In re Christopher L. ( 2020 )

Filed 11/2/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re CHRISTOPHER L., a Person B305225
Coming Under the Juvenile Court
Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 17CCJP02800)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CARLOS L.,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles
County, Marguerite D. Downing, Judge. Affirmed.
Christopher Blake, under appointment by the Court of
Appeal, for Appellant and Defendant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Sarah Vesecky, Deputy County Counsel, for
Plaintiff and Respondent.
Christopher L., born in December 2017, and I.L., born
in February 2017, are the children of appellant Carlos L. (Father)
and V.L. (Mother), who is not a party to this appeal. Father
was represented by counsel in connection with, and personally
participated in, the Welfare and Institutions Code section 366.261
permanency planning hearing at which his parental rights
regarding Christopher were terminated. He appeals from that
termination based on the juvenile court having conducted the
earlier jurisdiction/disposition hearing regarding both children
in his absence and without counsel present on his behalf. Father
had not provided a written waiver of his right as an incarcerated
parent under Penal Code section 2625 to participate, personally
or through counsel, in the jurisdiction/disposition hearing; to the
contrary, in documents provided to the juvenile court before that
hearing, Father requested that he be allowed to participate. Before
the jurisdiction/disposition hearing, the court was also presented
with documents establishing that Father was entitled to “presumed
father” status, which carries with it the right to appointed counsel.
On these bases, Father argues that he was denied due process at
the jurisdiction/disposition hearing, that these due process errors
affected the ultimate outcome of the proceedings, and that, in
any case, they constitute structural error and trigger automatic
reversal.
We agree with Father that the trial court erred, and that
these errors affected the due process afforded Father at the
jurisdiction/disposition hearing in that they denied him counsel at
that hearing. But even errors of a constitutional dimension can
be subject to a harmless error analysis in dependency proceedings,
1 Unless otherwise indicated, all further statutory references
and citations are to the Welfare and Institutions Code.
2
given the unique nature of such proceedings, unless it is impossible
to assess prejudice without engaging in speculation. (See In re
James F. (2008) 42 Cal. 4th 901, 915–919 (James F.); In re J.P.
(2017) 15 Cal. App. 5th 789, 800; In re S.P. (2020) 52 Cal. App. 5th
963, 972, petn. for review filed Sept. 1, 2020, S264203, time
to grant or deny review extended to Nov. 30, 2020.) No such
speculation is necessary here. The record clearly establishes
that, had Father appeared and/or been represented by counsel
at the jurisdiction/disposition hearing, Father would not have
obtained a more favorable result. We decline Father’s invitation
to expand current law and deem reversible per se an error
in dependency proceedings that is amenable to harmless error
analysis. Accordingly, although we are troubled by the errors
Father identifies in connection with the jurisdiction/disposition
hearing, we conclude that they would not have affected the ultimate
outcome of the dependency proceedings and affirm the trial court’s
order regarding Christopher.
Father’s parental rights to Christopher’s older sister I.L.
were terminated in a separate order, which Father did not appeal.
Instead, 18 months after the time for filing such an appeal expired,
Father moved this court to apply the doctrine of constructive
filing and “extend” Father’s appeal regarding Christopher to
apply to I.L. as well. But Father concedes that he would make
the exact same arguments in an appeal regarding I.L. that he
made regarding Christopher, and that these arguments apply in
the exact same way to both children. Given our conclusion that
Father’s arguments regarding Christopher do not warrant reversal,
permitting Father to pursue them with respect to I.L. would serve
no purpose. Therefore, we deny Father’s motion.
3
FACTUAL AND PROCEDURAL BACKGROUND
A. Father’s Older Children From a Previous
Relationship
Father has three older children (not with Mother) who were
the subject of separate dependency proceedings, and with whom he
failed to reunify. The dependency proceedings regarding Father’s
older children were initiated in 2013 based on issues related
to substance abuse by those children’s mother. Father was
incarcerated at the outset of the separate proceedings, released
approximately three months thereafter, then rearrested for a drug-
related offense and returned to prison approximately three months
after that release. During the interim period when Father was not
in prison, he failed to comply with juvenile court orders, which
included an order for regular drug testing. Father’s reunification
services were terminated. As of the most recent information in
the record, two of Father’s older children are receiving permanent
placement services with a plan of legal guardianship.
B. Family Background
Father is in his late 30’s and has an extensive criminal
record, as a result of which he was required to register as a
controlled substance offender.2 Father’s criminal history spans over
a decade and includes a conviction for robbery, multiple convictions
for possession of a controlled substance or being under the influence
of a controlled substance, firearms offenses and multiple parole
violations.
2 Former section 11590 of the Health and Safety Code
required persons convicted of certain offenses to register as a
controlled substance offender with law enforcement in the city
or county where he or she resides. The Legislature repealed the
requirement in 2019. (Stats. 2019, ch. 580, § 1, p. 5212.)
4
Father and Mother have been married since December 2014.
In February 2017, Mother gave birth to I.L.; Father’s name is listed
on I.L.’s birth certificate.
Mother and Father stopped living together in approximately
April 2017, when Father was arrested for robbery, and Mother
began living with a man named J.M. Mother and I.L. moved in
with J.M. at some point in 2017.
Father was convicted of robbery in October 2017 and began
serving a seven-year prison sentence. Months later, in December
2017, Mother gave birth to Christopher. Father’s counsel
represented during the hearing before this court that Father is
eligible for parole in late 2020.
C. Section 300 Petition Regarding I.L. and
Christopher
On December 28, 2017, the Los Angeles County Department
of Children and Family Services (DCFS) filed a section 300 petition
on behalf of newborn Christopher and 10-month-old I.L., alleging
they were at risk due to, inter alia, Christopher being born with
a positive toxicology screen for amphetamines and Mother having
a history of substance abuse. The petition further alleged risk
to both children based on J.M. (who was initially identified as
Christopher’s father) having a history of substance abuse, and
Father’s extensive criminal history and status as a registered
controlled substance offender. The petition lists Father’s address
as that of Sierra Conservation Center, the facility at which he was
incarcerated at the time.
