Filed 7/21/05

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re CLAUDIA S. et al., Persons Coming

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

FIDEL S. et al.,

Defendants and Appellants.

D045602

(Super. Ct. No. J515139A-C)

APPEALS from orders of the Superior Court of San Diego County, Julia Kelety,

Judge. Reversed with directions.

Alice C. Shotton and Suzanne F. Evans, under appointments by the Court of Appeal, for

Defendants and Appellants.

John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, Paula J.

Roach, Deputy County Counsel, for Plaintiff and Respondent.

Carl Fabian, under appointments by the Court of Appeal, for the Minors.

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In this case, a mother took her minor children to Mexico knowing that the San Diego

County Health and Human Services Agency (Agency) planned to file juvenile dependency

petitions on their behalf based on their exposure to domestic violence. The Agency filed the

petitions and the juvenile court conducted the detention, jurisdiction and disposition hearings

and the 6-month and 12-month review hearings in their absence, in the absence of the

presumed father and without appointing counsel on behalf of the parents. After the family

reappeared in California almost a year later, the juvenile court ordered the children into

foster care and provided reunification services to the parents even though there had been no

recent incidents of domestic violence.

The mother contends the court erred as a matter of law when it took jurisdiction

because she had custody of the children when she left the United States and took them to

Mexico. She asserts the court should have held the original jurisdiction hearing when the

family returned and then terminated the proceedings at that time because there was no

substantial evidence of a current risk to the children. The presumed father maintains the

court erred in conducting the proceedings when neither the parents nor the children were

present and the parents were unrepresented. The Agency asserts that the disentitlement

doctrine precludes this court from hearing the parents' appeals.

We conclude that the disentitlement doctrine does not preclude these appeals. We

also conclude that the juvenile court had jurisdiction over the children, but reverse all orders

issued after the detention hearing and remand the matter for a new jurisdiction hearing on

the ground that the absence of the family and counsel under the unique circumstances of this

case rendered the proceedings fundamentally unfair.

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FACTUAL AND PROCEDURAL BACKGROUND

Fidel S. and Silvia R. are an unmarried, Spanish-speaking couple with three minor

children: Claudia S. (age 8), Diana S. (age 4) and Brian S. (age 2). On August 8, 2003, the

Agency contacted Silvia after receiving a referral about a domestic violence incident

involving Fidel. Silvia reported that she had obtained a temporary restraining order against

Fidel, changed the locks and was not going to let him back into the home. On August 18,

Silvia informed the social worker that she might be going to Mexico to visit her sick mother.

The following day, the social worker sent a letter to Fidel's employer and left a business card

with Silvia, asking that Fidel contact the Agency.

On September 4, 2003, Silvia called the social worker and said that she had received a

telephone call over the weekend stating that her mother was very ill, she and the children

had moved out of their apartment and were on their way to central Mexico to visit her

mother for three or four months. Silvia called because she knew about a court hearing and

wanted the court to wait for her return. She did not respond when the social worker asked

for an address or telephone number in Mexico and did not comply with the social worker's

request to call back collect in half an hour.

Later that morning, the Agency filed dependency petitions for the children alleging

that Fidel had engaged in domestic violence against Silvia and that the children were at

substantial risk of serious physical harm because Silvia had requested dismissal of her

temporary restraining order against Fidel. (Welf. & Inst. Code, § 300, subd. (b), all statutory

references are to this code unless otherwise indicated.) The police reported that there had

been five previous domestic violence incidents, and Claudia said she had seen Fidel hit

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Silvia at least 10 times. At that time, Fidel was not living with the family and Silvia did not

know where he was living.

The detention hearing commenced a few minutes after the petitions had been filed.

When the parents did not appear, the court appointed counsel for the children, ordered them

detained with Silvia and continued the hearing for one day to determine her whereabouts.

