In re J.R. CA1/4 ( 2020 )

Filed 11/25/20 In re J.R. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re J.R., a Person Coming Under
the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY, A159045
Plaintiff and Respondent,
(Alameda County
v. Super. Ct. No. JD03164601)
K.R.,
Defendant and Appellant.
K.R., the alleged father of J.R., a teenage girl, appeals after the juvenile
court sustained a Welfare and Institutions Code1 section 300 petition filed by
the Alameda County Social Services Agency (the Agency) and declared J.R. a
dependent of the court, ordered her removed from parental custody, and
denied him reunification services. K.R. argues (1) he was not given proper
notice of the jurisdiction/disposition hearing where the court issued the
challenged orders, or notice of his right to seek to elevate his paternity status
and be designated a presumed parent, (2) the court erred by proceeding with
the hearing in his absence because he did not waive his right to appear, and
All subsequent statutory references will be to the Welfare and
1
Institutions Code, unless otherwise specified.
1
(3) the court abused its discretion by denying his counsel’s motion for a
continuance of the hearing. We agree K.R. did not receive proper notice and
the court erred by proceeding in his absence, and we conclude the errors were
not harmless. We therefore reverse the juvenile court’s order and remand for
further proceedings consistent with this opinion.
I. BACKGROUND
K.R. is the alleged father of J.R., who is currently 17 years old. In late
September 2019, the Agency filed a dependency petition on behalf of J.R.,
along with a detention report. The petition included allegations under
section 300, subdivisions (a) (serious physical harm inflicted by K.R.),
(b)(1) (physical and verbal abuse by K.R.), and (g) (stating the ability of J.R.’s
mother, M.C., to care for her was unknown). The detention report stated J.R.
had lived with her maternal grandparents but at some point before May 2019
began living with K.R. In May 2019, the Agency removed J.R. from K.R.’s
custody but returned her the next day.
The petition and detention report alleged that, on September 21, 2019,
K.R. hit J.R. in the face at a laundromat, causing black bruising around her
eye. J.R. reported, and the Agency alleged, that K.R. punched her and
dragged her by the hair at the laundromat. K.R. then made J.R. walk home
several blocks with the laundry as he drove home himself. After J.R.
returned home, K.R. became upset with her for not moving fast enough, and
again started physically abusing her. He hit her on the head, pushed her
down onto a couch, and dug his fingers into her face. J.R. attempted to leave
the home several times, but K.R. stopped her. K.R. hit J.R., pulled off her
outer shirt, and at one point got on top of her and pushed his knee into her
throat, making it painful to breathe. Eventually, K.R. allowed J.R. to leave
the home.
2
When the social worker spoke with J.R. on September 24, 2019, J.R.
had bruising around her left eye, scratches on her face, as well as bruising
and scratching on her right arm. J.R. reported these injuries resulted from
K.R.’s abuse on September 21, 2019. In addition to the physical abuse, J.R.
reported that K.R. verbally abused her. J.R. recorded K.R. (apparently on
September 21, 2019) stating J.R. is “fake” and that he hoped other girls at
school would beat her up. J.R. was crying while K.R. said that.
After leaving home on Saturday, September 21, 2019, J.R. did not
return home. K.R. filed a runaway report with the police department and
tried unsuccessfully to find J.R. at her school on September 23 and 24, with
the school stating J.R. had not been there. A social worker was able to
contact J.R. at her school on September 24 and interviewed her. After the
interview, J.R. was taken into protective custody.
In the detention report, the social worker reported having several
conversations with K.R. During an interview on September 24, 2019, K.R.
stated that, on September 21 at the laundromat, J.R. refused to wash her
clothes and threw some coins at him, so he slapped her on her head. K.R.
denied slapping or hitting J.R. in the face, and he denied there had been
other physical altercations between them. K.R. admitted leaving J.R. at the
laundromat but stated it is a few blocks from their home. J.R. later returned
home, and another argument broke out between the two of them, after which
J.R. packed her belongings and left the house. K.R. stated he allowed J.R. to
leave. K.R. told the social worker he believes J.R. is manipulative and
planned the incident, including having a friend hit and scratch her to get
K.R. in trouble. The social worker reported that, in the September 24
interview, K.R. “initially stated that he would not like [J.R.] to be returned to
his care.”
3
The social worker reported that, in a second conversation with K.R. on
September 25, 2019, K.R. “said he is willing to have [J.R.] back in his home if
she is willing to obey his rules.” He wanted her to remain in foster care for a
few weeks to realize the consequences of her actions and that “he is the only
one there for her.” He stated he usually has a good relationship with J.R.