D. Detention Hearing and Detention Report
The detention report listed Father as the alleged father
of I.L. and J.M. as the alleged father of Christopher. The report
noted that Mother and Father were married, and their marriage
5
certificate was attached to the detention report. The report
summarized an interview with J.M., during which J.M. indicated
Mother had a young daughter who was not J.M.’s child, and that he
was “pretty sure [Christopher] [was] not [his] baby.” DCFS further
reported that, on the day Christopher was born, Mother indicated
J.M. was the father, but that she later told social workers she was
uncertain who Christopher’s father was.
DCFS provided written notice of the detention hearing to
Father at the Sierra Conservation Center address. The detention
hearing took place on December 29, 2017, at which time the court
determined that notice had been provided as required by law.
Neither parent, nor counsel for either parent, appeared. The court
noted Father was in state custody and a statewide search was
ordered for him. The court postponed findings regarding paternity
of either child. The children were detained from Mother, Father,
and J.M., and ultimately placed in the custody of the maternal
great aunt S.M. (the maternal aunt). The jurisdiction/disposition
hearing was set for March 9, 2018, and DCFS ordered to give notice.
DCFS sent Father such notice at the Sierra Conservation Center
address by certified mail and included his correct inmate
identification number. The notice listed both children on it and
attached a copy of the petition.
Apparently in response to this notice, on February 21,
2018, Father wrote to DCFS social worker Magdalena Elorriaga,
thanking her for “reaching out” and indicating that he had “received
[her] letter.”3 Father’s letter discussed his participation in
3 The record suggests that what Father refers to as the
“letter” from Elorriaga may be the notice of hearing on the petition,
which indicates Elorriaga executed and served it via mail on Father
10 days before the date of his letter to her. Further supporting
6
dependency proceedings as follows: “I wanted to ask if a court
appearance is necessary. In your letter you stated that a court date
of 3/9/18 will be set. The reason why I’m asking is that this court
date will delay my process on being transferred to a California Fire
Camp. If possible I was wondering can this matter be handled over
the telephone. If so, it would be very much appreciated if we took
that route. I love my kids and I will do anything in my power to
be with them. The faster I get to camp, the faster I’ll be home. . . .
Please inform me of my options if a court appearance is needed to
handle this matter.” Father also requested paternity testing, but
indicated he considered both children to be his regardless: “[M]y
wife . . . and I had our differences through the years and just so I
can have some piece [sic] of mind I would like DNA testing on [I.L.]
and [Christopher]. Regardless of the outcome I will love them as
my own. They are still my kids and I love them dearly.” Father
requested pictures of the children and that he be kept “updated
with the status of my children.” Finally, Father asked that his
mother be “allowed visitation rights” and inquired as to how she
could “go about seeing the children.”
E. Jurisdictional Hearing and Jurisdiction/
Disposition Report
Father’s letter is referenced in and attached to the report
prepared in anticipation of the jurisdiction/disposition hearing.
The report further summarizes J.M.’s additional statements that
“he believe[d] 80% [Christopher] is his child,” as well as Mother’s
additional statements denying this and identifying Father as the
father of both children. The report summarizes Father’s DCFS
this conclusion is the fact that Father’s letter refers to Christopher
as “Baby Boy [L.],” the name used to refer to Christopher in the
petition and notice of petition.
7
history, including that he had failed to reunify with three of his
older children in separate dependency proceedings several years
earlier.
The jurisdiction/disposition hearing for both I.L. and
Christopher was held on March 9, 2018. The jurisdiction/
disposition report and detention report were admitted into evidence
at the hearing, including the attached marriage certificate and
February 2018 letter from Father.
Neither Father nor counsel for him appeared at the
jurisdiction/disposition hearing. Apparently unaware of Father’s
letter, the court indicated that “[Father] is currently incarcerated,
and he has not made himself available . . . . [H]e’s been noticed,
but he’s made no contact with [DCFS].” The court therefore
proceeded with the hearing, at which counsel for DCFS and the
minor’s counsel very briefly argued that the petition should be
sustained as pleaded. As to Father, DCFS argued that Father
“ha[d] multiple convictions for possession and lost children for
permanent placement for not complying with drug treatment.”
The court sustained the petition as amended to indicate Father
is a “registered controlled substance offender,” “[t]here is no
information that he’s ever complied with programming, and he’s
currently incarcerated based on his extensive criminal history.”
The court denied Father (and Mother and J.M.) reunification
services for both children “pursuant to [section] 361.5[, subdivision]
(b)(10)”—that is, on the basis that they had previously failed to
reunify with children deemed dependents and that placement
with them would not be in the best interests of the children. (See
§ 361.5, subd. (b)(10).) The court confirmed both children were
suitably placed with the maternal aunt, who had already adopted
two of Mother’s other children. The paternal grandparents were
present, and the court ordered that they be assessed for visits.
8
The court later set a permanency planning hearing for both
children, for which the court would “order [Father] out.” Adoption
with the maternal aunt was the recommended permanent plan.
No paternity findings regarding either child were made. The court
asked a Los Angeles Dependency Lawyers, Inc. firm to act as a
“friend of the court” and contact Father before the permanency
planning hearing.
F. Permanency Planning Hearings
DCFS gave Father written notice of the permanency planning
hearing, which he received. DCFS also submitted an order to
prison authorities for Father’s appearance at the permanency
planning hearing.
On November 15, 2018, the court appointed Father counsel,
who made a general appearance on Father’s behalf. Father’s
counsel informed the court that Father was asking to participate
in the permanency planning hearing telephonically and that he
objected to the termination of parental rights.
The court found Father to be the presumed father of I.L.
only, based on his having signed her birth certificate.
