In re J.P. ( 2017 )

Filed 9/26/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.P., a Person Coming Under B281438
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. BK05050)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen C. Marpet, Commissioner. Reversed
and remanded with directions.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickham, County
Counsel, R. Keith Davis, Assistant County Counsel, and David
Michael Miller, Deputy County Counsel, for Plaintiff and
Respondent.
The mother of a dependent child in a group home
placement filed a Welfare and Institutions Code section 3881
petition seeking, inter alia, reappointment of counsel. The
juvenile court scheduled a hearing on the petition, but did not
appoint counsel to represent mother at the hearing. At the
section 388 hearing, the juvenile court ruled on mother’s petition,
but again did not appoint counsel to represent mother. The
juvenile court’s error in failing to timely appoint counsel for
mother resulted in a miscarriage of justice, and we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
J.P. is the youngest of nine children. All his siblings were
involved in dependency proceedings at one time or another, and
two found adoptive homes several years before J.P. was born.
J.P. was born in 2006 and has been in the juvenile dependency
system almost his entire life. From 2007 to May 2011, he
remained with C.P. (mother) under a family maintenance plan.
He was removed from mother’s home in May 2011 after she was
arrested for assaulting her boyfriend with a deadly weapon. The
court appointed counsel to represent mother at the detention
hearing. After a contested jurisdiction and disposition hearing in
March 2012, the court sustained the petition’s allegations, denied
mother reunification services, issued a three-year restraining
order limiting mother’s contact with J.P. to monitored visits, and
directed the Department of Children and Family Services (DCFS)
1 All statutory references are to the Welfare and Institutions
Code.
2
to address permanency planning and implementation under
section 366.26 at the next hearing.2
Adoption was originally identified as the permanent plan
for J.P., but his mental and emotional health never stabilized to
the point where a long-term foster home, let alone a prospective
adoptive home, could be identified. Between November 2011 and
July 2014, J.P. attempted suicide and had numerous involuntary
psychiatric hospitalizations. He suffered from enuresis and
encopresis, was quick to anger and tantrum, and was prescribed
a regimen of psychotropic medications.
Legal guardianship was the next identified permanent
plan, and the court appointed J.P.’s foster parent as his legal
guardian in November 2013. After J.P. made another suicide
attempt, the guardian—believing she could not provide a safe
home for J.P.—requested termination of the guardianship. The
most recent permanent plan called for long-term foster care with
a nonrelative. J.P. has resided in a group home for more than
three years, since his removal from the legal guardian’s care in
May 2014. In J.P.’s more than six years in out-of-home
placements, mother’s visits with him have remained monitored.
On May 7, 2014, the juvenile court conducted a detention
hearing on the section 387 subsequent petition to remove J.P.
from the home of his legal guardian. Neither mother nor
mother’s counsel was present, but the court relieved mother’s
counsel. Nothing in the court minutes or the DCFS report for
that hearing provides an inkling as to why mother’s counsel was
2 In re Rebecca H. (1991) 227 Cal. App. 3d 825, 838.
3
relieved.3
Mother still attended most of J.P.’s juvenile court hearings
after counsel was relieved. She consistently visited J.P. in his
group home.
On November 3, 2016, mother filed a section 388 petition
requesting reappointment of counsel, family reunification
services, and extended and liberalized visits with J.P., including
“unmonitored off ground visits and overnight visits.” At the time
she filed the petition, she was entitled to two, one-hour monitored
visits per month at the group home. DCFS did not have the
discretion to liberalize the visitation schedule. Mother attached
five letters of support to her petition: three from individuals at
J.P.’s group home who were regularly interacting with mother
and child; one from the counselor at her methadone maintenance
program; and one from J.P.’s oldest sibling, who was interested in
exploring J.P.’s long-term placement with him.
A review hearing had previously been scheduled for
November 8, 2016. On that date, a “Last Minute Information”
report was filed, summarizing interviews by J.P.’s Court
Appointed Special Advocate (CASA) with the child’s group home
therapist and family specialist. Both individuals noted mother
had been visiting every other week for the past six months.
