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Name: In re Daniel F.
Case #: A160929
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 05/24/2021
Summary

Reversal and remand for an evidentiary hearing was required where the Agency failed to pursue the most likely means of finding alleged father. The minor was detained due to mother’s untreated substance abuse issues. The petition filed alleged that father’s whereabouts were unknown, although mother believed he lived in Mexico. Following the jurisdiction and disposition hearing, a paternal aunt was located in March 2019. A September 2019 declaration of search efforts stated that the Agency had searched various government records and other databases in California, despite believing that father was living in Mexico. In October 2019, mother’s reunification services were terminated and the matter was set for a Welfare and Institutions Code section 366.26 hearing. In November 2019, the paternal aunt provided the Agency with a telephone number and date of birth for father and said he was living in Mexico City with no stable address. Following a due diligence hearing in January 2020, the court found the Agency had exercised due diligence and father could be served by publication. In May 2020, the paternal aunt facilitated a phone call between father and the Agency. Father provided the Agency with an address and telephone number in Mexico and requested an attorney and custody of his son. Father then filed a section 388 petition requesting reversal of the disposition order and setting of the section 366.26 hearing. The court found that father had failed to state prima facie evidence to hold an evidentiary hearing as father had no relationship with the minor and it would not serve the minor’s best interest to hold a hearing. The court then terminated parental rights as to both parents. The appellate court reversed and remanded to hold an evidentiary hearing. Alleged fathers have a due process right to be given notice and an opportunity to appear, to assert a position, and to attempt to change their paternity status. A section 388 petition is the appropriate method for raising a due process challenge based on lack of notice, and a separate showing of best interest is not required. The Agency is required to make every reasonable effort in attempting to inform parents of all hearings. Reasonable diligence denotes a thorough, systematic investigation and inquiry conducted in good faith. Here, the Agency located paternal aunt in May 2019, but did not inquire about father’s whereabouts until November 2019. Paternal aunt was eventually able to put the Agency in contact with father, but this may have happened much sooner if the Agency had been more diligent. Despite knowing that father was in Mexico, the Agency only searched California databases while neglecting the avenue that was most likely to yield father’s contact information, the paternal aunt. The Agency’s failure to timely provide father with a JV-505 form denied him adequate notice and this error was not harmless because it cannot be assumed, based on the facts in evidence, that had father established paternity he would not have received reunification services or been able to assert his parental rights.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A160929.PDF