L.A. Cnty. Dep't of Children & Family Servs. v. Rigoberto S. (In re Genesis S.)

• Decision Date: 17 September 2020
• Docket Number: B303489,c/w B305174
• Court: California Court of Appeals
• Parties: In re GENESIS S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RIGOBERTO S., Defendant and Appellant.

In re GENESIS S., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RIGOBERTO S., Defendant and Appellant.

B303489

c/w B305174

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

September 17, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct.No. DK17503B)

APPEAL from orders of the Superior Court of Los Angeles County, Marguerite D. Downing, Judge.Affirmed.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent, Los Angeles County Department of Children and Family Services.

* * * * * *

In these consolidated juvenile dependency appeals, Rigoberto S. (father) appeals the juvenile court's denial of his 2019motion to vacate its 2016 dispositional order as well as the court's order terminating his parental rights over his now-10-year-old daughter, Genesis S.We conclude that father's challenges on appeal lack merit, and affirm.

FACTS AND PROCEDURAL BACKGROUND

In November 2009, father and Lilian A. (mother) had Genesis.During the first few years of Genesis's life, father engaged in domestic violence with mother.In 2011, he was arrested and subsequently deported.Father returned to the United States in 2011, and moved to New York in 2012.

In May 2016, the Los Angeles County Department of Children and Family Services(the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over Genesis and her half siblings (then, nine-year-old Christopher and infant Mia) on the basis of (1) domestic violence between mother and Mia's father, (2)mother's physical abuse of Christopher, (3)mother's alcohol abuse, and (4) the parents' neglect of Mia's medical needs.The allegations did not accuse father of any misconduct.

At the initial hearing in the dependency case, the juvenile court declared father to be Genesis's "presumed father."Because mother and father had stopped their weekly calls between father and Genesis earlier that year, mother provided no contactinformation for father beyond the fact he was somewhere in New York.

The juvenile court ordered the Department to conduct a due diligence search to locate father so that he could participate in the ongoing dependency proceedings involving Genesis.The Department conducted two such searches—the first in June 2016, and the second in October 2017.The June 2016 search turned up no leads; the October 2017 search turned up a few leads, which the Department pursued.

The juvenile court exerted dependency jurisdiction over all three children, removed them from the custody of mother and Mia's father, and ordered the Department to provide them reunification services.The court terminated those services in August 2017, and set the matter for a permanency planning hearing.The court continued the permanency planning hearing several times to assure that the Department had time to pursue the leads from its second, October 2017 due diligence search.

In 2018, father found mother on Facebook, learned of the pending dependency case, and contacted the Department on July 9, 2018.Father indicated that he was in New York and wanted custody of Genesis.At first, Genesis refused to talk with him because she was "afraid" and "scared" of him because he"used to" yell at and "hit [her] mom," including in ways that made mother bleed.Although Genesis eventually agreed to participate in monitored telephone calls with father and father came to California to see her in person, all contact stopped on December 4, 2019, after father—during that in-person visit—"became agitated" with, used an "elevated""tone of voice" with, "publicly" yelled at, and used his "mean voice" with Genesis's foster mother when she would not let father drive with Genesis alone to thelocation of the monitored visit.The foster mother corroborated Genesis's account; father denied it.Prior to that incident, father had told Genesis that he would be taking her "away" to New York and that he would hurt her half brother Christopher if she told anyone.

Two weeks later, father filed a petition under Welfare and Institutions Code section 388¹ to vacate the July 2016 dispositional order denying him reunification services due to his unknown whereabouts because the Department's efforts to locate him were unreasonable and hence violated due process.

At a December 2019 hearing, the juvenile court found that the Department "did use reasonable efforts" to find father and denied his petition.The court acknowledged that the Department "probably should have checked Homeland Security""given that . . . father previously had been deported," but concluded that the Department's overall efforts were reasonable.The court then ordered the Department to evaluate the possibility of visitation and of placing Genesis with father, and continued the permanency planning hearing until March 2020.The Department in January 2020 reached out to its parallel agency in New York to assess father's living situation and provided that agency with all necessary information, but the agency did not respond despite the Department's several follow-up attempts.

The court conducted a permanency planning hearing in March 2020.By that time, Genesis had been living with her foster parents and her half sister Mia since April 2018; Genesis and her foster parents had a "strong bond."The court notedGenesis's desire to be adopted by her foster parents as well as her fear of father.The court made the following findings: "The court finds by clear and convincing evidence that this child is adoptable.The court finds it would be detrimental for the child to be returned to the physical custody of the parents and the court finds that no exception to adoption applies."Father did not object to the sufficiency of these findings.The court then terminated father's and mother's parental rights over Genesis.

Father filed separate appeals from the denial of his 388 petition and the order terminating his parental rights.On our own motion, we consolidated those appeals.

DISCUSSION

I.Denial of Section 388 Petition

A.Pertinent facts

The Department asked mother several times for father's contact information—at the initial detention hearing, prior to the jurisdictional hearing, and following the termination of reunification services.Each time, she said she no longer had his contact information, but that he was in New York when they lost contact in 2016.

Within weeks of filing its petition asking the juvenile court to exert dependency jurisdiction over Genesis, the Department conducted its first search for father.Using the search parameters of father's name and date of birth, the Department searched 20 different databases, including the branches of the military, the California and federal prison systems, the California welfare database, the California Department of Motor Vehicles(database), the child support database, the Postal Service, a voter registration database, the AnyWho telephone Directory, and a nationwide database of publicly available information searchableby name and date of birth (known as the CLEAR database).²The Department did not search the Department of Motor Vehicles database for New York, but New York does not grant other states access to that database.The Postal Service search revealed an address that came back to a state welfare agency and a phone number that the Department repeatedly called, but which yielded no answer.The CLEAR database had "no information" beyond "a possible photo."At the time these database searches were conducted, father was living on 92nd Street in the Jackson Heights neighborhood of New York.

The Department's second search for father was similar to its first.Using the search parameters of father's name, his date of birth and "Last Known Address: Unknown; New York," the Department searched the same 20 databases, plus the New York and Florida prison systems.This time, however, the CLEAR database found 13 AKAs (also known as), two Social Security numbers, six telephone numbers, and three possible addresses—namely, (1) the 92nd Street/Jackson Heights address (reported as father's address from July 2015 to February 2017), (2) an 88th Street address in the East Elmhurst neighborhood of New York (reported as his address from February 2017 to April 2017), and (3) an address in Miami, Florida (reported as his address from January 2014 to October 2015).The Department submitted Postmaster inquiries for all three addresses.

B.Analysis

Father argues that the trial court erred in denying his 388 petition to vacatethe court's July 2016 dispositional order on the grounds the Department's efforts to find him prior to that July 2016 order were not reasonable.We review the denial of a 388 petition for an abuse of discretion.(In re Alayah J.(2017)9 Cal.App.5th 469, 478.)

As pertinent to this appeal, section 388 empowers a "parent" to petition the juvenile court"to change, modify, or set aside" any of its previous orders.(§ 388, subd. (a)(1).)Before a juvenile court may grant such a petition, the parent must establish (1) the existence of "new evidence" or a "change of circumstance," and (2) that altering the court's previous order is in the best interest of the child.(§ 388, subd. (a);In re Stephanie M.(1994)7 Cal.4th 295, 316-317;In re S.J.(2008)167 Cal.App.4th 953, 959.)Because "[p]arents have a fundamental and compelling interest in the companionship, care, custody, and management of their...