In re Christopher L.

IN THE SUPREME COURT OF
CALIFORNIA
In re CHRISTOPHER L., a Person Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CARLOS L.,
Defendant and Appellant.
S265910
Second Appellate District, Division One
B305225
Los Angeles County Superior Court
17CCJP02800
April 25, 2022
In re CHRISTOPHER L.
Opinion of the Court by Liu, J.
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Kruger,
Groban, Jenkins, and Peña* concurred.
*
Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
In re CHRISTOPHER L.
S265910
Opinion of the Court by Liu, J.
California law requires the appointment of counsel for
parents whose children are subject to dependency proceedings
before the juvenile court. When such parents are incarcerated,
the law specifically provides for notice and the opportunity to be
present, and prohibits a juvenile court from adjudicating a
dependency petition without the presence of both counsel and
the incarcerated parent except upon affirmative waiver by the
parent. These requirements, among others, protect the parent’s
interest in maintaining the parent-child relationship and the
child’s interest in having a dependency petition decided on the
basis of all factors that bear on the child’s well-being.
Here we decide whether it is structural error, and thus
reversible per se, for a juvenile court to proceed with a hearing
to determine its jurisdiction over a child and disposition of the
wardship petition without an incarcerated parent’s presence
and without appointing counsel for the parent. We hold, as did
the Court of Appeal, that while the provisions for presence and
appointment of counsel are important protections for both the
parent and the child, the juvenile court’s failure to comply does
not require reversal per se.
I.
Christopher L. was born in December 2017 with a positive
toxicology screen for amphetamines. The Los Angeles County
Department of Children and Family Services (Department) filed
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Opinion of the Court by Liu, J.
a dependency petition pursuant to Welfare and Institutions
Code section 300, subdivision (b)(1), alleging that Christopher
and his 10-month-old sibling, I.L., were at risk due to their
mother’s (Mother) history of substance abuse and their
respective fathers’ history of drug abuse, as well as Carlos L.’s
criminal history. (All undesignated statutory references are to
the Welfare and Institutions Code.)
The initial petition listed Carlos L. as I.L.’s alleged father
and another man as Christopher’s alleged father. But the
juvenile court was also presented with documents establishing
that Carlos L. was entitled to “presumed father” status with
respect to Christopher, which carries with it the right to
appointed counsel. (In re Christopher L. (2020) 56 Cal.App.5th
1172, 1177 (Christopher L.); see In re T.R. (2005) 132
Cal.App.4th 1202, 1209; § 317.) Like the Court of Appeal, we
refer to Carlos L. as Father.
The petition alleged that Mother’s ongoing substance
abuse and Father’s criminal history and conduct placed the
children at risk of serious physical harm. The petition and
detention report also alleged that Mother and Father each had
other children who were prior dependents of the court and had
received permanent placement services. Based on these
allegations, the Department indicated it might seek an order
denying family reunification services pursuant to section 361.5,
subdivision (b)(10) and (11), which allows the court to bypass the
usual provision of reunification services, thus paving the way for
termination of parental rights.
At the time the children were detained and throughout the
course of these proceedings, Father was incarcerated at the
Sierra Conservation Center, a fire camp operated by the
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Opinion of the Court by Liu, J.
Department of Corrections and Rehabilitation. As relevant
here, the Penal Code provides: “In a proceeding . . . brought
under Section 300 of the Welfare and Institutions Code, if the
proceeding seeks to adjudicate the child of a prisoner a
dependent child of the court, the superior court of the county in
which the proceeding is pending, or a judge thereof, shall order
notice of any court proceeding regarding the proceeding
transmitted to the prisoner.” (Pen. Code, § 2625, subd. (b).)
“Upon receipt by the court of a statement from the prisoner or
the prisoner’s attorney indicating the prisoner’s desire to be
present during the court’s proceedings, the court shall issue an
order for the temporary removal of the prisoner from the
institution, and for the prisoner’s production before the court.”
(Id., subd. (d).) With exceptions not relevant here, “a petition to
adjudge the child of a prisoner a dependent child of the court . . .
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.” (Ibid.)
