In re A.J. ( 2020 )

Filed 12/24/19; Certified for Publication 1/23/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re A.J. et al., Persons B297762
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. DK09916A-D)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
M.J.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kim L. Nguyen, Judge. Reversed and
remanded.
Christopher Blake, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
__________________________
Appellant M.J. (father) appeals from an order
terminating his parental rights1 under Welfare and
Institutions Code section 366.26.2 Father contends
inadequate notice of the jurisdiction and disposition hearing
led to his inability to appear at the hearing, the court’s
failure appoint an attorney to represent him, and an order
denying him reunification services. Father also contends
that once he appeared and had an attorney, the court
erroneously denied his attorney’s petition under section 388,
which sought to address the earlier due process violation.
Finally, father contends that because there was no finding of
unfitness against him, the order terminating his parental
rights is in error. Respondent Los Angeles County
1 The court’s order also terminated the parental rights
of Y.F. (mother). Mother is not a party to this appeal.
2 Statutory references are to the Welfare and
Institutions Code.
2
Department of Children and Family Services (Department)
contends any notice error was harmless, the court did not
abuse its discretion in denying father’s section 388 petition,
and earlier findings against father are sufficient to support
the termination of parental rights.
INTRODUCTION/OVERVIEW3
Before this dependency proceeding started in early
2015, father was in the custody of the California Department
of Corrections and Rehabilitation (CDCR), serving a six-year
sentence for a 2011 robbery. He was housed in a privately
contracted correctional facility in Mississippi due to prison
overcrowding. In late April 2015, he received untimely
notice of the jurisdiction and disposition hearing, and
promptly responded with letters to the court and the social
worker stating he wished to appear in court, as well as a
form stating he was exercising his right to appear. Likely
unaware of father’s letters, the court did not continue the
hearing date or appoint counsel to represent father. Even
though the petition contained no allegations against father,
the court removed the children from both parents’ custody
and ordered that father would not receive reunification
services, under section 361.5, subdivision (e)(1).
3 This introduction is an abbreviated summary of
father’s role in the dependency case. A more detailed
description of the facts and procedure of the entire case is
provided in the next section.
3
Sometime in early 2016, father was returned to prison
in California. A Department social worker personally served
him with notice of the court’s scheduled 366.26 hearing.
Father indicated he wanted to appear at the hearing.
Father also filed a petition under section 388—representing
himself because he did not have appointed counsel—
notifying the court that he was scheduled to be released from
prison in six months and asking the court to order
reunification services and visits. The court summarily
denied father’s request. There is nothing in the record to
show that father ever waived his right to appear or his right
to counsel while he was incarcerated.
Father was transported to appear at the section 366.26
hearing in August 2016, and a court-appointed attorney
specially appeared on his behalf. Less than two weeks later,
the attorney filed another section 388 petition, challenging
the adequacy of notice for the jurisdiction and disposition
hearing, and asking the court to vacate the dispositional
findings and orders to allow father his constitutional right to
participate in the dependency case. The motion was not
heard until December 2016, when the court denied it.
Father initiated contact with his children sometime
before July 2016. After his release from prison in November
2016, father began weekly monitored visits with the
children. The 366.26 hearing was repeatedly continued for
more than two years. Father continued his weekly visits
until his parental rights were terminated on April 30, 2019.
4
Father appeals the April 30, 2019 order terminating
his parental rights to all four children, but he also attacks
the validity of the May 4, 2015 disposition order denying
reunification services, as well as the December 12, 2016
order denying his second section 388 petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. Events pre-dating the Department’s dependency
petition
Mother and father are the parents of four children:
Al.J. (born October 2007), Me.J. (born October 2008), An.J.
(born August 2010), and Mi.J. (born July 2011). According to
the maternal grandmother, father was a known gang
member and mother’s family did not approve of her
relationship. Mother and father lived with father’s family
until father was arrested and incarcerated, at which point
mother moved back. Father was likely imprisoned for a
felony in 2011, and was moved to Mississippi due to prison
overcrowding.
In March 2015, the Department detained the children
from mother after she admitted to using methamphetamine
while the children were in her care.
5
2. Detention hearing – March 2015
The Department filed a petition under section 300,
subdivision (b), based on mother’s drug use. The petition
contained no allegations concerning father.
A March 13, 2015 Addendum report stated that the
Department was “unable to contact the father due to his
incarceration in Tallahachie County Correctional Facility in
Mississippi.” The clerk’s transcript includes a March 12,
2015 printout from a CDCR webpage indicating that father
was being held at the Tallahatchie County Correctional
Facility in Mississippi. A different CDCR webpage printout
lists the Tallahatchie facility as one of several facilities
“contracted with Corrections Corporation of America.”
The court held a detention hearing on March 13, 2015.
It appointed counsel for mother, declared father a presumed
father, and ordered the Department to prepare a statewide
removal order. The court scheduled the jurisdictional
hearing for April 24, 2015, with a trial date of May 4, 2015.
3. Jurisdiction and disposition report - April 2015
In its April 24, 2015 jurisdiction and disposition report,
the Department reported that father was “incarcerated in
State Prison in Mississippi” and that efforts to contact father
had not been successful. Addressing the court’s order to
prepare a removal order for father’s appearance at the
jurisdiction and disposition hearing, the Department
6
explained that “[e]fforts to have prisoners transported to
court when out of state are not available to [the
Department].”4
In the section giving the Department’s evaluation, the
Department again stated that father is “in prison in
Mississippi.” The Department noted a previous report that
father would be incarcerated for six years for assault and
battery, but then stated “details as to his incarceration are
currently unknown but are continuing to be investigated.”
The children reported no contact with father and had very
little recollection of him. The older two children reported
father was in jail because he did something bad, and the
oldest stated “I think he got a guy he thought he was a bad
guy and my dad hit him.”
