Opinion
E073550
03-30-2020
In re M.G., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. V.G., Defendant and Appellant.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Respondent. Gregory P. Priamos, County Counsel James E. Brown, Anna M. Marchand, and Julie Koons Jarvi, Deputy County Counsels, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INJ1900196) OPINION APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Respondent. Gregory P. Priamos, County Counsel James E. Brown, Anna M. Marchand, and Julie Koons Jarvi, Deputy County Counsels, for Plaintiff and Respondent.
The only issue in this appeal is whether plaintiff and respondent Riverside County Department of Public Social Services (DPSS) exercised due diligence in attempting to locate defendant and appellant V.G., the father of the dependent child M.G., to give notice of this dependency case. We affirm the trial court's ruling that, although V.G. was not located, a reasonable search effort was conducted and it was appropriate to proceed in his absence.
M.G.'s mother is not party to this appeal.
To date, so far as we are aware, V.G. has not been located. His appointed counsel brings this appeal on his behalf without his involvement or authorization. DPSS concedes, and we agree, that V.G.'s personal authorization for this appeal is not required. (See In re Steven H. (2001) 86 Cal.App.4th 1023, 1031 [no requirement that appellant personally authorize appeal where appeal is "based upon the contention appellant did not receive proper notice of the trial court proceedings, and the record contains no evidence that appellant was actually made aware of what occurred within the time limit for filing the appeal"].)
I. BACKGROUND
In May 2019, DPSS filed a Welfare and Institutions Code section 300 petition with respect to M.G. (then 11 years old) and her four minor half-siblings (then 15, 13, five, and two years old). Like the initial petition, an amended petition filed in June 2019 alleged that M.G. came within section 300, subdivisions (b)(1) (failure to protect) and (g) (no provision for support). The amended petition alleged, among other things, that V.G. was not a member of M.G.'s household and that his exact whereabouts were unknown, though it was believed he was in Mexico.
Further undesignated statutory references are to the Welfare and Institutions Code.
In the detention report, the social worker stated that both an adult half-sibling of M.G. and her maternal grandmother believed that V.G. was in Mexico. M.G. told the social worker that she had not had contact with V.G. for "'years.'" The report also stated that in 2017 there had been a dependency matter involving M.G. and her half-siblings in Modoc County. The petition in that matter had been dismissed in February 2017, with family law orders granting sole legal and physical custody of the children, including M.G., to mother. V.G.'s visitation was "to be at the mother's discretion as [his] whereabouts are unknown."
At the detention hearing in June 2019, mother reported that V.G. was in Tijuana, Mexico. The trial court ordered DPSS to conduct a parent locator search and a search of the child support database regarding V.G., and to "check Shasta County Court" for "a possible sexual assault case" involving him. The court also ordered that DPSS provide notice of the case to the Mexican Consulate. The court ordered M.G. and the other children detained, and set a jurisdictional hearing for July 2017.
In a jurisdiction report, filed on July 8, 2019, the social worker stated that a person locator referral had been submitted regarding V.G., but results had not yet been received. A family connections referral was also submitted to attempt to locate any paternal relatives, but that had not been successful. A declaration of due diligence, attached to the jurisdiction report, stated that DPSS had searched jail records for Riverside, Orange, San Diego, Imperial, San Bernardino, and Los Angeles Counties, as well as the California Department of Corrections and the Federal Department of Prisons, all of which showed that V.G. was not incarcerated. The social worker reported that access to criminal history searches in Modoc, Lassen, and Shasta Counties was "restricted"; although some information about V.G.'s past convictions in Shasta County was obtained, there was no information available about V.G.'s current whereabouts.
The due diligence declaration further stated that searches had been conducted in a Department of Child Support Services database; the California Statewide Automated Welfare System or "C-IV System"; the Medical Eligibility Data System; the Child Welfare System/Case Management System; and on "Accurint for Government," a "search database designed to locate people." None of these searches revealed any information about V.G.'s whereabouts. A search of the Judicial Access system revealed a document filed with the court in May 2019, showing V.G.'s address to be "[wh]ereabouts [un]known, Mexico"—it seems likely this refers to the section 300 petition filed in this case. A search on Facebook, conducted on June 10, 2019, also yielded no results, as the DPSS employee conducting the search was "[u]nable to determine a positive match."
