In re S.P. ( 2020 )

Filed 7/31/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re S.P., a Person Coming B302804
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 18CCJP07212A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.P.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen C. Marpet, Temporary Judge.
(Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Terence M. Chucas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent.
________________________
INTRODUCTION
For the second time in less than a year, this court is presented
with a parent who was denied notice of jurisdiction and disposition
hearings, and later saw his parental rights terminated. In In re.
AI.J. (2019) 44 Cal. App. 5th 652, the parties acknowledged that
“father was not properly notified” of the jurisdiction and disposition
hearings. (Id. at p. 665.) We found the error prejudicial and
reversed. (Id. at p. 675.) Here, we agree with father that the
Department of Children and Family Services (DCFS) did not act
with due diligence in locating and notifying him of the jurisdiction
and disposition hearings. However, we find the error was harmless
and affirm.
Father appeals from the order terminating his parental rights
to his child born in 2018. His sole challenge is the denial of his
Welfare and Institutions Code section 388 petition, in which he
sought to vacate all relevant jurisdiction and disposition findings for
which he received no notice.1
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father are not married, and have two children
together: “baby” (who is at issue in this dependency proceeding) and
“son,” who was in the dependency system since birth due to the
parents’ drug abuse and was adopted during the pendency of baby’s
case. Mother also has five older children – none with father – all of
whom were prior dependents of the juvenile court and eventually
adopted. At the time of the filing of these proceedings, baby resided
with mother.2
1 All subsequent statutory references are to the Welfare and
Institutions Code.
2 Mother has not appealed the order terminating parental rights.
2
1. DCFS Involvement
On October 16, 2018, father was arrested for possession of
narcotics and controlled substance. Five days later, DCFS received a
referral that the parents had neglected then- nine-month-old baby.
DCFS investigated, and mother tested positive for methamphetamine
and amphetamine.
On November 5, 2018, the juvenile court issued a removal
order for baby. When served, mother was uncooperative, appeared
under the influence of drugs and alcohol, refused to permit the social
worker inside the apartment, and refused to disclose baby’s
whereabouts. Even with law enforcement intervention, mother
refused to disclose baby’s location, so baby was detained “at large.”
Baby was physically detained a few days later.
On November 7, 2018, the social worker sent written notice by
certified mail to father’s last known address in Huntington Park,
informing father of DCFS attempts to contact father and asking him
to get in touch with DCFS.
On November 8, 2018, DCFS filed a section 300 petition under
subdivisions (b)(1) and (j), alleging as to mother (1) baby was at risk
due to mother’s 12-year history of illicit drug use and her current use
of amphetamine and methamphetamine, and (2) mother had failed
to reunify with baby’s six siblings, all of whom were permanently
placed with other families. The petition also alleged: (1) father had
failed to protect baby and son from mother’s illicit drug use,
(2) father had a history of substance abuse, which rendered him
unable to provide regular care of baby, and (3) son was a prior
dependent due to father’s substance abuse and had been
permanently placed.
On November 9, 2018, mother filed a Parentage Questionnaire
indicating she believed father was baby’s father and identified the
3
names of the paternal grandmother and aunt. Mother indicated she
did not know how to locate father.
On November 9, 2018, the juvenile court held the detention
hearing. Father was not present. The court questioned mother
regarding baby’s paternity, and mother identified father as the
biological father. Mother did not know where father currently
resided and did not have his phone number, but identified by name
the paternal grandmother and the paternal aunt. Mother said her
information was limited, she had no contact information for the
paternal relatives, and she had never been to the paternal
grandmother’s home. The court found father only to be baby’s
alleged father and ordered DCFS to conduct a due diligence search
for him. The court detained baby in foster care, with monitored
visitation for parents. Baby was placed in the home of a non-related
extended family member.
2. DCFS’s Investigation
Mother and father had extensive criminal histories. Father’s
dated to 2011 when father was 13. His record included drug
possession and sale, unlawful possession of paraphernalia,
vandalism, and burglary. On December 28, 2018, early in the
present dependency case, he was arrested for theft.3 Mother also
had a criminal history involving drugs and theft dating back to her
minority.
Mother’s history with DCFS started in 2006. Although she had
previously been provided family reunification services, she lost
custody of six children to adoption due to her drug use. One of those
children was mother’s first child with father, a child who was
3 As we discuss, father would be arrested three more times
during the dependency proceedings.
4
adopted in July 2019. Mother informed DCFS that mother and
father used drugs together when she was pregnant with their first
child. Mother and father separated when she was three months
pregnant with baby because mother had decided to get clean but
father would not stop using. DCFS confirmed father’s history of
substance abuse, and reported that he was recently arrested for drug
possession and had attempted to forcibly enter mother’s home.