Group home staff felt it would benefit the child to see mother
more; they relied on mother “to help console [J.P.] when he is
having an outburst;” they noted mother’s “influence on [J.P. was]
supportive and in alignment with his treatment plan” and she
presented “a calming influence” on him. The CASA noted every
3 The reporter’s transcript for that hearing is not part of the
appellate record before us.
4
time mother visited, J.P. “states . . . he wants to see his mom
more and wish[es] it could be unmonitored.”
The juvenile court began the November 8, 2016 hearing by
asking counsel for DCFS if he wished to be heard concerning
mother’s petition. DCFS’s counsel, who acknowledged he had not
seen the section 388 petition, recited events concerning mother
going back five years, suggested mother’s visits were responsible
for J.P.’s “[deterioration] to the point where [the child] could not
stay in a foster home” and stated DCFS “has very strong beliefs
that . . . any further . . . visitation would be detrimental to [J.P.]
at this time without a full hearing.” Without asking for the views
of minor’s counsel, the juvenile court agreed to set a hearing. At
that point, the following exchange occurred:
“[Minor’s Counsel]: Would the court be inclined to appoint
counsel for mother based on her having a 388 hearing.
“[DCFS’s Counsel]: The court’s been denying that.
“The Court: I’m not going to appoint counsel. [¶] We’ll set
it over for a hearing.”
The section 388 hearing was conducted as scheduled on
December 8, 2016. J.P. was present with his CASA. The social
worker’s report for the section 388 hearing reiterated the positive
reports from J.P.’s group home concerning mother’s increased
involvement with the child and acknowledged the increased
contact was beneficial to him. The report criticized mother’s
minimization of the event that led to J.P.’s removal from her
home more than five years earlier as well as mother’s denial of
extensive DCFS involvement. The social worker recommended a
family reunification plan and increased visitation.
The juvenile court initially acknowledged to mother and
J.P. the progress it saw in the current report was “very exciting.”
5
The court announced it would grant the section 388 petition,
order six months of reunification services, and continue with
monitored visits with DCFS discretion to liberalize. J.P.’s
counsel immediately asked for unmonitored visits on the group
home premises. The juvenile court responded, “Good idea,” but
then DCFS’s counsel asked to be heard and requested that J.P.
leave the courtroom.
It is not necessary to recite the arguments made by DCFS’s
counsel, but by the time he asserted mother needed a psychiatric
evaluation to determine whether she should be on medication,
minor’s counsel appropriately interrupted and asked the juvenile
court to “please make a ruling to appoint mother a lawyer.” The
juvenile court responded, “I’m thinking about it as we’re talking,”
but did not appoint counsel for mother, did not continue the
hearing, and did not order unmonitored visits on the group home
premises. Instead, the juvenile court advised, “we’ll have an
attorney who represented you in the past get in touch with you.
She’s not here now.”4 When mother asked the juvenile court
commissioner to repeat the attorney’s name, he replied, “You’re
an experienced litigant in my courtroom.”
Minor’s counsel also objected on mother’s behalf to the
“plethora of services” the juvenile court ordered for mother and
asked “that if the court is going to order her into all these
services [I request] that we put it over, allow her to have counsel
to represent her.” Before the juvenile court could address this
request, DCFS’s counsel interrupted to argue “these are the
4 The court minutes reflect, “The court will appoint Ms.
Fahrenholz to represent the mother. Ms. Fahrenholz was not
present when the court called and or concluded the case.”
6
services that the court would have been asked to order if she
[were] given services [years ago].”
J.P.’s CASA then advised that the child wished to address
the court. When J.P. was brought back into the courtroom, the
court told him, “Your mom filed papers today. I want more time.
I want her to ultimately get more involved in your life and look to
a future possibly of getting back with your mom. I told her that
I’m going to allow that to happen and she’s going to start to have
more contact with you and do some things and hopefully we’ll
come back and see how things are progressing. . . .” The juvenile
court then said to J.P.: “Now I want to hear from you. What do
you want to say?” J.P.’s response: “I want to go home.”
