In re J.R. ( 2022 )

Filed 8/23/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re J.R., a Person Coming B314532
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP04863)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JOSE G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Terry T. Truong, Temporary Judge.
Conditionally reversed and remanded with instructions.
Carol A. Koenig, under appointment by the
Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
____________________
Father appeals from the juvenile court’s order terminating
his and mother’s parental rights and finding that the child, J.R.,
was adoptable. We conditionally reverse that order because the
Los Angeles County Department of Children and Family Services
(DCFS or the agency) violated mother’s due process rights.
The Fourteenth Amendment to the United States
Constitution provides that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of
law . . . .” (U.S. Const., 14th Amend., § 1.) Except in emergent
circumstances, this provision guarantees reasonable notice and a
meaningful opportunity to be heard before the state may deprive
a person of a protected liberty or property interest. (See Today’s
Fresh Start, Inc. v. Los Angeles County Office of Education (2013)
57 Cal.4th 197, 212, 214; Gilbert v. Homar (1997) 520 U.S. 924,
930–931.) Because parents have a fundamental liberty interest
in the companionship, care, custody, and management of their
children, the due process clause requires child welfare agencies to
exercise reasonable diligence in attempting to locate and notify
them of dependency proceedings. (See In re DeJohn B. (2000)
84 Cal.App.4th 100, 106 (DeJohn B.); In re Mia M. (2022)
75 Cal.App.5th 792, 807 (Mia M.).) This is no idle command. It
requires a thorough and systematic investigation to protect a
parent’s fundamental liberty interest. (Mia M., at p. 808.)
2
This case presents a textbook example of a due process
violation. DCFS initiated dependency proceedings concerning
J.R. on the ground that his father physically abused him. Even
though father told the agency at the outset of the proceedings
that mother resided in El Salvador, the record does not show that
DCFS made any attempt to ascertain mother’s location in that
country. Instead, DCFS undertook a search of federal records
and databases concerning California residents, and it later
purported to serve mother with notice through publication in a
Los Angeles-based newspaper. Further, after mother
(a) contacted DCFS on the telephone, (b) disclosed to the agency
her cellular telephone number and her address in El Salvador,
and (c) provided J.R.’s birth certificate upon receiving a request
through social media for that document, DCFS did not use any of
that contact information to afford mother proper notice of the
proceedings. The agency’s failure to do so deprived her of an
opportunity to persuade the juvenile court not to terminate her
parental rights.
Father appeals the order terminating both parents’
parental rights.1 Father’s appeal is predicated solely on DCFS’s
infringement of mother’s right to proper notice. DCFS’s principal
defenses are that father lacks standing to raise mother’s notice
claims and any error on its part was harmless.
We conclude that father has standing to assert DCFS’s
violation of mother’s due process rights. Under the unique
circumstances of this case, we exercise our broad remedial
discretion to reverse the order terminating both parents’ rights
based on this due process claim, thereby conferring standing on
1 Mother is not a party to this appeal.
3
father to maintain this appeal. First, father’s appeal is the only
practicable means by which the agency’s contravention of
mother’s due process rights can be remedied. Second, affording
mother proper notice and a reasonable opportunity to be heard
(a) allows mother to seek reunification with her son, and
(b) promotes participation of all relevant parties, thus providing
the juvenile court with a full picture of the relevant facts. Third,
allowing J.R.’s interest in permanency and stability to bar father
from raising mother’s constitutional claim would turn the
dependency scheme on its head by rewarding DCFS’s failure to
provide mother with any meaningful opportunity to protect her
rights. In sum, we conclude that granting father standing to
raise mother’s due process claim by conditionally reversing the
termination order as to both parents effectuates the underlying
purposes of the juvenile dependency scheme.
Reaching the merits of the due process claim, we conclude
the agency’s violation of mother’s right to due process was not
harmless beyond a reasonable doubt. Furthermore, the child’s
interest in permanency and stability counsels in favor of a
conditional reversal of the termination order as to both parents to
avoid any undue delay in his permanent placement. Upon
remand, DCFS shall exercise reasonable diligence to locate and
properly serve mother. If mother does not appear within a
reasonable period of time, then the juvenile court shall reinstate
the termination order as to both parents.
4
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts pertinent to our disposition
of this appeal.
1. The dependency petition, the detention report, the
detention hearing, and the first amended petition
On August 1, 2019, DCFS filed a juvenile dependency
petition concerning J.R., who was then eight years old. In the
petition, DCFS alleged jurisdiction was proper under Welfare and
Institutions Code2 section 300, subdivisions (a) and (b)(1) because
father had physically abused the child.
Accompanying the petition was a detention report.3 Father
told the agency that he and J.R. migrated from El Salvador to the
United States in August 2018. Father claimed mother lived in
El Salvador, and further claimed father raised the child as a
single parent because mother abandoned J.R. when he was one
and a half years old. On the first page of the detention report,
DCFS listed mother’s address as “[w]hereabouts unknown in
El Salvador.”
On August 2, 2019, the juvenile court held a detention
hearing. At the hearing, the court asked father whether he had
mother’s contact information. Father replied, “I don’t. She left
us when [J.R.] was a little boy, and we haven’t heard from her.”
The juvenile court thereafter detained J.R. from his parents.
2 Undesignated statutory citations are to the Welfare and
Institutions Code.
3 The remainder of this paragraph summarizes pertinent
aspects of the detention report.
5
On August 28, 2019, DCFS filed a first amended petition,
which added jurisdictional allegations against mother pursuant
to section 300, subdivisions (b)(1) and (g). DCFS averred that
mother, whose “whereabouts [were] unknown,” had “failed to
provide the necessities of life for [J.R.], including food, clothing,
shelter and medical care.”
2. The jurisdiction/disposition report and hearing
On August 29, 2019, DCFS filed a jurisdiction/disposition
report. The report represents that DCFS personnel initiated a
due diligence search for mother, but that the “search did not
locate the whereabouts of the mother due to the limited
information the father [had] provided.” Attached to the report is
a declaration of due diligence concerning that search. Although
some of the abbreviations and terms utilized in the declaration of
due diligence are not clearly defined, the declaration does show
that the agency limited its search to only federal government
databases (e.g., federal prison records) and databases of
information concerning persons located in California (e.g., records
from the Los Angeles County Registrar of Voters and the county
jail).
On September 10, 2019, the juvenile court held a combined
jurisdiction and disposition hearing. The court sustained the
jurisdictional allegations included in the first amended petition,
declared J.R. a dependent of the court, removed J.R. from the
custody of his parents, and ordered DCFS to provide family
reunification services to father. Pursuant to section 361.5,
subdivision (b)(1), the court ordered DCFS not to provide
6
reunification services to mother.4 The court ordered the agency
to allow mother to have monitored visits with J.R. “upon the
mother contacting DCFS first.”
3. The section 366.21, subdivision (e) and the
section 366.21, subdivision (f) status review hearings
On March 10, 2020, the juvenile court held a status review
hearing pursuant to section 366.21, subdivision (e). The court
found that returning J.R. to father’s physical custody would
create a substantial risk of detriment to the child, father’s
progress toward alleviating or mitigating the causes
necessitating placement had been substantial, and DCFS had
offered reasonable services to enable the child’s safe return home.
The court ordered the agency to continue to provide reunification
services to father.
A status review hearing pursuant to section 366.21,
subdivision (f) was held on September 16, 2020. J.R.’s counsel
told the court that, “through some means that [counsel was] not
completely sure of,” J.R.’s foster caregiver found mother in
Honduras, and the caregiver “has spoken to the mother as had”
J.R. The attorney remarked that it was “baffling to [her] that
DCFS [had] not called the mother and gotten any information
from” her.