Neither parent, nor counsel for either parent, appeared at
the detention hearing. The juvenile court found that the
Department made a prima facie case for detention, set a
combined jurisdiction and disposition hearing for March 2018,
and ordered the Department to give notice to the parents.
The Department provided notice to Father of the pending
jurisdiction and disposition hearing. He responded: “I wanted
to ask if a court appearance is necessary. In your letter you
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Opinion of the Court by Liu, J.
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’s letter requested paternity testing
for both children but indicated that regardless of the outcome,
he would “love them as my own” and consider them “my kids.”
Father’s letter was mentioned in and attached to the report
prepared in anticipation of the jurisdiction and disposition
hearing.
Neither Father nor counsel for Father appeared at the
March 2018 combined jurisdiction and disposition hearing. The
juvenile court suggested that the onus was on Father to make
himself available and said, contrary to Father’s letter, that he
had “not made himself available,” adding: “[H]e’s been noticed,
but he’s made no contact with [the Department].” After hearing
brief argument from the Department and counsel for the minors,
the court sustained the petition as to both Father and Mother
and denied the parents reunification services for both children.
The court found it to be “in the best interest of these children to
set a hearing to select a permanent plan of adoption,
guardianship, or other planned living arrangements with a
relative or foster care provider.”
In November 2018, the court appointed counsel for Father.
Counsel stated that Father objected to the Department’s request
to terminate parental rights, and the matter was continued to
the next month. In December, Father made his first personal
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Opinion of the Court by Liu, J.
appearance in this case, via telephone. At counsel’s request, the
court ordered DNA testing to determine Christopher’s paternity
and continued the proceedings as to Christopher. The court
terminated parental rights as to I.L.
Christopher’s permanency hearing was held in March
2020. Father was present telephonically and represented by
appointed counsel. Counsel objected to the termination of
parental rights but presented no evidence and offered no
argument. The court terminated Father’s parental rights.
As relevant here, Father argued on appeal that he was
denied due process of law at the combined jurisdiction and
disposition hearing in March 2018 because it was conducted in
his absence and without counsel present on his behalf.
(Christopher L., supra, 56 Cal.App.5th at pp. 1176–1177.) The
Court of Appeal agreed with Father that his status as presumed
father of Christopher based on his marriage to Mother entitled
him to appointed counsel at the hearing, and it held that the
juvenile court violated Penal Code section 2625 by conducting
the hearing without Father or his counsel being present and
without a signed waiver from Father. (Christopher L., at
pp. 1184–1185, citing In re Jesusa V. (2004) 32 Cal.4th 588,
621–622.) These errors, the Court of Appeal concluded, “affected
the due process afforded Father at the jurisdiction/disposition
hearing in that they denied him counsel at that hearing.”
(Christopher L., at p. 1177.)
Although the Court of Appeal agreed with Father that
these errors violated due process, it held that automatic reversal
was not warranted. Citing In re James F. (2008) 42 Cal.4th 901,
915 (James F.), the court explained that not every due process
error in dependency proceedings is reversible per se and that
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Opinion of the Court by Liu, J.
reviewing courts “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 what might have occurred in an alternate
universe” ’ [citation] — and, if so, apply a harmless error
analysis.” (Christopher L., supra, 56 Cal.App.5th at p. 1186.)
The court determined that it could assess whether the juvenile
court’s errors prejudiced Father in later proceedings based on
the undisputed facts before it. The relevant inquiry, according
to the Court of Appeal, was whether there was a reasonable
probability of a more favorable outcome (People v. Watson (1956)
46 Cal.2d 818 (Watson)) if Father had been present at the March
2018 hearing or had been represented by counsel. (Christopher
L., at p. 1188.)
The Court of Appeal concluded that the bypass provisions
under subdivisions (b)(10), (b)(12), and (e) of section 361.5
applied to Father, and that Father could not have demonstrated
that it would be in Christopher’s best interests to provide
reunification services because Father had never met
Christopher and acknowledged having little to no relationship
with either child, and he would remain in custody past the
maximum reunification period. (Christopher L., supra,
56 Cal.App.5th at pp. 1190–1191.) On those grounds, the Court
of Appeal held that the juvenile court’s errors were harmless
under either the standard for state law error (Watson, supra, 46
Cal.2d at p. 835) or the standard for federal constitutional error
(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)).