DCFS recommended no family reunification services for the
parents, given their extensive history of substance abuse, mother’s
failure to reunify with any of her children, the parents’ failure to
reunify with their older son, and father’s unknown whereabouts.
3. Jurisdiction, Disposition, and Due Diligence Finding
On January 14, 2019, the juvenile held the jurisdiction
hearing. The court found baby to be described by section 300,
subdivision (b)(1), due to mother’s history of illicit drug use and
current use of amphetamine and methamphetamine, father’s failure
to protect baby from mother’s illicit drug use, the dependency
proceedings and ultimate adoption of their older son, and father’s
failure to protect older son from mother. The court sustained the
petition as to mother.
As for father, the court received DCFS’s Due Diligence Report
dated January 14, 2019 and signed six days earlier. Although the
report references some 17 “search sources,” under No. 12
“Relatives/Friends,” the DCFS investigator wrote: “No contact
letters were sent to relatives/friends.” The juvenile court found, “due
diligence has not been completed as to father.” Included in the
minute order for that date was, “The court will put the Jurisdictional
hearing over further to allow the Dept to submit the completed due
diligence search of the father as to the subdivision B-2 count.” The
court scheduled father’s jurisdictional hearing for February 13, 2019.
5
In an addendum report dated February 13, 2019, DCFS included the
following section:
“Due Diligence for father, [S.P.]
“A Due Diligence Report was submitted for the father,
[S.P.] The Department of Children and Family Services
was not successful in locating [S.P.].
“(The court is respectfully referred to the attached Due
Diligence Report.)”
In the Clerk’s Transcript, the document that follows the
February 13th report is not a new Due Diligence Report, but the
report dated January 14, 2019—the same report on which the
juvenile court based its finding on January 14th that “due diligence
has not been completed for father.” There does not appear in the
record a supplemental Due Diligence Report prepared shortly before
the February 13, 2019 hearing. For reasons that are not clear from
the record, at this hearing, the juvenile court found “that the Dept
has completed the due diligence search for the father.”
The court, having found jurisdiction as to father, proceeded to
the disposition hearing. The court admitted the due diligence report,
a letter from mother’s drug rehabilitation center, and testimony from
mother. The court declared baby a dependent of the court, ordered
baby removed from parental custody, denied family reunification
services for mother and father pursuant to section 361.5, subdivision
(b)(10) and (11), and set the case for a permanency planning hearing
on June 12, 2019.4 The court found that due diligence had been
4 Section 361.5, subdivisions (b)(10) and (11), provides that
the juvenile court need not order reunification services when the
court previously had terminated parental rights to the child’s
sibling or half sibling or where it previously ordered termination
of reunification services when the parent failed to reunify with a
6
completed as to father. The court stated: “The court did put the trial
and dispo[sition] over for father. We do have good notice and I’m
ordering – finding that the petition is sustained as pled as to the
father. No [family reunification] for the father.” The court found
family reunification was not in baby’s best interest.
4. Post Disposition Events
Baby developed a strong bond with his caregiver, who wanted
to adopt him.5 Mother, meanwhile, failed to maintain regular
contact with baby.
Approximately a month after the detention hearing, on
March 21, 2019, father was arrested for vehicular theft. On April 4,
2019, father was arrested again, this time for possession of narcotics.
Four days later, father was arrested for an earlier incident in which
he had threatened mother with a handgun at her home. He was
charged with terrorizing and dissuading a witness by threat or force.
On May 23, 2019, father was personally served in custody for
the previously scheduled June 12, 2019 hearing on termination of
parental rights. Father, still incarcerated, made his first
appearance at that hearing. Father informed the court that his
address was the paternal grandmother’s home in Cudahy. Father
said he had been sentenced to 16½ months in prison, had been given
a strike, and did not yet have a release date.6
sibling or half sibling, and the parent or guardian had not
subsequently made reasonable efforts to address the problems
leading to removal of the sibling or half sibling.
5 The caregiver was approved for adoption on April 10, 2019.
6 Father would remain in custody through baby’s section
366.26 hearing, which took place on November 21, 2019.
7
In October 2019, DCFS reported baby continued to progress
well in the caregiver’s home. During monthly home visits, DCFS
observed baby was appropriately bonded with the caregiver and her
adult children, he called the caregiver “mom,” followed the caregiver
around the home, and enjoyed being nurtured by her. DCFS
assessed that baby’s needs were met by the caregiver and observed
no safety concerns. Baby was receiving services through Regional
Center, was meeting his developmental milestones, and appeared
comfortable in the home. The caregiver and her husband were
committed to providing baby with a permanent home through
adoption.