The due diligence declaration indicates that DPSS's "Person Locator Unit submitted a referral to the International Liaison Unit" on June 4, 2019. On June 6, 2019, a notification of the case and request for help in locating V.G. was faxed to the Mexican consulate. No response, however, was ever received.
DPSS's fax to the Mexican Consulate was not submitted to the trial court. While this appeal was pending, DPSS filed in this court a motion pursuant to Code of Civil Procedure section 909, asking that we "take as additional evidence the Fax Transmittal showing that the Mexican Consulate was provided with Notification to Foreign Consulate/Embassy." The motion is granted.
At the July 11, 2019 jurisdiction hearing, the trial court agreed with V.G.'s counsel that DPSS should obtain a CLETS report for V.G., reasoning that it can be "a good source of information for parent locator" because the parent "could be on parole or probation, things like that," in addition to providing "full knowledge of their criminal history" for other purposes relevant in the dependency context. Separately, during a discussion with counsel for one of the fathers of M.G.'s half-siblings, the trial court ordered generally that DPSS "give notice to the Mexican Consulate on anyone who is [a] Mexican national that we have in this case."
'"CLETS' is an acronym for California Law Enforcement Telecommunications System, a Department of Justice computer system that reports criminal history information." (People v. Warren (2019) 33 Cal.App.5th 749, 752 fn.4.)
In a jurisdiction/disposition report dated August 20, 2019, the social worker reported that V.G.'s whereabouts remained unknown. The social worker had submitted a request for a CLETS report for V.G., but the request was rejected because "CLETS is not used . . . for parent locator, unless there are special emergency circumstances . . . ." The social worker was informed that a CLETS report could be run if DPSS obtained a minute order specifying that such a report was being ordered pursuant to section 16504.5. DPSS did not, however, take further action to obtain such an order. The social worker also reported contacting California Child Support Services by telephone to seek information about V.G.'s whereabouts. The assigned case worker stated that V.G.'s exact whereabouts were unknown, but that mother had said V.G. was in Mexico. The social worker also reported a July 29, 2019 conversation with M.G.'s mother, who denied knowing V.G.'s "exact whereabouts and/or contact information," though she believed he resides in Tijuana, Mexico. She had last had contact with V.G. a year earlier, "when she connected with him through Facebook."
Section 16504.5, subdivision (a)(1)-(A), provides that a child welfare agency may obtain "the state summary criminal history information" available through CLETS for various purposes, including to conduct "an investigation involving a child in which the child is alleged to come within the jurisdiction of the juvenile court pursuant to Section 300."
The minutes of the July 11, 2019, hearing do not reflect an express order that a CLETS report be run, only a finding that DPSS had "good reason to run CLETS" for V.G.
On August 20, 2019, a second amended section 300 petition was filed, but the allegations relating to V.G. and M.G. were unchanged. At a jurisdiction/disposition hearing on the same date, the trial court sustained the petition, finding that M.G. came within section 300, subdivisions (b) and (g). Over V.G.'s counsel's objections, the trial court found that DPSS's efforts to give V.G. notice of the case were "sufficient." It found V.G. to be a presumed father of M.G. because he was married to her mother and was present at her birth. The trial court denied reunification services to V.G., reasoning that he was a noncustodial parent who was not residing with the child at the time of this case, who had not come forward to seek custody.
II. DISCUSSION
V.G. argues that DPSS failed to exercise reasonable due diligence in attempting to locate him and notify him of the dependency case, and more specifically the jurisdiction and disposition hearing where he was denied reunification services. We are not persuaded.