The following day, after Silvia and the children did not appear, the juvenile court ordered the

Agency to detain the children and conduct a reasonable search for Fidel. Thereafter, the

social worker reported that she sent a letter to Fidel's work address, but he no longer worked

there.

The parents did not appear at the jurisdiction and disposition hearing on September 30

and the court did not appoint counsel for them. The court found the allegations of the

petitions true, declared the children dependents, removed custody from Silvia, ordered that

the children be placed in foster care when they were brought into protective custody and

denied reunification services under section 361.5, subdivision (b)(1) because Silvia's

whereabouts were unknown. Fidel remained an alleged father even though the Agency had

attached signed paternity declarations for each child to the jurisdiction/disposition report.

On November 3, the Agency served the petition on Silvia at her last known address.

The Agency never attempted service of the petition on Fidel. By the six-month review

hearing, the Agency had not located the family after undertaking search efforts. At the 12-

month hearing, the court terminated services, finding reasonable services had been offered,

the parents had not made progress and there was no substantial probability of return by the

18-month date.

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In November 2004, the Agency reported that the family had been found in San Diego

and the children had been taken into custody and placed in foster care. Silvia said that Fidel

had followed her to Mexico after he discovered her whereabouts and that they lived together

at the grandparents' home. The grandparents had counseled the couple and there had been

no more domestic violence incidents. On November 16, the court rejected the parents'

argument that it lacked jurisdiction, appointed counsel for the parents, determined Fidel was

the presumed father and ordered the Agency to provide referrals for services. It ordered

visitation for the parents and gave the Agency discretion to place the children with them.

The social worker later reported that the parents were attending services and visiting the

children. On December 14, the court gave the social worker discretion to begin a 60-day

trial visit. It ordered reunification services and a permanent planned living arrangement of

foster care.

DISCUSSION

The Agency seeks to dismiss the appeals, asserting that the disentitlement doctrine

bars the parents from contesting the findings and orders of the juvenile court because they

showed contempt for the juvenile court process by becoming fugitives after receiving notice

of the detention hearing. It contends that the doctrine applies irrespective of the fact that the

parents were unrepresented and court had not made any orders before the parents left. We

reject its assertions.

A reviewing court has the inherent power to dismiss an appeal by any party who has

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379.) The disentitlement doctrine is based on the equitable notion that a party to an action

cannot seek the assistance of a court while the party "stands in an attitude of contempt to

prerequisite to exercising our power to dismiss; rather, we may dismiss an appeal where

27 Cal.App.4th 1669, 1683.)

(2000) 82 Cal.App.4th 1224, a father appealed an order placing his child in foster care and

appeal, reasoning that the father was a party to the dependency proceeding, subject to the

jurisdiction and orders of the juvenile court, and had appeared and fully participated in the

applied as it would be "illogical and inequitable for appellant to seek appellate review of the

Other cases applying the doctrine also involved children abducted by the party

Cal.App.4th 1293, 1299 [grandparents who took child out of the country in violation of court

Cal.App.4th 617, 623-624 [mother who abducted child could not challenge stepmother's

petition to terminate mother's parental rights to another child].) The doctrine also has been

applied to conduct that frustrates the ability of a party to obtain information it needs to

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participate in a psychological evaluation interfered with the child's legal right to have her

case proceed to the permanency planning stage].) In all these cases, however, the parent

against whom the doctrine applied had appeared in the action and was aware of the court's

orders.

Here, Silvia had oral notification of the detention hearing from the social worker and,

at most, Fidel learned from Silvia that the Agency had been trying to contact him. They had

received no notice from the court and there is no evidence that they had ever been involved

in the juvenile dependency system or understood the potential gravity of the proceedings.

Moreover, when Silvia left with the children, the dependency petitions had not yet been

filed, Silvia had not appeared and the court had issued no orders. Under the facts of this

case, the disentitlement doctrine does not apply.