5. Father’s Section 388 Petition
On October 8, 2019, father filed a section 388 petition,
challenging the juvenile court’s jurisdictional findings and
dispositional orders for lack of proper notice. Father also asserted
that granting the petition was in the best interest of baby because
father “has an interest in reunifying with his child,” father wanted
baby “placed with his relative, the paternal aunt” and baby “benefits
from being with his father and paternal relatives.” The only
statement father made about contact with baby was that he “had
visits with his child, and took the child in his home prior to [his]
incarceration.”
On November 5, 2019, baby’s caregiver reported that neither
father nor any member of the paternal family had ever contacted her
to inquire about baby. On November 15, 2019, DCFS filed its report
setting out the significant facts we have already detailed and
addressing father’s section 388 petition. DCFS noted father
provided no evidence that he had addressed his substance abuse.
DCFS recommended that the court deny father’s section 388 petition
and proceed with adoption. In a subsequent report on November 21,
8
2019, DCFS reported that father had made no efforts to contact the
social worker or the caregiver. The social worker again asked the
juvenile court to deny the section 388 petition.
Father filed points and authorities supporting his claim that
DCFS had not acted with diligence in attempting to provide notice of
the jurisdiction and disposition hearings. Specifically, he claimed
DCFS failed to contact the paternal grandmother and aunt
regarding father’s whereabouts. Father also said that it was in
baby’s best interests to vacate the findings and orders because
father and baby then could establish a parent- child bond. Father’s
points and authorities did not provide any details about his alleged
contacts with baby.
6. Denial of the Section 388 Petition and Termination of
Parental Rights
On November 21, 2019, the juvenile court held the combined
hearing on the contested section 388 petition and the section 366.26
hearing. Father was present but still incarcerated. Father’s counsel
argued father was never given the opportunity to create a bond with
baby because he was not properly noticed or afforded visitation.
Baby’s counsel asked the court to deny the petition. Counsel
argued father had failed to meet the best interest requirement for
section 388 relief: baby had been placed with his caregiver for
almost a year, and father remained incarcerated. DCFS’s counsel
argued father and the paternal relatives knew that mother had given
birth to baby and reportedly were told by mother that baby had been
placed with a family. However, paternal relatives had made no
effort to contact baby, and father had not attempted to forge a
relationship with baby even during the time he was not in jail.
Father’s counsel did not contradict DCFS’s statements regarding
father’s lack of contact.
9
The juvenile court denied the petition, finding that father had
not demonstrated that granting the petition would be in baby’s best
interest. The court stated, “At this point, based upon the report
before the court and Justice P.[7] There is not a sufficient bond and
it is certainly not in this child’s best interest so I’m going to deny the
388.”
The juvenile court then proceeded to the section 366.26
hearing. DCFS recommended the parents’ parental rights to baby be
terminated. Mother’s counsel indicated she had no direction from
mother. Father’s counsel stated if the court’s tentative were to
terminate parental rights, he was objecting for the record.
The juvenile court found by clear and convincing evidence baby
was adoptable and would be adopted, and terminated parental
rights.
On December 5, 2019, father filed a notice of appeal from the
termination of his parental rights.
DISCUSSION
Father argues that the court should have granted his section
388 petition because he did not receive notice of the jurisdiction and
disposition hearings, and that granting the petition would be in
baby’s best interests. Father argued in the trial court and repeats on
appeal that DCFS failed to use due diligence in trying to locate him
to give him notice of those hearings. Specifically, he claims DCFS
failed to contact the paternal grandmother or aunt for father’s
whereabouts, even though mother had provided their names to the
social worker.
1. Section 388, Due Process Notice, and Harmless Error
Section 388 affords a party a limited right to seek modification
7 In re Justice P. (2004) 123 Cal. App. 4th 181 (Justice P.).
10
of a prior dependency order. The elements for relief are well known:
the moving party must show that (1) there is new evidence or
changed circumstances, and (2) a change in the order is in the best
interest of the child. (§ 388; In re Stephanie M. (1994) 7 Cal. 4th 295,
317.) The decision of the trial court is typically reviewed for abuse of
discretion. (Ibid.) Some courts, however, use a bifurcated
substantial evidence/abuse of discretion standard. (See, e.g. In re
J.M. (2020) 50 Cal. App. 5th 833, 846 [“We review a juvenile court’s
denial of a section 388 petition for abuse of discretion, and review its
factual findings for substantial evidence.”].)
