Solano Cnty. Health & Soc. Servs. Dep't v. J.H. (In re A.H.)
| Decision Date | 19 October 2022 |
| Docket Number | A163882 |
| Citation | 84 Cal.App.5th 340,300 Cal.Rptr.3d 383 |
| Parties | IN RE A.H., a Person Coming Under the Juvenile Court Law. Solano County Health and Social Services Department, Plaintiff and Respondent, v. J.H., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Aida Aslanian, Glendale, under appointment by the Court of Appeal, for Defendant and Appellant.
Bernadette S. Curry, County Counsel, Carrie Scarlata, Assistant County Counsel, Clarisa Sudarma, Deputy County Counsel, for Plaintiff and Respondent.
This is one of those rare juvenile dependency cases in which the failures on the part of the social service agency and the juvenile court to comply with the due diligence, notice and parentage inquiry requirements of the dependency statutes were so pervasive that they denied due process to the noncustodial alleged father of the child. We reverse the order terminating parental rights, and remand for further proceedings consistent with this opinion.
Before turning to the facts, we provide a brief overview of the law governing the rights of a person claiming to be the parent of a dependent child.
There are three types of fathers in dependency law: presumed, biological and alleged.1 ( In re Mia M. (2022) 75 Cal.App.5th 792, 806, 290 Cal.Rptr.3d 741 ( Mia M . ).) " ‘A father's status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled.’ " ( In re Christopher L. (2020) 56 Cal.App.5th 1172, 1184, 271 Cal.Rptr.3d 147, affd. (2022) 12 Cal.5th 1063, 292 Cal.Rptr.3d 815, 508 P.3d 776.)
Presumed parent status, which is the equivalent of a legal parent, " ‘ "ranks the highest." ’ " ( Mia M., supra, 75 Cal.App.5th at p. 806, 290 Cal.Rptr.3d 741.) It confers "all the rights afforded to parents in dependency proceedings, including standing, the appointment of counsel, and reunification services." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2022) § 2.60[2][a], pp. 2-129 (Seiser & Kumli).) Presumed parentage is determined under the Uniform Parentage Act ( Fam. Code, § 7600 et seq. ), a statutory framework that " ‘provides for conclusive and rebuttable presumptions of paternity’ " on various grounds. ( In re P.A. (2011) 198 Cal.App.4th 974, 980, 130 Cal.Rptr.3d 556 ; see also generally Seiser & Kumli, § 2.60[2], pp. 2-129-2-149.) Under that framework, "[b]iological fatherhood does not, in and of itself, qualify a man for presumed father status ...."2 ( M.M. v. D.V. (2021) 66 Cal.App.5th 733, 741, 281 Cal.Rptr.3d 361.) The law in the area of presumed parentage is complex and evolving. (Seiser & Kumli, supra , § 2.60[2][c][iii], pp. 2-143.)
Next in order of ranking is a biological father, a man "who has established his paternity but has not established his qualification as a presumed parent." ( In re J.W.-P. (2020) 54 Cal.App.5th 298, 301, 268 Cal.Rptr.3d 583 ( J.W.-P. ).) "A court may order reunification services for biological fathers if they are in the child's best interest ...." ( Ibid . )
Finally, an alleged father is a man who may be a child's father but has not yet established either presumed father status or biological paternity. (See J.W.-P. , supra , 54 Cal.App.5th at p. 301, 268 Cal.Rptr.3d 583 ; Seiser & Kumli, supra , § 2.60[4], p. 2-155.) "Alleged fathers have ‘fewer rights’ and, unlike presumed fathers, ‘are not entitled to custody, reunification services, or visitation.’ " ( J.W.-P. , at p. 301, 268 Cal.Rptr.3d 583.) That is the category with which we are concerned here.
"An alleged father has no rights in a dependency case other than the right to step forward and to seek to establish his paternity of the child" (Seiser & Kumli, supra , § 2.60[4], pp. 2-155–2-158), a right that is guaranteed through various constitutional and statutory requirements that, as we discuss more fully post , were violated time and again in this case.