"Parents are entitled to due process notice of juvenile court proceedings affecting the care and custody of their children, and the absence of due process notice to a parent is a 'fatal defect' in the juvenile court's jurisdiction." (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.) "If the whereabouts of a parent are unknown, the issue becomes whether due diligence was used to locate the parent." (Ibid.) "The term 'reasonable or due diligence' '"denotes a thorough, systematic investigation and inquiry conducted in good faith."'" (Ibid.) Nevertheless, due diligence requires "a reasonable search effort"—not a Herculean one. (Ibid.) A search effort is reasonable if it is the type of effort that a person "desirous of actually informing the [parent] might reasonably adopt to accomplish it. (Ibid.) A search effort is not reasonable if it "'ignores the most likely means of finding the [parent].'" (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598-599.) A trial court's factual finding that DPSS acted with due diligence in attempting to locate a parent is reviewed for substantial evidence. (In re S.K. (2018) 22 Cal.App.5th 29, 37.)
We find that substantial evidence supports the juvenile court's conclusion that DPSS acted with due diligence in trying to locate and notify V.G. about the pending dependency proceeding. As discussed above, DPSS made extensive efforts to locate V.G., searching a variety of databases—county, state, and federal, as well as the private "Accurint for Government" public records database—for any available information about him. Based on statements by M.G.'s adult sibling, mother, and maternal grandmother, all of whom believed V.G. was in Mexico, DPSS notified the Mexican Consulate of the case, and requested its assistance in finding him. Although DPSS's efforts to locate V.G. were unsuccessful, we agree with the trial court's finding that those efforts were reasonable, and therefore satisfy due process.
V.G. faults DPSS for failing to complete searches of the jail information management systems of Shasta County and Modoc County, and failing to obtain the state summary criminal history information available through the CLETS database. No doubt, obtaining V.G.'s complete criminal history would be important if he were to come forward and seek custody of M.G. It is not apparent, however, that such searches would be expected to reveal any information about V.G.'s current whereabouts. Searches that DPSS was able to complete showed that he was not in any California jail or prison, and that he was not in federal custody. All indications in the evidence are that V.G. is in Mexico, not somewhere in California being monitored while on probation or parole. On these facts, it was appropriate for the trial court to conclude that DPSS's attempts to locate V.G. were reasonable, even without obtaining his complete criminal history.
V.G. suggests that DPSS should have further investigated a statement by M.G.'s maternal grandmother, described in the jurisdiction/disposition report, that V.G. "was married to [M.G.'s mother] at the time of M.G.'s birth and they remained in a relationship until he was arrested." In context, however, it is apparent that the arrest referred to occurred long ago. Mother has since had children with someone other than V.G.; the oldest of M.G.'s younger half-siblings was five years old when DPSS filed its section 300 petition in this matter. And M.G. told the social worker she has not had any contact with V.G. in "years." The maternal grandmother's statement had little relevance to DPSS's search for V.G.'s current whereabouts.
V.G. also faults DPSS for failing to "follow[] up" to "confirm if Mexico actually received notice" of the dependency. It is speculation, however, that any such "follow up" would yield fruit. DPSS sent notice to Mexico of the dependency, and requested assistance in finding V.G. It was reasonable for DPSS to conclude from the circumstance that no response was received that the Mexican authorities had no information to share, rather than to presume that the request was not actually received.
V.G. proposes that the "most likely means to locate" him was through Facebook, based on M.G.'s mother's statement that she had "connected with him" through Facebook a year before. In the same conversation, however, M.G.'s mother told the social worker that she currently did not know V.G.'s whereabouts and had no contact information for him. It is reasonably inferred from this evidence that M.G.'s mother, although she had been in contact with V.G. a year before, had no present connection with him, including through Facebook, to share with the social worker. There are any number of reasons that might be so: V.G. could have blocked mother, or set his Facebook account to a more stringent privacy setting, or deleted the account. We decline V.G.'s invitation that we presume the social worker simply failed to follow up on this line of inquiry.
In short, V.G. has not demonstrated that DPSS failed to conduct a reasonable search for his whereabouts. The trial court did not err in finding DPSS had acted with due diligence in attempting to give V.G. notice and proceeding in his absence.
III. DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: MCKINSTER
Acting P. J. MILLER
J.