We agree with the Court of Appeal that the juvenile court
erred in failing to appoint counsel for Father for the combined
jurisdiction and disposition hearing and also failed to comply
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Opinion of the Court by Liu, J.
with Penal Code section 2625. The question is whether it is
structural error, and thus reversible per se, for a juvenile court
to proceed with a jurisdiction and disposition hearing without
an incarcerated parent’s presence and without appointing the
parent an attorney.
II.
The California Constitution provides: “No judgment shall
be set aside, or new trial granted, in any cause, on the ground of
misdirection of the jury, or of the improper admission or
rejection of evidence, or for any error as to any matter of
pleading, or for any error as to any matter of procedure, unless,
after an examination of the entire cause, including the evidence,
the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)
“When the error is one of state law only, it generally does not
warrant reversal unless there is a reasonable probability that in
the absence of the error, a result more favorable to the appealing
party would have been reached. ([Watson, supra,] 46 Cal.2d [at
p.] 835.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
574.) Federal constitutional errors require reversal unless the
beneficiary of the error can show it was “harmless beyond a
reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.)
But not all errors are amenable to harmless error analysis.
We have, “in a number of contexts, [found] that certain errors,
by their nature, result in a ‘miscarriage of justice’ within the
meaning of the California harmless-error provision requiring
reversal without regard to the strength of the evidence received
at trial.” (People v. Cahill (1993) 5 Cal.4th 478, 493 (Cahill).)
For example, per se reversal is required when a court refuses or
fails to allow a party to present its entire case before the trier of
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Opinion of the Court by Liu, J.
fact (Fewel v. Fewel (1943) 23 Cal.2d 431, 433), when there is
improper discrimination in jury selection (People v. Wheeler
(1978) 22 Cal.3d 258, 283), or when a codefendant is denied the
right to separate counsel (People v. Douglas (1964) 61 Cal.2d
430, 437–439).
The same is true under federal law. In holding that some
errors of a constitutional dimension are amenable to harmless
error analysis, the court in Chapman also recognized that “there
are some constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error . . . .”
(Chapman, supra, 386 U.S. at p. 23.) This category includes
deprivation of the right to counsel (Gideon v. Wainwright (1963)
372 U.S. 335) and denial of the right to trial by an impartial
judge (Tumey v. Ohio (1927) 273 U.S. 510). (Chapman, at p. 23,
fn. 84; see Arizona v. Fulminante (1991) 499 U.S. 279, 309–310
(Fulminante).)
We adopted the term “structural” error in accordance with
its usage in Fulminante: “[J]ust as the United States Supreme
Court recognized in its recent Fulminante decision that certain
federal constitutional errors representing ‘structural defects in
the constitution of the trial mechanism’ are not amenable to
harmless error analysis (Fulminante, supra, 499 U.S. [at
p.] 309–310 (opn. by Rehnquist, C. J.)), under the California
constitutional harmless-error provision some errors similarly
are not susceptible to the ‘ordinary’ or ‘generally applicable’
harmless-error analysis . . . and may require reversal of the
judgment notwithstanding the strength of the evidence
contained in the record in a particular case.” (Cahill, supra, 5
Cal.4th at p. 493.)
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Opinion of the Court by Liu, J.
A.
In James F., we observed that the high court had not
applied structural error analysis “outside the context of criminal
proceedings” (James F., supra, 42 Cal.4th at p. 917), and we
cautioned against “import[ing] wholesale, or unthinkingly,” the
analysis of structural error from criminal cases into other
contexts (id. at p. 916). At the same time, we have never held
that structural errors can arise only in the criminal context. (Cf.
Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233 [holding
that an error regarding who should interpret a class action
provision in an arbitration agreement was not amenable to
prejudice analysis].)
Father asks us to import the rule of structural error into
the dependency context. We considered in James F. whether a
procedural error in appointing a guardian ad litem for a parent
in a dependency proceeding was amenable to harmless error
analysis. The superior court in that matter failed to “explain to
[the parent] what a guardian ad litem is or what powers a
guardian ad litem has, nor did the court give [the parent] a
meaningful opportunity to be heard in opposition to the
appointment, and it inaccurately told [the parent] that the
guardian ad litem was his ‘second lawyer.’ ” (James F., supra,
42 Cal.4th at p. 911.) We concluded that the juvenile court’s
failure to follow the proper procedure in appointing a guardian
ad litem was amenable to harmless error analysis because
“[d]etermining prejudice in this context does not necessarily
require ‘a speculative inquiry into what might have occurred in
an alternate universe.’ ” (Id. at p. 915.)