The permanency planning hearing for both children began on
December 19, 2018. Father participated telephonically, as he had
requested. Father’s counsel indicated that Father would prefer
legal guardianship with the maternal aunt, as opposed to adoption,
as the permanent plan. The report for the hearing indicates
that the children had been in the maternal aunt’s care without
interruption since their initial detention and were doing well, and
that the maternal aunt was not interested in legal guardianship of
the children, but was willing to adopt them.
9
Father’s counsel requested DNA testing with respect to
Christopher. The court granted the request and continued the
permanency planning hearing with respect to Christopher.
The court proceeded to conduct the permanency planning
hearing for I.L. only. Father’s counsel objected to termination
of parental rights as to I.L., but offered no evidence or argument.
The court terminated Father’s parental rights as to I.L. and gave
oral notice of its decision. The court also advised both parents
regarding appellate rights as follows: “I’m advising [Father], who
is on the phone, and . . . [Mother], who is not present in court, that
having terminated their parental rights, each parent is entitled
to a free copy of the transcript for appellate purposes. [¶] But
they must file their notice of appellate [sic] within 60 days.” The
December 29, 2018 minute order reflecting the termination of
parental rights as to I.L. and related “Appeal Rights form(s)”
were incorrectly sent to Father at the address on file for J.M.
At a later hearing, upon learning the results of the DNA test
indicating that Father was the biological parent of Christopher, the
court found Father to be Christopher’s alleged father. Counsel for
Father was present and did not object to this finding. The court
continued the hearing, and Father’s counsel indicated it would
arrange for Father to participate in that hearing telephonically.
In the interim, Christopher continued to reside with his sister
and the maternal aunt, referred to the maternal aunt as “mommy,”
and was thriving in her care.
DCFS gave notice to Father of the permanency planning
hearing for Christopher, which was ultimately held on March 5,
2020. Father was present via telephone and was represented
by appointed counsel (a different attorney from the same firm).
Father’s counsel objected to termination of parental rights, but
presented no evidence and offered no argument opposing it. The
10
court found that Christopher was adoptable, and that none of the
exceptions for adoption existed. Accordingly, the court terminated
Father’s parental rights.
G. Father’s Appeal and Benoit Motion
On April 1, 2020, Father filed a notice of appeal from the
order terminating his parental rights as to Christopher.
On June 25, 2020—18 months after his parental rights
as to I.L. had been terminated—Father filed a motion “to extend
his notice of appeal to apply to both [I.L. and Christopher] and/or
motion for constructive notice of appeal” pursuant to In re Benoit
(1973) 10 Cal. 3d 72 (Benoit). (Capitalization omitted.) DCFS
opposed the motion, and this court deferred ruling on the motion
pending consideration of this appeal.
DISCUSSION
Father first argues that the court erred by failing to find
that Father had “presumed father” status as to both children,
which would have entitled him to appointed counsel at the
jurisdiction/disposition hearing. Father also argues that when
the juvenile court conducted the jurisdiction/disposition hearing
without Father or Father’s counsel present, it violated Penal
Code section 2625, which guarantees incarcerated parents the
opportunity to participate in dependency proceedings. According to
Father, these errors denied Father his due process right to counsel,
affected the ultimate outcome of the proceedings, and are in any
event of such constitutional dimension that they should be reversed
regardless of whether they prejudiced Father.4
4 DCFS argues that Father has forfeited these arguments,
because he failed to raise them through a section 388 motion below,
pursuant to Ansley v. Superior Court (1986) 185 Cal. App. 3d 477.
11
We agree that the trial court erred in the manner Father
identifies, but disagree that these errors warrant automatic
reversal. The errors identified were not prejudicial under
the applicable harmless error analysis articulated in People v.
Watson (1956) 46 Cal. 2d 818 (Watson). (See In re Jesusa V. (2004)
32 Cal. 4th 588, 625 (Jesusa V.) [applying Watson harmless error
analysis to violation of Penal Code section 2625 that denied the
father the ability to personally participate in dependency hearing];
In re Andrew M. (2020) 46 Cal. App. 5th 859, 864, 867 (Andrew M.)
[failure to appoint counsel for the presumed father reviewed for
harmless error under Watson].) Nor are they prejudicial under the
more stringent “harmless beyond a reasonable doubt” standard
(See id. at pp. 487, 490 [section 388 petition can be used to
challenge lack of notice of earlier proceedings].) Father anticipates
this argument in his opening brief, and counters that, although a
section 388 motion would have been the proper vehicle for raising
these issues, his attorney’s failure to make such a motion was the
result of ineffective assistance of counsel, and thus any forfeiture
should be excused. According to Father, any competent counsel
would have filed such a motion, or otherwise raised the errors
identified on appeal with the juvenile court. We need not determine
whether Father forfeited these arguments, however, because even if
he did, we would exercise our discretion to address Father’s appeal,
which raises fundamental due process issues. (See In re Gladys
L. (2006) 141 Cal. App. 4th 845, 849 [waiver rule not enforced where
it conflicts with due process]; see also In re S.B. (2004) 32 Cal. 4th
1287, 1293 [“[T]he appellate court’s discretion to excuse forfeiture
should be exercised rarely and only in cases presenting an
important legal issue. [Citations.] Although an appellate court’s
discretion to consider forfeited claims extends to dependency cases
[citations], the discretion must be exercised with special care in
such matters.”].)
12
articulated in Chapman v. California (1967) 386 U.S. 18, 24
(Chapman). Accordingly, we affirm.
A. The Juvenile Court Erred
1. Error regarding Father’s parental status
“ ‘In dependency proceedings, “fathers” are divided into four
categories—natural [or biological], presumed, alleged, and de facto.’
[Citation.]” (In re E.T. (2013) 217 Cal. App. 4th 426, 436–437.)
“A father’s status is significant in dependency cases because it
determines the extent to which the father may participate in the
proceedings and the rights to which he is entitled.” (In re T.R.