Mother timely appealed, challenging the juvenile court’s
denial of her requests to reappoint counsel before the section 388
hearing and for unmonitored visits with J.P.
During the pendency of this appeal, we asked counsel to
advise this court, “Whether, and if so to what extent, the juvenile
court has made any further orders respecting [mother’s]
visitation with J.P. following the order made at the December 8,
2016 hearing. Appellate counsel for mother and DCFS
responded. DCFS’s counsel provided copies of orders for the
following dates, and we take judicial notice of them: January 24,
2017, April 25, 2017, and June 8, 2017.
The January 24, 2017 minutes reflect that appointed
counsel advised she may have a conflict and a section 388
petition filed by mother was denied without a hearing. On April
25, 2017, mother was present without appointed counsel. The
juvenile court granted DCFS’s section 388 petition and
terminated family reunification services for mother. Mother’s
visits with J.P. were to be once per week for two hours, with
7
DCFS discretion to liberalize. Mother again appeared on June 8,
2017, without appointed counsel. Visitation orders for her
remained the same.
DISCUSSION
I. The Juvenile Court Erred in Failing to Reappoint
Counsel Before the Section 388 Hearing
The juvenile court is statutorily required to appoint counsel
for the parent of a child who is in an out-of-home placement (or as
to whom the petitioning children and family services agency is
recommending an out-of-home placement) if the parent “is
presently financially unable to afford and cannot for that reason
employ counsel . . . unless the court finds that the parent . . . has
made a knowing and intelligent waiver of counsel as provided in
this section.” (§ 317, subd. (b).)
Once appointed, counsel “shall represent the parent . . . at
the detention hearing and at all subsequent proceedings before
the juvenile court. Counsel shall continue to represent the
parent . . . unless relieved by the court upon the substitution of
other counsel or for cause. . . .” (§ 317, subd. (d).)
As our colleagues in Division One observed 24 years ago,
“There is nothing vague or ambiguous about the legislative
command—in the absence of a waiver, the juvenile court must
appoint an attorney to represent an indigent parent at the
detention hearing and at all subsequent proceedings, and the
attorney shall continue to represent the parent unless relieved by
the court upon the substitution of other counsel or for cause.” (In
re Tanya H. (1993) 17 Cal. App. 4th 825, 829; see also In re Kristin
H. (1996) 46 Cal. App. 4th 1635, 1659 (Kristin H.); In re Malcolm
D. (1996) 42 Cal. App. 4th 904, 914.)
8
Despite the unambiguous statutory mandate, the juvenile
court relieved mother’s appointed counsel on May 7, 2014.5
Mother was then without representation for more than two years.
During that time, J.P. resided primarily in a group home and
only briefly in several foster homes.
Nothing in the record suggests mother’s counsel ever
should have been relieved; but as soon as mother asked for the
reappointment of counsel in her section 388 petition, her right to
court-appointed counsel, if she could not afford an attorney, was
“unqualified.” (In re Tanya H., supra, 17 Cal.App.4th at pp. 831-
832.)6
Nonetheless, at the hearing on November 8, 2016, when
minor’s counsel reminded the court of mother’s request for an
attorney, the immediate response by DCFS’s counsel on the
record was, “The court’s been denying that.”7 And the court did.
5 Mother did not appeal from that ruling, although it is not
clear from the record before us when or how she was given notice
of the court’s decision to relieve her counsel—neither mother nor
her court-appointed attorney was present on May 7, 2014. In this
appeal, DCFS has not suggested mother ever knowingly waived
her right to counsel or that appointed counsel was removed for
cause.
6 See also California Rules of Court, rule 5.534(c): “At
each hearing, the court must advise any self-represented . . .
parent . . . of the right to be represented by counsel and, if
applicable, of the right to have counsel appointed, subject to a
claim by the court or the county for reimbursement as provided
by law.”