After J.R.’s counsel made these representations, the
juvenile court ordered DCFS to “follow up in contacting mother to
4 Section 361.5, subdivision (b)(1) provides in pertinent
part: “Reunification services need not be provided to a parent or
guardian . . . when the court finds, by clear and convincing
evidence, . . . [¶] . . . [t]hat the whereabouts of the parent or
guardian are unknown.” (§ 361.5, subd. (b)(1).)
7
get her thoughts and impression of this case and whether she has
anything else to offer at her residence in Honduras.”
Additionally, the court once again found that returning J.R. to
father’s physical custody would create a substantial risk of
detriment to him, father’s progress toward alleviating or
mitigating the causes necessitating placement had been
substantial, and DCFS had offered reasonable services to enable
J.R.’s safe return to father’s custody. The court ordered DCFS to
continue to provide father with reunification services.
4. DCFS’s September 18, 2020 telephone conversation
with mother, and the foster caregiver’s sister’s
contact with mother via social media
On October 20, 2020, DCFS filed a last minute information
report, wherein the agency stated that it received a telephone call
from mother on September 18, 2020. Because of the significance
of this telephone conversation to the instant case, we recount
much of this report’s description of the call: “On 9/18/20, [a
DCFS social worker] received a What’s App telephone call from
mother . . . . Mother[ ] reported that she was currently ‘stuck in
Guatemala for about a year now after she went searching for her
son, [J.R.] Mother reported that she has not been able to go back
to her home Country of El Salvador due to the worldwide
pandemic. Mother reported that she raised her son up until
three years ago when father forced her to sign his passport
application. Mother reported that father told her that he was
going to Guatemala for work and needed [J.R.] and her to go with
him. After he forced her to sign the passport application she was
kidnapped by local gangsters. Mother reported that she was
about to be shot and killed but her neighbors had contacted the
police and they saved her life. Mother never returned to her
8
home as the people that kidnapped her were local gang members
that father was friends with. Mother reported that she believes
that father paid the gang members to have her killed. . . . Mother
reported that she has been searching for her son and wants him
returned to her. . . . [¶] Mother sells cell phones in El Salvador.
Mother denied any history of mental health or medical issues.
Mother reported that [J.R.] was not of school age when she was
caring for him . . . .”5
A last minute information report that DCFS filed on
January 26, 2021 indicates that at an unspecified point in time,
J.R.’s foster caregiver gave the agency J.R.’s birth certificate, a
copy of which is included in the record.6 On January 25, 2021, a
social worker asked the foster caregiver how she had obtained the
birth certificate. The caregiver responded that “her sister, who[ ]
resides in . . . El Salvador, was able to contact mother . . . through
social media,” and that mother provided the birth certificate to
the caregiver’s sister. The caregiver “reported that she [had] not
had any further contact with her sister or [J.R.’s] mother . . .
regarding [the] child’s case.”
5 The agency’s “delivered service log” includes an entry
pertaining to the September 18, 2020 call, which shows mother
supplied the social worker with mother’s cellular telephone
number and her “family home address” in El Salvador. The
remainder of the log entry is comprised of essentially the same
information that is included in the October 20, 2020 last minute
information report. Neither the last minute information report
nor the delivered service log entry discloses how mother acquired
the social worker’s telephone number or why J.R.’s counsel
apparently believed mother was in Honduras.
6 The remainder of this paragraph summarizes relevant
aspects of this last minute information report.
9
5. The section 366.22 status review hearing
On February 25, 2021, the juvenile court held a status
review hearing pursuant to section 366.22. The court found that
returning J.R. to father’s physical custody would create a
substantial risk of detriment to the child, and that DCFS had
offered reasonable services to enable J.R.’s safe return home.
Further, the court terminated father’s reunification services on
the ground that although father was “in substantial compliance”
with the case plan, he had “failed to establish that it [was] in the
best interests of the minor” for father to continue to receive
reunification services. The court stated that J.R. was not
comfortable having visits with father because of “the significant
trauma that [J.R.] suffered at father’s hands,” and that it was
“unrealistic to expect [J.R. would] be in a different position” if the
reunification period were further extended.
Upon terminating father’s reunification services, the court
scheduled a section 366.26 hearing for June 23, 2021. The
certificate of mailing accompanying the minute order for the
hearing shows that the court clerk did not mail the “Notice of
Entry of the above minute order of February 25, 2021 and Notice
of Intent to File Writ, Petition for Extraordinary Writ form(s)” to
mother because her whereabouts were “unknown” to the court.7
(Some boldface & some capitalization omitted.)
7 The juvenile court is required to notify the parties that
“ ‘direct appellate consideration of the propriety of the [order]
setting [a section 366.26 hearing] may be had only by petition for
extraordinary writ review of the order.’ [Citation.]” (See In re
Serenity S. (2020) 55 Cal.App.5th 355, 370 (Serenity S.).)
10
6. DCFS’s efforts to locate and serve mother in advance
of the section 366.26 hearing
On March 11, 2021, the juvenile court ordered DCFS to
provide mother with notice of the section 366.26 hearing via
publication in the Daily Commerce & Pace News, a Los Angeles-
based newspaper of general circulation in California. DCFS’s
request for the publication order was supported by a declaration
of due diligence. The declaration shows the agency conducted a
search of the same databases it had reviewed in connection with
the declaration of due diligence submitted in advance of the
jurisdiction/disposition hearing, and that these new “search
efforts were [also] unsuccessful in locating” mother. On
May 20, 2021 and June 4, 2021, DCFS filed reports for the
upcoming section 366.26 hearing, wherein the agency asserted it
had served mother by publishing notice of the hearing in the
Daily Commerce & Pace News on March 23, 2021,
March 30, 2021, April 6, 2021, and April 13, 2021.
7. Father’s section 388 petition, the section 366.26
hearing, and father’s notice of appeal
On June 23, 2021, the juvenile court found that notice of
the section 366.26 hearing was proper, and continued the hearing
to August 25, 2021 to allow DCFS to assist J.R.’s foster caregiver
in securing copies of her divorce decrees.8 Although the court
initially stated that no further notices were necessary, it later
ordered DCFS to “send courtesy notice to father for the next
8 In one of the reports DCFS prepared in connection with
the section 366.26 hearing, the agency indicated that the foster
caregiver needed to obtain these documents in order to be
considered a prospective adoptive parent for J.R.
11
date.” Additionally, the court scheduled a permanency planning
review hearing for January 3, 2022.
On August 23, 2021, father filed a petition pursuant to
section 388 in which he asked the court to set aside the
February 25, 2021 order terminating his family reunification
services. Father asserted he was entitled to this relief because he
had been “enrolled in individual therapy for over two months
and . . . gained further insight into why [he had] a case” in
dependency court.
The section 366.26 hearing resumed on August 25, 2021.
The juvenile court denied father’s section 388 petition on the
grounds that it did not state new evidence or a change of
circumstances, and that the relief sought was “not in the child’s
best interest.” Next, the court terminated the parental rights of
mother, father, and “anyone else that claims to be a parent” to
J.R., found that J.R. was adoptable, and designated J.R.’s foster
caregiver as his prospective adoptive parent. The court found
that January 3, 2022 was “[t]he likely date by which the agency
[would] finalize the adoption.” The certificate of mailing
accompanying the minute order for this hearing indicates that
the “Notice of Entry of the above minute order of August 25, 2021
and Appeal Rights form(s)” were not mailed to mother because
her “whereabouts [were] unknown” to the court. (Boldface
omitted.) Later that day, father appealed the findings and orders
issued on June 23, 2021 and August 25, 2021.