Nearly 35 years ago, the Court of Appeal in Ansley v. Superior
Court (1986) 185 Cal. App. 3d 477, 490, held that a section 388
petition could be used to challenge lack of notice of earlier
proceedings. There, the father had apparently left town following an
arrest for assault, and intentionally left no forwarding address. (Id.
at p. 489.) The appellate court found, “There is no evidence on the
record that the Department made any attempt to serve petitioner
with notice of the proceedings.” (Id. at p. 481.) Two years later, the
father received notice of the Department’s motion to terminate
parental rights. He then appeared in the dependency proceedings
and filed a section 388 petition. The 388 petition was based on
father’s lack of notice of the proceedings that had been ongoing for
two years. (Id. at p. 482.) The trial court denied the petition, stating
that the language of section 388 – “ ‘change of circumstances or new
evidence’ – permits motions based upon ‘. . . a change of
circumstances of a child’ ” only. (Id. at p. 483.)
The Ansley court had no occasion to consider whether any
error was prejudicial – the trial court had determined as a matter of
law that section 388 could not there be utilized. The Court of Appeal
disagreed and remanded for a hearing. (Ansley v. Superior Court
11
(1986) 185 Cal.App.3d at p. 483.)
The parties in the present appeal do not dispute that section
388 is the proper vehicle for a due process challenge, or that the
abuse of discretion standard of review applies. Nor do they diverge
on whether any erroneous ruling made by the trial court should be
put to a harmless error test.
We agree on all counts. Nevertheless, we observe that this
appeal does not ask us to consider a more typical section 388
petition, in which a parent asks the court to change a prior order
because, for example, the parent completed a drug program or recent
history supports that monitored visitation should become
unmonitored. The claimed error here – lack of notice – is of
constitutional dimension. (Justice P., supra, 123 Cal. App. 4th 181,
189.) “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.” (Id. at p. 188.)
The lack of due process in a dependency proceeding raises the
specter of structural error but this approach was firmly rejected by
our Supreme Court in In re James F. (2008) 42 Cal. 4th 901, 915-916.
“The harmless error analysis applies in juvenile dependency
proceedings even where the error is of constitutional dimension.” (In
re J.P. (2017) 15 Cal. App. 5th 789. 798 (J.P.).)8
8 J.P. involved the wrongful denial of right to counsel.
Justice Baker in his concurring opinion in J.P. warned that in
applying a harmless error analysis to every denial of right to
counsel in a dependency case may be inappropriate. “But for
12
As we observed in AI.J., some courts of appeal have applied a
Chapman9 “harmless beyond a reasonable doubt” standard (e.g. In
re J.H. (2007) 158 Cal. App. 4th 174, 173; Justice P., supra,
123 Cal.App.4th at p. 193). At least two Supreme Court cases have
embraced the Watson10 more probable than not standard. (See In re
Jesusa V. (2004) 32 Cal. 4th 588, 625 [incarcerated father not
brought to court for hearing]; In re Celine R. (2003) 31 Cal. 4th 45, 59-
60 [failure to appoint separate counsel for siblings]). In AI.J., supra,
44 Cal. 5th at page 666, we found that under either standard, the
failure to provide notice was harmless.
Here we apply the Watson standard, “which requires the
appellant to show a reasonable probability of a more favorable
outcome.” (AI.J., supra, 44 Cal.App.5th at p. 665.) We only reverse
if “it reasonably probable the result would have been more favorable
to the appealing party but for the error.” (Ibid.)11
cases in which there is an egregious deprivation of the
foundational right to counsel, we should do more thinking. When
a counterfactual inquiry appears too difficult to responsibly
undertake, or a counterfactual conclusion relies on inferences
that really amount to guesswork, the bias should be in favor of
reversal.” (J.P., supra, 15 Cal.App.5th at p. 804.) Appellant’s
brief focuses on lack of notice although implicit is that he had no
counsel because he received no notice.
9 Chapman v. California (1967) 386 U.S. 18.
10 People v. Watson (1956) 46 Cal. 2d 818.
11 We observe father and DCFS assert an abuse of discretion
standard applies here to evaluate the constitutional error in the
context of a section 388 petition.