4 The complete paragraph concerning father in the
Department’s report reads: “Father [is] incarcerated in
State Prison in Mississippi. The facility where father is
incarcerated has been contacted via telephone, in an attempt
to interview father, however to date of this writing,
messages left have not been returned. [Father] has not
made contact with the Department, a notice of hearing and
contact letter was sent to [father] however to date of this
writing, he has not responded. The Department did not
submit for a removal order due to him being incarcerated out
of state. Efforts to have prisoners transported to court when
out of state are not available to [the Department].”
7
4. Notice and request to appear – April 2015
On April 21, 2015, the Department mailed to father a
copy of the petition and notice that the jurisdiction and
disposition hearing would be held April 24, 2015. The notice
informed father of his right to appear and his right to
counsel, and included language indicating that the
Department had recommended against family reunification
for father as to Al.J., An.J., and Me.J., but in favor of family
reunification for father as to Mi.J.. The notice did not
mention any hearing scheduled for May 4, 2015.
On April 24, 2015, the court continued the jurisdiction
and disposition hearing to the existing trial date of May 4,
2015, and found notice proper.
On April 27, 2015, father wrote two letters, one
addressed to the court and the other addressed to the social
worker identified in the notice sent to father.5 In both
letters, father requests to appear at the next court date,
notes that he expects to be released by next year, and
expresses concern about the possibility that his children will
be taken away from him. The letter to the court states in
relevant part: “I am requesting to be at the next court date
5 As it appears in the clerk’s transcript, the second
letter has the name “Alicia Mena” written at the top in
writing different than father’s. The envelope is addressed to
“Amelia Meneses” at the Department. The record contains
envelopes for both letters, and the envelopes are postmarked
April 28, 2015.
8
for my children. If you people could get back at me ASAP I
need to know what’s going on with my children. I [father]
asking for right for my children. I get out next year and I
shouldn’t pay by looseing [sic] my children over what the
mother’s done. I am a good father so please hear me out.”
Father’s desire to appear at the jurisdiction and
disposition hearing is also documented in the responses on
Judicial Council form JV-451 “Prisoner’s Statement
Regarding Appearance at Hearing Affecting Parental
Rights” which appears later in the appellate record. The
form references the April 24, 2015 hearing date and includes
father’s signature, but no date. Father’s responses indicate
he already has a juvenile dependency attorney who will
represent him at the hearing,6 and that he understands he
has a right to be physically present and is asserting that
right.7
6 Since father’s signature on the form is not dated, it is
unclear whether father made this statement in error or after
the fact with reference to the April 24, 2015 hearing. The
form contains three options: “a. I already have a juvenile
dependency attorney who will represent me at this hearing.
[¶] b. I want a juvenile dependency attorney appointed to
represent me at this hearing. [¶] c. I do not want to be
represented, and I give up my right to be represented by an
attorney at this hearing.” The check mark appears next to
option a.
7 In his opening and reply briefs, father notes that with
the exception of father’s signatures, the form has checkmark
responses that appear to have been filled out by computer,
9
At the May 4, 2015 hearing, there was no mention of
father’s letters or the completed JV-451 form.8
5. Jurisdiction and disposition hearing – May 2015
At the May 4, 2015 jurisdiction and disposition
hearing, the court found notice proper for both parents.9
Counsel appeared for mother, who was granted reunification
services. The court did not appoint counsel for father.
and that it appears father signed the portion that was
intended to be completed by a prison official, averring that
the facility lacked videoconferencing or telephone technology
that complied with the relevant California Rules of Court.
Ultimately, there is no evidence the completed form was
provided to the court until it was included as an attachment
to the Department’s October 31, 2016 response to the section
388 petition filed by father’s counsel in September 2016.
8 In fact, none of the Department’s reports mention
father’s response and request to appear until after the court
held its first hearing under section 366.26 (in August 2016)
and father’s counsel filed a section 388 petition (in
September 2016) to bring the notice violation to the court’s
attention. The Department’s October 31, 2016 interim
review report attaches the second letter (along with a third
letter dated September 20, 2016) and father’s completed JV-
451.
9 While there is no mention of notice in the reporter’s
transcript, the court’s minute order states that notice was
given to all appropriate parties as required by law.
10
Regarding father, the court noted he was “[i]ncarcerated out
of state. If he contacts the Department he’s ordered to do
parenting and individual counseling and weekly random
drug and alcohol testing.” After being prompted by the
Department’s attorney, the court ordered no family
reunification pursuant to section 361.5, subdivision (e),
adding that father’s visits would be monitored after he was
released from custody.
The court clerk’s proof of service shows that all parties
except father were served with a copy of the May 4, 2015
minute order and advisement of rights. Father’s name and
address were not included on the proof of service.
6. Six-month hearing November 2015
The Department’s six-month review report states that
father’s family reunification services were terminated on
May 4, 2015, pursuant to section 361.5, and that father
remained incarcerated in Mississippi, according to a search
on the CDCR’s Inmate Locator service on October 7, 2015.
Father was served with notice of the six-month hearing, but
there is no evidence in the record that he was served with a
copy of the minute order or any notice of rights or
advisements.
11
7. Twelve-month hearing – May 2016
In its twelve-month review report, the Department
noted that a March 7, 2016 search on father revealed he was
incarcerated within California, at the California City
Correctional Facility.10 The report also stated that father’s
family reunification services were terminated on May 4,
2015, pursuant to section 361.5.
At the May 2, 2016 twelve-month review hearing, the
court ordered reunification services terminated for mother
and father, directed the Department to initiate an adoption
home study for maternal grandmother within one week, and
scheduled a hearing under section 366.26 for August 29,
2016. Father was properly served with notice of the twelve-
month hearing, a copy of the minute order, and an
advisement of rights.
