IN RE: C. C. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

C.C. (father) appeals from a disposition order made by the juvenile court with regard to his son, C.C.¹ Father contends it should be reversed because there was no attempt to notify him of the proceeding.   We reverse and remand this case for a new disposition hearing to be held only after proper notice to father.

FACTUAL AND PROCEDURAL BACKGROUND

The Department of Children and Family Services (Department) filed a Non–Detained Detention Report on October 1, 2010.   The report stated that in January, 2010, then eight-year-old C.C., and his two siblings came to the attention of the Department of Children and Family Services (Department) because when mother, D.G., gave birth to J.G., one of C.C.'s siblings, mother and J.G. tested positive for marijuana.²  On January 29, 2010, mother agreed to participate in a voluntary family maintenance program without court intervention.   Mother agreed, inter alia, to submit to random drug and alcohol testing, to enroll in substance abuse awareness classes, and to have the Department assist the family with referrals for counseling.   C.C. and his two siblings remained in the care of their mother.

According to the Detention Report, mother thereafter failed to submit to random drug testing and refused to enroll in an individual counseling and substance abuse awareness classes.   On August 23, 2010, the Department was contacted by C.C.'s school regarding behavioral and emotional difficulties he was exhibiting and the report stated that mother was uncooperative with the school staff.   The report stated that the voluntary family maintenance program services provided to mother were not effective in preventing or eliminating the need for removal of C.C. from mother.   According to the report, “Mother has always had many excuses and made promises to do better ․ and nothing gets accomplished.”   The repost also stated that, “There are no relatives to consider for placement.”

The report also provided father's date of birth and stated that he was the “incarcerated father of [C.C.]” According to the report, the Department submitted a “due diligence request” for father on September 29, 2010.   The Department filed an Addendum Report on October 1, 2010, stating that father's “whereabouts [were] unknown to the [Department] at this time.”

On October 1, 2010, the Department filed a petition under section 300, subdivision (b), stating that C.C. and his siblings were not detained by the Department, and alleging inter alia that mother tested positive for marijuana at the time of J.G.'s birth, mother had a history of abusing marijuana endangering C.C.'s physical and emotional health, and father failed to provide for the necessities of C.C.'s life.   The petition further alleged that father's “[w]hereabouts [were] [u]nknown.”

On October 1, 2010, a detention hearing was held.   The juvenile court stated to mother, “I read today's report.   And the report suggested that you weren't really doing very much in terms of what that voluntary contact was.   The reason [the Department] filed the [petition] is they feel you still need some assistance and they're concerned about some of the things happening with your children.  [¶] And I'll tell you quite frankly, if you don't participate in some services there is a chance the Department can detain your children from you and place them in foster care, especially since [J.G.] was born drug-exposed.  [¶] So there's concerns about what's been happening with you and your ability to parent your children well.”

Mother stated at the detention hearing that father was C.C.'s father but he never lived with C.C., and she confirmed that father was incarcerated in a California state prison.   The juvenile court designated father as an “alleged father.”   Mother confirmed father's date of birth and the juvenile court ordered the Department to perform a due diligence search for father.   The juvenile court found that C.C. was a person described by Welfare and Institutions Code section 300, subdivision (b) and (g) ³ and released him to mother's care.   Family maintenance services were ordered for mother.

At an October 4, 2010, progress report hearing, the juvenile court stated, “I have read the Detention Report of October 1st, 2010.[¶]  I'm going to start with [the Department's counsel], why are the children safe in this home?   Because on the paperwork it's the court's tentative to detain.”   The Department's counsel responded that she does not have any information about the matter other than what is stated in the report.   Mother's counsel objected to the juvenile court making a detention finding at that hearing because mother was undergoing drug testing.   The Department's counsel said, “Mother did fail to test of several occasions.   We do have two negative tests attached to the Detention Report, the dates are somewhat unclear.   But I believe it's March of this year and January of this year.”   The juvenile court ordered that C.C. be released to mother “pending the next hearing.”   The juvenile court stated, however, “Let me tell you this.   One missed test, one dirty test, that doesn't show the levels going down, one missed appointment with the school and I will detain the kids.  [¶] The Department has put up with this for ten months, I'm not.”

During the hearing mother stated that she did not know where father was incarcerated.   The juvenile court found that the case was to proceed pursuant to the Indian Child Welfare Act (ICWA) because mother and C.C.'s older half sister, D.B., were enrolled members of the Muskogee Creek Nation, and scheduled the matter for a further hearing on October 25, 2010.

There is no indication in the record that father was provided with notice of the October 25, 2010, hearing, or that any attempts were made to provide him with notice.   On October 14, 2010, Notices of Child Custody Proceeding for Indian Child advising of the October 25, 2010, hearing were served on mother and others, but not on father.   The notice stated that father's physical and mailing address and telephone number were “unknown.”   On October 19, 2010, Notices of Hearing on Petition also advising of the hearing on October 25, 2010, were served on mother and C.C.'s older sibling, but the proof of service does not reflect that the notice was served on father.