8. The proceedings following the section 366.26 hearing
The juvenile court ultimately continued the permanency
planning review hearing from January 3, 2022 to
December 27, 2022. As a result, J.R. has not yet been adopted
12
and the juvenile court still has jurisdiction over the dependency
proceedings.9
DISCUSSION
A. We Deny DCFS’s Motion to Dismiss This Appeal
Because Father’s Appeal Was Timely, He Has
Standing, and We Exercise Our Discretion to Reach
the Merits in Spite of DCFS’s Other Defenses
DCFS moves to dismiss the appeal, arguing: (1) father
failed timely to appeal the juvenile court’s finding that notice was
proper; (2) father lacks standing to argue that DCFS failed to
provide mother with adequate notice of the proceedings; and
(3) the forfeiture, waiver, invited error, unclean hands, and
disentitlement doctrines bar father from maintaining this appeal.
As discussed in greater detail below, we conclude that father’s
appeal is timely and that he has standing to maintain this
appeal, and we exercise our discretion to reach the merits
notwithstanding DCFS’s invocation of the forfeiture, waiver,
invited error, unclean hands, and disentitlement doctrines.
Consequently, we deny DCFS’s motion.10
9 We, sua sponte, take judicial notice of the juvenile court’s
docket and the January 3, 2022, January 26, 2022, and
June 21, 2022 minute orders that continued the permanency
planning review hearing to December 27, 2022. (See Evid. Code,
§§ 452, subds. (c)–(d), 459.)
10 In its motion to dismiss, DCFS also contends that father
may not secure reversal of the juvenile court’s jurisdictional and
dispositional orders because he did not timely appeal them.
Although we agree with DCFS on this point (see Discussion,
13
1. Father timely appealed the juvenile court’s finding
that notice of the section 366.26 hearing was proper
DCFS points out that “[a]t the initial section 366.26
hearing for [J.R.] on June 23, 2021,” the juvenile court found that
“ ‘notice [was] proper for the [366].26 hearing’ ” and “ ‘[n]o further
notices [were] necessary.’ ” DCFS argues father cannot challenge
that finding because he filed the notice of appeal on
August 25, 2021, which is more than 60 days after June 23, 2021.
(See Cal. Rules of Court, rule 8.406(a)(1) [“[A] notice of appeal
must be filed within 60 days after the rendition of the judgment
or the making of the order being appealed.”].)11
“ ‘A judgment in a proceeding under Section 300 may be
appealed in the same manner as any final judgment, and any
subsequent order may be appealed as an order after judgment.’
[Citations.] As a result of these broad statutory terms, ‘[j]uvenile
dependency law does not abide by the normal prohibition against
interlocutory appeals . . . .’ [Citations.]” (In re S.B. (2009)
46 Cal.4th 529, 531–532 (S.B.).) Notwithstanding this exemption
from the bar against interlocutory appeals, “ ‘one does not appeal
from a finding; one appeals from a judgment or from an order
that the Legislature has designated as appealable.’
part E, post), we find that this procedural issue concerns the
proper scope of father’s appeal from the order terminating
parental rights rather than a ground for dismissing the appeal.
(See Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 (Sara
M.) [“An appeal from the most recent order in a dependency
matter may not challenge earlier orders for which the time for
filing an appeal has passed.”].)
11 Undesignated rule citations are to the California Rules
of Court.
14
[Citation.] . . . [R]eview of findings is normally obtained by
appeal from the ensuing judgment or order.”12
In this context, the appealability of an order depends on
whether it “substantially affected” the interests of a party, i.e.,
the order rendered him or her an “aggrieve[d]” party. (See S.B.,
supra, 46 Cal.4th at pp. 534, 537.) In S.B. for instance, the high
court deemed appealable an “order [to] search for an adoptive
family” that was issued pursuant to section 366.26. (See S.B., at
p. 531 & fn. 1.) The S.B. court reasoned that although this order
did not terminate parental rights, it nonetheless “substantially
affected” “[t]he interests of parents and children” because the
order had the effect of “limit[ing] the permanency planning
options to adoption or guardianship” and “ ‘eliminat[ing] the
option of long-term foster care . . . .’ [Citation.]” (See id. at
pp. 533–537.) Relying on this reasoning, our Supreme Court
rejected Court of Appeal decisions “holding that appeals by
parents from [these] orders were premature” because they were
“mere continuances of section 366.26 hearings . . . .” (See S.B., at
p. 534.)
At the conclusion of the June 23, 2021 hearing in this case,
the juvenile court continued the section 366.26 hearing to
August 25, 2021. It was at that second hearing that the court
12 (See S.B., supra, 46 Cal.4th at p. 534, italics added,
citing, inter alia, Code Civ. Proc., § 906 [“[T]he reviewing court
may review . . . any intermediate ruling, proceeding, order or
decision which involves the merits or necessarily affects the
judgment or order appealed from or which substantially affects
the rights of a party . . . . The provisions of this section do not
authorize the reviewing court to review any decision or order
from which an appeal might have been taken,” italics added].)
15
terminated father’s and mother’s parental rights pursuant to
section 366.26. Before the juvenile court issued the termination
order on August 25, 2021, father could not have sought appellate
review of the finding that notice of the section 366.26 hearing was
proper because, unlike the order at issue in S.B., the
June 23, 2021 continuance order did not substantially affect the
parent-child relationship. In fact, the continuance order delayed
the legal injury that father claims resulted from the finding of
proper notice, to wit, the extinguishment of parental rights.
Therefore, we consider the August 25, 2021 order terminating
father’s rights to be the “ensuing . . . order” from which father
may seek review of the notice finding (see S.B., supra,
46 Cal.4th at p. 534; Code Civ. Proc., § 906), and we reject
DCFS’s assertion that his appeal is untimely. A contrary holding
would compel parties to a dependency case to file multiple
potentially unnecessary protective appeals, thereby consuming
scarce judicial resources. (See City of Gardena v. Rikuo Corp.
(2011) 192 Cal.App.4th 595, 599 [observing that “ ‘ “piecemeal
disposition and multiple appeals in a single action [can] be
oppressive and costly” ’ ”].)
2. Father has standing to argue that DCFS failed to
provide mother with proper notice of the proceedings
“[T]he general rule is that ‘ “[a]n appellant cannot urge
errors which affect only another party who does not appeal.” ’
[Citations.]” (In re Joshua M. (1997) 56 Cal.App.4th 801, 807
(Joshua M.).) A corollary to this general rule is the principle
that, “ ‘[w]here the interests of two parties interweave, either
party has standing to litigate issues that have a[n] impact
upon the related interests.’ ” (See In re Caitlin B. (2000)
78 Cal.App.4th 1190, 1193.) Consequently, whether father has
16
standing to assert alleged violations of mother’s right to notice of
the dependency proceedings depends on whether mother and
father have “intertwined interests . . . .” (See ibid.)
Father argues that if he establishes that DCFS failed to
provide mother with proper notice, then the order terminating
parental rights should be reversed as to both parents. In essence,
father contends that both parents’ interests are intertwined
because, under the facts of this case, the reversal of the order
terminating mother’s parental rights would justify reversal of the
order terminating his rights.
As we explain in greater detail below, conditionally
reversing the order terminating both parents’ rights based on a
violation of mother’s right to due process falls within our broad
statutory discretion to fashion appropriate appellate relief. We
further conclude that conditional reinstatement of both parents’
rights would be appropriate here because this constitutional
violation would otherwise probably go uncured, thereby
thwarting the dependency system’s objectives of family
reunification and ensuring that the disposition of a dependency
petition is based on all material facts and circumstances.
Because the fate of mother’s and father’s respective parental
rights thus depends upon whether mother’s due process claim is
meritorious, their interests are “intertwined,” meaning that
father has standing to raise mother’s due process challenge.
Code of Civil Procedure section 43 provides that a
reviewing court “may affirm, reverse, or modify any judgment or
order appealed from, and may direct the proper judgment or
order to be entered, or direct a new trial of further proceedings to
be had.” (Code Civ. Proc., § 43, italics added.) Code of Civil
Procedure section 906 employs nearly identical language to
17
define the powers of a reviewing court. (Code Civ. Proc., § 906.)