On May 10, 2016, the Department personally served
father with notice of the scheduled August 29, 2016 hearing
under section 366.26, and father indicated he wanted to
appear at the hearing.
10 We see no information in the record about when or
why father was moved from the Tallahatchie facility to the
California City facility, but we infer from the inmate record
searches in the record that the move took place sometime
between October 7, 2015, and March 7, 2016.
12
8. Father’s reunification efforts – 2015 and 2016
Sometime before July 2016, presumably once he
returned to California, father resumed contact with his
children, making phone calls and sending birthday cards.
From the record, it does not appear the Department provided
any assistance with these contact efforts, nor was the
Department aware of father’s contact with the children until
sometime after July 2016. According to maternal
grandmother, Me.J. was interested in having contact with
her father, but the other three children were less interested
in his phone calls and cards.
While in prison in Mississippi, father had earned
certificates of completion for KET Life Skills, Microsoft
Powerpoint, Word, and Excel. Upon returning to California,
between May and July 2016, father completed a program
called InsideOut Dad, an evidence-based program designed
by the National Fatherhood Initiative to help incarcerated
fathers develop pro-fathering attitude, knowledge, and skills.
Part of the program assists incarcerated fathers “[d]evelop a
plan for successfully reentering the lives of their children
and families upon release.”
Representing himself while still incarcerated, father
filed a section 388 petition in June 2016, seeking
reunification services and stating he would be released from
state prison in November 2016. The court summarily denied
father’s motion.
13
Father was released from prison on November 5, 2016,
and met with the social worker on November 14, 2016. The
social worker explained to father that the court had
terminated his family reunification services at the
disposition hearing on May 4, 2015, but had granted him
enhancement services upon release from prison, including
drug and alcohol testing, counseling and parenting classes.
The social worker provided father with referrals and
explained the details of father’s monitored visitation with
the children. Father said he was willing to comply with
court orders, and he planned to get a job, participate in
programs, and enroll in culinary school. He wanted to be a
part of his children’s lives and to be a father to them.
Father tested negative for drugs and alcohol twice in
November 2016, but then failed to show for nine scheduled
drug tests from December 2016 through February 2017.
9. Attorney specially appears for father at hearing
under section 366.26 – August 29, 2016
The court held the first of several hearings under
section 366.26 on August 29, 2016.11 Father appeared while
11 We note that many of the continuances of the section
366.26 hearing were connected to lack of prompt cooperation
by maternal grandmother in the adoption process. Despite
the fact that the statutory scheme encourages prompt action
so as not to delay permanency for dependent minors,
obstacles not related to father’s reunification efforts led to a
14
still in custody, and attorney Amy Meier made a special
appearance on his behalf.12 The Department requested a
120-day continuance for the adoption home study to be
completed. In response to a question from the court about
when he would be out of custody, father said he should be
getting out in about a month, before December. The court
continued the hearing to December 12, 2016, and did an in
and out order in case father was in custody at that time.
10. Father’s attorney promptly seeks to correct due
process violations – September 2016
Two weeks after the August 29, 2016 hearing, Meier
filed a new petition on behalf of father under section 388,
challenging the court’s jurisdiction for lack of proper notice.
The petition relied on Ansley v. Superior Court (1986) 185
Cal. App. 3d 477, 490, which held that a petition under
section 388 could be used to challenge lack of adequate
notice. The petition argued notice was improper because
under Penal Code section 2625, father had a right to appear
unless he signed a waiver indicating he did not want to
appear. Because there was no waiver in the court file, the
two-and-a-half-year delay in conducting the section 366.26
hearing.
12 We find no order appointing Meier to represent
father, but the law firm she worked for continued to
represent father in subsequent hearings.
15
court lacked jurisdiction to enter dispositional findings and
orders without first permitting father to appear. The
petition asked the court to vacate all dispositional findings
and orders and to permit father to exercise his constitutional
right to participate in the dependency proceeding. The court
scheduled the matter for a hearing.
On October 31, the Department filed an interim review
report responding to father’s section 388 petition.13 The
Department argued that it did not submit a removal order
because prisoners cannot be transported when out of state,
and that the Tallahatchie facility had indicated it could not
provide compliant video or telephone conferencing
technology.14 The Department contacted a correctional
counselor at CDCR, who explained that father was housed
out of state as part of a program to help reduce prison
overcrowding. The correctional counselor explained that
inmates are not transported for child support or custody
matters because those matters can be done through
13 The Department’s response contains some factual
inaccuracies. First, it states father’s section 388 petition was
filed on September 27, 2016, when it was filed on September
6, 2018. Next, it states that father was sent notice of the
April 24, 2015 hearing on April 10, 2015, when notice was
mailed on April 21, 2015.
14 Father points out that his signature appears in the
location on the JV-451 form where a prison official was
supposed to make a declaration about the facility’s available
technology.
16
teleconference, but that father should have had the
opportunity to have a teleconference. When the social
worker told the correctional counselor that according to the
form, the Tallahatchie facility lacked compliant technology,
the counselor stated that this might have been because
father stated he wanted to be physically present. The
corrections counselor also said father was returned to
California to finish his sentencing as his anticipated release
date was on November 5, 2016. The counselor cautioned
that father’s release date could change, as father had not
been a model prisoner.
At the hearing on December 12, 2016, father’s attorney
began her argument by noting that father was a
nonoffending presumed parent. Father received notice while
incarcerated in Mississippi under the jurisdiction of CDCR.