In reaching this holding, we observed that “[t]he rights
and protections afforded parents in a dependency proceeding are
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Opinion of the Court by Liu, J.
not the same as those afforded to the accused in a criminal
proceeding.” (James F., supra, 42 Cal.4th at p. 915.) “For
example, a juvenile court may rely on hearsay contained in a
social worker’s report to support a jurisdictional finding in a
dependency case, although such evidence could not be used to
establish guilt in a criminal proceeding. [Citation.] Also, unlike
a defendant in a criminal proceeding, ‘[a] parent at a
dependency hearing cannot assert the Fourth Amendment
exclusionary rule, since “the potential harm to children in
allowing them to remain in an unhealthy environment
outweighs any deterrent effect which would result from
suppressing evidence” unlawfully seized.’ ” (Ibid.) “These
significant differences between criminal proceedings and
dependency proceedings,” among others, “provide reason to
question whether 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.)
As Father observes, James F. did not address or disturb
several Court of Appeal decisions that had found structural
error in the dependency context, including cases involving
failure to provide notice to the parent. (See, e.g., In re Jasmine
G. (2005) 127 Cal.App.4th 1109, 1116 [failure to give proper
notice to a parent facing termination of her parental rights];
Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 558
[failure to timely serve report recommending termination of
reunification services in advance of a dependency hearing]; In re
Josiah S. (2002) 102 Cal.App.4th 403, 417–418 [improper denial
of a parent’s request for a contested hearing in a dependency
proceeding]; In re Kelly D. (2000) 82 Cal.App.4th 433, 440
[failure to provide notice and a contested hearing on the issue of
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Opinion of the Court by Liu, J.
visitation frequency “resulted in a miscarriage of justice”
requiring reversal of the order, with no discussion of prejudice];
In re James Q. (2000) 81 Cal.App.4th 255, 268 [conditioning a
contested hearing on an offer of proof was a “miscarriage of
justice”].) Moreover, we took care to note that there was no
indication the father in James F. was “ ‘stripped . . . of his right
to participate’ ”: “Nothing suggests that [the father] was unable
to express his wishes to the court, either directly or through his
appointed guardian, that he lacked actual notice of the
proceedings as they unfolded, that the guardian and the
attorney appointed for [the father] failed to properly advocate
for his parental interests, or that [the father] ever expressed
dissatisfaction with the guardian ad litem or asked the juvenile
court to vacate her appointment.” (James F., supra, 42 Cal.4th
at p. 917.) We explained: “[T]he use of flawed procedures in the
appointment of a guardian ad litem for a parent does not
inevitably and necessarily render dependency proceedings
unfair in any fundamental sense” because “it is reasonable to
infer, in the absence of evidence to the contrary, that a guardian
ad litem has acted zealously to preserve the parent’s interest in
the companionship, care, and custody of the child, and thus that
the parent benefited from the guardian ad litem’s appointment.”
(Id. at p. 918.)
In sum, although we declined to find structural error in
James F., we did not foreclose its application in the dependency
context.
B.
With this background, we turn to the question before us:
whether the juvenile court’s failure here to appoint counsel or
provide for Father’s presence at the combined jurisdiction and
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disposition hearing is structural error. We begin by
acknowledging that these errors are quite serious. The hearing
at issue is when the juvenile court determines whether there are
sufficient grounds to assert jurisdiction over the child and
whether family reunification services will be provided. (1 Seiser
& Kumli, Cal. Juvenile Courts Practice and Procedure (2021)
§§ 2.100, 2.122 (Seiser).) Not only are the stakes for the parent
weighty, but also “it is implicit in the juvenile dependency
statutes that it is always in the best interests of a minor to have
a dependency adjudication based upon all material facts and
circumstances and the participation of all interested parties
entitled to notice.” (Ansley v. Superior Court (1986) 185
Cal.App.3d 477, 490–491 (Ansley).) The right to counsel and
participation not only protects the parent’s interests but also
ensures that the juvenile court has the fullest picture of the
relevant facts before disposing of a dependency petition.