7 In its respondent’s brief, DCFS wrote, “DCFS expressed no
opinion regarding the issue [mother’s request for appointment of
9
Although mother had the support of minor’s counsel and
J.P.’s CASA at the December 8, 2016 hearing on her section 388
petition, she did not have the assistance of counsel. It was not
until the end of that portion of the hearing, after minor’s counsel
broached the subject for the third time, that the juvenile court
announced it would appoint counsel for mother going forward.
II. The Error Resulted in a Miscarriage of Justice
A. Standard of Review
The harmless error standard has long applied to an
appellate court’s review of the denial of a parent’s statutory right
to counsel. (Kristin H., supra, 46 Cal.App.4th at pp. 1667-1668.)
Citing People v. Watson (1956) 46 Cal. 2d 818, 836, the Kristin H.
court held a parent who is denied the statutory right to counsel
must demonstrate a reasonable probability that a more favorable
result “‘would have been reached in the absence of the error.’”
(Kristin H., supra, 46 Cal.App.4th at p. 1668; see also In re
Malcolm D., supra, 42 Cal.App.4th at p. 919; In re Nalani C.
(1988) 199 Cal. App. 3d 1017, 1028; In re Justin L. (1987) 188
Cal. App. 3d 1068, 1078.)8
The Supreme Court’s analyses in In re Celine R. (2003) 31
Cal. 4th 45 (Celine R.) and In re James F. (2008) 42 Cal. 4th 901
counsel] below and takes no position on appeal,” but then cited to
the page in the reporter’s transcript where DCFS’s counsel
expressed his opinion that the juvenile court should not appoint
an attorney to represent mother.
8 See also In re Ronald R. (1995) 37 Cal. App. 4th 1186, 1195,
where the Court of Appeal applied the harmless error standard to
review the juvenile court’s erroneous decision to permit appointed
counsel for a parent to withdraw.
10
(James F.) solidify application of the harmless error standard. In
Celine R., the Supreme Court held, “The California Constitution
prohibits a court from setting aside a judgment unless the error
has resulted in a ‘miscarriage of justice.’ (Cal. Const., art. VI,
§ 13.) We have interpreted that language as permitting reversal
[under the harmless error standard] only if the reviewing court
finds it reasonably probable the result would have been more
favorable to the appealing party but for the error. (People v.
Watson[, supra,] 46 Cal.2d [at p. 836].) We believe it appropriate
to apply the same test in dependency matters.” (Celine R., supra,
31 Cal.4th at pp. 59-60; see also In re Andrew S. (1994) 27
Cal. App. 4th 541, 550.)
In James F., the Supreme Court discussed whether to
apply structural error and reverse a juvenile court decision
without a finding of harm or to reverse only if the harmless error
analysis demonstrated the ruling resulted in a miscarriage of
justice. In choosing the latter approach, the Supreme Court
suggested reviewing courts miss the mark when they first
conclude an error is structural and then decide for that reason
not to engage in a harmless error analysis. Instead, an error
should be found to be structural only when it “‘def[ies] analysis by
“harmless-error” standards’” and cannot “‘be quantitatively
assessed in the context of other evidence presented in order to
determine whether [they were] harmless . . . .’” (James F., supra,
42 Cal.4th at p. 917.)9
9 The passage reads, “Although the procedural error . . .
caused no actual harm to [father], the Court of Appeal
nonetheless concluded that the error was structural and therefore
precluded harmless error analysis. But the United States
Supreme Court has explained that most structural defects ‘defy
11
The harmless error analysis applies in juvenile dependency
proceedings even where the error is of constitutional dimension.10
(See, e.g., In re Brenda M. (2008) 160 Cal. App. 4th 772, 777
(Brenda M.); In re Mark A. (2007) 156 Cal. App. 4th 1124, 1146
[citing cases] (Mark A.).) In both Mark A. and Brenda M., the
juvenile court erred by ordering the fathers to testify after they
invoked their Fifth Amendment privilege against self-
incrimination. When each father refused to obey the order, the
juvenile court levied evidentiary sanctions, striking testimony in
Mark A. and precluding the father in Brenda M. from presenting
any evidence or cross-examining witnesses.
