Monday, July 12, 2004
Lack of Effort to Locate Father Through Relatives Invalidates Dependency Ruling, C.A. Rules
By DAVID WATSON, Staff Writer
Efforts made by social service workers to locate a father and notify him of dependency proceedings were constitutionally inadequate where no attempt to ascertain his whereabouts through members of his family was made, this district’s Court of Appeal ruled Friday.
In an unpublished opinion for Div. Three, Justice Richard D. Aldrich said a Los Angeles Superior Court judge should have granted the father’s petition to modify a court order terminating reunification services. The father, identified in the opinion only as James B., brought the petition after he contacted social workers to inquire about the children and learned of the proceedings.
Aldrich noted that social workers for the three children, who were declared dependent in 1999 based on allegations their mother physically and sexually abused and neglected them, made attempts to contact James B. at multiple points over the next three years. But those attempts, he pointed out, always involved “exploring the same sources”: directory assistance and the post office in Banning, where the mother reported he last lived, and jail, probation, parole, child abuse, voter and DMV records.
“While mother told the social worker she did not know where James could be found,” Aldrich explained, “there is no indication in the due diligence searches or the status review reports that the social worker ever asked mother whether she knew where any of James’ family was, or whether she knew of someone who might be aware of James’ whereabouts.”
Representatives of the Department of Children and Family Services apparently spoke with James B.’s brother and sister without asking for help in locating him and failed to follow up on statements they made indicating he was living not in Banning but in the Las Vegas area, the justice said.
Aldrich cited David B. v. Superior Court (1994) 21Cal.App.4th 1010, a case in which notice was held to be inadequate because social service workers failed to contact the U.S. Marine Corps even though they knew the father was a marine.
“[I]t is...manifest that the social worker failed to pursue the most likely source, namely, James’ family,” Aldrich declared, and went on to quote the David B. court:
“Where the party conducting the investigation ignores the most likely means of finding the defendant, the service is invalid even if the affidavit of diligence is sufficient....”
The justice observed that there was conflicting evidence about whether the children’s mother knew how to get in touch with James B. But a social worker conceded, he said, that the mother on several occasions assured DCFS that the father’s family members knew where he was.
“While the Department made numerous due diligence searches, the investigation effort is not reasonable if the Department could have obtained the address from a family member, but makes no inquiry of the family,” Aldrich wrote.
The justice rejected as “contrary to law” the contention of DCFS that members of James B.’s family should have notified him about the dependency proceedings.
Citing Welfare and Institutions Code Sec. 303(b), he declared:
“The obligation of notifying parents is patently that of the social services agency.”
Also “unavailing,” he asserted, was the department’s argument that the father’s failure to learn of the proceedings for three years demonstrated his lack of concern for the welfare of the three children.
“The issue of James’ concern for his children is to be addressed during the dependency, and is irrelevant to the question of notice,” the justice explained.
“In sum,” he concluded, “there was no evidence upon which the juvenile court could conclude the Department made reasonable efforts in good faith to locate James even though it had information that would have enabled it to do so....The notices here were not reasonably calculated to actually inform James.”
Tustin attorney John L. Dodd, who represented the father on appeal, said it was unlikely he would ask the court to order publication of the ruling. Publication often increases the likelihood of Supreme Court review, he said, and thus of reversal.
“If I win something I usually just lay low and take it,” the attorney commented.
The case is In re B.B., B167949.
Copyright 2004, Metropolitan News Company