In re Emily R.

• Decision Date: 26 May 2000
• Docket Number: No. F033809.,F033809.
• Citation: 80 Cal.App.4th 1344,96 Cal.Rptr.2d 285
• Parties: In re EMILY R., a Person Coming Under the Juvenile Court Law. Kern County Department of Human Services, Plaintiff and Respondent, v. Michael U., Defendant and Appellant.
• Court: California Court of Appeals

96 Cal.Rptr.2d 285

80 Cal.App.4th 1344

In re EMILY R., a Person Coming Under the Juvenile Court LawKern County Department of Human Services, Plaintiff and Respondent, v.Michael U., Defendant and Appellant.

No. F033809.

Court of Appeal, Fifth District.

May 26, 2000.

Review Denied August 23, 2000.

Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Tom Clow, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

VARTABEDIAN, J.

When does an alleged biological father become a "party" in a dependency proceeding?We answer this question, as well as due process inquiries, in the context of a minor father who has failed to personally assume any responsibility for his child.Here, appellant Michael U. became named as the alleged birth father of Emily R., the subject of already ongoing dependency proceedings.The juvenile court entered orders of detention, jurisdiction, disposition, and review; the court additionally made findings at several junctures determining sufficient efforts were made to notify appellant, eventually finding notice by publication adequate.Appellant claims that the proceedings violated his due process right to notice and that the court erred in failing to sua sponte appoint him a guardian ad litem before he appeared in the action.We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was born in June 1980.His alleged daughter, Emily R., was born in December 1996.Appellant thus was 15 years old when he was sexually involved with Emily's mother, Carmen D. Carmen originally identified Brooks R. as Emily's father; she claims she did so because appellant's mother had threatened Carmen upon learning of the pregnancy.

On January 8, 1997, one-month-old Emily was placed in protective custody after being found home alone without adult supervision.Two days later, the Kern County Department of Human Services(DHS) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300,¹ alleging that the minor was subject to the jurisdiction of the juvenile court in Bakersfield, California.The petition named Brooks R. as Emily's father.At that time, Carmen was incarcerated for abandoning her children and for being under the influence of a controlled substance.

At the continued jurisdictional hearing on May 6, 1997, the court found, based on paternity testing, that Brooks R. was not Emily's father.The court ordered Emily removed from the home of Brooks R.'s parents and placed in foster care.

According to a social study dated May 16, 1997, and filed with the court on May 20, 1997, Carmen indicated (for the first time) that appellant was the father of Emily.Appellant was still a minor at this time.On May 16, 1997, the social worker attempted to notify appellant of the dispositional hearing by telephoning him at his last known telephone number.The social worker did not talk with appellant, but did talk with his father, who told the social worker that his son was living with his sister in Bakersfield and that "he did not want to be bothered with this matter again.He did not want [the social worker] to call him again" and hung up.²

Appellant did not attend the dispositional hearing on May 20, 1997, at which the petition was amended to reflect appellant as the alleged father.The court found that the whereabouts of appellant were unknown and that reasonable efforts had been made to locate and notify him.The court adopted the recommendations of the social worker denying appellant reunification services, as he was only an alleged father and had not sought to establish paternity.

A social study prepared by social worker Miriam Ocampo and dated November 7, 1997, stated appellant resided at "[Street No.]Jasmine ST. Apt 4E, Delano, CA 93215"; to this address, Ocampo sent a notice by certified mail on November 6, 1997, notifying appellant of the upcoming review hearing.The report also set forth: "The alleged father of the minor, Emily [R.], Michael [U.], currently resides in Delano, California.Mr. [U.] has not had any contact or visits with the minor, nor has he requested visitation.Mr. [U.] has stated he wishes not to be involved in this matter."

³

On December 16, 1997, the court held a six-month review hearing.Appellant was not present.When describing the efforts made to contact appellant, Ocampo remarked that a hearing notice had been sent but no receipt received.She did not state that she had spoken with appellant.The court found that reasonable efforts to notify appellant had been made and adopted the recommendation of the social worker that Emily's placement continue as appropriate.

