Persons Coming Under the Juvenile Court Law. L. A. Cnty. Dep't of Children v. A.M. (In re Mia M.)

• Decision Date: 28 February 2022
• Docket Number: B313574
• Citation: 290 Cal.Rptr.3d 741,75 Cal.App.5th 792
• Parties: IN RE MIA M. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. A.M. et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

75 Cal.App.5th 792

290 Cal.Rptr.3d 741

IN RE MIA M. et al., Persons Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.A.M. et al., Defendants and Appellants.

B313574

Court of Appeal, Second District, Division 5, California.

Filed February 28, 2022

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

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Brian Mahler, Deputy County Counsel for Plaintiff and Respondent.

MOOR, J.

Seeking a new jurisdiction and disposition hearing, appellant A.M. (father) filed a petition under Welfare and Institutions Code section 388, asserting under Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 229 Cal.Rptr. 771 ( Ansley ) that inadequate search efforts by respondent the Los Angeles County Department of Children and Family Services (the Department) violated his due process right to notice of critical juvenile court proceedings.¹ He now appeals the juvenile court's orders denying his section 388 petition and terminating parental rights to Mia M. (Mia) under section 366.26. Father contends the Department did not exercise reasonable diligence, and the juvenile court's decision to deny his section 388 petition was prejudicial error. Father further contends the court erred in failing to find he was Mia's biological father. K.V. (mother) also appeals, and she joins in father's arguments.² The Department contends it exercised reasonable due diligence in its efforts to locate father, and that any notice error was harmless. The Department also contends that vacating all prior orders and conducting new jurisdiction and disposition hearings, as father requested in his section 388 petition, would not be in Mia's best interests.

Finding prejudicial error, we reverse the court's order denying father's section 388 petition and vacate the order terminating parental rights as to Mia. While our decision necessarily affects the order terminating mother's parental rights as well, we remand for a new jurisdiction and disposition hearing as to father only.

FACTUAL AND PROCEDURAL BACKGROUND

Dependency Petition and Detention of Mother's Children

In November 2019, the Department filed a petition alleging that mother's four children were dependents under section 300, subdivisions (a), (b), and (g). Mother's oldest child N.G. was 10 years old; Mia was 8 years old; and the youngest two children (R.V. and S.V.) were below the age of three. According to the petition allegations, mother had failed to make an appropriate plan for the children's care, leaving them with maternal grandmother while mother's whereabouts were unknown. Mother also had histories of substance abuse and domestic violence with a male companion. The petition identified the father of each child, but did not include allegations against any of the fathers.³

At the November 19, 2019 detention hearing, the court found father to be Mia's alleged father, ordered Mia and the younger children detained, and ordered the Department to present in its jurisdiction and disposition report evidence of due diligence in attempting to locate mother, father, and E.B. (the father of mother's youngest two children).

Department's Efforts to Locate Father

A. Available Information About Father's Whereabouts

The Department's November 2019 detention report stated that maternal grandmother gave father's name to the social worker. Maternal grandmother also explained that a different person, K.M.-H., "is the one who registered [Mia] as his but in reality [A.M.] is the father." Maternal grandmother stated that father "lives somewhere in Oklahoma as child Mia goes to Oklahoma every summer to spend time with him and [paternal grandmother Rosa]. [Maternal grandmother] stated that she used to have contact information for them via Facebook but reported that [Rosa] recently deleted her account, therefore she no longer has contact with them or know [sic] of any other identifying information."⁴

The social worker interviewed Mia, who also explained that her last name matches K.M.-H.’s last name because K.M.-H. "has her listed as his daughter," but that her last name is supposed match father's name, because father is her "real dad." When the social worker asked Mia if she knew father's phone number or address, Mia "stated that she does not know besides he lives in Oklahoma and she visits him in the summer time as her grandmother [Rosa] buys her the ticket and she visits them." When asked how she knew all this information, Mia explained that she hears her maternal grandmother and mother talking.