As a presumed father, he was entitled to notice and an
opportunity to be heard. He wrote back and asked to
appear, but was not permitted to appear, even though he
had not signed a waiver. He was also not appointed counsel
to represent his interests and the case proceeded in his
absence. Father had completed some life skills programs, as
well as a program called InsideOut, and he had been
released from prison. Father was asking for an opportunity
to get to know his children better, and had been fully
compliant, testing negative for all drugs and alcohol since
his release. Me.J. was interested in getting to know father,
and so father’s attorney asked for six months of reunification
services and a visitation order.
17
The Department argued that notice was proper, and
that father had not seen his children for almost six years.
Transportation was not available, based on the interview
with the corrections counselor, and it was father’s own
conduct that landed him in prison.
The court found father had received proper notice of
the hearing, nonetheless acknowledging the challenges
posed by the fact that father was incarcerated in Mississippi.
Turning to the best interests prong, the court found that
father had not shown that the requested relief would be in
the children’s best interests, because he had been away from
them for five to six years, only one visit had taken place, and
based on statements from the corrections counselor, father’s
inability to be present at the hearing may have stemmed
from father’s own behavior. The court denied father’s
section 388 petition, but emphasized that father’s monitored
visits could continue and “[t]his does not mean that he has
no opportunity to reunify with the children, because the
Department will need to revisit its . . . recommendation,
whether or not it will be adoption or whether or not it will be
legal guardianship.”
11. Slow track towards permanency – November 2016
to April 2019
In response to multiple requests by the Department for
continuances, the section 366.26 hearing was continued
18
numerous times, from December 12, 2016, to April 30,
2019.15
Father’s weekly monitored visits generally went well
during this time, although at least once, the social worker
had to speak with him after maternal grandmother
complained about father being on his phone and wandering
into the children’s bedrooms during a visit. Father’s
behavior improved after he spoke with the social worker.
In April 2018, the Department reported that father had
maintained weekly visits, which were going well. However,
sometimes the children did not cooperate with visits, and
Me.J. was more interested in getting to know father than
Al.J. or An.J.. Father was making an effort to have a
relationship with the children, participating in birthday and
holiday celebrations, and buying gifts like school supplies,
clothes, shoes, socks, and toys.
In October 2018, the Department reported that Al.J.,
who previously was having serious behavioral problems, was
improving. Father got the children a pet dog, and Al.J. had
demonstrated a positive change in behavior, spending time
outdoors playing with the dog and sharing chores with his
15 The reasons for these continuances varied. Initially,
the Department needed additional time for maternal
grandmother to complete the necessary paperwork and
interviews for the adoption home study. Later, Alex was
having behavioral problems, and the Department wanted to
make sure that maternal grandmother was equipped to
handle his needs.
19
siblings, such as feeding, bathing and picking up after the
dog. The same report noted that father was arrested in
August 2018 for possession of methamphetamine for sale,
but was released ten days later. The police report states
that when police responded to a possible car crash, father
was trying to jumpstart his vehicle. He told police he was on
parole, consented to a search of his person, and stated he
had a glass methamphetamine pipe in his front pocket and a
bag of methamphetamine in a backpack in the car. Father
told police he was trying to do better to gain custody of his
child, but did not have any income and was looking for help.
A friend gave him the methamphetamine to make some
extra money, but father did not know how to go about selling
it.
Father was arrested again on February 1, 2019, for
sale or transportation of methamphetamine. He was
released on bail the following day, with a court date of
March 6, 2019.
Father was not in court on April 30, 2019, the date
scheduled for a section 366.26 hearing. His attorney asked
for a continuance, acknowledging he had not heard from
father. The court denied the request for a continuance.
After hearing argument on application of the beneficial
relationship exception, the court found the children to be
adoptable and that no exception applied. It terminated
parental rights as to all four children.
20
DISCUSSION
Notice violation and right to counsel
Both parties agree that father was not properly
notified of the May 4, 2015 jurisdiction and disposition
hearing. Father does not challenge the validity of juvenile
court’s jurisdictional findings, which were based on mother’s
drug abuse. He does, however, argue that improper notice of
the hearing led to a series of prejudicial errors, including the
court’s failure to appoint counsel to represent him. The
Department argues that any notice error was harmless
beyond a reasonable doubt.
A. Standard of review
The Department argues that the notice errors were
harmless, citing two court of appeal cases that review the
prejudicial effect of defective notices under the “harmless
beyond a reasonable doubt” standard. (In re J.H. (2007) 158
Cal. App. 4th 174, 183; In re Justice P. (2004) 123 Cal. App. 4th
181, 193 [due process violations in dependency proceedings
have been held to the harmless beyond a reasonable doubt
standard of prejudice].)
At least two California Supreme Court cases have
applied the Watson standard—which requires the appellant
to show a reasonable probability of a more favorable
outcome—even to constitutional errors in dependency cases.
21
(In re Jesusa V. (2004) 32 Cal. 4th 588, 625 [applying
harmless error test and concluding father was not prejudiced
by appearing at a dependency hearing only through his
attorney].) “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 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 (1956) 46 Cal. 2d 818, 836.)
We believe it appropriate to apply the same test in
dependency matters.” (In re Celine R. (2003) 31 Cal. 4th 45,
59–60; see also In re M.M. (2015) 236 Cal. App. 4th 955, 963.)
The Watson harmless error test also applies to an appellate
court’s review of the denial of a parent’s statutory right to
counsel. (In re J.P. (2017) 15 Cal.App.5th 789, 797; In re
Kristin H. (1996) 46 Cal. App. 4th 1635, 1667–1668.)