(2005) 132 Cal. App. 4th 1202, 1209.) Only presumed fathers are
entitled to appointed counsel and reunification services. (In re
Zacharia D. (1993) 6 Cal. 4th 435, 451; see also Francisco G. v.
Superior Court (2001) 91 Cal. App. 4th 586, 596 [distinguishing the
greater rights that presumed fathers have as opposed to biological
fathers].)
The Family Code sets forth various circumstances under
which a man may acquire presumed father status. (See Fam. Code,
§ 7611.) These include that the man “and the child’s natural
mother are, or have been, married to each other and the child is
born during the marriage.” (§ 7611, subd. (a).) Thus, based on the
marriage certificate provided to the court at both the detention and
the jurisdictional hearings, Father qualified as Christopher and
I.L.’s “presumed father”—and, as such, should have been appointed
counsel at the detention hearing. The trial court erred in failing
to so find and appoint counsel for Father prior to the jurisdiction/
disposition hearing.
13
2. Penal Code section 2625 error
Penal Code section 2625, subdivision (d) requires that a
prisoner be permitted to participate in dependency proceedings
regarding the prisoner’s child, if he or she desires. Specifically,
it provides that a “petition to adjudge the child of a prisoner a
dependent child of the court pursuant,” inter alia, section 300,
subdivision (b), “may not 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 a
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).)
The record is clear that Father made no such written waiver.
To the contrary, the juvenile court had before it a letter from Father
informing DCFS that he wanted to participate in the proceedings,
albeit via telephone. The trial court thus failed to comply with
Penal Code section 2625, subdivision (d), when it conducted
the jurisdiction/disposition hearing without Father or counsel
appearing on his behalf. Although the failure to comply with
Penal Code section 2625 did not, as Father implies, deprive the
court of jurisdiction, it is error. (See Jesusa V., supra, 32 Cal.4th
at pp. 621–622; id. at p. 625 [holding violation of Penal Code
section 2625, subdivision (d), was not jurisdictional, because “we
have regularly applied a harmless-error analysis when a defendant
has been involuntarily absent from a criminal trial . . . [and] do not
believe the Legislature intended a different result . . . when a
prisoner is involuntarily absent from a dependency proceeding”].)
14
B. The Errors Do Not Require Automatic Reversal
Father argues that because the errors he identifies deprived
him of counsel at the jurisdiction/disposition hearing, they denied
him due process and are reversible per se, regardless of prejudice.
But the California Supreme Court has rejected the argument that,
in dependency proceedings, every due process error is reversible
per se. (See James F., supra, 42 Cal.4th at pp. 915–919.) In
James F., the Supreme Court concluded that error in the procedure
used to appoint a guardian ad litem for a parent in a dependency
proceeding was “amenable to harmless error analysis rather than a
structural defect requiring reversal of the juvenile court’s orders
without regard to prejudice.” (Id. at p. 915.) In so holding, the
Court first “observe[d] that juvenile dependency proceedings differ
from criminal proceedings in ways that affect the determination
of whether an error requires automatic reversal of the resulting
judgment. The rights and protections afforded parents in a
dependency proceeding are not the same as those afforded to
the accused in a criminal proceeding.” (Ibid.) On this basis, the
Court rejected that “the structural error doctrine that has been
established for certain errors in criminal proceedings should be
imported wholesale, or unthinkingly, into the quite different context
of dependency cases.” (Id. at pp. 915–916.)
“James F. cited United States Supreme Court authority to
explain that generally, an error is structural when it ‘ “def[ies]
analysis by ‘harmless-error’ standards” ’ and cannot ‘ “be
quantitively assessed in the context of other evidence presented in
order to determine whether [it was] harmless beyond a reasonable
doubt.” ’ [Citation.] The structural error doctrine is used when
‘ “assessing the effect of the error” ’ is ‘ “difficult[ ].” ’ [Citation.]”
(Andrew M., supra, 46 Cal.App.5th at p. 867.) James F. also
acknowledged that there are “very few constitutional errors that
15
the United States Supreme Court has categorized as structural,
not because they defy harmless error analysis, but because
prejudice is irrelevant and reversal deemed essential to vindicate
the particular constitutional right at issue” (James F., supra,
42 Cal.4th at p. 917, citing United States v. Gonzalez–Lopez (2006)
548 U.S. 140, 149 (Gonzalez–Lopez)), but noted that such authority
“has not applied this reasoning outside the context of criminal
proceedings . . . nor has it ever held that harmlessness is irrelevant
when the right of procedural due process . . . has been violated.”
(James F., supra, at p. 917.) James F. concluded that prejudice was
not irrelevant in the dependency context, because “the welfare of
the child is at issue and delay in resolution of the proceeding is
inherently prejudicial to the child,” and applied a harmless error
analysis. (Ibid.)
Courts of Appeal have cited James F. for the proposition that
“harmless error analysis applies in juvenile dependency proceedings
even where the error is of constitutional dimension.” (In re J.P.,
supra, 15 Cal.App.5th at p. 798; In re S.P., supra, 52 Cal.App.5th
at p. 972, petn. for review filed Sept. 1, 2020, S264203, time to
grant or deny review extended to Nov. 30, 2020.) “In juvenile
dependency proceedings, no error—even one of constitutional
dimension—can be examined based solely on legal principles (no
matter how venerable) or only from the parent’s perspective.” (In re
J.P., supra, 15 Cal.App.5th at p. 799; In re S.P., supra, at p. 972
[the concept of automatically reversible structural error “was firmly
rejected by our Supreme Court in . . . James F.”].) Rather than
categorically deeming errors of a certain type “structural” and thus
reversible per se, a reviewing court should first consider whether
an error in dependency proceedings is amenable to harmless error
analysis—that is, whether potential prejudice from the error can be
assessed without “necessarily requir[ing] ‘a speculative inquiry into
16
what might have occurred in an alternate universe’ ” (James F.,
supra, 42 Cal.4th at p. 915, quoting Gonzalez–Lopez, supra, 548
U.S. at p. 150)—and, if so, apply a harmless error analysis.5
(In re J.P., supra, at p. 800 [“[a]ccordingly, because we conclude the
juvenile court’s error here is ‘amenable to harmless error analysis
rather than a structural defect requiring reversal of the juvenile
court's orders without regard to prejudice’ . . . , we proceed with
the harmless error analysis”], quoting James F., supra, at p. 915.)