These provisions thus confer broad discretion in formulating an
appellate disposition.13
DeJohn B. demonstrates that an appellate court’s
expansive authority to fashion appellate relief includes the
discretion to reinstate the rights of one parent based on an error
in the termination of the rights of another parent. There, a
mother appealed the termination of her parental rights, arguing
that the relevant child welfare agency failed to “even attempt to
notify her of the six-month review hearing where the court
terminated reunification services and scheduled a permanency
hearing.” (See DeJohn B., supra, 84 Cal.App.4th at p. 102.) The
father appealed that order as well, even though he otherwise
“[had] no independent challenge . . . .” (See ibid., italics added.)
Instead, he “argue[d] his parental rights [had to] be reinstated if
[the] mother prevail[ed].” (See ibid.)
The Court of Appeal agreed with the mother and reversed
the order terminating her rights. (See DeJohn B., supra,
84 Cal.App.4th at p. 102.) Although the DeJohn B. court
recognized that reversal of an order terminating rights of a
13 (See Crane v. Dolihite (2021) 70 Cal.App.5th 772, 792–
793 [indicating that Code Civ. Proc., §§ 43’s & 906’s use of the
term “may” demonstrates that they grant “discretionary
authority” to reviewing courts]; Davis v. County of Fresno (2018)
22 Cal.App.5th 1122, 1140 [holding that these two statutes
delineate the “discretionary authority of [a] reviewing court in
formulating relief”]; Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2019) ¶ 11:48, p. 11–17
[“The courts of appeal and the supreme court are given broad
powers in the disposition of appeals,” citing Code Civ. Proc.,
§ 43].)
18
parent based on a claim of error belonging solely to another
parent was “not automatic,” the court exercised its discretion to
reinstate father’s parental rights. (See id. at p. 110.) The Court
of Appeal “perceive[d] no legitimate purpose to be served by
leaving [the children] without a father and whatever legal
benefits or entitlements that may come to them through the
paternal side of the biological family.” (See ibid.) The court
explained that since it was “reinstating [the] mother’s rights
pending further proceedings[,] . . . . [t]he children [were] once
again in limbo, and no one kn[ew] at th[at] time whether they
w[ould] be adopted or permanently returned to their mother.”
(See ibid.) The Court of Appeal summarized the rationale for its
appellate disposition as follows: “In short, it is in the minors’
best interests to reinstate father’s parental rights.” (Ibid.)
Although DeJohn B. did not address whether, and if so
under what circumstances, a parent has standing to raise an
appellate claim belonging to another parent, the decision
illustrates the breadth of an appellate court’s remedial authority.
In essence, the DeJohn B. court exercised its discretion to
reinstate the father’s rights, notwithstanding the absence of any
error as to him, because doing so achieved one of the fundamental
objectives of the juvenile dependency scheme—i.e., protecting
the best interests of the minor. (See In re Luke M. (2003)
107 Cal.App.4th 1412, 1424 (Luke M.) [“[T]he underlying purpose
of dependency law is to protect the welfare and best interests of
the dependent child.”]; see also In re Mary G. (2007)
151 Cal.App.4th 184, 192, 208, 212 (Mary G.) [citing DeJohn B.
for the proposition that an appellate court may reinstate both
parents’ rights if doing so is in the child’s best interest,
19
notwithstanding the “absen[ce of] any independent error
pertaining to” one of the parents].)
Turning to the instant case, if we did not employ our
remedial authority to, in effect, grant father standing to raise
DCFS’s violation of mother’s right to notice, then this
constitutional error would most likely go uncorrected. Mother
would not be able to file her own appeal of the August 25, 2021
order terminating her parental rights because the 60-day
jurisdictional deadline for doing so has long since passed.14 Even
assuming arguendo that this procedural barrier would not
preclude mother from seeking relief via a habeas petition,15
mother lacks a meaningful opportunity to pursue that remedy.
When a DCFS social worker last spoke with mother, she was in
either El Salvador or Guatemala, and there is no indication that
the agency ever notified her of the nature of the proceedings or
any of her rights relating thereto. (See Discussion, parts B–C,
post.) Expecting mother to inform herself of her legal rights and
to file a successful habeas petition thereafter would be
unreasonable and a hollow remedy for a violation of her due
process rights.
14 (See rule 8.406(a)(1); In re A.R. (2021) 11 Cal.5th 234,
246 (A.R.) [characterizing rule 8.406(a)(1)’s 60-day deadline as “a
jurisdictional deadline, meaning that courts lack the power to
extend it”].)
15 (Cf. A.R., supra, 11 Cal.5th at pp. 243, 255–256 &
fns. 5 & 6 [holding that “[w]hen an attorney fails to file a timely
appeal [of an order terminating parental rights] in accordance
with a client’s instructions, the parent may seek [habeas] relief
based on the attorney’s failure to provide competent
representation”].)
20
Furthermore, remedying this due process violation by
reversing the order terminating parental rights affords mother
an opportunity to seek a new jurisdictional and dispositional
hearing on the ground that DCFS failed to exercise due diligence
in attempting to locate her and notify her of that proceeding.16
This remedy serves the minor’s best interests: “ ‘[I]t is implicit in
the juvenile dependency statutes that it is always in the best
interests of a minor to have a dependency adjudication based
upon all material facts and circumstances and the participation
of all interested parties entitled to notice.’ [Citation.] The right
to counsel and participation not only protects the parent’s
interests but also ensures that the juvenile court has the fullest
picture of the relevant facts before disposing of a dependency
petition.” (In re Christopher L. (2022) 12 Cal.5th 1063, 1076
(Christopher L.).) It follows that exercising our broad discretion
to reverse the order terminating both parents’ rights serves an
underlying purpose of the dependency scheme, i.e., protecting the
best interests of the child. (See Luke M., supra, 107 Cal.App.4th
at p. 1424.)
We acknowledge that J.R. has a countervailing interest in
“a stable and permanent placement in a family unit . . . .” (See
DeJohn B., supra, 84 Cal.App.4th at p. 109.) Nevertheless, “[w]e
must evaluate that right in the context of mother’s compelling
interest as a parent and her due process right to be notified of the
proceedings.” (Ibid.) We are concerned with the
16 (See Discussion, part B, post [explaining that DCFS
failed to exercise reasonable diligence in attempting to locate
mother prior to the jurisdictional/dispositional hearing];
Discussion, part C, post [noting that mother may challenge prior
rulings for lack of proper notice].)
21
“ ‘depriv[ation] . . . of that “most basic of civil rights”—the
[parent’s] care, custody, and companionship of’ ” her child. (See
id. at pp. 109–110.) Furthermore, we conclude that DCFS’s
search efforts in this case “are unreasonably lacking, and that
[its] failure to notify [mother] l[ed] to a prejudicial delay in
participation.” (See Mia M., supra, 75 Cal.App.5th at p. 811;
Discussion, parts B–C, post.) Under these circumstances,
allowing J.R.’s interest in a permanent placement to “act as a
counterbalance to the agency’s due diligence obligations would
turn one of the key goals of the dependency statutory scheme on
its head, reducing the chance of family reunification while
simultaneously rewarding inadequate efforts to notify parents.”
(See Mia M., at p. 811.) The juvenile dependency scheme
recognizes that promoting family reunification may sometimes
delay implementing a stable and permanent home for a child
within its jurisdiction.17 Additionally, because a conditional
reversal of the order terminating mother’s and father’s rights
allows the juvenile court to reissue the termination order if
mother fails to appear after receiving proper notice (see
Discussion, part D, post; Disposition, post), our decision to confer
standing upon father will not result in an undue delay of J.R.’s
permanent placement.