13
2. Application of Principles to the Present Case
A. Due Diligence
The juvenile court continued the January 14, 2019 jurisdiction
hearing as to father because as of that date the court found DCFS
had not acted with due diligence in trying to locate father. At that
time, DCFS had searched multiple sources for information on
father’s whereabouts but expressly stated it had not contacted
paternal relatives who mother had identified. The court continued
the jurisdiction hearing as to father to allow DCFS additional time to
locate father. On February 13, 2019, at the combined jurisdiction
hearing for father and disposition hearing for both parents, the trial
court stated, “We do have good notice.” The minute order for that
date included, “Court finds due diligence has been completed for
father.” In fact the record does not disclose that any further
diligence was undertaken. For example, it was undisputed that
DCFS had not contacted the paternal grandmother or aunt. Yet,
DCFS told the court that the parental relatives knew of mother’s
pregnancy. At a minimum, inquiring of paternal relatives as to
father’s whereabouts was required.12
Considering that DCFS conducted no additional due diligence
between January 14th (when the court found diligence inadequate)
and February 13th (where the court found it sufficient), and DCFS
12 At the hearing where the section 388 petition was denied
and parental rights were terminated, DCFS’s counsel told the
court: “The father, the paternal grandmother, the parental
aunt all knew that mother was pregnant, all knew the mother
had given birth but relied on statements from the mother
saying that she had placed the child with family members.”
Even if the representation about placement was true, it does
not explain DCFS’s failure to contact the parental relatives in
an effort to locate father.
14
never asked the parental relatives for father’s whereabouts, we
conclude efforts to locate and notice father were deficient.
B. Harmless Error
We apply the Watson standard to determine whether the
failure to provide notice was prejudicial. Father has not shown that
there was a reasonable probability of a more favorable outcome (i.e.
that he would have been granted reunification services and his
parental rights would not have been terminated) absent the error in
giving notice.
Father’s history did not support an order of reunification
services. Father does not argue the contrary. The juvenile court
found reunification services were properly denied under section
361.5. Under section 361.5, reunification need not be ordered where
the parent “has not subsequently made a reasonable effort to treat
the problems that led to removal of the sibling or half sibling of that
child from that parent . . . .” (§ 361.5, subds. (b)(10) and (11).) The
court’s decision was supported by the record.
Father lost his first child (son) to adoption, following
termination of reunification services in that case. The record is
devoid of evidence that father made an effort to address the
problems that led to the denial of reunification services for son and
the termination of father’s parental rights to him. Father had an
extensive criminal history that included four arrests and significant
incarceration during the pendency of this case. In one incident,
father was charged with threatening mother with a handgun.
Father’s history of substance abuse was equally troubling. It was
apparently unresolved as of the 388 hearing. At a minimum, father
failed to produce evidence that he had addressed his drug abuse.
The record makes clear that from the time he was served in
May 2019 until the filing of his October 2019 section 388 petition,
15
father was incarcerated, but did not seek visitation or other
reunification services. Even before his incarceration, there was no
evidence father formed any kind of bond with baby. Although his
section 388 petition asserted that he had contact with baby and
brought him into his home, there was no evidence to support the
assertion, which was essentially abandoned by counsel at the
hearing.13
Father asserts that if the juvenile court had found father to be
the presumed father, there would have been a preference to place
baby with his paternal relatives. “Only a presumed, not a mere
biological, father is a ‘parent’ entitled to receive reunification
services, and only a presumed father is entitled to custody of his
child.” (Francisco G. v. Superior Court (2001) 91 Cal. App. 4th 586,
596; § 361.5, subd. (a).) In none of the papers filed with the juvenile
court did father ask to be granted presumed father status. To the
extent he now claims the trial court erred in not according him
presumed father status, the point is thus waived. As we explain
below, even if the juvenile court had granted presumed status, the
outcome would be no different.
On appeal, father nominates paternal aunt as a potential
caregiver. Yet, the aunt specifically told DCFS that baby would
likely not be placed with her because she had an extensive criminal
record and was a recovering methamphetamine user who had been
sober for only one year (as of the hearing on the 388 petition). The
aunt thought baby could be placed with the paternal grandmother.
13 Because the juvenile court denied father’s petition, we
imply necessary findings that support the decision, to the extent
they are based on substantial evidence. (See In re Andrea G.
(1990) 221 Cal. App. 3d 547, 554–555.) Here, we imply that the
court found father’s vague assertion that he had had contact with
baby either not credible, or legally insignificant.
16
However, the grandmother had a history of homelessness, and the
woman who answered the door at the grandmother’s alleged
residence told DCFS grandmother did not live there.
Neither the grandmother nor the aunt made an effort to see
baby during the dependency case, which the grandmother said they
learned about in May or June 2019. When asked in November 2019
why she had not visited, the aunt reported she lost the social
worker’s phone number and that “the family was quite unstable and
did not have a permanent home in the months following the child’s
detention.” The grandmother claimed that she could not visit
because she was too busy with work. Even if father had been
accorded presumed father status, father would be faced with the fact
that neither paternal grandmother nor aunt were likely placement
candidates.