It is not sufficient that Father was appointed counsel and
was present telephonically at the permanency planning
proceeding. The focus of that proceeding is different: “ ‘Once
reunification services are ordered terminated, the focus shifts to
the needs of the child for permanency and stability.’ . . . ‘A
[permanency planning] hearing . . . is a hearing specifically
designed to select and implement a permanent plan for the
child.’ . . . It is designed to protect children’s ‘compelling rights
. . . to have a placement that is stable, permanent, and that
allows the caretaker to make a full emotional commitment to the
child.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 52–53, citations
omitted.) Once a dependency proceeding moves into
permanency planning, “the question is no longer whether the
child should be returned to the parent, an issue already decided
in the negative with the permanent plan of return to the parent
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having been rejected. Instead, the issue is whether the child is
adoptable and what the alternative permanency plan should
be.” (Seiser, supra, § 2.171; see In re Caden C. (2021) 11 Cal.5th
614, 630–631 [discussing the proceedings under § 366.26 after
reunification services have been denied or terminated]; In re
Celine R., at p. 53 [“Indeed, the court must order adoption and
its necessary consequence, termination of parental rights,
unless one of the specified circumstances provides a compelling
reason for finding that termination of parental rights would be
detrimental to the child.”].) Thus, unlike the father in James F.,
Father here was denied “ ‘his right to participate’ ” in a critical
stage of a dependency case when the juvenile court failed to
appoint counsel or provide for Father’s presence at the combined
jurisdiction and disposition hearing. (James F., supra, 42
Cal.4th at p. 917.)
In classifying the error here, we draw on Weaver v.
Massachusetts (2017) 582 U.S. __ [137 S.Ct. 1899] (Weaver),
which explained that “[t]here appear to be at least three broad
rationales” for treating an error as structural. (Id. at p. __ [137
S.Ct. at p. 1908].) “First, an error has been deemed structural
in some instances if the right at issue is not designed to protect
the defendant from erroneous conviction but instead protects
some other interest. This is true of the defendant’s right to
conduct his own defense, which, when exercised, ‘usually
increases the likelihood of a trial outcome unfavorable to the
defendant.’ . . . [¶] Second, an error has been deemed structural
if the effects of the error are simply too hard to measure. For
example, when a defendant is denied the right to select his or
her own attorney, the precise ‘effect of the violation cannot be
ascertained.’ [Citation.] Because the government will, as a
result, find it almost impossible to show that the error was
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‘harmless beyond a reasonable doubt,’ [citation], the efficiency
costs of letting the government try to make the showing are
unjustified. [¶] Third, an error has been deemed structural if
the error always results in fundamental unfairness. For
example, if an indigent defendant is denied an attorney or if the
judge fails to give a reasonable-doubt instruction, the resulting
trial is always a fundamentally unfair one. [Citations.] It
therefore would be futile for the government to try to show
harmlessness.” (Ibid.) “These categories are not rigid. In a
particular case, more than one of these rationales may be part
of the explanation for why an error is deemed to be structural.”
(Ibid.)
The first of the three Weaver rationales asks whether “the
right at issue is not designed to protect the defendant from
erroneous conviction but instead protects some other interest.”
(Weaver, supra, 582 U.S. at p. __ [137 S.Ct. at p. 1908].) As an
illustration, Weaver mentions a criminal defendant’s right to
conduct his or her own defense, “which, when exercised, ‘usually
increases the likelihood of a trial outcome unfavorable to the
defendant.’ ” (Ibid.) “That right is based on the fundamental
legal principle that a defendant must be allowed to make his
own choices about the proper way to protect his own liberty.
[Citation.] Because harm is irrelevant to the basis underlying
the right, the Court has deemed a violation of that right
structural error.” (Ibid.)