The Court of Appeal in each matter engaged in a harmless
error analysis and affirmed the order in Mark A., but reversed in
Brenda M.11 The Brenda M. court explained why the harmless
error analysis yielded different results: “In Mark A. . . . the
analysis by “harmless-error” standards.’ (Arizona v. Fulminante
([1991]) 499 U.S. [279,] 309.) Errors that can ‘be quantitatively
assessed in the context of other evidence presented in order to
determine whether [they were] harmless beyond a reasonable
doubt’ (id. at p. 308) generally are not structural defects. (See
United States v. Gonzalez-Lopez ([2006]) 548 U.S. [140,] 149, fn. 4
[‘here, as we have done in the past, we rest our conclusion of
structural error upon the difficulty of assessing the effect of the
error’].)” (James F., supra, 42 Cal.4th at pp. 916-917.)
10 Our Supreme Court has left for another day the issue of
whether “the appropriate harmless error standard is harmless by
clear and convincing evidence rather than harmless beyond a
reasonable doubt.” (James F., supra, 42 Cal.4th at p. 911, fn. 1.)
11 Different panels in Division Three of the Fourth Appellate
District decided Mark A., supra, 156 Cal. App. 4th 1124 and
Brenda M., supra, 160 Cal. App. 4th 772.
12
juvenile court ordered some of the mother’s testimony stricken as
a sanction for the father’s refusal to testify. The appellate panel
concluded the error was harmless because ‘[c]onsideration of the
testimony wrongfully stricken would only have bolstered the
court’s jurisdictional finding.’ [Mark A., supra, 156 Cal.App.4th
at p. 1146.] Here, we do not know how the preparer of the [Social
Service Agency] reports would have testified on cross-
examination or whether cross-examination might have impaired
the preparer’s credibility. Thus, we cannot say the juvenile
court's error in precluding cross-examination of the preparer was
harmless beyond a reasonable doubt.” (Brenda M., supra, 160
Cal.App.4th at p. 777.)
The harmless error analysis is by definition a case-by-case
analysis. Particularized analysis is critical. In juvenile
dependency proceedings, no error—even one of constitutional
dimension—can be examined based solely on legal principles (no
matter how venerable) or only from the parent’s perspective. The
reviewing court also must evaluate the effect of the error on the
best interests of the child. This is so even though “[a] parent’s
interest in the companionship, care, custody and management of
his children is . . . ranked among the most basic of civil rights.”
(In re Marilyn H. (1993) 5 Cal. 4th 295, 306 (Marilyn H.).)
A balancing of interests is required because “[c]hildren . . .
have fundamental interests of their own that may diverge from
the interests of the parent. [Citation.] [¶] Our task is to
interpret the statutory scheme as a whole in a manner that
balances the interest of parents and children in each other’s care
and companionship, with the interest of abandoned and neglected
children in finding a secure and stable home.” (In re Jasmon O.
(1994) 8 Cal. 4th 398, 419; see also In re Justice P., supra, 123
13
Cal.App.4th at p. 191 [“the very nature of determining a child’s
best interests calls for a case-by-case analysis, not a mechanical
rule”].)
As our Supreme Court noted in James F., “We cannot
agree . . . that prejudice is irrelevant in a dependency proceeding
when the welfare of the child is at issue and delay in resolution of
the proceeding is inherently prejudicial to the child.” (James F.,
supra, 42 Cal.4th at p. 917.) Accordingly, because we conclude
the juvenile court’s error here is “amenable to harmless error
analysis rather than a structural defect requiring reversal of the
juvenile court’s orders without regard to prejudice” (id. at p. 915),
we proceed with the harmless error analysis.