Given the fact that father had lost reunification services and
then custody to son, father’s proposed paternal caregivers were
either unwilling or unqualified, father’s illicit drug use remained
unaddressed, and father continued to commit violent acts (including
toward mother) during the early pendency of this case, we conclude
our affirmance stands not on guesswork or speculation, but on the
undisputed facts before us. Under the Watson standard, it is not
reasonably probable that absent the notice error, father would have
been granted reunification services or his parental rights would not
have been terminated. (Cf. AI.J., supra, 44 Cal.App.5th at p. 666.)14
14 In a more traditional 388 petition, the facts we have
considered under harmless error would likely have been analyzed
as part of the second part of section 388 that the parent
demonstrate granting relief would be in the child’s best interests.
Because we conclude that father has not suffered prejudicial
error from his lack of notice, he has not demonstrated the
required changed circumstance or new evidence – the first
17
DISPOSITION
The juvenile court’s order terminating parental rights is
affirmed.
RUBIN, P. J.
I CONCUR:
MOOR, J.
element of section 388. Other than to observe that the facts
presented here would be equally applicable to an inquiry of the
best interests of the child, we do not further address the point.
We also observe that this case again shows the doctrinal
challenges of using the section 388 vehicle to challenge
constitutional errors as to notice or right to counsel. The trial
court found that notice was sufficient. That should have
ended the inquiry because once it had been established there
were no changed circumstances, it was unnecessary to address
the second part of section 388 – the bests interests of the child.
The juvenile court nevertheless proceeded to the second step,
relying on Justice P. Conversely, in AI.J., we concluded that,
because of the failure to give adequate notice, the father had
demonstrated changed circumstances. The trial court’s
contrary ruling was incorrect and prejudicial. But a literal
application of section 388 would have required the court to
then address the second element of best interests of the child.
The court in AI.J. does not address the second factor, but
without real consequence – the facts that supported the court’s
decision that lack of notice was prejudicial error, would
undoubtedly have supported a finding that modifying the
earlier order was in the child’s best interest. It may be time
for either our Supreme Court to revisit or refine Ansley’s
holding that a constitutional error in notice or counsel can be
raised under section 388, and it may be time for the
Legislature to consider placing such errors on independent
footing not tied to section 388.
18
In re S.P.
B302804
BAKER, J., Dissenting
Today’s majority opinion is further evidence the courts of
appeal are applying harmless error doctrine in juvenile court
cases to excuse fundamental constitutional errors—errors that
strike so deeply at the edifice of our legal system that, despite all
pretenses, judges have no realistic ability to determine the
probability of a different outcome absent the error. I do not
believe this state of affairs is required by our Supreme Court’s
decision in In re James F. (2008) 42 Cal. 4th 901 (James F.), and I
accordingly dissent.
I
Dependency proceedings in this case began in October 2018
when the Los Angeles County Department of Children and
Family Services (Department) received a referral that minor
S.P.’s mother (Mother) was neglecting the child. The
Department’s subsequent investigation revealed Mother was
using methamphetamine. Pursuant to court order, the
Department removed S.P. from Mother’s custody and filed a
dependency petition in November 2018.
Once dependency proceedings were underway, Mother
completed a parentage questionnaire identifying S.P.’s father
(Father) by name, as well as the names of S.P.’s paternal
grandmother and paternal aunt. Mother claimed she had no
contact information for Father, and the Department sent a
certified letter regarding the commencement of dependency
proceedings to what it thought was Father’s last known address.
The juvenile court ordered the Department to conduct a “due
diligence” search for Father to give him notice of the proceedings.
By the time of a jurisdiction hearing in January 2019, the
Department had not located Father and had not notified him of
the pending dependency case. The Department’s jurisdiction
report stated a separate due diligence report on Father had been
submitted and was “pending completion.” (The Department had
already managed to successfully complete a criminal history
check on Father.) The juvenile court continued the jurisdiction
hearing as to Father (proceeding only against Mother) to give the
Department time to complete its due diligence report.