Regardless of which standard is applicable, we
conclude that there was prejudicial error. Under the Watson
standard, it is reasonably probable that absent the notice
error and the related denial of legal representation, father
would have been granted reunification services, and his
parental rights would not have been terminated. The
Department has also not shown that the notice error was
harmless beyond a reasonable doubt.16
16Given our finding that the error here was not
harmless, we need not reach whether the court’s failure to
appoint counsel might be structural error. We simply note
22
Before delving into the specifics of father’s case, we
briefly review the law governing a parent’s right to notice of
the proceedings and right to counsel, focusing on the law
applicable to incarcerated and indigent parents.
the following language from a 2008 California Supreme
Court opinion: “In United States v. Gonzalez–Lopez (2006)
548 U.S. 140, the United States Supreme Court held that
erroneous deprivation of a criminal defendant’s Sixth
Amendment right to counsel of choice was a structural defect
requiring reversal of the conviction without inquiry into
prejudice. The court explained: ‘It is impossible to know
what different choices the rejected counsel would have made,
and then to quantify the impact of those different choices on
the outcome of the proceedings. Many counseled decisions,
including those involving plea bargains and cooperation with
the government, do not even concern the conduct of the trial
at all. Harmless-error analysis in such a context would be a
speculative inquiry into what might have occurred in an
alternate universe.’ (Id. at p. 150.) [¶] We conclude that
error in the procedure used to appoint a guardian ad litem
for a parent in a dependency proceeding is trial error that is
amenable to harmless error analysis rather than a
structural defect requiring reversal of the juvenile court’s
orders without regard to prejudice. Determining prejudice
in this context does not necessarily require ‘a speculative
inquiry into what might have occurred in an alternate
universe.’ (United States v. Gonzalez–Lopez, supra, 548 U.S.
at p. 150.)” (In re James F. (2008) 42 Cal. 4th 901, 914–915.)
23
B. Right to notice and right to appear
“Due process requires that a parent is entitled to notice
that is reasonably calculated to apprise him or her of the
dependency proceedings and afford him or her an
opportunity to object. [Citation.] The child welfare agency
must act with diligence to locate a missing parent.
[Citation.] Reasonable diligence denotes a thorough,
systematic investigation and an inquiry conducted in good
faith.” (In re Justice P., supra, 123 Cal.App.4th at p. 188.)
When a parent is not present at the detention hearing, the
notice of the jurisdiction and disposition hearing must be
delivered by personal service or by certified mail, return
receipt requested. (§ 291, subd. (e)(1); In re J.H., supra, 158
Cal.App.4th at p. 181, fn. 4.)
When a parent is incarcerated, no petition under
specified subdivisions of section 300 “may be adjudicated
without the physical presence of the prisoner or the
prisoner’s attorney, unless the court has before it a knowing
waiver of the right of physical presence signed by the
prisoner or an affidavit signed by the warden,
superintendent, or other person in charge of the institution,
or his or her designated representative stating that the
prisoner has, by express statement or action, indicated an
intent not to appear at the proceeding.” (Pen. Code, § 2625,
subd. (d).)17
17 For purposes of Penal Code section 2625 only, “the
term ‘prisoner’ includes any individual in custody in a state
24
Penal Code section 2625, subdivision (b), requires the
juvenile court to order notice transmitted to an incarcerated
parent for proceedings under section 300 and 366.26. These
provisions “encompass the jurisdictional hearing, which may
precede the formal adjudication of the petition at the
dispositional hearing, as well as the dispositional hearing.”
(In re Jesusa V., supra, 32 Cal.4th at pp. 599–600, fn. 2.)
The notice of hearing must inform the prisoner of his or her
options for requesting to appear and participate personally
or telephonically. (Cal. Rules of Court, rule 5.530(f)(1)(B).)
The notice must be served on the parent, his or her attorney,
the person in charge of the institution, and the sheriff’s
department of the county in which the order is issued not
less than 15 days before the date of the hearing, and it must
include as attachments Judicial Council Form No. JV-450
[Order for Prisoner’s Appearance at Hearing Affecting
Parental Rights] and Judicial Council Form No. JV-451
[Prisoner’s Statement Regarding Appearance at Hearing
Affecting Parental Rights]. (Cal. Rules of Court, rule
5.530(f)(5).)
The requirement that a prisoner must either be
present or waive his or her own presence ensures that the
prisoner actually received the notice required by Penal Code
prison, . . .” (Pen. Code, § 2625, subd. (a).) The definition of
a state prison refers “to all facilities, camps, hospitals and
institutions for the confinement, treatment, employment,
training and discipline of persons in the legal custody of the
Department of Corrections.” (Pen. Code, § 6082.)
25
section 2625, subdivision (b). (In re Jesusa V., supra, 32
Cal.4th at pp. 623–624; see also In re Marcos G. (2010) 182
Cal. App. 4th 369, 385–386 [involving a father who did not
appear and had no attorney appearing for him].) Although
the presence of an attorney alone does not meet the
requirements of Penal Code section 2625, subdivision (b), the
fact that a parent was represented at the hearing affects the
reviewing court’s analysis of whether any error was
harmless. (In re Jesusa V., supra, 32 Cal.4th at pp. 601–602,
622, 624–625 [prisoners do not have a constitutional right to
be present at every type of hearing, and meaningful access to
a court through appointed counsel where the prisoner is
given an opportunity to present testimony in some form and
cross-examine witnesses].)
C. Right to counsel
“[I]ndigent parents and guardians have statutory
rights to appointed counsel at any hearing where out-of-
home placement of the child is at issue. (§ 317, subd. (b); In
re Kristin H. (1996) 46 Cal. App. 4th 1635, 1659.)” (In re
Kayla W. (2017) 16 Cal.App.5th 409, 416.) This division
recently reviewed the statutory basis for a parent’s right to
counsel in dependency proceedings in In re J.P., supra, 15
Cal.App.5th 789. “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
26
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).)” (In re J.P., supra, at p. 796.)
“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.)
So long as an indigent parent or guardian appears or
communicates to the court a request for legal representation,
counsel should be appointed. (In re Ebony W. (1996) 47
Cal. App. 4th 1643, 1646–1648 [no duty to appoint counsel
where mother never appeared or manifested any desire to
participate in proceedings]; see also Seiser & Kumli, Cal.