B. Harmless Error Analysis
To analyze the prejudicial effect of the juvenile court’s
refusal to appoint counsel for mother in advance of the section
388 hearing, we look to the purpose behind that provision:
“[S]ection 388 is vital to the constitutionality of our dependency
scheme as a whole.” (In re Kimberly F. (1997) 56 Cal. App. 4th
519, 528.) The standard for evaluating the merits of a section
388 petition is the best interests of the child. (Id. at p. 526; see
also § 388, subd. (d).) “[A] primary consideration in determining
the child’s best interests is the goal of assuring stability and
continuity.” (In re Stephanie M. (1994) 7 Cal. 4th 295, 317.) The
petitioning parent has the burden to establish changed
circumstances to justify changed orders that will promote the
best interests of the child. (Ibid.; see also Marilyn H., supra, 5
Cal.4th at p. 309.)
The juvenile court properly found mother made a prima
facie showing of changed circumstances under section 388 and,
14
accordingly, scheduled a hearing. That finding gave her “a due
process right to a full and fair hearing on the merits. [Citation.]
‘Due process generally requires . . . that parents be given the
right to present evidence, and to cross-examine adversarial
witnesses, such as the caseworker and persons whose hearsay
statements are contained in the reports, “i.e., the right to be
heard in a meaningful manner.””’ (In re Hunter W. (2011) 200
Cal. App. 4th 1454, 1463-1464.)
The failure to appoint counsel for mother deprived her of
her due process right and prejudicially affected the manner in
which the section 388 hearing was conducted. The facts
concerning changed circumstances and the benefit to J.P.’s well-
being strongly favored mother’s request for more liberal visits,
particularly unmonitored visits with the child in his secure group
home setting. Significantly, mother had the support of J.P.’s
counsel, therapist, other treatment providers at the group home
and CASA, as well as J.P. himself. DCFS, on the other hand,
focused only on mother’s shortcomings as a parent and as a less-
than-compliant participant in dependency proceedings with her
other children. Although the social worker’s report for the
section 388 petition acknowledged the benefits to J.P. of
increased contact with mother, counsel for DCFS dwelled on
mother’s past conduct and the reasons the juvenile court
sustained the dependency petition in the first place.
Had the court appointed counsel to represent mother, that
attorney could have kept the hearing focused on the matters at
issue in a section 388 hearing: changed circumstances and the
best interests of the child. Counsel would have a better ability to
highlight the benefits to J.P. of granting increased and more
liberalized visitation. Counsel would also be better equipped to
15
communicate with the social worker and the attorneys
representing the child and DCFS. If needed, counsel could call
the social worker and perhaps group home witnesses to testify
and would not have permitted the juvenile court to hear only
arguments by DCFS’s attorney. (See, e.g., In re Lesly G. (2008)
162 Cal. App. 4th 904, 915 [“Due process generally requires . . .
that parents be given the right to present evidence, and to cross-
examine adversarial witnesses, such as the caseworker and
persons whose hearsay statements are contained in the reports,
‘i.e., the right to be heard in a meaningful manner’”]; see also
In re Sara D. (2001) 87 Cal. App. 4th 661, 673 [“We cannot
speculate as to the substance or effect the testimony . . . would
have had . . . . Such testimony may have had an impact on the
court’s decision. . . . [¶] [The error] requires reversal”].)
The social worker’s report for the December 8, 2016 hearing
and the Last Minute Information filed November 8, 2016 were
received into evidence, and they supported mother’s request—
echoed by J.P.’s counsel—for unmonitored visits on the premises
of the child’s group home. DCFS presented no current evidence
addressing the best interests of the child to rebut that evidence.
“[I]t seems manifest that, had [mother] been represented by
counsel . . . [the orders would] have been challenged . . . . Thus,
the juvenile court’s failure to ensure [mother] was represented by
appointed counsel in this case deprived her of opportunities she
should have had to challenge the court’s orders and findings . . .
and created fundamental unfairness that violated minimum due
process requirements.” (In re Katheryn S. v. Superior Court
(2000) 82 Cal. App. 4th 958, 972-973 (Katheryn S.).)
