In re D.R. CA5

Filed 10/28/26 In re D.R. CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT In re D.R., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, F091827 Plaintiff and Respondent, (Super. Ct. No. JJV073911A) v. OPINION DAVID S., Defendant and Appellant. THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. Sylvia J. Hanna, Judge. David S., in pro. per.; and Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. -ooOoo- * Before Levy, Acting P. J., Snauffer, J. and Guerra, J.  Appellant David S. is the father of seven-year-old D.R. (the child), who is the subject of this dependency case. Father appealed from the juvenile court’s orders denying his motion to vacate, set aside, and strike juvenile dependency findings and orders. After reviewing the juvenile court record, father’s court-appointed counsel informed this court there were no arguable issues to raise on father’s behalf. This court granted father leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).) Father filed a letter brief, but failed to make such a showing. Consequently, we dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND Initial Removal In June 2021, the child was removed from his parents by Riverside County Child Welfare Services. 1 A dependency petition was filed alleging the child and his half- sibling M.R., were described under Welfare and Institutions Code 2 section 300, subdivision (b)(1). The petition alleged the child and M.R. were at substantial risk of suffering serious physical harm as a result of his mother, A.R. (mother), and father’s untreated mental health issues and ongoing domestic violence relationship. The allegations in the petition were found true on July 8, 2021. At the disposition hearing held on December 10, 2021, the Riverside County Juvenile Court denied family reunification services to father pursuant to section 361.5, subdivision (b)(2). The case was transferred to Tulare County and a transfer-in hearing was set for December 27, 2021. In May 2022, father filed a section 388 petition requesting an order for family 1 The factual information for the initial removal section is gathered from reports filed during the family maintenance period in November 2023 and February 2024. The present record omits any documents filed in the proceedings prior to November 28, 2023. 2 All further statutory references are to the Welfare and Institutions Code. reunification services. 3 On July 20, 2022, the juvenile court granted father’s request for family reunification services. At the 18-month review hearing held on December 7, 2022, father’s family reunification services were terminated, and the child and M.R. were placed in mother’s care under a plan of family maintenance. The juvenile court ordered that father receive two hours of supervised visits with the child each month. 4 Father’s Section 388 Petitions In April 2023 and June 2023, father filed two separate section 388 petitions requesting the child be placed in his care. The juvenile court denied both of these petitions. The report for the family maintenance review hearing, filed November 28, 2023, recommended family maintenance services continue. The family law status section of the report noted that a previous family law order provided father with sole custody of the child in 2020. Mother had completed anger management, mental health services, and parenting classes. She continued to participate in a domestic violence class through criminal court. The child, at four years of age, had no medical or developmental concerns. Mental health services were recommended for the child, and mother believed the therapy sessions were going well. Father attended four supervised video visits during the review 3 Father filed an appeal from an order continuing the hearing on his section 388 petition, and we dismissed the appeal pursuant to Phoenix H., supra, 47 Cal.App.4th at page 844. (In re D.R. (Nov. 28, 2025, F084556) [nonpub. opn.].) 4 Father appealed this order, challenging the finding that reasonable services were provided to him. We affirmed the order on August 28, 2023. (In re D.R. (Aug. 28, 2023, F085554) [nonpub. opn.].) period, but the visitation provider closed his case in September 2023, after two missed visits. On December 26, 2023, father filed another section 388 petition requesting that he be granted full custody of the child. The petition alleged he was stable, had a great bond with the child, and did not place the child in dangerous situations. His current residence was in Iowa. Father claimed he observed cuts and marks on mother’s neck during a video visit, and he believed the child witnessed a domestic violence incident that resulted in the scratches and marks that he observed. He also requested that the juvenile court review attached documents and “correct the social workers for the false reports and fabrication of non evidence to allegations against [him].” An attached document made claims that mother was exposing the child to domestic violence, abusing drugs and alcohol, and suffering from mental health problems. Father also attached copies of pleadings and reporter’s transcripts from the prior family law proceedings. A hearing was set to determine whether to grant or deny an evidentiary hearing for the petition on February 6, 2024. On February 2, 2024, the agency filed a report in response to father’s petition. The agency initiated an investigation of father’s claims of domestic violence and abuse in December 2023. A report of abuse was also received by the agency with similar allegations on December 19, 2023. The report alleged mother admitted to having scratches from a domestic violence incident with M.R.’s father. The disclosure reportedly occurred during father’s video visit with the child, which took place one week before the report of abuse was made to the agency. The social worker managing the child’s case, Social Worker Orozco, conducted a visit to mother’s