Here, the value of counsel and the parent’s presence at
dependency proceedings is not limited to ensuring proper
presentation of the parent’s position; it also ensures that the
juvenile court has the fullest picture of the relevant facts before
disposing of a dependency petition. But this interest in the
accuracy of the proceedings is not easily distinguished from the
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parent’s own interest because it also serves to protect the parent
from an erroneous determination. To that extent, it differs from
the example Weaver offers to illustrate the first rationale and
does not counsel in favor of treating the error here as structural.
Nor does Weaver’s second rationale for finding structural
error have applicability here. We find it significant, as did the
Court of Appeal, that the question of whether the errors here
were harmless does not invariably require “a speculative inquiry
into what might have occurred in an alternate universe.”
(United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150.) We
discuss at some length the Court of Appeal’s assessment of
prejudice not to express our view on whether the juvenile court’s
errors were harmless (that issue is not before us), but rather to
examine the feasibility of harmless error analysis in this
context.
The Department asked the juvenile court to exercise
jurisdiction over Christopher and his sister based on allegations
that Father’s criminal history and substance abuse endangered
the children’s health and safety and placed them at risk of
serious physical harm. The Court of Appeal understood Father
to have conceded that the juvenile court acted properly in
sustaining the allegations and exercising jurisdiction over
Christopher (Christopher L., supra, 56 Cal.App.5th at p. 1189,
fn. 5); the only question was whether the court properly denied
reunification services to Father. (Cf. post, at pp. 17–18.)
“Section 361.5, subdivision (b) contains several
reunification ‘bypass provisions’ permitting (or, in some cases,
requiring) a court to deny a parent reunification services” when
it finds by clear and convincing evidence that one or more of the
bypass provisions apply. (Christopher L., supra, 56 Cal.App.5th
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Opinion of the Court by Liu, J.
at p. 1189.) Two bypass provisions are relevant here. First,
section 361.5, subdivision (b)(10)(A) is applicable in light of the
fact that 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 “has not subsequently made a reasonable effort to treat the
problems that led to removal of the . . . half sibling of
[Christopher] from that [Father].” (§ 361.5, subd. (b)(10)(A).) As
the Court of Appeal explained, “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.” (Christopher L., at p. 1189.)
Second, it is also undisputed that section 361.5,
subdivision (b)(12) is relevant. Father had been convicted of a
violent felony (robbery), for which he was incarcerated at the
time of these proceedings. (§ 361.5, subd. (b)(12) [“Reunification
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, as defined in
subdivision (c) of Section 667.5 of the Penal Code”].)
When either of these bypass provisions applies,
reunification services “shall not” be ordered unless the juvenile
court finds, “by clear and convincing evidence, that reunification
is in the best interest of the child.” (§ 361.5, subd. (c)(2).) In this
court, as in the Court of Appeal, “Father makes no attempt to
argue how a court could have concluded that services would
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have been in Christopher’s best interest, nor does he argue the
bypass provision under section 361.5, subdivision (b) is
inapplicable.” (Christopher L., supra, 56 Cal.App.5th at
p. 1190.)
We emphasize, as did the Court of Appeal, that the fact of
a parent’s incarceration is not itself dispositive in the prejudice
analysis. (See Christopher L., supra, 56 Cal.App.5th at
p. 1192 [“there is no ‘ “go to prison, lose your child” ’ law in
California”], quoting In re Brittany S. (1993) 17 Cal.App.4th
1399, 1402.) Section 361.5, subdivision (e)(1) requires the court
to order “reasonable” reunification services to incarcerated
parents “unless the court determines, by clear and convincing
evidence, those services would be detrimental to the child.” The
statute enumerates numerous factors for consideration, and the
Court of Appeal identified the following as the most relevant
here: “the 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.” (§ 361.5, subd. (e)(1); see Christopher L.,
supra, 56 Cal.App.5th at p. 1190.) On the facts of this case, the
court concluded, “[T]here 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. . . . 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) &
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In re CHRISTOPHER L.
Opinion of the Court by Liu, J.
(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.” (Christopher L., supra, 56
Cal.App.5th at pp. 1190–1191.)
Importantly, the statutory scheme provides a mechanism
for reconsideration of the court’s prior orders had Father
believed there were grounds to do so. Section 388 authorizes a
parent “or other person having an interest in a child who is a
dependent child of the juvenile court” to petition the juvenile
court “to change, modify, or set aside any order of court
previously made or to terminate the jurisdiction of the court.”