Juvenile Courts Practice and Procedure (2019) § 2.61[1].)
27
D. Application/Analysis
As noted earlier, the Department concedes that its
April 21, 2015 notice was inadequate to properly notify
father of the scheduled May 4, 2015 jurisdiction and
disposition hearing. It is also undisputed that father
promptly responded to the notice on April 27, 2015 by
requesting to appear at the hearing. We cannot determine
from the record when either the court or the Department
received father’s request, but we do know that the court did
not appoint an attorney to represent father, and no action
was taken to facilitate father’s request to appear. More than
a year later, in May 2016, the Department personally served
father with a notice of the section 366.26 hearing in a
California prison, and he again requested to be present.
Only in August 2016 at the section 366.26 hearing was
counsel finally made available to represent father.
The Department’s harmlessness argument ignores the
fact that the defective notice caused father to lose not just
his right to appear but his right to legal representation
during critical stages of the dependency case.
1. Loss of right to counsel
The Department tries to separate the notice error from
the question of whether father was entitled to legal
representation. It insists that the court’s error was limited
to its incorrect notice finding because the court was not
28
under a duty to appoint counsel without a request from
father. The Department relies on In re Ebony W., supra, 47
Cal. App. 4th 1643, where the court reasoned that if the
language of section 31718 was read to give meaning to the
subdivisions governing both mandatory and discretionary
appointment of counsel, “the plain meaning of those
provisions require some manifestation by the indigent
parent that he or she wants representation before the court
is obliged to appoint counsel. [¶] Our conclusion that
section 317 requires the indigent parent to communicate in
some fashion his or her desire for representation before the
juvenile court is obligated to appoint counsel is buttressed by
the statutory provisions discussed above in connection with
the detention, jurisdictional, and section 366.26 hearings.”
(Id. at p. 1647.)
18 The relevant text of section 317, subdivision (a)(1),
currently states: “When it appears to the court that a parent
or guardian of the child desires counsel but is presently
financially unable to afford and cannot for that reason
employ counsel, the court may appoint counsel as provided
in this section.” The relevant text of subdivision (b) states:
“When it appears to the court that a parent or guardian of
the child is presently financially unable to afford and cannot
for that reason employ counsel, and the child has been
placed in out-of-home care, . . . the court shall appoint
counsel for the parent or guardian, unless the court finds
that the parent or guardian has made a knowing and
intelligent waiver of counsel as provided in this section.”
29
In Ebony, the court found no manifestation of a desire
for representation by a mother who did not appear at any
hearing of the dependency case, despite the fact that the
agency made reasonable efforts to locate her, mailed her
notice of the jurisdictional hearing, and personally served
her with notice of the section 366.26 hearing. (In re Ebony
W., supra, 47 Cal.App.4th at p. 1645.) Here, in contrast,
father unambiguously requested to be present at the
jurisdiction and disposition hearing, a request that can
reasonably be interpreted as including a request for
appointment of counsel. Nothing in the record shows the
Department took any steps to inform the court of father’s
request to appear, or to respond to father’s request in any
way. The parties have not cited to, nor have we been able to
find, any case where an incarcerated parent who wishes to
appear and communicates that request is denied the right to
counsel. (Cf. Jesusa V., supra, 32 Cal.4th at pp. 625–626; In
re J.H., supra, 158 Cal.App.4th at pp. 179–180 [father was
transported to appear in dependency case and an attorney
was appointed at his first appearance, within one month of
agency learning father’s whereabouts, despite almost three
years of diligent searches].)
Both the majority and concurring opinions in In re J.P.
emphasize the “unique impact that a deprivation of the right
to appointed counsel can have . . . on the fairness of the
dependency proceedings.” (In re J.P., supra, 15 Cal.App.5th
at p. 802 (conc. opn. of Baker, J.).) The facts of In re J.P.
involved a mother who was initially represented by counsel
30
when the juvenile court sustained petition allegations and
denied mother reunification services. Two years into the
dependency case, the court relieved mother’s counsel for
unknown reasons. (In re J.P., supra, at pp. 792–793.) After
another two years passed, mother filed a petition under
section 388 seeking reappointment of counsel, reunification
services, and liberalized visits. The court scheduled the
motion for a hearing but declined to appoint counsel, even
though minor’s attorney appropriately raised the question of
mother’s lack of legal representation both before and during
the hearing. (Id. at pp. 793–795.) The juvenile court’s
refusal to appoint an attorney for mother constituted
prejudicial error, in part because court-appointed counsel
“could have kept the hearing focused on the matters at issue
in a section 388 hearing” and would be better equipped than
mother to communicate with the Department and arrange
for testimony from relevant witnesses. (Id. at p. 801.) The
Department’s own evidence supported a finding that the
requested relief was in the child’s best interest, and so
“‘deprived [mother] of opportunities she should have had to
challenge the court’s orders and findings . . . and created
fundamental unfairness that violated minimum due process
requirements.’ [Citation.]” (Ibid.)
Just as we conducted a prejudice analysis in In re J.P.,
we next consider whether the denial of father’s right to
counsel created a fundamental unfairness in the proceedings
that constituted prejudice. (In re J.P., supra, 15 Cal.App.5th
at pp. 797–801.) We examine what rights would have been
31
available to father if the court had appointed an attorney
before proceeding with the jurisdiction and disposition
hearing. Absent the notice error, and the resulting
deprivation of court-appointed counsel, we conclude it is
reasonably probable that father would have fared much
better over the four-year span of this dependency case and
his parental rights may well not have been terminated.
2. Right to a continuance and either transportation or an
opportunity to communicate with counsel.
