In re DeJohn
| Decision Date | 11 October 2000 |
| Citation | 100 Cal.Rptr.2d 649,84 Cal.App.4th 100 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 4 Dist. 2000) In re DeJOHN B. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JOHNELL P. et al., Defendants and Appellants. G027063 Filed |
Appeal from a judgment of the Orange County Superior Court,
(Super. Ct. Nos. J-438690 & J-438691)
Robert B. Hutson, Judge. Reversed and remanded.
Sandra L. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant Johnell P.
Marsha Faith Levine, under appointment by the Court of Appeal, for Defendant and Appellant Adolph B.
Laurence M. Watson, County Counsel, and Ward Brady, Deputy County Counsel, for Plaintiff and Respondent.
Melissa A. Chaitin, under appointment by the Court of Appeal, for the Minors.
CERTIFIED FOR PUBLICATION
Johnell P. (mother) and Adolph B. (father), parents of now three-year-old twin sons, DeJohn and Edward B., appeal from a judgment under Welfare and Institutions Code section 366.26 selecting adoption as the minors' permanent plan and terminating the parents' rights. (All further statutory references are to the Welfare and Institutions Code; the section 366.26 hearing is designated the permanency hearing.) Mother contends the judgment must be reversed because she was deprived of a fair hearing when Orange County Social Services Agency (SSA) did not even attempt to notify her of the six-month review hearing where the court terminated reunification services and scheduled a permanency hearing. She is right. Father has no independent challenge, but argues his parental rights must be reinstated if mother prevails. He also is right.
We reverse the judgment and remand for proceedings comporting with due process. We publish our decision because the failure to give notice carries such grave consequences in the dependency court, where parent-child ties may be severed forever. Social services agencies, invested with a public trust and acting as temporary custodians of dependent minors, are bound by law to make every reasonable effort in attempting to inform parents of all hearings. They must leave no stone unturned. Where, as here, the agency has not even attempted to advise a parent of proceedings that affect her fundamental rights as a parent, we will not accept an argument that SSA's failure to give notice was harmless. We reject the contention that we can ignore the lack of notice because the parent was unworthy and, thus, was not prejudiced by lack of notice. We also reject the assertion that the minors' interest in stability trumps the parent's constitutional rights.
As we stated in In re Anna M. (1997) 54 Cal.App.4th 463, "[T]he dependency system as a whole [is] ill-served by . . . defective procedures." (Id. at p. 467.) We cannot and will not endorse SSA's failure to notify mother of the proceedings, and its subsequent cynical effort to justify its conduct as ultimately serving the best interests of the minors. The court erred in disregarding a fatal flaw in the proceedings.
Unfortunately, the violation of mother's right to notice was not rectified on the spot. This converted a relatively short delay into one of many months. SSA, rather than immediately conceding the point, has relentlessly pursued the defense of an indefensible position. We greatly regret the disruption in the minors' lives, a hardship surely magnified by the passage of time required for this appeal. But justice is not served by sacrificing a parent's due process rights to a minor's need for stability. Loath as we are to undo the permanency plan, it must be done.
DeJohn and Edward were taken into protective custody on November 5, 1998, because no one had picked them up from their day-care facility. The night before, father had exhausted his allotted time to stay at an Orange County shelter. His and mother's whereabouts were unknown, and SSA had no information concerning mother's "ability [or] desire . . . to provide for the minors." SSA had little information about mother's identity. After conducting a computer search which yielded a name and last known address in Long Beach, the agency sent a telegram there containing information about the detention hearing. SSA additionally mailed a copy of the petition and a notice of the hearing to the same address. It also sent a telegram to the shelter where father had most recently resided.
On December 8, the social worker assigned to the "absent parent search unit" filed declarations explicating her attempts to locate and notify the parents of the pretrial-default hearing. Father, who has an extensive drug-related criminal history, was found in jail. The search for mother was unsuccessful. SSA's "records did not list [her] full name, date of birth, social security number, physical description, driver's license number, indication of ethnic identity, or any names, addresses, or phone numbers of family or friends . . . which would enhance the likelihood of obtaining her current address." The social worker had learned from various governmental agencies that mother, at one time, had received food stamps at the Long Beach address. She had sent a certified letter there, return receipt requested, with a copy of the petition and notice of the date, time, place and purpose of the pretrial default hearing. She had also uncovered two addresses in Bellflower and sent certified letters with the same notice to both of them. Having received no response, she attested she had at that time "exhausted all possible leads."
SSA's report for the pretrial default hearing noted that mother's whereabouts remained unknown. Father had told the social worker that mother had abandoned the twins six or eight months earlier, and that he had been caring for them ever since. Mother had talked to him only twice during that time. He thought she might be "on the streets." There is no indication the social worker asked father to direct her to mother's relatives, close friends or others who might know her whereabouts.
SSA outlined father's services, adding that a case plan for mother would be developed "[o]nce [she] has established contact with [SSA] and expressed her desire to accept services." Mother's default was taken under submission, and trial of the jurisdictional and dispositional issues was scheduled for December 22.
There is no declaration regarding SSA's efforts, if any, to provide mother with notice of the jurisdictional-dispositional hearing or its continued dates. The reporter's transcript of the hearing, which eventually went forward in February 1999, discloses no inquiry by the court on this subject. Mother's default was entered, and, pursuant to the written stipulation of SSA, father, and the minors, the court found the allegations of the amended petition true and vested the twins' custody with SSA. Father was advised that his parental rights were in jeopardy should he be unable to reunify with the minors within six months.
For the remainder of the children's dependency, father was in and out of jail. He made no satisfactory progress on his service plan.
No attempt was made to notify mother of the six-month review hearing scheduled for September. At this crucial hearing, SSA's and minor's counsel stipulated that return of the minors to their parents would create a substantial risk of detriment to them, continued supervision was necessary, reasonable services had been provided to the father, the parents had failed to participate in the court-ordered treatment plan, the minors were under the age of three when removed from parental custody, reunification services should be terminated and the case referred for a permanency hearing. Over father's objection, the court made findings and orders consistent with these stipulations and scheduled the permanency hearing for late December. The court sent mother a notice of the need to petition for extraordinary relief at the Long Beach address.
One month after the six-month review hearing, SSA located the children's maternal grandmother and, through her, obtained mother's address in Las Vegas. SSA then sent mother notice of the permanency hearing. The circumstances surrounding SSA's belated discovery of the grandmother are not explained in the record. Nor is there any indication why she could not have been identified earlier. The agency was satisfied with a cryptic explanation: "[M]other's whereabouts were unknown until recently." )
Mother signed a receipt for the notice on October 20. SSA acknowledged that upon learning of the dependency, she "made regular contacts with the assigned social worker and requested visitation with the children." In mother-to-social worker calls in November, mother told her side of the story, saying she had left the twins in the care of her brother while she looked for a job. The next day, father had taken them. Mother's inquiries to friends and relatives yielded no information about the minors' whereabouts. She was told the police could not help her because there was no formal custody order. In late August, she talked to father, who said the twins were in custody, but would not tell her where. Her search with the department of social services for Los Angeles County, where the parties had been living when father took the minors, was fruitless. On the witness stand, father confirmed mother's account, testifying he kept the children's location a secret from her.
Notwithstanding the recent developments, SSA continued to recommend parental rights be terminated and the minors be freed for adoption. It reported the twins were doing "very well" and were...
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