residence on December 20, 2023. Orozco did not observe any injuries to mother or the child during the home visit. Mother denied the allegations of domestic violence, and she stated there were no video visits with father on the day in question. The investigating social worker, Social Worker Gutierrez, interviewed mother and the child on January 4, 2024. Mother claimed there was never domestic violence between herself and M.R.’s father. She explained that domestic violence was only present in her relationship with father. Her relationship with M.R.’s father was terminated after he failed to comply with his case plan. Mother stopped acting as a third- party supervisor for father’s video visits in November 2023, because she became tired of father making reports against her. The child denied witnessing any domestic violence between mother and M.R.’s father. Gutierrez did not observe any marks or scratches on mother or the child during the interview. On January 4, 2024, Social Worker Barron interviewed the maternal grandparents, who denied any knowledge of domestic violence between mother and M.R.’s father. The maternal grandparents stated M.R.’s father did not come to the home. They also expressed concern over father’s request for custody due to his violent history toward mother. Gutierrez spoke with father by phone on January 8, 2024. Father claimed the child was removed from his care “illegally and without cause.” He denied having any issues with domestic violence or mental health, and he criticized the agency for requesting that he complete services to address those issues. When asked about his reporting of domestic violence, father reiterated his previous allegations that mother had scratches on her neck from a dispute over money with M.R.’s father. Father indicated that he completed domestic violence classes, but he did not have a certificate of completion. There were no mental health services completed by father because he did not believe they were necessary. He also insisted that he was more capable of providing for the child’s needs because he was “not living off the government like [mother] does.” It was father’s opinion that he should be awarded sole custody of the child because he did not do anything to harm the child. The agency contacted local law enforcement and child welfare agencies to obtain information about the suitability of father’s residence. Iowa Department of Child Protection Services determined father’s home was safe, appropriate, and possessed no safety hazards on January 18, 2024. Law enforcement received five calls for services at father’s residences since October 2022. There was a report of assault between father and his wife in October 2022. In June 2023 and September 2023, there were three different incidents involving father’s stepson. On January 22, 2024, father informed the agency that he enrolled in domestic violence classes and mental health services. The agency submitted a referral for supervised video visits, but father failed to attend his scheduled visits. The visitation provider closed the referral on January 25, 2024, after father did not log in for two consecutive video visits. After Gutierrez completed the investigation, the reports of domestic violence and abuse in mother’s home were determined to be unfounded because there was no evidence to support the allegations. The agency’s report concluded that it would not be in the best interest of the child to be returned to father’s care because he had not made progress in services to demonstrate a behavioral change. On February 6, 2024, mother and father were present and represented by counsel for the hearing on the section 388 petition. Father’s counsel requested a continuance because he was unaware that father filed the petition on his own. The hearing was continued to March 8, 2024. Both parents were ordered to be present for the continued hearing. A status review report, dated February 27, 2024, recommended that the dependency proceedings be terminated and mother be provided sole physical and legal custody of the child and M.R. Father attended 13 of 52 sessions for his domestic violence program, and he attended three psychotherapy sessions in February 2024. There were no visits attended by father during the review period. Father and mother appeared at the combined hearing for father’s section 388 petition and family maintenance review held on March 8, 2024. Father indicated there were no concerns to report regarding his appointed counsel, and he testified in support of his section 388 petition. The juvenile court denied the request to set an evidentiary hearing after hearing arguments. Father’s section 388 petition was denied. Father’s counsel objected to the request to terminate dependency jurisdiction and order supervised visitation through an agency. The juvenile court adopted the agency’s recommendation to terminate dependency jurisdiction and award mother sole legal and physical custody of the child and M.R. Supervised video visits were ordered to occur between father and the child at a visitation agency twice per month. Mother’s counsel was ordered to prepare a form custody and visitation order in accordance with the juvenile court’s orders. The custody and visitation orders were to be filed in the existing family law file. On April 12, 2024, the custody orders were filed in the family law case involving the child. The clerk’s certificate of mailing indicated that a copy of the custody orders was mailed to a confidential address for father. Father did not appeal from the order terminating the dependency proceedings. In May 2024 and July 2024, the juvenile court granted father’s petitions for access to the juvenile case file pursuant to section 827. The petitions sought all documents that he was legally entitled to obtain from the child’s dependency proceedings. The records were permitted to be disclosed subject to redaction of information