We reject DCFS’s argument that the Joshua M. decision
establishes that father lacks standing to raise mother’s claims of
error. In Joshua M., after the juvenile court terminated a
17 (See, e.g., In re D.N. (2020) 56 Cal.App.5th 741, 762
(D.N.) [“[U]nder unusual and rare circumstances, ‘the statutory
and constitutional interests of the parent and child in
reunification if possible prevail[ ] . . . over’ [statutory] limits [on
reunification services].”].)
22
mother’s and a father’s respective parental rights, the mother
appealed the decision, asserting that the father’s attorney
rendered ineffective assistance of counsel. (See Joshua M.,
supra, 56 Cal.App.4th at p. 803.) In particular, the mother
argued that the father’s “counsel failed to ensure that reasonable
services were provided to the father while he was incarcerated,
that the [child welfare agency] did not give proper consideration
to the placement of [the child] with the paternal grandmother,
that counsel failed to request that the dependency be dismissed
upon the father’s release from prison and that counsel failed to
file a writ petition challenging the termination of services to the
father.” (See id. at p. 807.) In rejecting the mother’s contention
that she could assert father’s claim of ineffective assistance of
counsel, the Court of Appeal found that “the father [had] never
complained about the ineffective assistance of his counsel and the
issue was never raised below.” (See id. at pp. 807–808.)
In contrast to the case before us, the father in Joshua M.
was represented by counsel and participated in the underlying
dependency proceedings (see, e.g., Joshua M., supra,56 Cal.App.4th at p. 806 [noting that the father attended the
section 366.26 hearing with his attorney]). Here, mother never
appeared, either personally or through counsel. Further,
although the mother in Joshua M. claimed that the father’s
attorney should have filed a writ petition after the 12-month
hearing, she did not claim that the father was unaware of, or
otherwise unable to, exercise his right to appeal the subsequent
order terminating his parental rights.18 (See Joshua M., at
18 Indeed, the Court of Appeal observed that “the father’s
lack of interest” in the case was “fully documented” because,
23
pp. 809–810.) It thus seems that the father in that case had an
opportunity to—but did not—raise the ineffective assistance
claim at issue (e.g., by filing a notice of appeal and joining in
mother’s arguments). In further contrast, mother here expressed
an interest in reuniting with J.R., but DCFS failed to afford her
an opportunity to participate in the proceedings. Accordingly,
reversal of the entirety of the termination order is necessary to
safeguard a parent’s fundamental rights in the instant case; the
same was not true in Joshua M.
We observe that conditional reinstatement of father’s
parental rights is significant appellate relief for him,
notwithstanding the fact this disposition does not automatically
entitle him to reunify with J.R.19 There are potential
circumstances in which father would benefit if mother appeared
after the matter is remanded. For instance, if mother ultimately
obtains custody of J.R., father may ask the court to allow him to
“[a]side from three visits with his son, he did not comply with any
aspect of [the] reunification” plan. (See Joshua M., supra,56 Cal.App.4th at pp. 809–810.)
19 Because father did not file a notice of intent to file a writ
petition contesting the prior order terminating his reunification
services and setting a section 366.26 hearing, he cannot challenge
that order in this appeal. (See Serenity S., supra, 55 Cal.App.5th
at p. 370 [“[O]rdinarily, . . . ‘direct appellate consideration of the
propriety of the setting order may be had only by petition for
extraordinary writ review of the order.’ ”]; rule 8.450(e)(1) [“A
party seeking writ review . . . must file in the superior court a
notice of intent to file a writ petition.”].)
24
visit J.R.20 On the other hand, if termination of father’s parental
rights were not conditionally reversed, then this option would be
unavailable to him.21
Lastly, our decision to allow father to seek reinstatement of
both parents’ rights on account of an error in the termination of
mother’s rights is consistent with the approach undertaken by
rule 5.725(a), a provision the Judicial Council has adopted to
implement the purposes of the dependency scheme.22 The
provision states that as a general rule, “[t]he court may not
terminate the rights of only one parent under
section 366.26 . . . .” (See rule 5.725(a).) The rationale is that
“[t]he purpose of termination of parental rights is to free the child
for adoption,” and “[t]he rights of all parents—whether natural,
20 (See § 361.2, subds. (a) & (b)(1) [“If the court places the
child with [a] parent [with whom the child was not residing at the
time that the events or conditions arose that brought the child
within the provisions of section 300], the court may do any of the
following: [¶] . . . Order that the parent become legal and physical
custodian of the child. The court may also provide reasonable
visitation by the noncustodial parent.”].)
21 (See § 366.26, subd. (i)(1) [“Any order of the court
permanently terminating parental rights under this section shall
be conclusive and binding upon the child[ and] upon the parent or
parents . . . . After making the order, the juvenile court shall
have no power to set aside, change, or modify it.”].)
22 (See rule 5.501(b) [“[The juvenile court rules] implement
the purposes of the juvenile court law . . . .”]; rule 5.501(c)(2)
[“Insofar as these rules may add to existing statutory provisions
relating to the same subject matter, these rules must be
construed so as to implement the purposes of the juvenile court
law.”].)
25
presumed, biological, alleged, or unknown—must be terminated
in order to” achieve that objective. (See rule 5.725(f).) Because
we have found that freeing J.R. for adoption at this time is not
appropriate, rule 5.725(a) counsels in favor of affording J.R. the
potential benefits from having two parents. (See DeJohn B.,
supra, 84 Cal.App.4th at p. 110 [indicating that former rule 1463
was consistent with the appellate court’s decision to reinstate
both parents’ rights based on the mother’s due process claim];
Mary G., supra, 151 Cal.App.4th at p. 208 [stating that former
rule 1463 is now rule 5.725].)
In sum, we hold that father has standing to maintain this
appeal because, under the unique facts of this case, DCFS’s
failure to afford mother with constitutionally adequate notice of
the proceedings warrants the reversal of the order terminating
both parents’ rights.
3. We elect to reach the merits of father’s appeal,
notwithstanding DCFS’s other defenses
DCFS argues that because “father never objected to any
alleged notice issues as to mother” during the proceedings below,
his appellate claims are “forfeited and waived and/or the error[s
were] invited.” DCFS further maintains that we should dismiss
father’s appeal pursuant to the unclean hands and disentitlement
doctrines because he allegedly “prevented DCFS from locating
mother by providing an inaccurate name [citation], show[ed] a
pattern of refusing to attend meetings for [J.R.], such as school
IEP and MAT assessments,” and threatened J.R.’s foster
caregiver.
As we explain in Discussion, part B, post, whether DCFS
discharged its constitutional obligation to serve mother properly
with notice of the dependency proceedings is a pure question of
26
law. Furthermore, the public’s interest in the due administration
of justice weighs in favor of adjudicating this claim of error
because mother lacks any meaningful opportunity to present this
claim on her own. (See Discussion, part A.2, ante.) Accordingly,
we exercise our discretion to reach the merits of this appellate
claim.23
B. DCFS Violated Mother’s Right to Due Process y
Failing to Afford Her Proper Notice of the
Proceedings
As a preliminary matter, we observe that neither party has
identified the standard of review applicable to father’s claim that
DCFS violated mother’s due process rights by failing to provide
23 (See Greenwich S.F., LLC v. Wong (2010)
190 Cal.App.4th 739, 767 [holding that application of the waiver
doctrine is a matter committed to the court’s discretion];
In re D’Anthony D. (2014) 230 Cal.App.4th 292, 298, fn. 2
[“[A]pplication of the forfeiture rule ‘is not automatic.’ [Citation.]