Silvia and Fidel contend that the juvenile court lacked "jurisdiction" over the

dependency proceedings because it issued all orders after they and the children had already

left the country. They also contend that the juvenile court violated their right to due process

by making critical rulings at hearings at which they were absent, did not receive notice and

were not represented by counsel. To address these contentions we review the concept of

"jurisdiction" over minor children and their parents in juvenile dependency proceedings and

examine whether, under the circumstances of this case, conducting the proceedings in their

absence and without counsel violated their due process rights.

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A. Jurisdiction Over the Minor Children

"Lack of jurisdiction" is a term used to describe situations in which a court is without

Uniform Child Custody Jurisdiction and Enforcement Act (the Act) (Fam. Code, § 3400 et

seq.) is the exclusive method for determining subject matter jurisdiction for custody

proceedings in California and its provisions apply to juvenile dependency proceedings.

Act, a California court has jurisdiction in a dependency case if California was the child's

home state when the proceeding commenced, with home state defined as the state in which

the child lived with a parent for at least six consecutive months immediately before the

commencement of the proceeding. (Fam. Code, §§ 3402, subd. (g), 3421, subd. (a)(1),

3422.) Here, the children were born in San Diego, Claudia previously attended school here

and nothing in the record suggests that they ever lived outside California before they left to

visit their grandmother in Mexico. Additionally, the record reflects that Fidel continued to

reside in California for a period of time after the children left. Because California was the

children's home state and no court of any other state had jurisdiction, the California juvenile

court had jurisdiction to make initial child custody determinations for these children. (Fam.

Code, § 3421, subd. (a)(1) & (4).)

It was not necessary for the parents or the children to be physically present in the state

or for the juvenile court to have personal jurisdiction over them when the Agency filed the

petitions, thereby commencing the dependency proceedings. (Fam. Code, § 3421, subd. (c)

["Physical presence of, or personal jurisdiction over, a party or a child is not necessary or

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sufficient to make a child custody determination."]; § 325.) Significantly, the juvenile court

assumes dependency jurisdiction over a child; it does not take jurisdiction over the parents.

extent they claim that the juvenile court required personal jurisdiction over them to begin the

dependency proceedings.

A juvenile court is statutorily empowered to assume dependency jurisdiction over a

child any time it determines a minor is described by any one of subdivisions (a) through (j)

of section 300. (§ 245.) Stated differently, "a child is by definition 'within the jurisdiction

of the juvenile court pursuant to [s]ection 300' if he or she is one who either has or will

likely suffer serious neglect or abuse, without regard to whether a section 332 dependency

petition--or indeed any jurisdictional petition--has yet been filed to establish that particular

Cal.App.4th 1532, 1544, italics omitted.) Additionally, the juvenile court may assume

jurisdiction over a child described in section 300 regardless of whether the child was in the

physical custody of one or both parents at the time that the events occurred that brought the

child within the jurisdiction of the court. (§ 302, subd. (a).) As such, the fact Silvia had

physical and legal custody of the children when she took them to Mexico is irrelevant in

terms of the juvenile court's ability to assert jurisdiction over them.

B. Jurisdiction Over the Parents

Having determined that the juvenile court properly exerted jurisdiction over the

children, we turn to the question of whether the court had personal jurisdiction over the

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parents. The juvenile court obtains personal jurisdiction over a parent when the individual is

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

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

314.) The means employed to give a party notice for due process purposes must be such as

If the whereabouts of a parent are unknown, the issue becomes whether due diligence

reasonable or due diligence, "denotes a thorough, systematic investigation and inquiry

Due process notice requirements are deemed satisfied where a parent cannot be located

despite a reasonable search effort and the failure to give actual notice will not render the

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Silvia does not argue that she was unaware of the detention hearing, nor can she as it

is undisputed that she received actual verbal notification of the hearing from the social

worker. Although Silvia does not complain about the lack of written notice, the dependency

statutes contemplate that, where as here, a child is not taken into custody, written notice of

the initial petition hearing and the petition must be served on the mother and the alleged or

presumed father at least 10 days prior to the date of the hearing by first-class mail. (§ 290.2,

subds. (a) & (c)(2).) If the child is not in custody, the court must set the matter for hearing

within 30 days after the filing of the petition. (§ 334.)