K.R. told the social worker he did not want to participate in the Child and
Family Team meeting that was to be held on September 26, 2019. K.R.
believed J.R.’s mother, M.C., would be a good placement for J.R.
On September 26, 2019, the social worker spoke by phone with K.R.
K.R. said he had a suicide note from J.R., and that J.R. was out to get him
and wanted him in jail. K.R. said he had “ ‘whooped’ ” J.R., by which he
meant he “ ‘disciplined’ ” her. When pressed as to what happened
specifically, K.R. said “ ‘whatever she said I did, I did.’ ” K.R. said he did not
want to attend the detention hearing, which was set for September 27, 2019.
The social worker provided K.R. with the time, date, and location of the
detention hearing.
At the detention hearing on September 27, 2019, neither parent was
present. The court appointed counsel for J.R. The court ordered J.R.
detained and vested the Agency with discretion as to her temporary
placement. J.R. wanted to remain at her high school and stay on track for
early graduation. Based on J.R.’s request conveyed through her counsel, the
court ordered that there be no contact or visitation between K.R. and J.R.
The court scheduled the jurisdiction/disposition hearing for October 17, 2019.
In a report prepared for the October 17 hearing, the social worker
stated she spoke with K.R. by phone on October 3, 2019. K.R. stated he did
not want J.R. back in his care because he is unable to discipline her. He
wanted her to live with her mother or in foster care. The social worker told
4
K.R. about a Child and Family Team meeting set for October 14 and the
jurisdiction/disposition hearing set for October 17, but he said he did not
want to attend. On October 7, 2019, the social worker learned that, on
October 3, K.R. had been arrested for murder and was incarcerated at Santa
Rita Jail.
In its report, the Agency recommended that the court sustain the
allegations in the petition, declare J.R. a dependent, continue her out-of-
home placement, and order the provision of reunification services to J.R.’s
mother, M.C. The Agency did not recommend providing reunification
services to K.R. because he was an alleged father and had not established a
legal basis for receiving services.
On October 14, 2019, the Agency mailed to K.R. at the jail a Notice of
Hearing on Petition, along with copies of the dependency petition and the
social worker’s report. The proof of service in the record states the method of
mail service was “certified or return receipt requested.” The record includes a
receipt showing the Agency sent the documents by certified mail, although it
does not include a receipt signed or returned by K.R.
At the October 17 hearing, K.R. was not present. The court appointed
counsel for K.R. Counsel for the minor, J.R., stated she agreed with the
Agency’s recommendations. J.R.’s counsel also stated that, if K.R. were
present at a future hearing, J.R. requested that she not have to see him or be
in the courtroom with him, a request the court stated it would consider.
After hearing from J.R.’s counsel, the court addressed K.R.’s counsel,
who stated that, as she had just been appointed, she did not know K.R.’s
position as to the Agency’s recommendations, although she entered a denial
of the allegations on his behalf. Counsel asked the court to continue the
hearing so she could contact K.R. and determine what his position was. The
5
Agency’s counsel opposed the request, and the court denied it. The court
found there was insufficient cause for a continuance, in light of K.R.’s
“nonparticipation to date,” noting he had not been incarcerated at the time of
the detention hearing. The court also noted K.R. was “still in the legal
standing of an alleged father at this point.”
After this ruling, the court began making jurisdiction/disposition
findings in accordance with the Agency’s recommendations, but was then
informed that J.R.’s mother, M.C., was present. The court appointed counsel
for M.C. and granted a recess so M.C. and her counsel could confer. After the
recess, M.C.’s counsel presented a waiver of rights signed by M.C. and her
counsel, and M.C. submitted to the allegations in the petition. The court,
after questioning M.C. and her counsel, accepted the waiver of rights and
then continued making the jurisdiction/disposition findings. The court found
that notice of the hearing had been given as required by law and that the
allegations in the dependency petition were true. The court declared J.R. a
dependent of the court, ordered her removed from the custody of both
parents, placed her in foster care, and ordered reunification services and
visitation for M.C. but not for K.R. As to K.R., the court stated: “The agency
is not required to provide reunification services to [K.R.] because he is an
alleged father, unless and until he establishes a legal basis for receiving
those services.”2
K.R. appealed the court’s October 17, 2019 order.
