Guardianship of Debbie

182 Cal. App. 3d 781, 227 Cal. Rptr. 554
CourtCalifornia Court of Appeal
DecidedJune 24, 1986
Docket24623
StatusPublished

This text of 182 Cal. App. 3d 781 (Guardianship of Debbie) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guardianship of Debbie, 182 Cal. App. 3d 781, 227 Cal. Rptr. 554 (Cal. Ct. App. 1986).

Opinion

182 Cal.App.3d 781 (1986)
227 Cal. Rptr. 554

Guardianship of DEBBIE V. et al., Minors.
DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent,
v.
PATRICIA C., Objector and Appellant.

Docket No. 24623.

Court of Appeals of California, Third District.

June 24, 1986.

*782 COUNSEL

Gerald E. Singer, under appointment by the Court of Appeal, for Objector and Appellant.

John S. Kenny, County Counsel, and Karen Keating Jahr, Deputy County Counsel, for Petitioner and Respondent.

OPINION

BLEASE, J.

In this case we decide that mailed service of a notice of a hearing on a petition for the appointment of a guardian, pursuant to Probate *783 Code section 1511, subdivision (b), must conform with the requirements of Code of Civil Procedure section 415.30.

FACTS

Appellant's four children were declared dependent children pursuant to Welfare and Institutions Code section 300, subdivision (a). On October 29, 1984, the court directed the county counsel to prepare guardianship petitions for the two older children. The matter was set to be heard on November 26, 1984. The court ordered that notice of the hearing be "mailed at least 15 days before hearing, in the manner prescribed by section 1200.5 of the Probate Code...."[1] Notices were mailed to the childrens' parents, appellant and Richard V., and their maternal grandmother and uncle, on November 9, 1984. No written acknowledgments of receipt of the notices of the hearing were filed. Appellant did not appear at the November 26, 1984, hearing. The petition for appointment of a guardian for the two children was granted. On appeal, appellant contends that notice of the hearing was defective.

DISCUSSION

(1) Division 4 (see §§ 1400-3803) of the Probate Code governs guardianship, conservatorship and other protective proceedings. Probate Code section 1511[2] requires that at least 15 days notice of a hearing on a petition *784 for appointment of a guardian shall be given. The notice must be accompanied by a copy of the petition. Notice served on the parents of the proposed ward or the person having legal custody shall be "in the manner provided in Section 415.10 or 415.30 of the Code of Civil Procedure, or in such manner as may be authorized by the court...." (Prob. Code, § 1511, subd. (b).)[3] In this case, the court ordered service by mail pursuant to Probate Code section 1200.5. The question we address is whether notice of the hearing served on the parents by mail in accordance with the provisions of Probate Code section 1200.5 was sufficient because the statute allows service in "such manner as authorized by the court."

The two acceptable methods of service, specifically authorized by the Legislature, are personal service pursuant to Code of Civil Procedure section 415.10[4] and service by mail pursuant to Code of Civil Procedure section 415.30.[5] If personal service is elected, service of the notice is deemed *785 complete at the time a copy of the notice and the petition is personally delivered to the person to be served. (Code Civ. Proc., § 415.10.) If service by mail pursuant to Code of Civil Procedure section 415.30 is elected as the method of service, the notice of hearing and petition shall be mailed by first-class mail or airmail, postage prepaid, to the sender along with an acknowledgment of receipt and return envelope. (Code Civ. Proc., § 415.30.) Probate Code section 1467 provides that "[i]f service is made by mail pursuant to this division in the manner authorized by Section 415.30 of the Code of Civil Procedure, the service is complete on the date a written *786 acknowledgment of receipt is executed."[6] Under either of these methods, actual receipt of the notice is assured, i.e., the subject of the notice will either be personally served or will acknowledge receipt of a mailed notice.

The court authorized the notices in this case to be served in accordance with Probate Code section 1200.5. That section is located in the part of the Probate Code dealing with the administration of decedents' estates. (See Div. 3, Prob. Code, § 300 et seq.) It governs the manner of giving notice of certain petitions, such as a petition to set apart a homestead or exempt property (Prob. Code, § 1200.5, subd. (a)(2)), a petition for the sale of stocks or bonds (Prob. Code, § 1200.5, subd. (a)(5)), or a petition for final distribution (Prob. Code, § 1200.5, subd. (a)(12)). Probate Code section 1200.5 provides that at least 10 days before the hearing notice shall either be mailed to the interested persons or be personally served. (Prob. Code, § 1200.5, subd. (b).) When service is by mail, there is no requirement that an acknowledgment of receipt be executed.

We find that the phrase "or in such manner as may be authorized by the court" cannot be construed to allow for service by mail that is not in compliance with the provisions of Code of Civil Procedure section 415.30. "It is a cardinal rule of statutory construction that in attempting to ascertain the legislative intention effect should be given, whenever possible, to the statute as a whole and to every word and clause thereof, leaving no part or provision useless or deprived of meaning." (Weber v. County of Santa Barbara (1940) 15 Cal.2d 82, 86 [98 P.2d 492]; see also 2A Sutherland, Statutory Construction (4th ed. 1984) § 4606, p. 104.) To conclude that service by mail that does not comply with Code of Civil Procedure section 415.30 may be authorized would render the provision that notice shall be "served in the manner provided in Section ... 415.30 of the Code of Civil Procedure" meaningless. The Legislature was careful to include in that section a requirement that, if service by mail is elected as the method of giving notice to the minor's parents, acknowledgment of receipt of the notice must be executed before service is deemed complete. The Legislature distinguished between parents and other relatives; notice to the latter need not be in conformance with Code of Civil Procedure section 415.30.[7] If the Legislature had not intended that mailed notice to parents have additional *787 guarantees of receipt of notice, there would have been no need to make such a distinction. The phrase "such manner as authorized by the court" cannot be construed to nullify the specified methods of service. Thus, it can only be interpreted to provide for a court-authorized method of service that is different from (other than) those specifically listed in the statute if service by one of the two named methods is not possible. For example, the address of a long absent parent may be unobtainable. In such a situation, the court, upon proof that diligent efforts have failed to achieve the completion of personal service (Code Civ. Proc., § 415.10) or service by mail in accordance with Code of Civil Procedure section 415.30, may authorize an alternative method of service.[8]

We find further statutory support for our conclusion that Probate Code section 1511 does not authorize service by mail in a manner that does not comply with Code of Civil Procedure section 415.30. Probate Code section 1465 provides that "[u]nless otherwise expressly provided," notice by mail is complete when the notice is deposited in the mail.

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Related

Adoption of McDonnell
176 P.2d 778 (California Court of Appeal, 1947)
Weber v. County of Santa Barbara
98 P.2d 492 (California Supreme Court, 1940)
Guardianship of Pankey
38 Cal. App. 3d 919 (California Court of Appeal, 1974)
In Re Dahnke
222 P.2d 381 (California Court of Appeal, 1923)
Department of Social Services v. Patricia C.
182 Cal. App. 3d 781 (California Court of Appeal, 1986)

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182 Cal. App. 3d 781, 227 Cal. Rptr. 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guardianship-of-debbie-calctapp-1986.