A social study dated June 4, 1998, again listed appellant's address as that on Jasmine Street in Delano.Ocampo indicated that a hearing notice was sent to appellant by certified mail at the Jasmine Street address on June 3, 1998, notifying him of the 12-month review hearing on June 15, 1998.Appellant did not attend.Ocampo told the court that she had not received a receipt from appellant regarding the hearing notice.The court found that reasonable efforts to notify appellant had been made.

Nor did appellant attend the July 8, 1998, hearing to contest DHS's report and recommendations.Again, Ocampo informed the court that DHS had sent appellant a hearing notice by certified mail but that no receipt had been received.The court found that DHS had made reasonable efforts to notify appellant of the hearing.A section 366.26 permanency planning hearing was set for November 5, 1998.

On October 22, 1998, DHS filed an ex parte application requesting a continuance of the section 366.26 hearing because DHS had been "unable to locate. and/or effect service of notice upon [appellant]" concerning the section 366.26 hearing.According to the supporting declarations, (1) attempts to serve appellant at the Jasmine Street address in Delano on September 4, 1998, and October 5, 1998, and at an address on Princeton Avenue in Bakersfield on October 21, 1998, had been unsuccessful because appellant"[d]oesn't live at either residence"; (2)appellant had not lived at the Jasmine Street address since January 1998; and (3) the Princeton Avenue address was allegedly found by searching the Criminal Justice Information System (CJIS) and the records of DHS.The court granted a continuance of the permanency planning hearing until January 12, 1999, so that DHS would have the time required by law to effect service by publication.

Publication of notice of the section 366.26 hearing to be held on January 12, 1999, was made on November 7, 14, 21, and 28, 1998, in The Daily Report, a newspaper of general circulation in Kern County, California.

At the section 366.26 permanency planning hearing on January 12, 1999, appellant was again not present.The court found that proper notice by publication had been made, and that appellant's whereabouts were unknown.The hearing was continued to February 2, 1999, March 2, 1999, March 23, 1999, April 8, 1999, and finally April 27,1999.

In the meantime, it was on April 23, 1999, when he ran into Carmen D. at a retail store, that appellant claims he first became aware of the proceedings.⁴Prior to this meeting, appellant thought that Brooks R. was Emily's father.Appellant asserted he never talked to any social workers and did not recall receiving any mail concerning the proceedings.He believed that his parents, who did not want him involved with Carmen D. or the proceedings, may have intercepted information concerning the hearings.

In April 1999, appellant was working 46 hours a week at a shipping company, was able to support himself and was maintaining an apartment.He also taught Sunday School and belonged to a gospel recording group.Given his strong religious convictions, appellant was considering attending a bible college.Appellant was willing and able to care and provide a good home for Emily if paternity testing established that he was her father.

Appellant attended his first hearing on April 27, 1999.The court appointed appellantcounsel, who promptly requested a continuance to investigate whether appellant had received adequate notice of the proceedings.Counsel explained to the court that she was not prepared to go forward or cross-examine the social worker.The court denied the requested continuance.Counsel for appellant also requested paternity testing for appellant.The court heard evidence on the adoptability of Emily (and her three half siblings) and continued the matter for further hearing.

On the ground of insufficient notice, counsel for appellant filed a motion on May 7, 1999, to set aside the dispositional finding that appellant would not receive reunification services.On May 11, 1999, counsel for appellant filed a request for modification pursuant to section 388 based on changed circumstances and an ability to care for Emily, sought to set aside the court's order setting a section 366.26hearing, and requested that the court order family maintenance services for appellant.

On May 18, 1999, appellant attended the continued hearing on the section 366.26 matter and Carmen D.'s section 388 motion.Counsel for appellant again requested paternity testing.The matter was continued to May 21, 1999.

Appellant attended the May 21, 1999, hearing, at which the court took the section 388 matter under submission and again continued the section 366.26 matter.The court requested further briefing on the issue of lack of notice to appellant.

Counsel for appellant filed additional points and authorities on May 24, 1999 regarding appellant's inadequate notice of the proceedings.At about this time, counsel for appellant also filed a section 390motion requesting dismissal of the petition in the interests of justice and for the welfare of Emily.

On June 11, 1999, the court denied both appellant's and Carmen D.'s section 388 petitions.On July 9, 1999, the court summarily...