Father had a statutory right to appear at the
disposition hearing, absent a written waiver. (Pen. Code,
§ 2625, subd. (d); Jesusa V., supra, 32 Cal.4th at pp. 621–624
[prisoner-parent has a right to attend hearing].) We need
not analyze the question of whether Penal Code section
2625, subdivision (d) requires transportation of a prisoner
who is under the authority of the California Department of
Corrections, but is housed out-of-state due to prison
overcrowding. Instead, court-appointed counsel would at a
minimum have requested a continuance to contact father
and investigate whether father could appear in person or by
telephone or videoconference. (See, e.g., In re M.M., supra,
236 Cal.App.4th at pp. 960–965 [mother incarcerated in
different county, and court’s decision to conduct hearing in
mother’s absence over her counsel’s objection was prejudicial
error].) In In re Iris R. (2005) 131 Cal. App. 4th 337, 339, the
juvenile court had appointed counsel to represent parents.
32
Acknowledging the challenge of arranging transportation for
parents, it asked the attorneys to contact parents and
acquaint them with the contents of the Department’s
reports, suggesting that a hearing could be continued if
anything came up in subsequent reports to allow counsel
sufficient time to communicate with parents. (Ibid.) When
mother argued the court violated her constitutional due
process rights by conducting the hearing in her absence, the
appellate court found harmless error, noting that mother
had all the relevant reports and was in contact with her
attorney, ensuring that any helpful information would have
been relayed to the court. (Id. at pp. 342–343.)
Here, absent the notice error and resulting deprivation
of counsel, father’s attorney could have taken steps to either
arrange for father’s presence at the jurisdiction and
disposition hearing, or preserved for appeal the question of
whether father had a right to be present. Alternatively,
similar to In re Iris R., supra, 131 Cal.App.4th at page 339,
an appointed attorney could have relayed the substance of
the Department’s reports and recommendations to father
and had an opportunity to present evidence and argument
on father’s behalf. Neither of these alternatives occurred in
this case, and father suffered significant prejudice as a
result, because (as discussed in the next two sections) the
court would likely have ordered reunification services and
need not have entered a removal order against him.
33
3. Right of an incarcerated parent to reunification services
An incarcerated parent has the right to receive
reunification services unless the court determines by clear
and convincing evidence that such services would be
detrimental to minor. (§ 361.5, subd. (e)(1).) We disagree
with the Department’s argument that there was “ample
uncontested evidence” to support the court’s decision to deny
reunification services for father. This argument ignores the
fact that because the Department provided inadequate
notice resulting in a deprivation of counsel, father had no
opportunity to contest the evidence the Department now
calls “uncontested” or to develop additional evidence on some
or all of the many factors section 361.5, subdivision (e)(1)
requires a juvenile court to consider.
At disposition, the only evidence before the court
concerning father was that in 2012 he began serving a six-
year sentence for assault, and that the children reported
having no contact and very little recollection of him. The
Department’s April 24, 2015 jurisdiction and disposition
report misleadingly stated that father “remains in prison in
Mississippi.” It failed to mention that the Department
learned of father’s whereabouts through an inmate locator
search on the CDCR website, a printout of which may have
been attached to a March 13, 2015 addendum report,
although the record is not clear. The jurisdiction and
disposition report does acknowledge that “details as to his
incarceration are currently unknown but are continuing to
34
be investigated.” When the disposition hearing took place,
the children were still quite young, between the ages of three
and seven. Appointed counsel would be able to argue that
the children’s ages provided a valid explanation for their
lack of recollection, as the youngest was just an infant and
the oldest was only five years old when father was sent to
prison. The attorney could also have investigated the details
of father’s out-of-state incarceration, advocated to have him
returned to California and to be provided reunification
services designed to establish and strengthen what
concededly may have been a tenuous connection between
him and his children. The role of an attorney in ensuring a
parent receives adequate reunification services cannot be
understated. (See, e.g., In re G.L. (2014) 222 Cal. App. 4th
1153, 1163–1165 [describing complexity of exceptions to
providing reunification services and affirming order granting
incarcerated parent reunification services]; A.H. v. Superior
Court (2010) 182 Cal. App. 4th 1050, 1059 [if a parent was
unable to receive services or maintain the same level of
contact during a period of incarceration, the court could still
order the child returned to the parent absent evidence of a
substantial risk of detriment]; Mark N. v. Superior Court
(1998) 60 Cal. App. 4th 996, 1010–1014 (Mark N.) [absent a
finding of detriment, agency must work with prison to
provide reasonable reunification services tailored to parent’s
specific circumstances].) In Mark N., we emphasized that as
long as the juvenile court has not found that reunification
services would be detrimental, an incarcerated parent is
35
entitled to reasonable reunification services. (Mark N.,
supra, 60 Cal.App.4th at pp. 1013–1015 [agency cannot use
parent’s incarceration to excuse failure to provide reasonable
reunification services].)
The Department argues that we should affirm the
order denying reunification services to father because it was
supported by substantial evidence. However, we are not
reviewing the order for sufficiency of the evidence supporting
it. We are examining whether father’s absence and his lack
of counsel at the disposition hearing was prejudicial. We
conclude that it was, because the paucity of any evidence to
show reunification services would cause detriment stands in
stark contrast to the case law holding that an incarcerated
parent is entitled to reasonable reunification services. The
Department has not pointed to case law supporting its
position that the length of father’s prison sentence alone
constitutes clear and convincing evidence of detriment.
Ultimately, father was returned to California less than
a year after the disposition hearing. By July 2016, father
had completed a parenting program for prisoner parents and
began communicating with his children on his own.
Particularly in light of father’s status as a non-offending
parent, we are not convinced that, absent the error that led
to father’s non-appearance and the denial of counsel, the
court would have denied reunification services to father. On
these facts, it is arguably more likely than not that father
would have been given reunification services and
successfully completed such services.