The Department submitted another due diligence report to
the court in February 2019 and it was not materially different
from the prior report. It stated the Department ran various
database searches in an unsuccessful effort to ascertain Father’s
whereabouts, including searches of records maintained by the
Los Angeles County Probation/Parole Office, the Los Angeles
County Sheriff’s Department of Inmate Information Center, the
California Department of Corrections, the DMV, and the Federal
Bureau of Prisons. The Department’s report also stated the
Department did not attempt to contact any of Father’s relatives
or friends because there was “no information regarding any
potential relatives/friends.” That, of course, was false. Mother
previously identified Father’s mother and sister in a parentage
questionnaire and in open court. The Department simply did not
2
contact them in an effort to notify Father of the pending
proceedings.
At a hearing that same month (February 2019), the
juvenile court found—based on the Department’s due diligence
report—that there had been “good notice” as to Father. Father
was not present at this hearing, nor was there an attorney in
court to advocate on his behalf or raise objections to the
Department’s evidence. The court sustained the dependency
petition against Father in absentia and ordered he was to receive
no reunification services.
Months later, the Department reported it had located
Father and personally served him on March 11, 2019, with notice
of the pending dependency proceedings. Father was arrested in
April 2019 and remained incarcerated (serving a 16-month
sentence for a threats crime) at the time of a June 12, 2019,
hearing where he entered his first appearance and was appointed
counsel. At that hearing, Father told the court his address was
the same as the paternal grandmother’s—one of the two family
members previously identified by Mother.
The day before the next scheduled hearing in the case,
which was a hearing to consider termination of Mother and
Father’s parental rights, Father filed a Welfare and Institutions
Code section 388 petition asking the juvenile court to vacate the
prior jurisdiction and disposition orders it made while he had no
notice of the proceedings. Father’s petition asserted (contrary to
what Mother previously told the Department) that he had visited
with S.P. and took him into his home before Father was
incarcerated. Father also maintained he would have advocated
for S.P. to be placed with the child’s paternal aunt (rather than
the home of a non-related extended family member where S.P.
3
was then placed) if Father had been provided proper notice of the
proceedings.
The juvenile court denied Father’s request to vacate the
prior court orders. The court did not reaffirm its prior finding
that the Department had made good efforts to notify Father of
the proceedings. Instead, citing a 2004 Court of Appeal case (In
re Justice P. (2004) 123 Cal. App. 4th 181 (Justice P.)), the court
determined Father was not entitled to a new jurisdiction and
disposition hearing in which he could participate solely because
the court believed “there is not a sufficient bond and it is
certainly not in this child’s best interest.”
II
In this court, the Department does not defend the
inadequate effort it made to notify Father of the proceedings
before the court went forward with a jurisdiction and disposition
hearing in his absence. The Department urges affirmance,
however, because it believes the error was harmless. By
harmless, the Department means Father’s lack of notice did not
affect the outcome of the proceedings beyond a reasonable
doubt—an admittedly counterfactual standard, albeit one more
demanding than the majority chooses to apply.
I have previously argued a juvenile court’s considered
failure to appoint counsel for a parent can be the kind of error
that defies harmlessness analysis, and is per se reversible,
because it is sometimes too difficult to determine what a parent
might have done differently with advice of counsel, not to
mention what the attorney would have done differently by way of
advocating for a parent. (In re J.P. (2017) 15 Cal. App. 5th 789,
803 (conc. opn. of Baker, J.) [criticizing the majority’s affirmance
4
on harmlessness grounds and quoting United States v. Gonzalez-
Lopez (2006) 548 U.S. 140, 150, a case that explains the
erroneous deprivation of counsel has “‘consequences that are
necessarily unquantifiable and indeterminate’” and “[h]armless-
error analysis in such a context would be a speculative inquiry
into what might have occurred in an alternate universe’”].) In
this case, the Department does the majority in In re J.P. one
better by arguing the absence of any notice of the jurisdiction and
disposition proceedings (which naturally means the absence of
counsel as well) can be excused on harmlessness grounds too.
This is folly. We cannot reliably decide whether the
outcome of these dependency proceedings might have been
different if Father had been permitted to participate in the case
from the outset—the various counterfactual possibilities are too
numerous to even catalog. Consider just a few. Facts in
Department reports that the majority relies on to find a lack of
prejudice might have been contested and determined not to be
facts at all.1 Father might have noticed an appeal from the
juvenile court’s jurisdiction and disposition orders (an appeal that
was no longer timely after he made his first appearance and was
appointed counsel) and secured a reversal. Father may have
presented a viable plan to arrange for S.P.’s care with the goal of
facilitating visitation and possibly taking custody of his child
upon his (Father’s) release. Father might have made different
decisions and avoided incarceration if he knew the state had
commenced proceedings to take custody of his child. Or Father
may have even taken a more proactive approach to dependency
1 To take one example Father highlights in his section 388
petition, Mother claimed Father had never met S.P. while Father
claimed he had visited with the child.