Under specific circumstances the dependency statutes allow a child to be taken into

custody before a petition is filed if there is reason to believe the child is in immediate danger

(§§ 305, subd. (a), 305.6, subd. (a), 306, subd. (a).) In these situations, the detention hearing

must be held as soon as possible, but not later than the end of the next judicial day after

filing the petition. (§ 315.) Here, however, the children were not taken into custody and the

detention report recommended that Silvia retain custody. Under these circumstances, the

Agency should have filed the petition, scheduled the hearing and given Silvia at least 10

days written notification of the initial hearing. (§§ 290.2, 334.) Instead, it gave her oral

notification seven days before the hearing and before the petitions had even been filed.

Thus, Silvia received improper notice of the detention hearing.

Fidel contends that he did not receive proper notice of the detention hearing. At the

time of this hearing, Fidel was an alleged father entitled to notice of the proceedings and an

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753, 760.) If the identity and address of an alleged father cannot be discovered after

exercising due diligence, due process is satisfied by publishing notice of the proceedings.

attempted to notify Fidel of the detention hearing, but the record is silent as to what methods

the Agency used to attempt notice. On this record we cannot say that the Agency exercised

due diligence in attempting to notice Fidel of this hearing. Because Silvia and Fidel did not

receive proper notice of the detention hearing, the court lacked jurisdiction over them.

Due 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

claims it made significant efforts to notice the parents for each subsequent hearing. Our

review of the record supports this assertion.

The Agency undertook a reasonably diligent search for Fidel immediately after the

detention hearing. Its actions included, among other things, sending a letter to his last

known work address, seeking a forwarding address and searching law enforcement records

and telephone directories. Although the Agency did not undertake a search for Silvia before

the jurisdiction hearing, it did mail notice of the hearing to her last known address and later

undertook significant efforts to discover her and Fidel's whereabouts. The Agency initiated

an international/transborder search for the parents, obtained the assistance of an investigator

from the district attorney's child abduction unit, asked the Mexican Consulate office for

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assistance, conducted a statewide search for people with Silvia's last name and searched

telephone directories, Medi-Cal records and the school system. Thus, this case did not

involve a total lack of effort on the part of the Agency to notice the parents of the

Cal.App.3d at pp. 1418-1419.) Stated differently, there is nothing more the Agency could

have done to notify the parents of these proceedings.

Our conclusion that the Agency exercised due diligence in attempting to notify the

parents of these hearings does not change the fact that, at most, only Silvia had actual notice

of the initial detention hearing. Furthermore, the court conducted the jurisdiction and

disposition hearings and the 6-month and 12-month review hearings without them and

without appointing counsel for them. The Agency concedes that these proceedings were not

"perfect," admits that the juvenile court should not have made findings and orders at the

review hearings, but contends that the court properly conducted the jurisdiction and

disposition hearings. We accept their concession, but conclude that the trial court should

have halted the proceedings before the jurisdiction hearing.

At the initial hearing on the petition, the juvenile court must inform the parents of the

contents of the petition and the nature and possible consequences of the juvenile court

proceedings. (Cal. Rules of Court, rule 1441(a), all rule references are to the California

Rules of Court.) At this hearing, and all following hearings, the court must advise the

parents of their right to be represented by counsel and it must appoint counsel for any parent

that is unable to afford counsel. (§§ 316, 317, subd. (b); rule 1412(g), (h).) If the Agency

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makes a prima facie showing that the child comes within section 300, the court may detain

the child. (§ 319, subd. (a); rule 1446(a).)