pertaining to other children. On February 26, 2026, father filed a section 388 petition requesting the juvenile court vacate its orders and restore the family law orders that provided him with sole custody of the child. Attached to the petition was a declaration asserting that the Riverside County Child Welfare Agency violated his Fourth and Fourteenth Amendment rights when the child was removed. He also claimed the juvenile court lacked personal jurisdiction because the April 2024 custody orders were not served with a signed return receipt. Reporter’s transcripts from hearings in the previous family law matter from 2020 were also attached to the petition. Father submitted a separate petition to vacate the juvenile court’s orders for lack of subject matter jurisdiction and denial of due process on March 3, 2026. This petition alleged father and the child were residents of Iowa at the time the proceedings were initiated, and he argued that his remote participation without full access to pleadings violated his right to due process. He also alleged that material omissions and unsupported characterizations in the social worker’s reports compromised the fairness of the proceedings. A motion to vacate orders for lack of subject matter jurisdiction was submitted in conjunction with the petition, and it contained similar arguments. 5 On March 4, 2026, the juvenile court denied father’s section 388 petition because the request did not state new evidence or change of circumstances and the proposed change did not promote the best interest of the child. Father’s Motion to Vacate, Set Aside, and Strike On June 10, 2026, father submitted a “Notice of Motion and Motion to Vacate, Set Aside, and Strike Juvenile Dependency Orders; Motion for Emergency Evidentiary Hearing and Request for Immediate Custody Review on Grounds of Extrinsic Fraud, Extrinsic Mistake, Lack of Notice, Denial of Due Process, Fraud Upon the Court, and Violation of Constitutional Parental Rights.” (Some capitalization omitted.) The motion alleged father failed to receive several reports, notices, and court filings after he moved to Iowa in January 2022. He argued that the improper service of documents deprived him of his right to due process. Father also alleged the Riverside 5 The March 3, 2026 petition and motion were marked “received” instead of “filed” by the juvenile court. County social workers submitted reports that contained materially false and contradictory reports. His motion concludes with a claim that he was denied effective assistance of counsel. The inadequate representation of his appointed counsel was described as: (1) failure to investigate and challenge the allegations and inaccuracies in the social worker’s reports; (2) failure to ensure father received copies of all reports, petitions, and notices; (3) failure to advise father of his appellate rights; and (4) failure to advocate meaningfully at critical stages of the proceedings. The relief requested in the motion included: setting an emergency evidentiary hearing; reviewing the complete record and proofs of service; determining whether reports contained material inaccuracies; determining whether removal was supported by clear and convincing evidence; determining whether father was denied due process; vacating any dependency orders that were entered in violation of father’s constitutional rights; considering whether modification of any remaining orders is warranted based upon changed circumstances and the best interest of the child pursuant to section 388; taking judicial notice of any findings, orders, or records from related family law proceedings; and granting any additional relief deemed just and proper to vindicate father’s parental rights. The record does not contain a proof of service or other pleading demonstrating that all other parties were served a copy of father’s motion. On June 15, 2026, father’s motion was filed and denied without a hearing. DISCUSSION An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to raise claims of reversible error or other defect and present argument and authority on each point made. If the appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)  Section 388 allows a parent or other person having an interest in a dependent child to petition the juvenile court to change, modify, or set aside any prior order because of changed circumstance or new evidence. (§ 388, subd. (a).) “A juvenile court may summarily deny a section 388 petition without an evidentiary hearing, but ‘a petition must be liberally construed in favor of its sufficiency [citation] and a hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order.’ ” (In re R.A. (2021) 61 Cal.App.5th 826, 836.) In determining whether a parent has made a prima facie showing under section 388, we may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion (In re R.A., supra, 61 Cal.App.5th at p. 837), but consider de novo whether inadequate notice violated father’s due process rights. (In re J.H. (2007) 158 Cal.App.4th 174, 183.) “Due process requires that a parent is entitled to notice that is reasonably calculated to apprise him or her of the dependency proceedings and afford him or her an opportunity to object. [Citation.] The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith.” (In re Justice P., supra, 123 Cal.App.4th at p. 188.) “A section 388 petition is the appropriate method for raising a due process challenge based on lack of notice.” (In re Daniel F. (2021) 64 Cal.App.5th 701, 711.) “It is settled beyond dispute that if a parent proves the absence of due process notice to him in juvenile dependency proceedings a ‘fatal defect’ exists in the jurisdiction of the juvenile court to have entered the dependency judgment.