(Id., subd. (a)(1); see Ansley, supra, 185 Cal.App.3d at pp. 481,
487–488.) The petition — sometimes referred to as an “Ansley
motion” — must allege why the requested change is “in the best
interest of the dependent child.” (§ 388, subd. (b)(1).) Section
388 further says: “If it appears that the best interests of the
child or the nonminor dependent may be promoted by the
proposed change or order . . . the court shall order that a hearing
be held . . . .” (§ 388, subd. (d).) However, the court may
summarily deny the motion if the petition fails to make a prima
facie showing (1) that a change of circumstances or new evidence
requires a changed order, and (2) that the requested change
would promote the best interests of the child. (In re Anthony W.
(2001) 87 Cal.App.4th 246, 250.)
In his briefing before this court, Father belatedly offers
two theories of prejudice that should have been presented to the
juvenile court in the first instance as possible grounds for
reconsideration. First, he suggests that if he had attended the
March 2018 jurisdiction hearing, he could have persuaded the
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In re CHRISTOPHER L.
Opinion of the Court by Liu, J.
juvenile court that because he was a nonoffending parent and
could have arranged for the children to be cared for by a relative
while he served his prison term, there was no need for the court
to assume jurisdiction over the children. Second, he says he
might have persuaded the juvenile court to reject the
jurisdictional allegations against him as “stale,” thus rendering
him a nonoffending parent. But the jurisdictional report
indicates that Father appears to have been arrested for burglary
just eight months before these proceedings; that was the charge
for which he was then serving a seven-year sentence. The facts
here are readily distinguishable from those in In re Isayah C.
(2004) 118 Cal.App.4th 684, upon which Father relies. In Isayah
C., the Department did not file allegations against the father
and conceded he was a nonoffending parent (id. at pp. 688, 695),
the father had joint custody of the child (id. at p. 688), he was
under arrest due to accusations made by the child’s mother (id.
at pp. 687, 689), and he articulated a plan to send his child to
identified relatives “pending his relatively short incarceration”
(id. at p. 700).
In any event, these arguments were not presented in a
motion for reconsideration under section 388, nor were they
presented to the Court of Appeal when the question of
prejudicial error was decided. Had Father presented these
arguments below, they could have informed the Court of
Appeal’s assessment of prejudice. But even if such arguments
might have made it more difficult to show that the errors here
were harmless, that does not mean the errors are not amenable
to harmless error review. It would simply mean that the errors
are “more likely to be prejudicial under the traditional
harmless-error standard.” (Cahill, supra, 5 Cal.4th at p. 503.)
The fact that the statutory scheme enabled the Court of Appeal
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In re CHRISTOPHER L.
Opinion of the Court by Liu, J.
to assess prejudice based on the arguments before it weighs
against a conclusion that the errors require automatic reversal.
Finally, we turn to Weaver’s third rationale for structural
error: whether the error “always results in fundamental
unfairness.” (Weaver, supra, 582 U.S. at p. __ [137 S.Ct. at
p. 1908].) It is this rationale, Weaver explains, that calls for
automatic reversal when “an indigent defendant is denied an
attorney or if the judge fails to give a reasonable-doubt
instruction.” (Ibid.) Here, we note the significant differences
between criminal and dependency proceedings, as articulated in
James F.: “In a criminal prosecution, the contested issues
normally involve historical facts (what precisely occurred, and
where and when), whereas in a dependency proceeding the
issues normally involve evaluations of the parents’ present
willingness and ability to provide appropriate care for the child
and the existence and suitability of alternative placements.”
(James F., supra, 42 Cal.4th at p. 915.) The presence of counsel
generally helps to facilitate this assessment by ensuring that a
more complete picture of the parent’s interests and ability to
provide for the child’s care are presented to the court. But it
does not follow that the absence of counsel invariably results in
unfairness in light of the statutory scheme governing
reunification services. Nor does it follow that absence of counsel
from one stage of the proceeding necessarily renders the entire
proceeding fundamentally unfair, especially where, as here,
counsel was provided after the jurisdiction and disposition
hearing, and could have utilized a statutory mechanism to seek
reconsideration of any prior order by the juvenile court.