When an appellant raises a question of law, for example, the
appellate court can exercise its discretion to address the issue.’ ”];
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2019) ¶ 8:248.13, p. 8–185 [“Application of the
doctrine of invited error is not automatic; it is discretionary with
the appellate court.”]; Dickson, Carlson & Campillo v. Pole (2000)
83 Cal.App.4th 436, 446–447 [“The defense of unclean hands . . .
applies only where it would be inequitable to grant the [litigant]
any relief. [Citations.] . . . The decision of whether to apply the
defense based on the facts is a matter within the . . . court’s
discretion.”]; In re A.K. (2016) 246 Cal.App.4th 281, 285
[“ ‘Appellate disentitlement “is not a jurisdictional doctrine, but a
discretionary tool that may be applied when the balance of the
equitable concerns make it a proper sanction.” ’ ”].)
27
her with adequate notice of the dependency proceedings.24
Because the parties do not dispute the facts concerning this due
process claim, the instant alleged constitutional error presents a
purely legal question that is subject to de novo review. (See
Mia M., supra, 75 Cal.App.5th at p. 806 [“[We] consider de novo
whether inadequate notice violated [a parent’s] due process
rights.”]; Shewry v. Begil (2005) 128 Cal.App.4th 639, 642
[“Matters presenting pure questions of law, not involving the
resolution of disputed facts, are subject to de novo review.”].)
“ ‘In juvenile dependency proceedings, due process requires
parents be given notice that is reasonably calculated to advise
them an action is pending and afford them an opportunity to
defend.’ [Citation.]” (Mia M., supra, 75 Cal.App.5th at p. 807.)
“ ‘There is no due process violation where a child welfare services
agency has exercised reasonable diligence to provide notice to a
parent whose whereabouts are unknown. [Citation.] On this
score, reasonable diligence “denotes a thorough, systematic
investigation and an inquiry conducted in good faith.” [Citation.]
It includes searching not only “standard avenues available to
help locate a missing parent,” but “ ‘specific ones most likely
under the unique facts known to the [agency], to yield [a parent’s]
address.’ ” [Citations.]’ [Citation.]” (Id. at pp. 807–808.) Put
24 The parties’ failure to address this issue does not bar us
from determining the proper standard of review. (See People v.
Taylor (1992) 6 Cal.App.4th 1084, 1090 & fn. 5 (Taylor) [holding
that the court could determine the correct standard of review
without first requesting supplemental briefing thereon because,
even though the parties had failed to “tackle[ ] that issue” in their
appellate briefing, “[t]hey certainly had the opportunity” to
address that question as it “is present in every case”].)
28
differently, “[s]ocial services agencies, invested with a public
trust and acting as temporary custodians of dependent minors,
are bound by law to make every reasonable effort in attempting
to inform parents of all hearings. They must leave no stone
unturned.” (DeJohn B., supra, 84 Cal.App.4th at p. 102.)
Because DCFS asserted that mother’s whereabouts were
unknown, the agency bore the burden of documenting its
attempts to locate mother and serve her.25 As we explain below,
DCFS’s records do not show that the agency exercised reasonable
diligence in this endeavor.26
25 (See § 294, subd. (f)(7) [“Notice to the parents [of the
section 366.26 hearing] may be given in any one of the following
manners: [¶] . . . [¶] If a parent’s identity is known but his or her
whereabouts are unknown and the parent cannot, with
reasonable diligence, be served [at the hearing at which the
section 366.26 hearing was scheduled or via mail or personal or
electronic service], the petitioner shall file an affidavit with the
court at least 75 days before the hearing date, stating the name
of the parent and describing the efforts made to locate and serve
the parent.”].)
26 Although the juvenile court’s ruling that mother was
given proper notice of the section 366.26 hearing is the only
finding that is subject to this appeal (see Discussion, part E,
post), we also consider whether DCFS provided mother with
proper notice of prior hearings because that issue is relevant to
our analysis of whether: (1) rule 5.725(a) confers upon father
standing to maintain this appeal; and (2) DCFS’s violation of
mother’s right to due process was prejudicial. (See Discussion,
part A.2, ante; Discussion, part C, post.) Absent from DCFS’s
briefing is any argument that we cannot examine its prior efforts
to provide notice to mother for those limited purposes. (See D.N.,
supra, 56 Cal.App.5th at p. 767 [“ ‘ “Although it is the appellant’s
29
Father informed the agency prior to the detention hearing
that mother resided in El Salvador, but father told the court at
the hearing that he did not have her contact information.
Similarly, prior to the jurisdiction and disposition hearing, J.R.
told DCFS that his mother lived in El Salvador and that he
did not have any contact information for her.
The declaration of due diligence accompanying the
jurisdiction/disposition report provides no indication that DCFS
contacted the El Salvadoran government in order to locate
mother.27 Rather, the agency reviewed federal records and
databases concerning persons in California. (See Factual &
Procedural Background, part 2, ante.) Although we acknowledge
that the name for mother that father initially provided to the
task to show error, there is a corresponding obligation on the part
of the respondent to aid the appellate court in sustaining the
judgment. ‘[I]t is as much the duty of the respondent to assist
the [appellate] court upon the appeal as it is to properly present a
case in the first instance, in the court below.’ ” ’ ”].)
27 In support of our conclusion that DCFS could have
contacted El Salvadoran government officials, we, sua sponte,
take judicial notice of a County of Los Angeles webpage that
(a) shows the consulate general of El Salvador is located in the
county, and (b) provides the consulate’s telephone and facsimile
numbers. (See Consulate General of El Salvador
https://locator.lacounty.gov/lac/Location/3176563/consulate-
general-of-el-salvador (as of Aug. 12, 2022), archived at
https://perma.cc/CH4Y-PR4A; Evid. Code, §§ 452, subd. (c), 459;
cf. Placerville Historic Preservation League v. Judicial Council of
California (2017) 16 Cal.App.5th 187, 191, fn. 1 [taking judicial
notice of certain geographic and demographic facts supplied by a
county’s official website].)
30
agency turned out to be partially incorrect,28 that fact does not
establish that discussing the matter with El Salvadoran officials
would have been futile. The birth certificate for J.R. that DCFS
later acquired provides mother’s correct name and shows that
J.R. was born in El Salvador. The contents of this birth
certificate suggest that had DCFS contacted El Salvadoran
government personnel at the outset of the proceedings, those
officials may have been able to retrieve this record and used it to
identify correctly mother for DCFS. El Salvadoran officials then
could have attempted to locate mother and place her in contact
with the agency. Thus, DCFS’s failure to enlist the assistance of
this foreign government is inconsistent with DCFS’s duty to
“leave no stone unturned.”29
At no point thereafter did DCFS cure this constitutional
defect. The agency’s status review reports for the hearings held
pursuant to section 366.21, subdivisions (e) and (f) do not show
that the agency made any further attempts to locate mother
before she contacted DCFS on September 18, 2020, nor does
DCFS assert it undertook any such efforts. Furthermore, DCFS’s
records of the September 18, 2020 telephone call provide no
28 Although father provided DCFS with the correct first
and middle names for mother, the two surnames he supplied
were inaccurate.
29 (DeJohn B., supra, 84 Cal.App.4th at p. 102; cf. In re
Daniel F. (2021) 64 Cal.App.5th 701, 705, 713 (Daniel F.)
[criticizing a child welfare agency’s failure to “contact[ ] the
Mexican consulate or the Mexican social services agency . . . for
assistance to locate or serve Father” after mother and several
other relatives told the agency that father lived in Mexico; the
agency instead searched “databases of records for California and
Alameda County”].)
31
indication that the agency informed her of the nature of the
pending dependency proceedings, including the fact that the
juvenile court could ultimately extinguish her parental rights.30
It follows that the agency did not provide mother with
constitutionally adequate notice at that time. (See Mia M.,
supra, 75 Cal.App.5th at p. 807 [“ ‘ “[Due process requires that
the] parent [be] advised of the nature of the hearing giving rise to
th[e] opportunity [to be heard], including what will be decided
therein. Only with adequate advisement can one choose to
appear or not, to prepare or not, and to defend or not.” ’ ”].)