For reasons we discuss in detail in the following section,
the circumstances of Father’s situation and the nature of
the errors identified are such that we can assess whether the
court’s Penal Code section 2625 error and/or Father being denied
counsel at the jurisdiction/detention hearing prejudiced him
at the subsequent permanency planning hearings, based “not
on guesswork or speculation, but on the undisputed facts before us.”
(In re S.P., supra, 52 Cal.App.5th at p. 975, petn. for review filed
Sept. 1, 2020, S264203, time to grant or deny review extended to
Nov. 30, 2020.)
5 Division Five of this court interpreted and applied
James F. in the same way as we do recently in In re S.P., supra,
52 Cal. App. 5th 963. In arguing that we should take a different
approach, Father notes that the appealing parent in In re S.P.
has filed a petition for review with the Supreme Court based on
several issues, including whether James F. “need[s] to be clarified
to make sure that structural error is a concept that can apply to
dependency proceedings depending on the nature of the right.”
As of the date of this opinion, the Supreme Court has not ruled
on the petition. This is not a basis on which to treat James F. any
differently, as we agree with In re S.P.’s interpretation of our state
Supreme Court’s unambiguous discussion of this issue in James F.,
and this interpretation is not novel. (See, e.g., In re J.P., supra, 15
Cal.App.5th at p. 798.)
17
Moreover, the Supreme Court has held that Penal Code
section 2625 notice errors are reviewed under a harmless
error analysis in dependency proceedings (see Jesusa V.,
supra, 32 Cal.4th at p. 625), and at least one Court of Appeal
has concluded that an incorrect ruling as to a father’s parental
status resulting in the father being denied appointed counsel
was reviewable for harmless error. (See Andrew M., supra, 46
Cal.App.5th at pp. 864, 867.)
Father relies on cases involving a complete failure to
provide notice to a parent. (See, e.g., In re Jasmine G. (2005)
127 Cal. App. 4th 1109, 1116 (Jasmine G.) [“the failure to attempt
to give a parent statutorily required notice of a selection and
implementation hearing is a structural defect that requires
automatic reversal”]; Andrew M., supra, 46 Cal.App.5th at p. 867,
fn. 4 [noting in dicta that the father never having received a
section 300 petition would be structural error under James F.].)
These cases do not assist Father in arguing for automatic reversal
in this case, because the errors Father identified are a denial of
counsel at the jurisdiction/disposition hearing and a violation of his
Penal Code section 2625 right to be present at that hearing—not
lack of notice. Indeed, Father expressly states in his opening brief
that he “is not contesting that he received notice” of either the
jurisdiction/disposition hearing or the permanency planning
hearings. The record also reflects he received notice of all hearings,
and participated, with counsel, in the hearings resulting in the
termination of parental rights from which he now appeals. Cases
involving a complete lack of notice present unique concerns, none of
which is present here. (See In re Z.S. (2015) 235 Cal. App. 4th 754,
772 [“[o]nly the failure to attempt to give notice to a parent is a
structural defect requiring automatic reversal”], citing Jasmine G.,
supra, 127 Cal.App.4th at p. 1116; see also In re R.L. (2016) 4
18
Cal. App. 5th 125, 146 [“Unless there is no attempt to serve notice on
a parent, in which case the error is reversible per se, notice errors
do not automatically require reversal but are reviewed to determine
whether the error is harmless beyond a reasonable doubt.”].)
Father’s reliance on such cases is thus unavailing.
Harmless error analysis is appropriate here.
C. The Juvenile Court’s Errors Were Not Prejudicial
1. Watson and Chapman harmless error
analyses
To assess whether an error in dependency proceedings
is harmless, “some Courts of Appeal have applied a Chapman
‘harmless beyond a reasonable doubt’ standard [citations],
[and] [a]t least two Supreme Court cases have embraced the
Watson more probable than not standard.” (In re S.P., supra,
52 Cal.App.5th at p. 972, fns. omitted, petn. for review filed
Sept. 1, 2020, S264203, time to grant or deny review extended
to Nov. 30, 2020; see, e.g., In re Celine R. (2003) 31 Cal. 4th 45,
59-60 (Celine R.) [applying Watson standard for failure to
appoint separate counsel for minor siblings].) Watson requires
a “reasonable probability of a more favorable outcome,” absent
the challenged errors, in order for an error to warrant reversal.
(In re A.J. (2019) 44 Cal. App. 5th 652, 665 [applying Watson
harmless error standard]; Celine R., supra, at p. 60 [court must
find it “reasonably probable the result would have been more
favorable to the appealing party but for the error”].) Under
Chapman, by contrast, “the court must be able to declare a belief
that it was harmless beyond a reasonable doubt.” (Chapman,
supra, 386 U.S. at p. 24.)
Two divisions of this court have applied the Watson standard
to errors relating to a parent’s right to appointed counsel. (See, e.g.,
19
Andrew M., supra, 46 Cal.App.5th at pp. 864, 867; In re J.P., supra,
15 Cal.App.5th at pp. 798–800 [erroneous failure to grant mother’s
request for reappointment of counsel before the hearing on her
petition for modification].) We conclude that this standard should
apply here as well. But even if we were to analyze the errors
Father identifies under the more stringent Chapman standard, our
analysis would yield the same result.
2. Application of harmless error analysis
to the errors Father identifies
Had Father’s presumed father status been recognized
when the court was first provided with the marriage certificate
establishing this status, Father would have been represented
by appointed counsel at the jurisdiction/disposition hearing.
Separately, had the court complied with Penal Code section 2625,
Father or his counsel would have been present at the hearing.