16
III. Directions on Remand
“[T]he purpose of child dependency proceedings is not to
punish persons who have committed acts of abuse; it is to serve
the child’s best interests.” (In re Kiesha E. (1993) 6 Cal. 4th 68,
81; see also Katheryn S., supra, 82 Cal.App.4th at p. 974 [“were
we merely concerned with the propriety of [mother’s] conduct, we
would have no compunction about denying her any relief. But we
are not primarily concerned with [mother’s] conduct in this
proceeding. Rather, our paramount concern is for her [child]”].)
Given the passage of time and perhaps additional changed
circumstances, this court is not in a position to make new orders
in the first instance. Rather, we remand to the juvenile court
with directions to appoint counsel for mother immediately,
permit appointed counsel to file a new section 388 petition, and
vacate the orders of December 8, 2016, January 24, 2017, April
25, 2017, and June 8, 2017, insofar as they addressed mother’s
visitation and family reunification plans. (See, e.g., In re Emilye
A. (1992) 9 Cal. App. 4th 1695, 1707, fn. 9 [“reversal . . . simply
requires that the proceedings be reconducted because the parents
were not properly represented”]; In re M.F. (2008) 161
Cal. App. 4th 673, 682 [“The error in this matter necessitates that
the proceedings return to ‘square one’”].)
Pending the hearing on a new section 388 petition, the
juvenile court is encouraged to maintain at a minimum mother’s
current visitation plan, which calls for weekly, two-hour
monitored visits. In all other respects, the juvenile court’s orders,
particularly those concerning J.P.’s adult sibling, M.D., and
CASA, are not affected by this decision.
17
DISPOSITION
The order of the juvenile court is reversed, and the matter
is remanded to the juvenile court as indicated above in section
III.
CERTIFIED FOR PUBLICATION
DUNNING, J. 
I concur:
KRIEGLER, Acting P. J.

Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
18
In re J.P.
B281438
BAKER, J., Concurring
I concur in the result, and in what I understand to be the
core of the majority’s holding: The juvenile court’s considered
decision to deprive C.P. (Mother) of counsel to prepare and argue
her Welfare and Institutions Code section 388 petition—the
culmination of a two-year deprivation of counsel—was wrong and
demands remediation. I write separately to highlight two points
regarding the unique impact that a deprivation of the right to
appointed counsel can have (and had here) on the fairness of
dependency proceedings.
I
The majority cites In re Kristin H. (1996) 46 Cal. App. 4th
1635 for the proposition that “[t]he harmless error standard has
long applied to an appellate court’s review of the denial of a
parent’s statutory right to counsel.” I have my doubts that In re
Kristin H. is a reliable guide in this case—in that case, unlike
this one, the mother was not deprived of counsel; instead, her
claim was that her appointed attorney provided ineffective
assistance. (In re Kristin H., supra, at pp. 1658, 1667-1668.) But
regardless, the majority holds the error here is of both statutory
and constitutional (due process) dimension, whereas the courts in
In re Kristin H. and the other deprivation of counsel cases the
majority cites were concerned only with a violation of the
statutory right to counsel.12 (See, e.g., In re Malcolm D. (1996) 42
Cal. App. 4th 904, 914; In re Ronald R. (1995) 37 Cal. App. 4th
1186, 1197; In re Andrew S. (1994) 27 Cal. App. 4th 541, 546-547,
549; In re Nalani C. (1988) 199 Cal. App. 3d 1017, 1026; see also In
re Justin L. (1987) 188 Cal. App. 3d 1068, 1077 [no issue of a
wrongful deprivation of counsel; error asserted was that the
juvenile court improperly denied parent self-representation].)
I agree there can be cases at the margins where the
consequences of error are so apparent as to permit a fairly
reliable counterfactual assessment whether harm results from
the wrongful absence of appointed counsel. If an unrepresented
parent, for instance, files a Welfare and Institutions Code section
388 petition to argue the Third Amendment to the United States
Constitution requires a juvenile court to terminate jurisdiction
over a dependent child, appointment of even Clarence Darrow
12 Constitutional errors in dependency proceedings are
generally amenable to review for harmlessness. But the Court of
Appeal cases the majority cites for that proposition are not
deprivation of counsel cases, and the high court has more than
once drawn a distinction between constitutional errors generally,
and constitutional error that results from a deprivation of
counsel. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140,
150 (Gonzalez-Lopez); Custis v. United States (1994) 511 U.S.