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 483.) A parent who files such a petition bears the burden of showing, by a preponderance of the evidence, that there is new evidence indicating inadequate notice, and that the proposed change is in the child’s best interests. (Id. at pp. 486–487 [characterizing allegations of inadequate notice as new evidence in accordance with § 388].) In his letter brief, father attempts to raise the following issues: (1) due process violations related to improper service of notices and court documents; (2) extrinsic fraud as a result of factual misrepresentations by social workers; and (3) ineffective assistance of counsel. An appellant has the affirmative duty to demonstrate error on appeal by reference to an adequate record. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) “Where the appellant fails to provide an adequate record of the challenged proceedings, we must presume that the appealed judgment or order is correct, and on that basis, affirm.” (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 644; see In re Kathy P. (1979) 25 Cal.3d 91, 102 [appellant failed to present adequate record to rebut official duty presumption].) Father’s letter brief does not cite to evidence in the record demonstrating that the agency affirmatively failed to provide adequate notice or service of documents. The present record begins with the agency’s family maintenance review report, which was filed on November 28, 2023. Minute orders contained in the record indicate father was present and represented by counsel for each of the review hearings leading up to the dismissal of the dependency proceedings. Father’s conclusory statements that he did not receive the petition, detention report, and other documents are insufficient to affirmatively establish error. His contention that the present record does not contain proofs of service for court filings that are not part of the record on appeal ignores his obligation. Thus, we are unable to determine from the limited record of the earlier stages of the proceedings whether the agency failed to properly serve any notices or reports. For the same reasons, we are also unable to review the undeveloped and conclusory allegations that father did not understand the legal system or have an opportunity to defend his parental rights.  Next, father asserts that the agency’s withholding of reports and social workers’ misrepresentations in court documents constitute extrinsic fraud. A court always has inherent equitable jurisdiction to vacate a judgment or order that was obtained through extrinsic fraud. (Westphal v. Westphal (1942) 20 Cal.2d 393, 397; In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1061; Baske v. Burke (1981) 125 Cal.App.3d 38, 43–44.) “Extrinsic fraud is fraud which prevents a fair adversary hearing and deprives a party of an opportunity to present his claim or defense to the court. [Citations.] To be entitled to relief from a judgment on the ground of extrinsic fraud, a party must show he or she had a meritorious defense, which would have been raised but for the other party’s wrongful conduct [citations], and also must establish all of the elements of fraud [citations], which include an intentional or reckless misrepresentation and justifiable reliance on the misrepresentation by the aggrieved party.” (In re David H. (1995) 33 Cal.App.4th 368, 381–382.) There is nothing in the appellate record to suggest that any of the agency’s actions constituted extrinsic fraud. As discussed previously, father has failed to provide any evidence that he was actually deprived of access to the petition and other court reports. The misrepresentations of fact that he identifies in reports regarding the safety of his home at the time of removal, disposition of previous child welfare referrals, and characterization of the prior family law case are examples of intrinsic fraud. In essence, father’s ground for setting aside the dependency orders is simply that it was based upon false facts supplied by the agency. “However, ‘intrinsic’ fraud, which includes the presentation of false evidence in the proceedings, is not a basis for equitable relief from the resulting judgment.” (In re David H., supra, 33 Cal.App.4th at p. 383.) Father’s claim does not amount to extrinsic fraud, and it is not sufficient to raise as an arguable issue. Finally, father makes generalized statements suggesting that his court-appointed counsel did not provide adequate representation. His letter brief states that his appointed counsel failed to contest the jurisdictional allegations or adequately explain the evidence presented by the agency. This is not, however, an appeal from the order terminating dependency jurisdiction. That order became final in 2024. Father may not, in this appeal from the denial of his post-termination motion, challenge the adequacy of his representation in the prior proceeding that resulted in the termination of dependency jurisdiction. He has forfeited his claim of ineffective assistance of counsel by failing to raise it in a timely appeal or writ petition after entry of the termination of dependency jurisdiction order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150, 1156–1160; In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) Having reviewed father’s letter brief, we find father has not made a showing of good cause that an arguable issue exists. (Phoenix H., supra, 47 Cal.4th at p. 846.) Father’s letter brief furnishes no valid argument with supporting legal authorities for his purported claims of error. (See In re Sade C., supra, 13 Cal.4th at p. 994 [parents must “ ‘present argument and authority on each point made’ ”].) Nor does father show that these claims of error, assuming they were true, constitute a basis for reversing the underlying orders. In sum, father has not raised any arguable issues stemming from the disposition hearing. Our review of the challenged orders confirms counsel’s determination that no arguable issues exist. (Phoenix H., supra, 47 Cal.4th at pp. 841–842.) Accordingly, we dismiss the appeal. DISPOSITION This appeal is dismissed.