Father argues these changes could have led to the marshaling of
additional evidence or the pursuit of additional arguments, based
on which the court might have provided him with reunification
services,6 thereby changing the trajectory of the proceedings and,
potentially, preserving his parental rights.
In light of the applicable statutory presumptions and
showings required under section 361.5, however, the errors at
issue do not warrant reversal under either a Watson or Chapman
harmless error analysis, as discussed below.
a. Section 361.5, subdivision (b) bypass
provisions
Section 361.5, subdivision (b) contains several reunification
“bypass provisions” permitting (or, in some cases, requiring) a
6 Father concedes that jurisdiction would have been proper
regardless.
20
court to deny a parent reunification services. (See In re A.E. (2019)
38 Cal. App. 5th 1124, 1141; Cheryl P. v. Superior Court (2006)
139 Cal. App. 4th 87, 96.) Once the juvenile court determines
by clear and convincing evidence that a case presents one of the
situations set forth in section 361.5, subdivision (b), “the general
rule favoring reunification is replaced by a legislative assumption
that offering [reunification] services would be an unwise use of
governmental resources.” (In re Baby Boy H. (1998) 63 Cal. App. 4th
470, 478.) Here, as the court correctly noted, the bypass provision
in section 361.5, subdivision (b)(10) applied: A juvenile court had
previously “ordered termination of reunification services for . . .
half siblings of [Christopher] because [Father] failed to reunify
with the . . . half sibling[s]” and “[Father] has not subsequently
made a reasonable effort to treat the problems that led to removal
of the . . . half sibling of [Christopher] from [Father].” (See § 361.5,
subd. (b)(1).) Father does not challenge the applicability of this
bypass provision, nor could he. Father failed to reunify with two
of his older children in dependency proceedings based on substance
abuse issues, and Father has since continued his drug-related
criminality. Even if Father could offer evidence of efforts to address
these issues, no such efforts could have supported a “reasonable
effort to address” finding (see § 361.5, subd. (b)(10)), given Father’s
continuous drug-related criminality.
The services bypass provision in subdivision (b)(12) of
section 361.5 applied as well, based on Father’s violent felony
conviction (robbery), for which he is currently incarcerated.
(§ 361.5, subd. (b)(12) [“[r]eunification services need not be
provided . . . when the court finds, by clear and convincing
evidence . . . [¶] . . . [¶] . . . the parent or guardian of the child
has been convicted of a violent felony”]; see Pen. Code, § 667.5,
subd. (c)(9) [“any robbery” constitutes a violent felony].)
21
If, as occurred here, a bypass provision is found to apply, a
juvenile court “shall not” order reunification unless the court makes
certain countervailing factual findings. (§ 361.5, subd. (c)(2).) The
countervailing factual finding necessary to support reunification
services here would be a finding “by clear and convincing evidence[ ]
that reunification is in the best interest of the child.” (Ibid.) Father
has never even met Christopher, acknowledges having “little to no
relationship with either child,” and will be incarcerated until at
least late 2020. Both children have been living with the maternal
aunt since Christopher’s birth (and thus for almost three years),
are thriving in her care, and are on a path to being adopted by
her. Given these facts, there is no basis on which even the most
competent counsel could have shown it was in Christopher’s best
interest to override the statutory presumption that reunification
services should be denied. (See In re Marcos G. (2010) 182
Cal. App. 4th 369, 390–391 [no abuse of discretion in court’s
conclusion that reunification services not in child’s best interest
where the child was bonded to and had been living with his foster
parents for 20 months, and the father’s weekly visits with child
“were nothing more than friendly visits between the two in which
[they would] play”].)
Indeed, Father makes no attempt to argue how a court could
have concluded that services would have been in Christopher’s
best interest, nor does he argue the bypass provision under
section 361.5, subdivision (b) is inapplicable.
b. Section 361.5, subdivision (e) regarding
services for incarcerated parents
Section 361.5, subdivision (e) instructs a court to order
reasonable reunification services for an incarcerated parent “unless
the court determines, by clear and convincing evidence, those
services would be detrimental to the child.” (Ibid.) Father does not
22
explain how the juvenile court could have found that reunification
services would not be detrimental to Christopher under the factors
identified in the statute. The statutorily-enumerated factors
potentially applicable here are: “[T]he age of the child, the degree
of parent-child bonding, the length of the sentence, . . . the nature
of the crime . . . , the degree of detriment to the child if services
are not offered . . . , the likelihood of the parent’s discharge from
incarceration . . . within the reunification time limitations[,]” and
“any other appropriate factors.” (Ibid.)
Applying these factors, there is not a reasonable probability
that reunification services would not be detrimental to
Christopher—even if Father had had counsel to advocate against
such a finding. Indeed, undisputed facts in the record establish
beyond a reasonable doubt that such services would be deemed
detrimental to Christopher under section 361.5, subdivision (e)(1).
Father is not eligible for parole until approximately three years
after Christopher was first detained, so Father’s incarceration
would have fallen well outside the maximum reunification period,
even if the court permitted an extension beyond the applicable
six-month limit for children under three years old. (See § 361.5,
subd. (a)(1)(B), (3)(A) & (4)(A).) As such, any services the court
might order could not have successfully reunified Father with
Christopher within the statutory time frame, which section 361.5,
subdivision (e)(1) instructs they must in order to avoid proceeding
to a permanency planning hearing.7 (See In re Ronell A. (1995)
7 Under certain “unusual” or “extraordinary circumstances”
a juvenile court may extend the reunification period as an exercise
of its discretionary power to “ ‘continue any hearing . . . beyond
the time limit within which the hearing is otherwise required to be
held.’ ” (Denny H. v. Superior Court (2005) 131 Cal. App. 4th 1501,
23
44 Cal. App. 4th 1352, 1365–1366 [“Section 361.5, subdivision (e)(1)
specifically states reunification services for an incarcerated parent
are subject to the 18–month time frame. When a child cannot be
returned to the parent within the statutory time frame, the court is
required to establish a permanent plan for the child and refer the
case for a section 366.26 hearing.”].) Instead, ordering reunification
services for Father would serve only to delay establishing a
permanent home for Christopher with the only caregiver he has
ever known. Delaying Christopher a stable, permanent placement
in the interest of pursuing a reunification doomed to fail would be
detrimental to Christopher.
