Citations
- 112 Cal. App. 4th 846
Full opinion text
Opinion
AARON, J.
Pedro F. and Christina R. each separately appeal a judgment terminating their parental rights to their daughter, Alyssa F., under the Welfare and Institutions Code. Pedro asserts the judgment should be reversed on the grounds that (1) the court had no subject matter jurisdiction because the case was subject to the Uniform Child Custody Jurisdiction and Enforcement Act (hereafter the Act); (2) his due process rights were violated when he did not receive notice in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638) (hereafter the Hague Service Convention or the Convention); (3) he did not receive proper notice of most of the hearings; and (4) he was improperly denied the right to be represented by counsel at the section 366.26 hearing. Christina asserts the judgment must be reversed because (1) Pedro was not served in compliance with the Hague Service Convention; (2) the court exceeded its jurisdiction by making a true finding on the petition; and (3) she had a beneficial relationship with Alyssa within the meaning of section 366.26, subdivision (c)(1)(A). Each parent joins in the arguments of the other. Because we conclude the record is insufficiently developed to enable this court to determine whether the trial court had continuing subject matter jurisdiction under the Act as of January 2001, and because Pedro was not served in accordance with the Hague Service Convention, we reverse and vacate the jurisdictional and dispositional orders and all subsequent orders, including the judgment terminating parental rights. We direct the court to hold a special hearing to determine whether it had subject matter jurisdiction as of January 2001.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2000, Christina, Pedro, and three-year-old Alyssa were living together in Tijuana, Mexico. That month, Christina discovered Alyssa had been sexually abused. Believing Pedro and a friend of his were responsible, she filed charges against them with the Tijuana police. She also brought Alyssa to San Diego County and told a San Diego County Health and Human Services Agency (Agency) social worker that Alyssa had been sexually molested by Pedro and by a friend of his. Christina identified Pedro as Alyssa’s biological father.
The Women’s Resource Center was going to give Christina and Alyssa a safe place to stay in the United States. However, an employee of that facility told a social worker she believed Christina intended to return to Tijuana with Alyssa because Christina thought she had not obtained concrete evidence the abuse had occurred, and because she did not want Pedro’s family to be angry with her. The Agency removed Alyssa from Christina’s custody and filed a section 300 petition on her behalf, asserting the child was in danger because she had been exposed to violent confrontations in the family home and had been sexually abused, and because Christina used methamphetamine.
Christina provided an address for Pedro in Tijuana. The court sent Pedro, by first class mail, a copy of the minute order from the detention hearing, which contained the date of the jurisdictional hearing. The Agency left a message for Pedro, presumably by telephone, regarding the jurisdictional hearing. Although it is not clear from the record, we assume this message included the date and time of that hearing. In January 2001, the court made a true finding on each count in the petition. The same month, the court held the dispositional hearing, removed Alyssa from her parents’ custody, and ordered reunification services for Christina. At the April 2002 12-month review hearing, the court terminated reunification services and scheduled a section 366.26 hearing. Pedro did not appear at any of the hearings.
At the September 2002 section 366.26 hearing, the court found Alyssa was adoptable. Finding none of the section 366.26, subdivision (c)(1) exceptions applied, the court terminated the parental rights of both Christina and Pedro.
DISCUSSION
I., H. A.
B. Pedro was not Properly Served Under the Hague Service Convention
The fact that Pedro has generally appeared in this court does not retroactively cure the defects in service. (Bank of America v. Carr (1956) 138 Cal.App.2d 727, 735 [292 P.2d 587].) The effect of the general appearance in this court is that, on remand, the trial court will have personal jurisdiction over Pedro without further service being required. (Id. at p. 739.) However, Pedro’s general appearance here does not impact the merits of his argument that he is entitled to new jurisdictional and dispositional hearings because he was improperly served; it simply means that if we conclude service was in fact improper, the court will have personal jurisdiction over Pedro to conduct a new jurisdictional hearing and other proceedings.
The Hague Service Convention was “intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” (Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 698 [100 L.Ed.2d 722, 108 S.Ct. 2104].) It applies “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” (Id. at p. 699; Hague Service Convention, supra, 20 U.S.T. 361, Art. 1.) Because juvenile dependency matters are civil in nature (In re Patricia T. (2001) 91 Cal.App.4th 400 [109 Cal.Rptr.2d 904]; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1247 [98 Cal.Rptr.2d 844]), the Convention applies to cases brought under section 300. Both the United States and Mexico are signatories to the Convention. (Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 486 U.S. at p. 698; NSM Music, Inc. v. Alvarez (N.D.Ill., Feb. 25, 2003, No. 02 C 6482) 2003 WL 685338, *1.)
Failure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person. (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048 [12 Cal.Rptr.2d 861].) This is true even when the party indisputably had notice of the action. (Id. at p. 1049; Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 794 [69 Cal.Rptr.2d 457].)
Articles 2 through 6 of the Hague Service Convention establish a system whereby each participating country designates a “Central Authority” that receives and either rejects or executes requests for service of process. (Balcom v. Hiller (1996) 46 Cal.App.4th 1758, 1764 [54 Cal.Rptr.2d 536].) Pedro asserts all documents in this matter were improperly served because neither the Agency nor the court sent them to the designated authority in Mexico for service. Although neither the court nor the Agency sent documents to the Central Authority, the failure to do so does not necessarily void the judgment, because the Convention recognizes methods of service other than that set forth in articles 2 through 6. (Balcom v. Hiller, supra, 46 Cal.App.4th at p. 1764.)
Article 10 of the Hague Service Convention provides: “Provided the State of destination does not object, the present Convention shall not interfere with—[ (see International Judicial Assistance—Mexico), (Casa de Cambio Delgado, Inc. v. Casa de Cambio Puebla, S.A. de C.V. (2003) 763 N.Y.S. 2d 434 [196 Misc.2d 1] 2003 N.Y. Slip.Op. 23557, 2003 WL 21146878, *4].) Although the State Department Web site is not authority and lacks the force of law, it reflects the State Department’s advice to practitioners about service of process in Mexico. (Ibid.)
The court terminated Pedro’s rights as if he were a presumed father. However, the court never declared Pedro to be a presumed father. The Agency repeatedly refers to him as an alleged father and asserts that he had not taken steps to establish himself as a biological father. At the time Pedro’s counsel was relieved because Pedro had made no contact with him, Pedro was still an alleged father. There is no indication Pedro appeared in the trial court after his counsel was relieved. Since Pedro had the burden to establish himself as a presumed father (In re O. S. (2002) 102 Cal.App.4th 1402, 1410 [126 Cal.Rptr.2d 571]), and did not do so, the court’s termination of his parental rights as a presumed father was an error.
See footnote, ante, page 846.
"Ordered certified for publication as to the introductory and Factual and Procedural Background sections, part KB of the Discussion section, and the Disposition section: Parts I., KA„ IK, and IV., are not included in the order of publication.