36
4. No need for order removing children from father,
because he was non-custodial
Finally, appointed counsel would likely have argued
that the court did not need to, nor did it have a basis to,
enter a removal order against father, who was a non-
custodial parent. (In re Andrew S. (2016) 2 Cal.App.5th 536,
542–544.) In the section of its respondent’s brief addressing
the court’s unfitness findings, the Department points to the
court’s removal order under section 361, subdivision (c), and
argues that even if father is permitted to argue that the
removal order was in error, prior case law shows that such
an error is harmless where the record supported a
substantial danger finding under section 362, subdivision
(a). (See In re Anthony Q. (2016) 5 Cal.App.5th 336, 353.) At
this juncture, it is not necessary, and indeed speculative, to
examine whether the record would have supported such a
“substantial danger” finding against father. Instead, we
simply note that this is another example of why father would
have benefited from legal representation at the disposition
hearing.
5. Conclusion
We cannot agree with the Department’s argument that
the failure to give father adequate notice of the jurisdiction
and disposition hearing was harmless error. Father
promptly responded to the initial notice, clearly indicating
37
his desire to appear at the hearing. But for the error of
untimely notice, the reasonable consequence of father’s
request would have at a minimum involved appointment of
counsel to represent father at the jurisdiction and
disposition hearing. As thoroughly explained above, legal
representation would have resulted in a tangible benefit to
father, altering the course of the dependency case to such a
significant degree that we must say it was within the realm
of reasonable probability that father, having availed himself
of reasonable reunification services and having returned to
California and established a relationship with his children,
would not have been in his current position of having his
parental rights terminated.
Instead, subsequent events only compounded the
initial notice error. First, the Department asked the court to
bypass father’s reunification services. Second, the court
failed to provide notice of some of its critical orders to father.
Third, the court summarily denied father’s first petition
seeking reunification services once he had returned to
California. Fourth, the Department failed to notify the court
of father’s April 27, 2015 letter until it had to respond to the
section 388 petition filed by father’s counsel after father
appeared at the first section 366.26 hearing.
In contrast to the Department and the court’s dismal
record of protecting father’s rights, father himself took steps
to not only improve his chances of reunification, but to seek
additional assistance from the court. Even without help
from an attorney or guidance from a social worker, father
38
independently took classes while in prison to improve the
chances that he could successfully parent his four children.
Considering all of the above, we conclude that not only
has the Department failed to show that the notice error was
harmless beyond a reasonable doubt (In re Justice P., supra,
123 Cal.App.4th at p. 193), but also that father has
demonstrated miscarriage of justice warranting reversal.
(Cal. Const., art. VI, § 13.; In re J.P., supra, 15 Cal.App.5th
at p. 797.)
Given the passage of time and circumstances that
have changed since the juvenile court’s disposition order and
refusal to provide reunification services to father, as well as
the subsequent termination of his parental rights, this court
is not in a position to make orders in the first instance.
Instead, we reverse the dispositional orders as to father
made May 4, 2015, and vacate the April 30, 2019 order
terminating parental rights. (See In re A.L. (2010) 190
Cal. App. 4th 75, 79–80 [reversal for error in denying one
parent’s section 388 petition, “a necessary antecedent to the
holding of the section 366.26 hearing in which the juvenile
court would decide permanent plans for the minors,” vacates
termination of parental rights in later section 366.26 hearing
as to both parents].) We remand the matter to the juvenile
court to reappoint counsel for father if necessary, and to
promptly hold a new dispositional hearing as to father only.
At the new dispositional hearing, the parties can
appropriately address the facts as they existed at the time of
the May 4, 2015 hearing, as well as any subsequent
39
developments up to the time of the new hearing that bear on
father’s right to reunification services and the minors’ best
interests. (In re Ryan K. (2012) 207 Cal. App. 4th 591, 597 [on
remand, juvenile court may consider matters that transpired
while the appeal was pending].)
Father’s other arguments
Because we have concluded that father has shown a
miscarriage of justice through the denial of his right to
appear and his right to counsel, we do not need to reach
father’s remaining arguments about the denial of his section
388 petition or the absence of any finding that father was
“unfit.”
40
DISPOSITION
The juvenile court’s dispositional orders as to father
only, entered on May 4, 2015, are reversed, including the
denial and termination of reunification services for father
only. In addition, the juvenile court’s April 30, 2019 order
terminating parental rights is vacated. The matter is
remanded with instructions to appoint counsel for father and
to conduct a new dispositional hearing under sections 358
and 360, taking into account any evidence developed after
the May 4, 2015 hearing that may bear upon the issues to be
decided at the new dispositional hearing. We express no
opinion on whether father is entitled to reunification
services, leaving it to the juvenile court to base its decisions
on the evidence before it. If the court determines that father
is not entitled to reunification services or other relief, it shall
schedule and hold a new section 366.26 hearing.
MOOR, J.
We concur:
RUBIN, P. J. KIM, J.
41
Filed 1/23/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re A.J. et al, Persons B297762
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. DK09916A-D)
LOS ANGELES COUNTY ORDER CERTIFYING
DEPARTMENT OF OPINION
CHILDREN AND FAMILY FOR PUBLICATION
SERVICES,
Plaintiff and
Respondent,
v.
M.J.,
Defendant and
Appellant.
THE COURT:
The opinion in the above-entitled matter filed on
December 24, 2019, was not certified for publication in the
Official Reports. Upon appellant’s request, and for good
cause appearing, it is ordered that the opinion shall be
published in the Official Reports.
Pursuant to California Rules of Court, rule 8.1105(b),
this opinion is certified for publication.
RUBIN, P. J. MOOR, J. KIM, J.
2