That the length of Father’s sentence prevents him from
reunifying with Christopher within the necessary time frame is
not the only section 361.5, subdivision (e)(1) factor suggesting
detriment to Christopher. As noted, Father admits he has
no relationship with Christopher. Moreover, Father’s lengthy
criminal history of substance abuse related offenses, which caused
him to lose custody of his three older children, has escalated to
include, most recently, a violent felony conviction, as a result
of which he has never even met Christopher. (See § 361.5,
subd. (b)(10) & (12).) In light of all of these facts—none of which
Father contests—any additional evidence or argument counsel
might have offered at the jurisdiction/disposition hearing would
1510, quoting § 352, subd. (a); see, e.g., In re Elizabeth R. (1995) 35
Cal. App. 4th 1774, 1777–1778.) “[G]iven the imperative to resolve
dependency cases in a timely fashion,” such a continuance that
almost doubles the reunification period would, on the facts of
this case, “be outside the scope of what the Legislature intended
with enactment of the continuance statute.” (Denny H., supra,
131 Cal.App.4th at p. 1511; id. at p. 1510 [rejecting a six-month
illness-based extension of the reunification period on this basis].)
24
not have caused the court to award Father reunification services
for Christopher. (See In re James C. (2002) 104 Cal. App. 4th
470, 486 [substantial evidence supported denial of reunification
services where the father was convicted of several violent felonies
and his release date from prison exceeded the maximum period of
reunification services]; In re S.P., supra, 52 Cal.App.5th at p. 975,
petn. for review filed Sept. 1, 2020, S264203, time to grant or deny
review extended to Nov. 30, 2020 [finding it was not reasonably
likely the father would have been granted reunification services
when he had failed to reunify with other children, had no bond with
the child at issue in the proceedings, had a lengthy criminal history
and history of unaddressed drug abuse, and remained incarcerated
at the time of the permanency planning hearing with no plan for
the child’s care].)
We reject Father’s suggestion that considering the duration
of Father’s incarceration in assessing detriment runs afoul of the
admonition in In re Brittany S. (1993) 17 Cal. App. 4th 1399, that
there is no “go to prison, lose your child” law in California. (Id.
at p. 1402.) Certainly a court may not deny reunification services
based solely on a parent being incarcerated, but section 361.5,
subdivision (e)(1) expressly provides that a court may consider
whether imprisonment may make reunification impossible within
the statutory timelines. Here, it would, and reunification services
would thus almost certainly be to Christopher’s detriment. (See
Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020)
§ 2.129[3][b], p. 2–540 [“[T]o attempt services in such circumstances
may be setting everyone up for failure, including the parent,
agency, and child” and “it may be possible to show that providing
services to the incarcerated parent would be detrimental to the
child since it would delay permanency with no likelihood of success”
and “thus only serve[ ] to delay stability for the child.”].)
25
Given our conclusion that the termination of reunification
services for Christopher was inevitable, Father has presented no
basis on which to conclude that the challenged errors could have
somehow affected the juvenile court’s subsequent decision at the
permanency planning hearing to terminate his parental rights.
Once “the court has decided to end parent-child reunification
services, the legislative preference is for adoption.” (In re
Elizabeth M. (2018) 19 Cal. App. 5th 768, 780.) If, as the court
found to be the case here, “adoption is likely, the court is required
to terminate parental rights, unless specified circumstances compel
a finding that termination would be detrimental to the child.”
(In re S.B. (2009) 46 Cal. 4th 529, 532.) Father was both present for
and represented by counsel at the permanency planning hearings,
during which the court concluded that no such countervailing
factual finding could be made to override the presumption in favor
of adoption and the “compelling” interest in “providing stable,
permanent homes for children who have been removed from
parental custody” following termination of reunification services.
(In re Marilyn H. (1993) 5 Cal. 4th 295, 307.) Although Father
raises ineffective assistance of counsel arguments in an effort
to rebut DCFS’s forfeiture arguments (see ante, fn. 4), these
arguments are not based on any ineffective assistance in connection
with the representation provided during the permanency planning
hearings, save that his counsel made “ ‘general appearances’ when
she should have only made special appearances” at those hearings.
Thus, Father cannot establish a reasonable probability that
the challenged errors affected the court’s termination of Father’s
parental rights as to Christopher.8 The errors are therefore
8 In
his reply brief, Father appears to raise, for the first time,
the argument that such ineffective assistance of counsel—that is,
26
harmless under Watson, the applicable framework for assessing
prejudice here. (See Celine R., supra, 31 Cal.4th at pp. 59–60;
In re S.P., supra, 52 Cal.App.5th. at pp. 973–974, petn. for review
filed Sept. 1, 2020, S264203, time to grant or deny review extended
to Nov. 30, 2020.) Moreover, even if the more stringent Chapman
framework were to apply, we further conclude, based “not on
guesswork or speculation, but on the undisputed facts before us”
(In re S.P., supra, at p. 975), and the portions of section 361.5
discussed above, that the errors were also harmless beyond a
reasonable doubt.
D. Father’s Motion to Extend His Notice of Appeal
to Apply to I.L.
In criminal cases, the doctrine of constructive filing permits
an appellate court to construe a belated notice of appeal as having
been timely filed under certain circumstances, including when an
incarcerated criminal defendant made arrangements with his trial
attorney to file the notice of appeal, and the attorney failed to do so.