On October 25, 2010, the Department filed a Jurisdictional/Disposition Report dated October 20, 2010, stating that once in 2000, three times in 2008, and twice in 2009, referrals were made to the Department concerning the mother's general neglect of her children.   The referrals involved, inter alia, mother's alleged substance abuse and sale of drugs, and the alleged presence of guns in the home.   Following the Department's investigation of the referrals it determined that the evidence was either inconclusive or the referrals were unfounded.

The report stated that father was located at Lancaster Correctional Facility, and listed the father's inmate number, and Lancaster Correctional Facility's physical and mailing address.   The reported stated that C.C. was interviewed on October 19, 2010, and that “a few days” prior father had called mother who allowed C.C. to talk with him.   Also mother stated that father did not pay child support.   The report attached the Notices of Child Custody Proceeding for Indian Child, and the Notices of Hearing on Petition, advising of the October 25, 2010 hearing.

A pretrial resolution conference and disposition hearing was held on October 25, 2010.   Father did not appear at the hearing.   The Department's Jurisdictional/Disposition Report dated October 20, 2010, with the attachments, was admitted into evidence.   The juvenile court's minute order states that the juvenile court “finds notice of the proceedings has been given to all appropriate parties as required by law,” but the juvenile court did not make such a finding during the hearing.

At the October 25, 2010, hearing the juvenile court amended the petition and sustained the allegation that mother tested positive for marijuana at the time of J.G.'s birth and mother had a history of abusing marijuana endangering C.C.'s physical and emotional health, and placed C.C. with mother.   The juvenile court dismissed the allegation that father failed to provide for the necessities of C.C.'s life.   The juvenile court ordered that father was not to visit C.C. until he contacted and appeared before the juvenile court and established paternity,⁴ and held that father was not to be provided with family reunification services.

DISCUSSION

A. Father's Designation as C.C.'s Alleged Father

Father contends that the juvenile court erred by designating him as C.C.'s “alleged” father and not his “presumed” father.   A judicial review occurred on April 25, 2011, while this appeal was pending.⁵  The juvenile court declared that father was C.C.'s presumed father.   On May 5, 2011, the Department filed a motion with this court requesting the appeal be dismissed as moot.

“Generally, courts decide only ‘actual controversies' which will result in a judgment that offers relief to the parties.  [Citations.]  Thus, appellate courts as a rule will not render opinions on moot questions:  ‘[W]hen, pending an appeal from the judgment of a lower court, and without fault of the [respondent], an event occurs which renders it impossible for [the reviewing court] if it should decide the case in favor of [appellant], to grant [appellant] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.  [Citations.]’  [Citations.]   The policy behind this rule is that courts decide justiciable controversies and will normally not render advisory opinions.  [Citations.]”  (Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178–1179.)

In the dependency context, appeals and writ petitions have been dismissed on mootness grounds where subsequent events, including orders by the juvenile court, render it impossible for the reviewing court to grant effective relief.  (In re Albert G. (2003) 113 Cal.App.4th 132, 134–135 [a subsequent order is issued terminating the juvenile's court's jurisdiction over a child];  In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315–1317 [a subsequent order terminating parental rights is entered];  In re Katherine R. (1970) 6 Cal.App.3d 354, 357 [a minor attains majority];  In re Pablo D. (1998) 67 Cal.App.4th 759, 761 [when a child challenges the extension of reunification services to the 18–month hearing and the services are provided by the time the appeal is decided];  In re Dylan T. (1998) 65 Cal.App.4th 765, 769 [when in an appeal from an order denying visitation rights to an incarcerated father, he is released from prison].)

Father concedes that his contention that the juvenile court erred by designating father as C.C.'s “alleged” father is now moot.   The Department's motion, therefore, is granted as to this contention by father.   As discussed post in footnote 6, however, the Department's motion is denied regarding the remaining issues on appeal.

B. Lack of Father's Notice of the Disposition Hearing

“Until parental rights have been terminated, both parents must be given notice at each step of the proceedings.  [Citation.]”  (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1019.)  “Notice is both a constitutional and statutory imperative.”  (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.)

The notice must comport with due process.  (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.)  “[D]ue process requires ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’   [Citation.]”  (Ibid.) It guaranties that “before depriving a parent of [his parental] interest, [the state] must afford him adequate notice and an opportunity to be heard.”  (In re B.G. (1974) 11 Cal.3d 679, 688–689.)   Notice enables the party to choose whether to appear, acquiesce, or contest.   (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.)