Upon the filing of a dependency petition, the juvenile court has the authority to issue

a citation directing the parent to appear and bring the child to court (§ 339; rule 1408(a)) and

it may order an arrest warrant for the parent if the citation cannot be served and a protective

custody warrant for the child if it finds the child's home environment may endanger the

child. (§ 340; rule 1408(b), (c).) At the jurisdiction hearing the children and their parents

were missing, their whereabouts were unknown and there was no reason for the court to do

anything more than issue citations for the parents to appear and ultimately issue warrants for

We reject the Agency's assertion that it was in the children's best interest to move

these proceedings through the jurisdiction and disposition hearings because they would be

harmed by the passage of time if the court waited to conduct these hearings until the Agency

located them and their parents. The goal of the dependency system is to ensure the safety

and well-being of children while, if possible, preserving and strengthening the family.

(§§ 202, 300.2.) The court "must control all proceedings with a view to the expeditious and

effective ascertainment of the jurisdictional facts and of all information relevant to the

Here, the court conducted the jurisdiction, disposition and review hearings without

the children, the parents or counsel for the parents based on the social worker's initial report.

It ordered reunification services and then terminated such services because the parents had

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not exhibited substantial progress with their case plan. These hearings constituted "a fiction

[] to move the case toward final resolution" because the Agency never detained the children

969.) In the absence of the children and the parents, all proceedings after the detention

hearing constituted a continuing charade played out for the benefit of no one.

When the family resurfaced, the court was in a quandary as to how to posture the case

so it could legally provide services to the parents because it had already conducted the

jurisdiction, disposition and review hearings. Had the court waited to conduct the

jurisdiction hearing until after the children and their parents appeared and the parents had

counsel to advocate on their behalf, it could have avoided this untenable position. Waiting

to conduct the jurisdiction hearing would have allowed it to access the facts relevant to the

children's current situation, rather than relying on out-dated information gathered before the

detention hearing. (Rule 1412(a).) Specifically, Claudia and Diana both reported that they

went to Mexico to meet their ailing grandmother, that Fidel no longer hit Silvia and they

were not afraid of their parents. Silvia also reported that there were no new incidents of

domestic violence in Mexico or in San Diego since their return and that her parents provided

guidance after Fidel joined the family in Mexico. The family was living in a clean

apartment, the children were clean and unharmed and the two oldest girls attended school.

To determine whether a parent had a due process right to representation we look to

see whether the presence of counsel would have made a "determinative difference" in the

outcome of the proceeding and if the absence of counsel rendered the proceedings

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parents could have informed the court of the irregularities regarding notice of the detention

hearing and suggested issuing warrants for the children and parents as a preferable

alternative to proceeding through the entire dependency process without them. Thus,

counsel could have halted these fictitious proceedings before the court made jurisdictional

findings that ultimately triggered the granting and termination of reunification services to

parents who happened to be living with their children and had no way of taking advantage of

those services.

The Agency's argument that there was no due process violation because the parents

failed to appear and request counsel ignores the unique and unusual circumstances of this

filing the petitions. (§ 325.) Although Silvia had oral notice from the social worker of the

detention hearing date we do not know the extent of that notice, she and Fidel received no

actual notice of the subsequent hearings and they received no advisements from the court

regarding their legal rights, including their right to counsel. Although it was wrong for

Silvia to leave the country with the children knowing of the hearing, the purpose of

(1986) 186 Cal.App.3d 414, 418; § 203.) Pursuing these proceedings in the absence of the

entire family failed to serve the best interests of these children and resulted in unnecessary

expense to the state. The parents are entitled to a new jurisdiction hearing at which their

positions can be presented and duly considered based on the current circumstances.

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DISPOSITION

All orders issued after the detention hearing are reversed and the matter is remanded

to the juvenile court with directions to conduct a new jurisdiction hearing based on present

circumstances.

CERTIFIED FOR PUBLICATION

McINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.