2 The minute order for the hearing states the Agency is to provide
reunification services and arrange visitation for “the parents.” But the court
stated on the record that reunification services were to be provided to M.C.
and not to K.R., and only ordered visitation for M.C.
6
II. DISCUSSION
A. K.R. Did Not Receive Proper Notice of Either the Jurisdiction
and Disposition Hearing or His Right To Seek To Elevate His
Paternity Status
K.R. correctly argues the written notice provided to him about the
October 17, 2019 jurisdiction/disposition hearing did not comply with
statutory requirements. Section 291 provides that, when a child is detained,
notice of the jurisdiction/disposition hearing must be given at least five days
before the hearing. (§ 291, subd. (c)(1).) Notice must be provided to both
presumed and alleged fathers. (Id., subd. (a)(2).) If the parent was not
present at the detention hearing, he or she must be “noticed by personal
service or by certified mail, return receipt requested.” (Id., subd. (e)(1).)
Here, the proof of service in the record shows a “Notice of Hearing on
Petition” was sent to K.R. at his place of incarceration on October 14, 2019,
just three days before the hearing. Also, as to the method of service, the proof
of service states the notice was mailed by “Certified or Return Receipt
Requested” (italics added), creating some ambiguity as to whether there was
compliance with the statutory requirement of service “by certified mail,
return receipt requested” (§ 291, subd. (e)(1)).3
More significantly, as K.R. correctly contends, he was not provided with
the required statutory notice of his right to attempt to elevate his status from
that of an alleged father to a presumed father, a step that could have resulted
in his receipt of reunification services. (See In re J.W.-P. (2020)
3 The record includes certified mail receipts showing notices of the
hearing were sent to K.R. and others. K.R. notes the record does not include
a return receipt from him confirming his receipt of the notice. But
section 291 does not require that a return receipt be provided (In re
Marcos G. (2010) 182 Cal. App. 4th 369, 386–387), so its absence here does not
itself provide a basis for finding service was improper.
7
54 Cal. App. 5th 298, 301 [in dependency proceedings, “[a]lleged fathers have
‘fewer rights’ and, unlike presumed fathers, ‘are not entitled to custody,
reunification services, or visitation’ ”].)
The procedure for providing an alleged father with notice of this right is
set forth in section 316.2. That statute provides, in subdivision (b): “[E]ach
alleged father shall be provided notice at his last and usual place of abode by
certified mail return receipt requested alleging that he is or could be the
father of the child. The notice shall state that the child is the subject of
proceedings under Section 300 and that the proceedings could result in the
termination of parental rights and adoption of the child. Judicial Council
form Paternity-Waiver of Rights (JV-505) shall be included with the notice.”
(See Cal. Rules of Court, rule 5.635(g) [requiring the clerk to provide alleged
parents with a copy of the petition, notice of the next scheduled hearing, and
form JV-505].) Form JV-505 explains that an alleged parent will not receive
reunification services and will not “automatically get the child to live with
you or your relatives.”
“ ‘Section 316.2 is designed to protect the alleged father’s limited due
process rights.’ [Citations.] The notice required in section 316.2 provides an
alleged father with critical information about an alleged parent’s limited
rights and explains the procedure he must follow to establish his paternity
status: complete form JV-505. The court’s ‘[f]ailure to provide the statutory
notice denie[s]’ an alleged father ‘adequate notice of his rights and the ability
to access the procedure for establishing paternity, obtaining reunification
services, and ultimately seeking placement of his [child] in his home or with
one of his relatives.’ ” (In re J.W.-P., supra, 54 Cal.App.5th at pp. 306–307.)
Here, there is no evidence the required notice under section 316.2 (including
8
form JV-505) was provided to K.R., either by certified mail as required by
statute or by any other means.
The Agency contends K.R. may not raise in this appeal his challenges
to this or other notice defects, but must instead present them by filing in the
juvenile court a section 388 petition to change a court order. The cases cited
by the Agency do not hold that a section 388 petition is the exclusive method
to challenge defective notice. In re Zacharia D. (1993) 6 Cal. 4th 435, 453–
454, held that, where a man did not achieve presumed father status prior to
the expiration of any reunification period (in that case because he waited
until the 18-month review hearing before even asserting his alleged father
status), his only remedy was to petition under section 388 for reconsideration
of the juvenile court’s earlier rulings based on new evidence or changed
circumstances.