Father's right to notice of the disposition hearing is specified by Section 291, subdivision (a), which provides that notice of the disposition hearing “shall” be given to “[t]he father ․ presumed and alleged.”   Section 291, subdivision (c)(2) provides that “[i]f the child is not detained, the notice shall be given to those persons required to be noticed at least 10 days prior to the date of the hearing.”

Five days before the October 25, 2010, hearing, the Department knew father's physical and mailing address.   The Department concedes that “[t]he record reflects that no notice was sent to father” and that “notice should have been sent to [father].”   To make matters worse, the trial court incorrectly ruled that notice had been given.

Father has been prejudiced by not being given notice of the disposition hearing.   Father was deprived of the opportunity to make the Department and the juvenile court aware of the existence of relatives who may be available to care for C.C. in the event he is detained from his mother's care at some point and father remains incarcerated.

“In any case in which a child is removed from the physical custody of his or her parents ․ preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” (§ 361.3, subd. (a).)  “ ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).)

On October 1, 2010, the Department filed a petition stating that the Department did not detain C.C. and his siblings from mother.   The Department, however, also filed a report on that same date stating, “There are no relatives to consider for placement.”   On appeal father argues that failure to provide him with notice of the proceedings prevented him from advising the Department and the juvenile court of the existence of relatives who may be available to care for C.C.

Mother's custody of C.C. is questionable.   Numerous referrals were made to the Department from 2000 through 2009, concerning the mother's general neglect of her children which often involved mother's alleged substance abuse.   The Department's report filed on October 1, 2010, stated that the voluntary family maintenance program services previously provided to mother were not effective in preventing or eliminating the need for removal of C.C. from mother.   The Department also reported that mother had “always had many excuses and made promises to do better ․ and nothing gets accomplished.”

At the October 1, 2010, detention hearing the juvenile court stated to mother, “[I]f you don't participate in some services [provided to mother] there is a chance the Department can detain your children from you․  [¶] [T]here's concerns about what's been happening with you and your ability to parent your children well.”   On October 4, 2010, the juvenile court stated its tentative ruling was to detain C.C. from mother.   Although the juvenile court ultimately did not detain C.C. from mother, it stated, “One missed test, one dirty test, that doesn't show the levels going down, one missed appointment with the school and I will detain the kids.  [¶] The Department has put up with this for ten months, I'm not.”

There is a substantial danger that C.C. will be detained from mother.   The failure to provide father with notice of the proceeding, however, deprived him of the opportunity to make the Department and the juvenile court aware of the existence of relatives who may be available to care for C.C. In short, father was never given the opportunity to present facts that would show more specifically that the error was prejudicial.   This, in itself, is prejudicial.   The trial court, incorrectly stating that notice had been given, did not make rulings based on evidence that might exist but which father had no opportunity to submit.

Father was also prejudiced because he was not provided with visitation rights.⁶  The juvenile court ordered that father was not to visit C.C. until he contacted and appeared before the juvenile court and established paternity.   Father was deprived of the opportunity to appear before the juvenile court and establish paternity because he was not given notice of the proceedings.   In dependency proceedings, absent certain circumstances, visitation must be provided to the incarcerated parent.  (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1010;  In re Precious J. (1996) 42 Cal.App.4th 1463, 1478;  In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1791.)   We reverse the disposition order.

DISPOSITION

The juvenile court's disposition order is reversed, and the case is remanded for a new disposition hearing to be held only after proper notice to father.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. Both father and son have the same initials, and we refer to the son as C.C..  FN1. Both father and son have the same initials, and we refer to the son as C.C.

FN2. The three children each had different fathers..  FN2. The three children each had different fathers.

FN3. All statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN3. All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FN4. The minute order of the October 25, 2010, hearing states “No visits for [father] until [he] contacts [the Department].”.  FN4. The minute order of the October 25, 2010, hearing states “No visits for [father] until [he] contacts [the Department].”

FN5. The Department filed a motion to take judicial notice of the trial court's April 25, 2011, minute order, and father filed a letter brief stating that he does not oppose the motion.   The motion is granted..  FN5. The Department filed a motion to take judicial notice of the trial court's April 25, 2011, minute order, and father filed a letter brief stating that he does not oppose the motion.   The motion is granted.

FN6. On April 25, 2011, while this appeal was pending, in addition to declaring that father was C.C.'s presumed father the juvenile court ordered that father be provided with “enhancement services.”   There is no record of what services were ordered as father's “enhancement services,” and the Department does not contend in its motion to dismiss how these services make father's appeal moot.   The Department's motion, therefore, is denied—except as stated ante..  FN6. On April 25, 2011, while this appeal was pending, in addition to declaring that father was C.C.'s presumed father the juvenile court ordered that father be provided with “enhancement services.”   There is no record of what services were ordered as father's “enhancement services,” and the Department does not contend in its motion to dismiss how these services make father's appeal moot.   The Department's motion, therefore, is denied—except as stated ante.

TURNER, P. J. KRIEGLER, J.