485, 496; Arizona v. Fulminante (1991) 499 U.S. 279, 306-308;
Chapman v. California (1967) 386 U.S. 18, 23; see also In re
Angela C. (2002) 99 Cal. App. 4th 389, 395; In re Amy M. (1991)
232 Cal. App. 3d 849, 867-868.) And while it is true that the
dependency context differs from the criminal context, that truism
does nothing to grapple with the difference that remains, even in
the dependency arena, between constitutional errors that involve
a total or prolonged absence of appointed counsel, and
constitutional errors that do not.
2
would not make a difference. The majority also makes a fair
argument that this is a case at the opposite margin, one where
the pernicious consequences of the absence of appointed counsel
are so obvious as to permit a conclusion that the juvenile court’s
error must have resulted in prejudice.
But I believe there is a grey area between the margins
where the difference appointed counsel might have made during
a dependency proceeding will be more difficult to reliably assess.
(See Gonzalez-Lopez, supra, 548 U.S. at p. 150 [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”]; cf. In re
James F. (2008) 42 Cal. 4th 901, 914-915 [concluding an “error in
the procedure used to appoint a guardian ad litem for a parent in
a dependency proceeding . . . . does not necessarily require ‘a
speculative inquiry into what might have occurred in an
alternate universe’”], emphasis added.)13 Indeed, the majority
opinion tends to bear this out, as it cannot avoid fairly
speculative language to describe the consequences of even the
clear error in this case: appointed counsel “could have kept the
hearing focused,” “would have a better ability” to make
arguments, and “would . . . be better equipped” to communicate
with the parties.
13 The parent in In re James F. was represented by counsel
throughout the proceedings. (In re James F., supra, 42 Cal.4th at
pp. 906-910.) The error asserted on appeal was that the juvenile
court appointed a guardian ad litem for the parent without
advising the parent of the purpose or consequences of the
appointment. (Id. at p. 910.)
3
Our Supreme Court has said we should not import the
structural error doctrine “wholesale, or unthinkingly” into the
dependency context. (In re James F., supra, 42 Cal.4th at pp.
915-916.) That is right, and I do not advocate for a wholesale
importation of the doctrine. But for 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.
II
The majority’s directions on remand are to immediately
appoint counsel for mother, to permit appointed counsel to file a
new Welfare and Institutions Code section 388 petition, and to
vacate certain additional court orders as they relate to mother’s
visitation and family reunification plans. These are all
appropriate directions, and I agree with them. I am compelled to
add a few words, however, regarding the juvenile court’s task on
remand to account for the possibility that the error in failing to
appoint counsel in connection with Mother’s Welfare and
Institutions Code section 388 petition may have infected
subsequent dependency proceedings.
The new petition that today’s decision permits Mother to
file can appropriately address both the facts as they existed at
the time the uncounseled petition was heard in December 2016,
as well as any intervening developments since that time that
bear on Mother’s visitation with J.P. and his best interests. If it
is the case, for instance, that Mother’s attorney believes the
juvenile court’s failure to grant her unmonitored visitation at the
4
December 2016 hearing contributed to subsequent developments
that may have been unfavorable to Mother, that is an issue
counsel may appropriately raise. And if such an issue is raised,
the juvenile court would greatly facilitate further appellate
review, if any, by making the following findings on the record
after considering the newly-filed petition: (1) what visitation
order the court would have made on the facts as they existed in
December 2016; (2) the reasons for the visitation order the court
makes considering current conditions; and (3) to the extent these
two findings differ, an explanation of the reasons for the
difference, including any impact the prior deprivation of counsel
may have had on subsequent developments.
BAKER, J.
5