Also, during the September 18, 2020 telephone call, mother
gave the social worker her cellular telephone number and her
home address in El Salvador. Although DCFS’s records of the
September 18, 2020 call do not clarify whether mother stated she
was in Guatemala or in El Salvador at that time,31 this social
worker had an opportunity to eliminate any uncertainty by
asking mother for her current residence, or DCFS could have
later attempted to resolve any lingering ambiguity by calling the
cellular telephone number that mother had provided. In
30 (See also Christopher L., supra, 12 Cal.5th at p. 1076
[“ ‘ “Once reunification services are ordered terminated [by the
juvenile court], the focus shifts to the needs of the child for
permanency and stability.” ’ ”. . . . “ ‘[T]he court must order
adoption and its necessary consequence, termination of parental
rights, unless one of the specified circumstances provides a
compelling reason for finding that termination of parental rights
would be detrimental to the child.’ ”].)
31 For instance, while the October 20, 2020 last minute
information report states mother “reported that she was currently
‘stuck in Guatemala for about a year now[,]’ ” it also states that
“[m]other sells cell phones in El Salvador.” (Italics added.)
32
addition, DCFS reported that on January 25, 2021, J.R.’s foster
caregiver disclosed that her sister was able to contact mother
through social media. Thus, the agency had been presented with
yet another potential avenue for obtaining mother’s then-current
contact information. (See Mia M., supra, 75 Cal.App.5th at
p. 809 [noting that a child welfare agency may use social media to
obtain contact information and thereafter properly notify a
parent].) Nevertheless, entirely absent from the record is any
evidence that DCFS attempted to give mother notice of the next
status review hearing, which was held on February 25, 2021.
In advance of the section 366.26 hearing, DCFS once again
failed to contact mother via telephone, mail, or social media.
Rather, upon confirming that mother’s location could not be
found in the databases the agency had reviewed prior to the
jurisdiction/disposition hearing, DCFS served mother by
publishing a notice of the forthcoming hearing in a Los Angeles-
based newspaper of general circulation in California. (See
Factual & Procedural Background, part 6, ante.) In light of
DCFS’s awareness that mother was in either El Salvador or
Guatemala when it last heard from her, we find that publication
in a Los Angeles-based newspaper did not give her “ ‘notice that
[was] reasonably calculated to advise [her] an action [was]
pending and afford [her] an opportunity to defend’ ” against the
termination of her rights. (See Mia M., supra, 75 Cal.App.5th at
p. 807; see also id. at pp. 808–809 [noting that service by
publication will not satisfy due process if it is not the “ ‘most
likely means of . . . notify[ing]’ ” the parent].) This is particularly
so given that DCFS had far better methods of contacting mother,
including dialing the telephone number she had provided to
them.
33
For the foregoing reasons, we conclude that DCFS failed to
exercise reasonable diligence in attempting to locate and serve
mother with notice of the dependency proceedings. The agency
thus deprived mother of her constitutional right to due process of
law.
C. DCFS’s Violation of Mother’s Right to Due Process
Was Prejudicial
The parties dispute whether DCFS’s failure to provide
mother with proper notice of the proceedings is per se reversible
as structural error or subject to a harmless error analysis.
We need not resolve this issue because, as discussed below, even
if arguendo this due process violation were subject to a harmless
error analysis, that analysis would require reversal of the order
terminating parental rights.
The Chapman32 standard of prejudice governs our review
of whether DCFS’s violation of mother’s due process rights
compels reversal.33 (See In re Angela C. (2002) 99 Cal.App.4th
32 (Chapman v. California (1967) 386 U.S. 18.)
33 DCFS argues that because “there was no error of a
constitutional dimension[, r]eversal is not warranted . . . unless it
is reasonably probable the parent would have achieved a more
favorable result in the absence of the error.” We reject that
contention for the reasons provided in Discussion, part B, ante.
Additionally, DCFS intimates that certain “courts will not
reverse” based on an alleged due process violation “absent a
reasonable probability the parent would have achieved a more
favorable outcome but for the error.” Neither decision DCFS cites
supports that proposition. (See In re Jesusa V. (2004) 32 Cal.4th
588, 625–626 [applying the reasonable probability standard to a
34
389, 391; id. at p. 394 [“In determining the effect of ‘most
constitutional errors,’ appellate courts can properly apply a
Chapman harmless error analysis.”]; Christopher L., supra,
12 Cal.5th at p. 1073 [same]; Mia M., supra, 75 Cal.App.5th at
p. 806 [“An error in attempted notice is subject to a harmless
beyond a reasonable doubt standard of prejudice.”].) “ ‘The
beyond-a-reasonable-doubt standard of Chapman “requir[es] the
beneficiary of a [federal] constitutional error to prove beyond a
reasonable doubt that the error complained of did not contribute
to the [adverse ruling].” [Citation.] . . . [Citation.]’ . . . [Citation.]”
(See People v. Pearson (2013) 56 Cal.4th 393, 463, third bracketed
insertion added.)
DCFS fails to discharge its burden of showing that the
infringement of mother’s right to due process was harmless
beyond a reasonable doubt. DCFS asserts that mother “would
likely not have participated at the section 366.26 hearing”
because “the evidence establishes mother knew that [J.R.] was in
claim that the juvenile court violated a statute by adjudicating a
dependency petition in the parent’s absence, but rejecting the
parent’s related due process claim because “one can say with
confidence that ‘[n]o other result was possible’ even if he had
been present,” thereby indicating that the high court subjected
the constitutional claim to a different harmless error standard
than the statutory claim]; Daniel F., supra, 64 Cal.App.5th at
pp. 704, 716 [rejecting a child welfare agency’s claim of harmless
error under the reasonable probability test in an appeal from the
denial of a section 388 petition predicated on the child welfare
agency’s failure to properly notify the father of the proceedings;
there is no indication in the opinion that the father sought
reversal under the Chapman standard]; see also In re H.E. (2008)
169 Cal.App.4th 710, 721 [“ ‘[A]n opinion is not authority for a
proposition not therein considered.’ ”].)
35
DCFS’s custody, but she chose not to ask for visits with the child
and chose not to participate in the dependency proceedings . . . .”
The agency further asserts that “even had mother appeared at
the section 366.26 hearing, the evidence establishes that she
would not have obtained a more favorable outcome [at] that
hearing,” given that “[t]he only way for mother to avoid
termination of her parental rights would be to establish the
beneficial-relationship exception,” which required her to show she
“maintained regular visitation and contact with the child.”
We agree with DCFS that “[t]he evidence shows that at
least since September 18, 2020, mother was aware that [J.R.] was
in the custody of [the agency] as she called the social worker.”
Yet, there is no indication in DCFS’s records of the
September 18, 2020 telephone conversation that the social
worker informed mother that she could request visits with J.R. or
otherwise participate in the dependency proceedings. Thus,
DCFS has failed to show beyond a reasonable doubt that if the
agency had afforded mother constitutionally sufficient notice of
the section 366.26 hearing, she would have failed to appear.
Additionally, mother’s statement to DCFS that she “want[ed J.R.]
returned to her” belies the agency’s claim that mother would
have been unwilling to make an appearance.