But when a parent timely appeals an order entered prior to the
expiration of the reunification period—the scenario at issue here, as K.R.
timely appealed the order entered at the jurisdiction/disposition hearing, at
which the court ordered reunification services to begin for J.R.’s mother—the
parent may properly contend on appeal that he did not receive adequate
notice of the hearing and/or adequate notice of his right to seek to elevate his
status to that of a presumed parent and to obtain services. (In re J.W.-P.,
supra, 54 Cal.App.5th at p. 305, fn. 2, italics added [“ ‘[I]f a man fails to
achieve presumed father status prior to the expiration of any reunification
period . . . [h]is only remedy . . . [i]s to file a motion to modify under
section 388.’ (In re Zacharia D.[, supra,] 6 Cal.4th [at p. 453].) In contrast, if
father successfully challenges [via an appeal] the trial court’s . . . order
setting the 366.26 hearing, then he may request presumed father status
9
without meeting the heightened requirements of a section 388 petition.”]; see
id. at pp. 304–306.)
The other cases cited by the Agency on this point hold that a parent
may seek relief from notice violations via a section 388 petition; they do not
hold such claims may not be raised in a timely appeal of a challenged order.
(In re Justice P. (2004) 123 Cal. App. 4th 181, 189, italics added [“A section 388
motion is a proper vehicle to raise a due process challenge based on lack of
notice”; parent’s section 388 petition challenged findings of proper notice that
were made at earlier hearing]; In re Marcos G., supra, 182 Cal.App.4th at
p. 380, fn. 8, italics added [noting that a prior case had “held that a challenge
to a dependency judgment on lack of due process/notice grounds is properly
made by means of a section 388 petition”; father’s section 388 petition sought
to challenge prior findings that proper notice had been given]; see In re
Christopher L. (Nov. 2, 2020, B305225) ___ Cal.App.5th ___ [2020
Cal.App.Lexis 1042, *14–*15 & fn. 4] [father’s challenge to error at
jurisdiction/disposition hearing should have been raised by § 388 petition,
rather than in appeal filed two years later challenging order terminating
parental rights; appellate court excused forfeiture based on importance of
issues raised].)
B. The Juvenile Court Erred by Proceeding with the
Jurisdiction/Disposition Hearing in K.R.’s Absence
K.R. argues the juvenile court erred by holding the
jurisdiction/disposition hearing in his absence and without a valid waiver of
his appearance. We agree. “When a parent is incarcerated, no petition under
specified subdivisions of section 300 [including subds. (a) and (b), the ones at
issue for K.R. here] ‘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
10
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).)” (In re A.J. (2019) 44 Cal. App. 5th
652, 667.) Our Supreme Court has explained that subdivision (d) of Penal
Code section 2625 “requires both the prisoner and the prisoner’s attorney be
present.” (In re Jesusa V. (2004) 32 Cal. 4th 588, 622.)
Subdivision (b) of Penal Code section 2625 requires the juvenile court to
order notice transmitted to an incarcerated parent for a jurisdiction or
disposition hearing. (In re Jesusa V., supra, 32 Cal.4th at pp. 599–600, fn. 2.)
The notice of a jurisdiction or disposition hearing must inform the prisoner of
“his or her right to be physically present at the hearing and explain how the
parent may secure his or her presence or, if he or she waives the right to be
physically present, appearance and participation.” (Cal. Rules of Court,
rule 5.530(f)(1)(A).) “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).)” (In re A.J., supra, 44 Cal.App.5th at
p. 667.)
Here, the juvenile court held the jurisdiction/disposition hearing in
K.R.’s absence. But there is no evidence in the record that the required forms
were sent to K.R., that he signed a waiver of his appearance, or that anyone
from Santa Rita Jail provided an affidavit saying K.R. did not wish to attend.
11
The court erred under Penal Code section 2625 by proceeding with the
jurisdiction/disposition hearing in these circumstances.4 (In re M.M. (2015)
236 Cal. App. 4th 955, 962–963.)
The Agency contends Penal Code section 2625 “only requires a waiver
of an incarcerated parent’s absence for a disposition hearing when there has
been a statement by the incarcerated parent or his or her attorney that the
incarcerated parent wants to be present,” and because K.R. had told the
social worker he did not want to attend, there was no violation of Penal Code
section 2625. We disagree. K.R.’s statements to the social worker did not
preclude him from deciding he wished to attend the hearing. Penal Code
section 2625 sets forth a specific procedure for determining whether an
incarcerated parent will attend a jurisdiction or disposition hearing: (1) the
required notice and forms must be sent (Pen. Code, § 2625, subds. (b)–(c);
Cal. Rules of Court, rule 5.530(f)(1)(A), (5)), and (2) either the prisoner or a
custodial authority must respond in the specified manner, or the prisoner
must be present at the hearing (Pen. Code, § 2625, subd. (d); Cal. Rules of
Court, rule 5.530(f)(2), (4)). These requirements are linked: “Only by
requiring the prisoner either to be present or to have executed a waiver of his
or her appearance can the court ensure the prisoner actually received the
4 At the jurisdiction/disposition hearing, K.R.’s counsel (who had just
been appointed at the outset of the hearing) asked the court to continue the
hearing so she could consult with K.R. about how he would like to proceed.