As we will discuss, an alleged father's rights (and/or corresponding duties on the part of the state), fall into essentially four categories: (1) the right to notice of the proceedings and of certain hearings (see Welf. & Inst. Code, §§ 290.1, 290.2, 291, 294, subd. (a)(2) )3 ; (2) the right to notice of their rights as an alleged father and the steps necessary to elevate their status to that of a presumed father (see § 316.2, subd. (b)); (3) the court's corresponding duty to inquire into an individual's possible parentage through various extrinsic sources apart from the individual's own self-reporting (see § 316.2, subd. (a)); and (4) if the whereabouts of an alleged father are unknown, the state's constitutional duty to exercise reasonable diligence to find him, so that he may be given proper notice of the proceedings (see Mia M. , supra , 75 Cal.App.5th at pp. 807-808, 290 Cal.Rptr.3d 741 ). In addition, and relatedly, if an alleged father's parental rights are at stake, he may be entitled to appointed counsel on request if he cannot afford private counsel. (See § 291, subds. (a)(2) & (d)(6)(B), (C) [statutory right]; In re O.S. (2002) 102 Cal.App.4th 1402, 1407, 126 Cal.Rptr.2d 571 [constitutional right].)
At bottom, an alleged father has a constitutionally protected due process right to " ‘be given notice and an opportunity to appear, to assert a position, and to attempt to change [his] paternity status [citation].’ " ( Mia M. , supra , 75 Cal.App.5th at p. 807, 290 Cal.Rptr.3d 741 ; accord, In re R.A. (2021) 61 Cal.App.5th 826, 835-836, 275 Cal.Rptr.3d 877 [].) J.H. was deprived of that opportunity.
On September 16, 2019, the Department filed a dependency petition under section 300, subdivisions (b)(1) and (g) and (j), after taking six-year-old A.H. and her two younger half-siblings into emergency protective custody and placing them in foster care. Only A.H.’s case is at issue here, and so we address her two half-siblings only as relevant.
The petition alleged that the children's mother, C.S. (mother), had allowed A.H. to have unsupervised contact with an older relative whom mother suspected of having sexually molested the child ( § 300, subd. (b) ); the father of A.H.’s two half-siblings, B.M., also was aware of the possible sexual abuse, and he and mother were thereby placing the two half-siblings at risk (id. , subd. (j)); and A.H.’s alleged father, appellant J.H., had failed to provide care, support or supervision of the six-year-old child for more than a year and his whereabouts were unknown ( § 300, subd. (g) ). Despite the allegations of J.H.’s "unknown" whereabouts, the petition listed an address for him on Galbrath Street in Sacramento. There is no information in the record about the source, currency or nature of that address. There also is no evidence the Department ever served the petition on J.H. at that address. At this point, the Department had had no contact with J.H.
The detention report, filed the same date as the petition (September 16, 2019), shed further light on J.H.’s relationship to the six-year-old girl but none about his whereabouts, and very little about the Department's efforts to learn them. It stated mother had reported that J.H. is A.H.’s father, was present for her birth, was listed on her birth certificate and had not been involved in her life for approximately a year . Given the child's age, that statement attributed to mother implied J.H. had been "involved in her life" until around age five. The detention report did not disclose any prior child welfare referrals concerning J.H., but recounted a significant history of child welfare interventions for mother dating back to 2016, some of which also involved the father of the other two children, B.M. Like the petition, the detention report identified J.H. as the alleged father and referred to the Galbrath Street address for him. The Department also reported that it had "not had contact with" J.H. Although it had provided notice of the detention hearing to mother and B.M. by telephone, it had attempted unsuccessfully to reach J.H. by telephone at two different phone numbers (about which no information was provided) and had been unable to leave a message. So, it had sent an email to J.H. at an email address (about which no information was provided) requesting a return phone call.
At the detention hearing, held on September 17, 2019, mother and B.M. were present with counsel and J.H. was not present. An attorney asked whether the court was inclined to appoint her to represent J.H. The court declined to do so at that juncture, directed the Department to continue to try to contact him, and indicated that it would appoint her as his counsel if he came forward and requested to be a participant. The court made no inquiry about the Department's efforts to ascertain J.H.’s whereabouts, including the significance or source of the Galbrath Street address that it listed for him or the email address the Department had used to reach out to him. The court also conducted no inquiry of mother into J.H.’s possible paternity, as required by section 316.2.
The children were ordered detained, the Department was directed to provide various services to mother and B.M. as well as supervised visitation, and the joint jurisdiction and disposition hearing was calendared for October 29, 2019.
The detention hearing findings and orders were served by the court on counsel for mother, B.M., the children and on the Department, but not on J.H.
Due to a number of continuances and other circumstances, the contested jurisdiction/disposition hearing eventually took place about eight months after the detention hearing, on May 11, 2020. In the interim, four ...
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