DCFS also fails to demonstrate that had mother appeared
at the section 366.26 hearing, the juvenile court still would have
terminated her parental rights. In focusing solely on
section 366.26, subdivision (c)(1)(B)(i)’s beneficial-relationship
exception, DCFS overlooks the fact that mother could have
prevented the juvenile court from terminating her parental rights
by filing a section 388 petition contesting the validity of its prior
36
orders barring her from reunifying with J.R.34 Mother also could
have asked the juvenile court to exercise its authority to “change,
modify, or set aside” these prior rulings sua sponte.35
Given our conclusion that DCFS failed to provide mother
with constitutionally adequate notice of the proceedings (see
Discussion, part B, ante) and the agency’s failure to address
whether the court would have vacated its previous rulings on
that basis, we cannot conclude beyond a reasonable doubt that
mother’s appearance at the section 366.26 hearing would have
34 (See Mia M., supra, 75 Cal.App.5th at p. 807 [“ ‘A
section 388 petition is the appropriate method for raising a due
process challenge based on lack of notice.’ ”]; id. at pp. 795–796
[“Seeking a new jurisdiction and disposition hearing,” father
“filed a petition under . . . section 388 . . . . [¶] Finding prejudicial
error, we reverse the court’s order denying father’s section 388
petition and vacate the order terminating parental rights as to
[the child].”]; Christopher L., supra, 12 Cal.5th at pp. 1079–1080
[“[T]he statutory scheme provides a mechanism for
reconsideration of the court’s prior orders . . . . Section 388
authorizes a parent . . . to petition the juvenile court ‘to change,
modify, or set aside any order of court previously made or to
terminate the jurisdiction of the court.’ ”].)
35 (See Nickolas F. v. Superior Court (2006)
144 Cal.App.4th 92, 98–99, fn. omitted; see also In re Marriage of
Spector (2018) 24 Cal.App.5th 201, 215 [“ ‘If a court believes one
of its prior interim orders was erroneous, it should be able to
correct that error no matter how it came to acquire that
belief.’ ”].)
37
been futile. Thus, DCFS’s contravention of mother’s fundamental
right to due process was prejudicial.36
D. We Conditionally Reverse the Order Terminating
Mother’s and Father’s Parental Rights
We now turn to deciding the proper disposition, which we
conclude is a conditional reversal of the order terminating
parental rights.37 We find instructive cases in which the juvenile
court has terminated parental rights, but the appellate court has
concluded there was prejudicial error in failing to afford proper
notice to an Indian tribe as required by the Indian Child Welfare
Act of 1978 (ICWA, 25 U.S.C. § 1901 et seq.). Upon invalidating
a termination order based solely on an ICWA notice error, a
36 Father further contends that DCFS failed to comply
with certain statutory provisions governing the proper method of
service in dependency proceedings. We acknowledge that
“[c]ourts generally should avoid resolving constitutional issues if
a case can be decided on statutory grounds.” (Citizens to Save
California v. California Fair Political Practices Com. (2006)
145 Cal.App.4th 736, 745.) Nevertheless, we exercise our
discretion to reach the constitutional claim because (a) of the
importance of the due process violation in question, and (b) it is
unclear whether resolving father’s statutory claim would allow us
to avoid deciding the constitutional issue, given that errors of
state law “generally do[ ] not warrant reversal unless there is a
reasonable probability that in the absence of the error[s], a result
more favorable to the appealing party would have been reached.’
[Citation.]” (See Christopher L., supra, 12 Cal.5th at p. 1073.)
37 Because the proper scope of reversal is a question
presented in every appeal, the parties’ failure to explicitly
address this issue does not prevent us from resolving it. (Cf.
Taylor, supra, 6 Cal.App.4th at p. 1090 & fn. 5.)
38
Court of Appeal can issue a conditional reversal, to wit, a reversal
of the order with instructions to reinstate it “if no Indian tribe
intervenes after proper notice is given.” (See In re Francisco W.
(2006) 139 Cal.App.4th 695, 699, 702–704, 706, 711
(Francisco W.) [referring to this disposition as a “limited
reversal”]; In re A.W. (2019) 38 Cal.App.5th 655, 659, 667–668
[utilizing the alternative term “conditional[ ] reversal[ ]” to
identify this disposition].)
Just as an Indian tribe may decline to intervene upon
receiving notice that complies with ICWA, mother could choose
not to appear after DCFS cures the violation of her right to due
process. Should that occur, then allowing father to relitigate
whether his parental rights should have been terminated would
undermine J.R.’s interest in obtaining “ ‘[a] stable, permanent
placement, and [a] full emotional commitment, as promptly
as reasonably possible . . . .’ [Citation.]” (See Francisco W.,
supra, 139 Cal.App.4th at p. 706.) Accordingly, we conclude that
the order terminating parental rights should be reinstated if
mother does not appear after being afforded proper notice and a
reasonable opportunity to be heard.38 (See CREED-21 v. City of
San Diego (2015) 234 Cal.App.4th 488, 517 [“ ‘ “[R]easonable
notice and a reasonable opportunity to be heard . . . is all that is
required [for due process].” ’ ”].)
38 If any “postjudgment change of circumstances affecting
[J.R.’s] adoptability” arise, our conditional reversal would not
necessarily preclude the juvenile court from revisiting the order
terminating parental rights. (See Francisco W., supra, 139
Cal.App.4th at pp. 709–710 [finding that section 366.26,
subdivision (i)(2) provides a mechanism by which a child may
request the reinstatement of parental rights].)
39
E. Because Father Did Not Timely Appeal the
Jurisdictional and Dispositional Orders, Those
Orders Are Beyond the Scope of This Appeal
In his opening brief, father argues that “[r]eversal for lack
of notice would void not only the judgement terminating parental
rights, but also the jurisdiction and disposition orders,” and he
asks us to instruct the juvenile court to “conduct new properly
noticed jurisdictional and dispositional hearings as to
mother . . . .” In response, DCFS contends that father may not
challenge the juvenile court’s prior jurisdictional and
dispositional orders because he did not timely appeal from those
rulings. Father counters in his reply that DeJohn B. and Mia M.
support his request for new jurisdictional and dispositional
hearings for mother.
Our review of the juvenile court’s docket confirms that
father did not appeal the jurisdictional and dispositional rulings
issued on September 10, 2019. Furthermore, the 60-day deadline
for appealing these prior rulings expired long ago. (See
rule 8.406(a)(1).) Therefore, the jurisdictional and dispositional
orders are not properly before us. (See Sara M., supra,36 Cal.4th at p. 1018; see also In re Athena P. (2002)
103 Cal.App.4th 617, 624 [“ ‘ “The first appealable order in the
dependency process is the dispositional order. [Citation.]” ’
[Citation.] . . . [A]ny challenge to the jurisdictional findings
would have to be raised in an appeal from the dispositional
order.”].)
Additionally, father’s resort to DeJohn B. and Mia M. on
this point is unavailing. In each case, the juvenile court had
denied a parent’s section 388 petition to set aside prior rulings for
lack of proper notice. (See DeJohn B., supra, 84 Cal.App.4th at
pp. 105–106; Mia M., supra, 75 Cal.App.5th at pp. 795–796.)
40
Because a section 388 petition is an appropriate vehicle to
challenge prior orders (see Discussion, part C, ante), an appellate
court reviewing an order denying a section 388 petition is
empowered to grant the relief sought therein, i.e., setting aside
those prior rulings. (See Code Civ. Proc., § 43 [providing that a
reviewing court “may affirm, reverse, or modify any judgment or
order appealed from, and may direct the proper judgment or
order to be entered”]; id., § 906 [same].) As we explained earlier
in this part, only the order terminating mother’s and father’s
parental rights is properly before us, and reversing that order
does not, in and of itself, invalidate the juvenile court’s prior
jurisdictional and dispositional rulings.
41
DISPOSITION
We deny plaintiff and respondent Los Angeles County
Department of Children and Family Service’s (DCFS’s) motion to
dismiss this appeal. The August 25, 2021 order terminating
parental rights is conditionally reversed, and the matter is
remanded to the juvenile court with instructions to order DCFS
to exercise reasonable diligence as described in this opinion in
attempting to locate and serve mother with proper notice of the
dependency proceedings. If mother fails to appear in the
proceedings within a reasonable period of time after DCFS has
discharged this obligation, then the juvenile court shall reinstate
its order terminating parental rights as to mother and father. If
mother makes an appearance within a reasonable period of time
after proper service is effected, then the juvenile court shall
undertake further proceedings consistent with this opinion.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
42