The court denied the request. K.R. contends on appeal that this denial was
an abuse of discretion because there was good cause for a continuance. (See
§ 352, subd. (a) [authorizing continuances of dependency hearings for good
cause].) We need not address the question of good cause as a separate basis
for finding error, because here, under Penal Code section 2625, it was error
for the court to proceed with the hearing in K.R.’s absence, whether or not
there was a showing of good cause to postpone the hearing.
12
notice.” (In re Jesusa V., supra, 32 Cal.4th at pp. 623–624.) The Agency has
cited no authority stating these steps may simply be skipped based on a
parent’s statements to a social worker outside the formal notice procedure.
C. The Errors Were Prejudicial
The Agency argues the above errors were harmless. We disagree.
Whether the applicable standard of prejudice is (1) “the ‘harmless beyond a
reasonable doubt’ standard,” or (2) “the Watson standard,” which “requires
the appellant to show a reasonable probability of a more favorable outcome,”
we conclude the errors here were prejudicial. (In re A.J., supra,
44 Cal.App.5th at pp. 665–666 [stating that some Court of Appeal cases have
applied the more stringent standard to defective notice issues in dependency
cases, while some Supreme Court cases have applied the Watson standard
“even to constitutional errors in dependency cases”]; accord, In re
Christopher L., supra, ___ Cal.App.5th ___ [2020 Cal.App.Lexis 1042,
pp. *23–*24].)
There is a reasonable probability that, without the errors in failing to
provide K.R. with proper notice (including notice of his right to seek to
elevate his status to that of a presumed parent) and in proceeding with the
hearing in his absence, the court would have designated him a presumed
parent and granted him reunification services. A person is “presumed to be
the natural parent of a child” if “[t]he presumed parent receives the child into
their home and openly holds out the child as their natural child.” (Fam.
Code, § 7611, subd. (d).) J.R. lived with K.R. for at least a period of months
prior to the September 2019 removal of J.R. from K.R.’s custody. In addition,
J.R.’s mother, M.C., told the social worker that she and K.R. had been
married at some point in the past, providing a second possible ground for
K.R. to qualify as a presumed parent. (Fam. Code, §§ 7540, 7611, subd. (a).)
The Agency does not argue that K.R. would not have qualified as a presumed
13
parent if he had been present at the hearing and had requested such a ruling
from the court.
As a presumed parent, K.R. would have been entitled to reunification
services under section 361.5 unless a statutory exception applied. (§ 361.5,
subd. (a).) The Agency argues that, if K.R. had been designated a presumed
parent, the court nonetheless might have denied him services under
section 361.5, subdivision (e)(1), which governs the provision of services to
incarcerated parents. We think that is speculative on this record. We note
initially that, in its report for the jurisdiction/disposition hearing, the Agency
itself did not mention section 361.5, subdivision (e)(1), as a basis for denying
services to K.R., even though the Agency was aware by that point that K.R.
had been arrested, a fact it recorded in the report.
In any event, section 361.5, subdivision (e)(1), specifies that, if a parent
is incarcerated, “the court shall order reasonable services unless the court
determines, by clear and convincing evidence, those services would be
detrimental to the child.” (§ 361.5, subd. (e)(1), italics added.) At the time of
the jurisdiction/disposition hearing, K.R. had been arrested for murder, but
he had not been tried, and it was unknown how long he would be in custody.