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court proceedings once he was finally given proper notice if he
were not led to believe all that was done in his absence suggested
an order terminating his parental rights was probably a fait
accompli.
The majority is right, however, that Justice P., supra,
123 Cal. App. 4th 181, does apply harmless error doctrine to
excuse a notice error. Insofar as Justice P. forecloses the
possibility that notice errors can be per se reversible, we are not
bound to follow that opinion—and we should not.2 The same is
not true, of course, of our Supreme Court’s decision in James F.,
supra, 42 Cal. 4th 901. But that case does not compel the result
the majority reaches.
The Supreme Court in James F. confronted an undisputed
error in the procedure a juvenile court used to appoint a guardian
ad litem for a mentally incompetent parent in a dependency
proceeding: the court failed to explain, before appointing the
guardian, what a guardian ad litem was and failed to give the
2 Justice P. is also quite susceptible of being misread in
precisely in the manner in which the juvenile court here misread
it. The juvenile court believed the result in Justice P. obviated
the need to consider the due process implications of the prior lack
of notice to Father because the court could simply apply the usual
section 388 test and decide whether it thought vacating its prior
orders was in S.P.’s best interest. (Justice P., supra, 123
Cal.App.4th at 189 [“[A] court may still deny a section 388
petition without an evidentiary hearing if the parent does not
make a prima facie showing that the relief sought would promote
a child’s best interests”].) When a section 388 petition is used as
a vehicle to challenge a lack of notice of the proceedings, however,
application of the usual section 388 test is insufficient, as even
the Justice P. court ultimately recognizes. (Id. at 193.)
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parent a meaningful opportunity to be heard in opposition to the
appointment. (James F., supra, 42 Cal.4th at 911.) The Supreme
Court rejected the view that the juvenile court’s error was per se
reversible “structural error” and cautioned that “the structural
error doctrine that has been established for certain errors in
criminal proceedings should [not] be imported wholesale, or
unthinkingly, into the quite different context of dependency
cases.” (Id. at 915-916.)
Though James F. rejects wholesale importation of per se
reversible error doctrine into the dependency arena, including on
the specific facts of that case, the opinion leaves open the
possibility that a sufficiently serious, fundamental dependency
court error might require reversal without the need to conduct a
harmlessness inquiry. That much is clear from the James F.
court’s recognition that United State Supreme Court precedent
holds there are certain errors that “‘defy analysis by “harmless-
error” standards’” (James F., supra, 42 Cal.4th at 916-917) and
the care the James F. court took to emphasize there was no
argument that the error in that case defied such analysis—as
contrasted with a more problematic scenario in which a parent
might lack actual notice of the dependency proceedings (id. at 917
[“The record does not support the Court of Appeal majority’s
dramatic assertion that appointment of a guardian ad litem for
[the parent] ‘stripped [him] of his right to participate’ in the
action. Nothing suggests that Marcus was unable to express his
wishes to the court, either directly or through his appointed
guardian, that he lacked actual notice of the proceedings as they
unfolded, that the guardian and the attorney appointed for
Marcus failed to properly advocate for his parental interests, or
that Marcus ever expressed dissatisfaction with the guardian ad
7
litem or asked the juvenile court to vacate her appointment”],
italics added).
A lack of actual notice of the proceedings as they unfolded
is precisely the error we confront here. James F. does not bar
finding this type of fundamental error to be per se reversible, and
that is what we should do for the reasons I have already given.
III
A harmlessness inquiry is usually required before reversing
juvenile court dependency orders, and rightly so. But it is also
true that “the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.”
(Troxel v. Granville (2000) 530 U.S. 57, 66.) The cornerstone of
that right is the familiar basic requirement of notice and an
opportunity to be heard. (Mullane v. Central Hanover Bank &
Trust Co. (1950) 339 U.S. 306, 314.) When a parent has no notice
of a jurisdiction and disposition hearing that results in an order
for the state to assume jurisdiction over the parent’s child, and
when the parent later complains about that lack of notice, the
juvenile court should be required to redo the hearing because
assessing prejudice will ordinarily be too difficult. Some
consequences of a lack of proper notice may still be unrepairable,
but holding the hearing anew is the best available means of
assessing the impact of a fundamental notice error. If instead the
majority’s harmlessness approach here is to be the rule, one is
left to wonder why we even go to the trouble of holding juvenile
court hearings in every case. It would be a lot faster and easier
8
for judges to first read Department reports and then decide
whether it is worth hearing from the parents at all.
BAKER, J.
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