not render the

proceedings invalid." (Ibid.) "[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." (Justice P., supra, 123 Cal.App.4th

181, 188.)

       Finally, "[w]hile there can be no dispute that due process prohibits courts from

interfering with parental rights without adequate notice, dependency procedures and

statutory notice requirements are based on the principle that parents can be expected to

exert some effort to keep apprised of their children and their welfare." (In re Jennifer O.

(2010) 184 Cal.App.4th 539, 549 (Jennifer O.).) "The Department has a duty initially to

make a good faith attempt to locate the parents of a dependent child. Once a parent has

been located, it becomes the obligation of the parent to communicate with the

Department and participate in the reunification process." (In re Raymond R. (1994) 26

Cal.App.4th 436, 441 (Raymond R.) [rejecting contention that Agency should have

searched for father every six months].)

                                               7
       Applying this standard, courts have found a due process violation where the

Agency took no efforts to attempt to notify a parent of dependency proceedings.

(See Jasmine G., supra, 127 Cal.App.4th at p. 1116 [Agency "made no attempt,

absolutely none, to even look for [the parent]"]; DeJohn B., supra, 84 Cal.App.4th at

pp. 108-110 [Agency " 'never did the obvious' " and "fail[ed] even to make an effort to

provide mother the procedural safeguard of notice"].) By contrast, courts have found no

due process violation where the Agency took reasonable steps to notify a parent.

(See Melinda J., supra, 234 Cal.App.3d at p. 1419 [Agency "made sincere and extensive

efforts to locate [the parent]; even with the benefit of hindsight, we see nothing else that

should have been done"]; Claudia S., supra, 131 Cal.App.4th at p. 249 ["this case did not

involve a total lack of effort on the part of the Agency to notice the parents . . . there is

nothing more the Agency could have done to notify the parents of the proceedings"].)

                                               II

                                 STANDARD OF REVIEW

       We review constitutional issues de novo. (In re J.H. (2007) 158 Cal.App.4th 174,

183 (J.H.).) "[E]rrors in notice do not automatically require reversal but are subject to

the harmless beyond a reasonable doubt standard of prejudice." (Ibid.; see In re A.D.




                                               8
(2011) 196 Cal.App.4th 1319, 1325 (A.D.).)3 For William to prevail on appeal, he must

show that "a more favorable result was likely absent the error." (A.D., at p. 1325 [lack of

notice of 12-month review hearing constituted harmless error]; see J.H., at p. 185 [lack of

notice of jurisdiction and disposition hearing constituted harmless error].)

                                              III

                                        ANALYSIS

       Prior to the six-month review hearing, the Agency prepared a Status Review

Report. This Report satisfies nearly all of the statutory notice requirements for

dependency review hearings under California law. Consistent with subdivisions (a) and

(e) of section 293, the Agency sent the Status Review Report to William, the presumed

father, at his last known address by first-class mail. (§ 293, subds.(a), (e).) It did so on

April 14, 2015, 21 days before the six-month review hearing, consistent with


3      Some courts have held that a failure to provide notice of review hearings
constitutes "structural error," and is therefore reversible per se. DeJohn B. held that the
Agency's failure to attempt to locate a mother and provide her with notice of the six-
month review hearing where reunification services were terminated mandated reversal.
(DeJohn B., supra, 84 Cal.App.4th at p. 110.) Citing DeJohn B., the panel in Jasmine G.
held that the Agency's failure to notify the mother of a selection and implementation
hearing where her parental rights were terminated was reversible per se. (Jasmine G.,
supra, 127 Cal.App.4th at pp. 1116, 1118.) Likewise, in Judith P. v. Superior Court
(2002) 102 Cal.App.4th 535, the court held that the Agency's failure to serve the mother
with a copy of the social worker's report before the twelve-month review hearing at
which her reunification services were terminated constituted structural error, reversible
per se. (Id. at p. 558.) However, in 2008, our Supreme Court applied the harmless error
standard to a distinct due process challenge and cautioned against use of the structural
error doctrine in dependency cases. (In re James F. (2008) 42 Cal.4th 901, 915.)
Analyzing In re James F., the court in A.D. applied the harmless error standard to
evaluate the Agency's alleged failure to provide notice of the twelve-month review
hearing. (A.D., supra, 196 Cal.App.4th at p. 1327.)

                                              9
subdivision (c). (§ 293, subd. (c).) Consistent with subdivision (d), the Status Review

Report stated that the next hearing would be the six-month review hearing on May 5,

2015, and it included the Agency's recommendation to terminate William's reunification

services. (§ 293, subd. (d).)

       Due process does not require actual notice, but instead "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." (Mullane, supra,

339 U.S. at p. 314; see Evans v. Dept. of Motor Vehicles (1994) 21 Cal.App.4th 958, 967

["Mullane makes it clear that due process of law does not require actual notice, but only a

method reasonably certain to accomplish that end."].) We conclude that the Agency's

service of its Status Review Report by first-class mail to William's last known address on

April 14, 2015 met that standard.

       The Status Review Report did not reference William's right to be present at the

hearing, his right to be represented by counsel, or his right to present evidence, all of

which are required under section 293. (§ 293, subd. (d).) It also did not state that the

court could proceed in William's absence. (Ibid.) However, as discussed below, we

conclude the Agency's lack of strict compliance with section 293, subdivision (d) was

harmless beyond a reasonable doubt. (Cf. Melinda J., supra, 234 Cal.App.3d at p. 1419

[lack of strict compliance with statutory requirements for timing of notice, in the absence

of prejudice, was not grounds for reversal].)