(In re Benoit, supra, 10 Cal.3d at p. 86.) The California Supreme
Court has explained the goal of applying the doctrine under such
circumstances is to avoid penalizing a defendant for justifiably
relying on his attorney to file the notice of appeal in a timely
fashion. (Id. at pp. 88–89.)
the failure of counsel to bring a section 388 petition to challenge
the court’s ruling at the jurisdiction/disposition hearing—is itself
a basis for reversal (as opposed to a basis for avoiding forfeiture
of Father’s arguments on appeal). We need not determine whether
this constituted ineffective assistance of counsel, as there was no
prejudice from the due process violations in connection with the
jurisdiction/disposition hearing that such a petition would have
raised, for the reasons discussed in the Discussion ante, section C.2.
27
Father concedes that, under longstanding precedent,
the constructive filing doctrine does not apply to cases involving
the termination of parental rights. (See, e.g., In re Z.S., supra,
235 Cal.App.4th at p. 769.) “ ‘Numerous cases . . . have determined
that the special need for finality in parental termination cases and
the danger of imperiling adoption proceedings prevails over the
policy considerations in favor of constructive filing.’ ” (Ibid., quoting
In re Alyssa H. (1994) 22 Cal. App. 4th 1249, 1254; In re A. M. (1989)
216 Cal. App. 3d 319, 322 [“While we recognize the importance of
a natural mother or father’s parental rights [citations], we deem
the special need for finality in [such] cases . . . of paramount
importance. Adoption proceedings could be jeopardized if
the finality of a judgment . . . were uncertain.”].) As one court
explained, although the result of this approach “will be harsh
in some cases . . . [w]e have considered the desirability of a more
flexible standard, but can formulate no rules for the applicability
of such a standard under which we could confidently predict
that more good would be done than harm.” (In re Isaac J. (1992)
4 Cal. App. 4th 525, 534.)
Father’s motion nevertheless requests that the constructive
filing doctrine should apply here and permit him to “extend”
his timely notice of appeal as to Christopher to also cover I.L.,
regarding whom he filed no notice of appeal. Father relies in large
part on the fact that the California Supreme Court has granted
review in In re A.R. (Jan. 21, 2020, A158143) [nonpub. order],
petition for review granted May 13, 2020, S260928, to address
the question whether “a parent in a juvenile dependency case ha[s]
the right to challenge her counsel’s failure to file a timely notice
of appeal from an order terminating her parental rights.” (Supreme
Ct. Minutes, May 13, 2020, p. 612.) Based on this pending matter,
Father argues that the Supreme Court “seems at least open to
28
challenges to” the “widely accepted” policy of “all intermediate
appellate courts in this state for more than a quarter of a century”
regarding the inapplicability of Benoit to proceedings involving
the termination of parental rights. He notes his motion is in part
intended to preserve his right to seek relief, depending on the
outcome of In re A.R.
Father further argues that the constructive notice of appeal
doctrine should permit an appeal regarding I.L. According to
Father, because I.L. has not yet been adopted by the maternal aunt
(although this remains the permanency plan), the primary basis for
not applying Benoit in the dependency context—that doing so would
compromise the finality of adoptions—is not implicated here.
Father further argues that we should permit this appeal to apply to
I.L., because “if [I.L.]’s case had not become separated from that of
Christopher . . . the exact same arguments would apply to both. . . .
[Christopher’s] arguments would apply with equal force to [I.L.]
and with the same results had a timely notice of appeal been filed
as to her. In other words, we may well have the anomaly of two full
siblings, identically situated, with identical arguments that could
[be] raised on behalf of both but parental rights will be reversed as
to one but affirmed as to the other solely based upon judicial neglect
as aided by ineffective assistance of counsel. That cannot and
should not be the law.”
Father argues he has satisfied the requirements of Benoit
based on facts, which he supports through attached declarations
and citations to the appellate record, suggesting he was not
sufficiently informed of how and when to appeal the order
terminating his parental rights over I.L. He argues that the
advisory of appellate rights the juvenile court provided at the
permanency planning hearing regarding I.L. was incomplete, and
he declares that his counsel never explained the deadline for an
29
appeal (or anything else regarding his right to appeal), and that he
never received a copy of the minute order terminating his parental
rights to I.L. (which, as noted, the record on appeal reflects were
mailed to an incorrect address). A declaration from an attorney at
the firm of his former counsel provides that Father’s file does not
contain any indication Father’s counsel informed him of his right to
appeal or provided him with the necessary paperwork for filing an
appeal.
DCFS counters that Father did not file any notice of appeal
regarding I.L. that we might be able to deem constructively filed,
that Father’s bases for applying Benoit to these or other proceedings
involving termination of parental rights lack merit, and that, in any
event, Father has not satisfied the requirements of Benoit because
he failed to exercise sufficient diligence in pursuing review of the
order regarding I.L. (See In re Benoit, supra, 10 Cal.3d at pp. 88–89
[court should “not indiscriminately permit a defendant whose
counsel has undertaken to file the notice of appeal, to invoke the
doctrine of constructive filing when the defendant has displayed
no diligence in seeing that his attorney has discharged this
responsibility”].)
Father’s motion raises important policy issues, and we
are troubled by the fact that Father appears not to have received
basic guidance from his attorney regarding his appellate rights.
Nevertheless, Father’s motion does not present an opportunity
to engage on these policy issues, and no prejudice resulted from
Father’s inability to appeal the order regarding I.L. This is because
Father makes clear that, were we to permit an appeal regarding the
I.L. order, Father would raise the exact same arguments that he
raised in his appeal regarding Christopher. Given our conclusion,
for the reasons discussed above, that Father’s arguments regarding
Christopher do not merit reversal, permitting Father to extend his
30
appeal to I.L. would serve no purpose, even assuming this court
has the ability and inclination to grant it. The motion is denied.
DISPOSITION
The order of the juvenile court terminating Father’s parental
rights as to Christopher L. on March 5, 2020 is affirmed in all
respects.
Father’s motion to extend his notice of appeal to apply to I.L.
and/or motion for constructive notice of appeal as to I.L. is denied.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
31