Referring to father, the court noted at the November 19, 2019 detention hearing, "Apparently he resides in Oklahoma and Mia visits with him in the summers." On November 21, 2019, mother told the social worker over the phone that father is Mia's father, and that Mia's adoptive father K.M.-H. was deported to El Salvador and killed. Nonetheless, the Department included as part of its jurisdiction and disposition report a due diligence search declaration for K.M.-H., but not for father. Based on father's minimal contact with Mia, the Department recommended no family reunification services and no visits with Mia for father, until such time as father contacts the Department.

Mother's first appearance in court was on December 13, 2019. She identified father as Mia's biological father, but when asked whether he openly acknowledged Mia as his daughter, mother responded that he knew he was Mia's father, but he walked away and never stepped up. K.M.-H., the individual listed on Mia's birth certificate was not Mia's biological father. The court again found A.M. to be an alleged father, and again directed the Department to conduct a due diligence search for him.

B. Department's Search Efforts

On January 3, 2020, the Department filed a last minute information report and a declaration of due diligence summarizing the Department's efforts to locate father as of mid-December 2019. Unlike the declaration of due diligence submitted earlier for K.M.-H., the declaration of due diligence for father did not include copies of any actual searches or results. The Department interviewed mother and Mia about father's whereabouts in November 2019. Mother stated father moved to Oklahoma several years earlier, and mother had not heard from him since. Mia said she had not seen father for a long time and he lives in Oklahoma. There is no indication in the Department's due diligence report, or in any of its reports, that the Department asked mother or Mia if they had been in contact with Rosa, or knew any other paternal relatives or anyone else who might have father's contact information. Other than maternal grandmother's statements included in the detention report and one unfruitful conversation with a paternal great aunt of Mia's half-sister N.G., there is no evidence that the Department spoke to anyone other than mother and Mia as part of an effort to locate father before the jurisdiction and disposition hearing.

According to the due diligence declaration, Department employees used father's name and date of birth to search several California and federal databases on November 25, 2019, but no matches were returned.⁵ A similar search of the Thomson Reuters CLEAR database also returned no results. The due diligence report did not include searches of any Oklahoma-specific databases. Based on an internet search of "telephone directory clearance," the Department sent copies of the petition to seven addresses in Southern California and two addresses in Oklahoma.⁶ The Department reported that its due diligence search for father was incomplete, as the Department was still waiting for certified mail return receipts.

Jurisdiction and Disposition Hearing

At the January 9, 2020 combined jurisdiction and disposition hearing, the court found notice of the proceedings had been given in accordance with the law. It noted father's whereabouts were unknown, that the Department had conducted a due diligence search for him, and that he was only an alleged father. Contact with Mia would not be permitted until father contacted the Department. The court declared Mia, and also her half-siblings R.V. and S.V., dependent children under section 300, subdivisions (b) and (g), and removed all three children from mother's custody. The court granted mother reunification services, but denied services to father, under section 361.5, subdivisions (a) and (b)(1), because he was an alleged father whose whereabouts were unknown.

Six-Month Review Report

In a March 2020 phone conversation, mother told the social worker that father was in Oklahoma, but that mother didn't understand why the Department would want father's contact number because he was "not in the picture." When the social worker explained that the father had the right to know of the open dependency case, mother agreed to call father and inform him of the case. The Department noted this conversation in its July 2020 review report, along with a comment that, on other occasions, mother had stated she did not know father's whereabouts. The report also related a conversation with N.G.’s paternal great aunt, who stated she knew that father had moved to another state and did not have a relationship with Mia. The July 2020 report indicated that the Department would be submitting a due diligence report for father at the next hearing; however, no subsequent due diligence report appears in the record.

Initial Contact with Father and Rosa

In a last minute information filed with the court on October 15, 2020, the Department reported that the social worker spoke by phone with father, Rosa, and paternal aunt J.A. in early October 2020. The Department's report did not explain how father or paternal relatives initially obtained the social worker's contact information, or alternatively how the social worker located father.⁷

Both father and Rosa told the social...