       William was represented by counsel throughout the dependency proceedings. His

attorney appeared and objected on his behalf at the six-month review hearing on

                                             10
May 5, 2015, and had the opportunity to present evidence. William learned about

Christopher's dependency proceedings in September 2014 and filed documents shortly

thereafter requesting counsel, attesting to his parentage, and disclaiming Indian status.

Other than filing these three documents, William made no effort to participate in the

dependency proceedings. He "did nothing to secure his custodial rights, and failed to

keep [the Agency] informed of his whereabouts." (Jennifer O., supra, 184 Cal.App.4th

at p. 550.)

       William contacted his attorney before the November 2014 hearing, and his

attorney gave him the social worker's name and phone number, instructing him to call.

The Agency called William six times at his last known phone number between November

24, 2014, and April 22, 2015. Yet, at no time did William try to contact the Agency or

visit Christopher. The Agency was unable to establish a case plan for William, and

William never tried to avail of his court-ordered reunification services. (Cf. Raymond R.,

supra, 26 Cal.App.4th at p. 441 [Agency was not required "to track [father] continually

throughout the dependency process even after he has been identified, contacted by a

social worker, apprised of the proceedings, provided with counsel, and participated in

hearings."].) On this record, there is no indication that strict compliance with section

293, subdivision (d) would have changed the outcome. (Melinda J., supra,

234 Cal.App.3d at p. 1419; see A.D., supra, 196 Cal.App.4th at p.1327 [failure to notify

mother of twelve-month review hearing was harmless given her failure "to participate

meaningfully in her case plan or maintain contact with the social worker"]; J.H., supra,

158 Cal.App.4th at p. 185 [lack of notice of jurisdiction and disposition hearing was

                                             11
harmless where "Father knew about the dependency proceedings at some point and chose

not to contact [the Agency] and not to attempt to obtain custody of J.H."].).

       William argues that there is no evidence that the Agency actually sent the Status

Review Report to the Moonmist address by first-class mail, despite the Report claiming

to have done so. He contends that the record does not contain a proof of service pursuant

to sections 1013 and 1013a of the Code of Civil Procedure. However, under Evidence

Code section 664, "[i]t is presumed that official duty has been regularly performed."

Absent some indication in the record that the Agency did not send the Report to the

Moonmist address by first-class mail, there is no basis to overcome the presumption.

(See, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 907 ["error will not be

presumed" where "the record shows . . . the only omission is the failure to file a proof of

service establishing that the notice and a copy of the petition were sent by certified

mail"].)

       William also argues that the Agency did not use due diligence in trying to locate

and notify him. He suggests that the Agency should have searched Texas agencies

because his last known address was in Houston, Texas. We disagree.

       The record reflects that the Agency sent the Status Review Report to the

Moonmist address, William's last known address, on April 14, 2015. This alone might

have sufficed. William provided the Moonmist address to the court and certified that this

was where notices should be sent. The court identified the Moonmist address as

William's address of record and sent minute orders to this location. At no point during

the dependency proceedings did William object to the use of the Moonmist address, and

                                             12
the record does not suggest that any mail sent to that address returned to the court or to

the Agency undelivered. In fact, William's Notice of Appeal lists the Moonmist address,

suggesting that it remains his last known address.

       Nevertheless, the Agency did not stop there. William's attorney and the court

identified the Moonmist address as belonging to William's family. The Agency therefore

did a parent search, running 17 search queries of California and federal records. The

Child Support Division indicated that William had lived at the Moonmist address in 2011

but no longer lived there. Four of the 17 searches, including records from the

Department of Motor Vehicles, linked William more recently to an address in Chula

Vista, California. The Sherriff's Department issued a felony arrest warrant for William

on October 28, 2014, listing the Chula Vista address. The Agency sent a certified letter

to William at the Chula Vista address (apart from its mailing to the Moonmist address),

and someone signed for it. We find no basis to conclude that a public records search in

Texas was required.

       In addition to the parent search, the Agency tried to call William at his last known

number six times, on November 24, December 10, January 18, February 23, March 19,

and April 22. Here, as in Melinda J., the Agency took "sincere and extensive" efforts to

locate William, who by that point had lost contact with his own attorney. (Melinda J.,




                                             13
supra, 234 Cal.App.3d at p. 1419.) "[E]ven with the benefit of hindsight, we see nothing

else that should have been done." (Ibid.)4

       William has been an absentee father for nearly all of Christopher's life. He knew

about the dependency proceedings and had every opportunity to secure his custodial

rights. We conclude that the Agency exercised due diligence in trying to locate William,

and its notice to William of the six-month review hearing met due process.

                                      DISPOSITION

       The judgment is affirmed.



                                                                      BENKE, Acting P. J.

WE CONCUR:



NARES, J.



PRAGER, J.*



4       William cites three cases in which the Agency failed to take any steps to locate an
alleged father, but those cases are readily distinguishable from the Agency's reasonable
efforts here. (See In re Julia U. (1998) 64 Cal.App.4th 532, 542-543 [no due diligence
where Agency took no action to locate an alleged father for two months after being
informed of his identity]; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016
[no due diligence where Agency identified, but failed to contact, an alleged father's
employer]; In re O.S. (2002) 102 Cal.App.4th 1402, 1409 [no due diligence where
Agency failed to perform a parent search and took no steps to locate an alleged father].)

*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                             14