(Ibid. [length of sentence, nature of crime, and likelihood of parent’s
discharge within the reunification period are relevant factors in assessing
whether provision of services will be detrimental to child].) J.R.’s stated
opposition to seeing K.R. in light of the alleged abuse did weigh in favor of
finding services would be detrimental. (Ibid. [attitude of child 10 years of age
or older toward services is relevant to detriment issue; court may also
consider “any other appropriate factors”].) But in light of the early and
uncertain state of K.R.’s incarceration, we think there is a reasonable
probability the court would not have made a detriment finding by clear and
14
convincing evidence. (Cf. In re Christopher L., supra, ___ Cal.App.5th ___
[2020 Cal.App.Lexis 1042, *25–*32] [denial of services was “inevitable” under
§ 361.5, subd. (e)(1), and other bypass provisions, where length of parent’s
sentence prevented him from reunifying within the necessary time frame, he
had no relationship with his child, and he had a lengthy criminal history that
caused him to lose custody of three older children].)
The Agency suggests K.R.’s statements to the social worker establish
he would not have wanted to participate in the dependency case even if he
had received proper notice of the hearing and of his right to seek to elevate
his status to that of presumed parent. But that, too, is speculative in our
view. K.R. discussed the case with the social worker on multiple occasions;
he did not avoid all communication. And the statements he made early in the
proceedings, in conversations with the social worker, possibly while he was
upset or frustrated about the situation, did not preclude him from taking a
different position after being fully informed of his rights through the
statutorily required methods. This is not a case in which a parent failed to
communicate with a social services agency for an extended period and then
suddenly expressed interest in participating near the end of the dependency
case. (Cf. In re Marcos G., supra, 182 Cal.App.4th at pp. 388–389.) We
cannot know with any confidence what position K.R. would have taken if he
had been provided with the required notice of his right to seek presumed
parent status and reunification services (and the means to do so, i.e., form
JV-505), the option to be transported from jail for the hearing, and the ability
to consult with his attorney about the choices available to him. We think
there is a reasonable probability he would have sought a set of rulings that
differed from those the court issued.
15
Finally, the Agency argues there was overwhelming evidence
supporting the allegations in the dependency petition, so the court would
have sustained the allegations and ordered out-of-home placement for J.R.
even in the absence of the errors involving notice to K.R. Again, we disagree.
While not discounting the severity of the abuse K.R. allegedly inflicted on
J.R., we note the court decided as uncontested matters the questions whether
to sustain the allegations in the petition, declare J.R. a dependent, and order
out-of-home placement for her. J.R.’s counsel agreed with the Agency’s
recommendation. Mother signed a waiver of rights and submitted to the
allegations in the petition. No testimony was taken. And, as noted, the court
denied the request by K.R.’s counsel for a continuance to ascertain his
position. In our view, if the errors discussed above had not occurred, there is
a reasonable probability K.R. would have opposed the Agency’s
recommendations as to jurisdiction, placement, and services, and the court
thus would have held a contested jurisdiction/disposition hearing. On the
relatively thin record before us, we are unable to share the Agency’s
confidence as to what the result of that hearing would have been. We
conclude there is a reasonable probability the outcome would have been
different, so we must reverse the juvenile court’s order.
In reaching this conclusion, we stress that our reversal and remand
may well be a futile exercise. We acknowledge the severity of K.R.’s alleged
abuse of J.R., her stated strong opposition to seeing him (let alone
reunifying), and his admission, in one conversation with the social worker,
that he did what J.R. said he did (although he denied some of the conduct in
other conversations). There is a good chance that, at a new
jurisdiction/disposition hearing, the juvenile court will again find the
allegations of abuse to be true and order that J.R. be placed in foster care
16
rather than with either of her parents. We also recognize that, since K.R. has
been arrested for murder, there is a chance he will be incarcerated for a very
long time. For that or other reasons, the court may once again decline to
order services for him. In short, it is possible, even likely, that our reversal
will not ultimately result in the juvenile court’s issuing a different set of
rulings from those it issued at the October 2019 jurisdiction/disposition
hearing.
But for the reasons discussed above, we conclude reversal is
nonetheless required. The significant failures to comply with statutory notice
and related requirements resulted in a truncated proceeding and record,
making it impossible to have confidence, under any standard of prejudice,
that the result of the hearing would have been the same absent the errors.
Such a conclusion, in our view, would necessarily be based on speculation.
(Cf. In re Christopher L., supra, ___ Cal.App.5th ___ [2020 Cal.App.Lexis
1042, *21] [affirming despite notice errors; concluding the record permitted
harmless error finding that was “based ‘not on guesswork or speculation, but
on the undisputed facts before us’ ”].)
III. DISPOSITION
The juvenile court’s October 17, 2019 order is reversed. The case is
remanded for further proceedings.
STREETER, J.
WE CONCUR:
POLLAK, P. J.
BROWN. J.
17