Weaver cautions that “[a]n error can count as structural
even if the error does not lead to fundamental unfairness in
every case.” (Weaver, supra, 582 U.S. at p. __ [137 S.Ct. at
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In re CHRISTOPHER L.
Opinion of the Court by Liu, J.
p. 1908].) But in the dependency context, automatic reversal for
errors that do not invariably lead to fundamental unfairness
would exact a particularly steep cost. “There is little that can
be as detrimental to a child’s sound development as uncertainty
over whether he is to remain in his current ‘home,’ under the
care of his parents or foster parents, especially when such
uncertainty is prolonged.” (Lehman v. Lycoming County
Children’s Services (1982) 458 U.S. 502, 513–514.) “We
emphatically agree that dependent children have a critical
interest in avoiding unnecessary delays to their long-term
placement.” (In re A.R. (2021) 11 Cal.5th 234, 249; see James
F., supra, 42 Cal.4th at p. 915 [“the ultimate consideration in a
dependency proceeding is the welfare of the child [citations], a
factor having no clear analogy in a criminal proceeding”].) And
we have repeatedly underscored the need to avoid delay in this
context. (See, e.g., In re Sade C. (1996) 13 Cal.4th 952, 993
[noting “the pointed and concrete harm that the child may
suffer” from prolonged proceedings]; In re Marilyn H. (1993) 5
Cal.4th 295, 306 [children have a “compelling right[] . . . to have
a placement that is stable, permanent, and that allows the
caretaker to make a full emotional commitment to the child”].)
Accordingly, we decline to adopt a rule of automatic reversal in
cases involving the errors that occurred here.
We caution that such assessment of harmlessness is
unlikely to be available in every instance where a parent has
been denied the right to counsel and the right to be present at a
combined jurisdiction and disposition hearing. These rights
serve to ensure the fairness and reliability of the adversarial
process, and there is likely to be “a grey area between the
margins where the difference appointed counsel [or the parent’s
presence] might have made during a dependency proceeding will
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In re CHRISTOPHER L.
Opinion of the Court by Liu, J.
be more difficult to reliably assess.” (In re. J.P. (2017) 15
Cal.App.5th 789, 803 (conc. opn. of Baker, J.).) The fact that
harmlessness is ascertainable here counsels against a rule of
automatic reversal. But appellate courts should be wary of
finding harmless error “[w]hen a counterfactual inquiry appears
too difficult to responsibly undertake, or a counterfactual
conclusion relies on inferences that really amount to
guesswork.” (Id. at p. 804 (conc. opn. of Baker, J.).)
C.
Finally, we address Father’s argument that the errors
here are analogous to a complete deprivation of notice. (Cf. In
re Jasmine G., supra, 127 Cal.App.4th at p. 1116; In re Kelly D.,
supra, 82 Cal.App.4th at pp. 439–440.) Father acknowledges
that the Department provided notice of the combined
jurisdiction and disposition hearing, but he says, “[T]he trial
court’s fundamental error in not acknowledging petitioner’s
response to the notice that he did receive, has, in effect, resulted
in a lack of notice altogether.” He asks: “What is the difference
between a lack of notice and the failure of the trial court to
acknowledge the defendant’s desire to contest the matter after
notice has been given?”
The Courts of Appeal that have addressed notice errors in
the dependency context have attempted to draw a line between
cases in which there was a complete deprivation of notice and
cases in which there was some lesser defect as to notice, with
only the former requiring automatic reversal. (See, e.g., In re
Marcos G. (2010) 182 Cal.App.4th 369, 387 [“When there is no
attempt to serve a parent with notice the error is reversible per
se; when there is error in a notice the question is whether the
error is harmless beyond a reasonable doubt.”].) One court has
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In re CHRISTOPHER L.
Opinion of the Court by Liu, J.
explained that it “is the difference between a sound structure
which fails due to human error and an unsound structure which
can never support a fair process.” (In re Jasmine G., supra, 127
Cal.App.4th at p. 1118.) The rationale may be that automatic
reversal is necessary to deter egregious negligence when the
state fails to even attempt to give notice. A complete failure of
the state process may also implicate dignity concerns not
present when human error results in a notice defect.
We express no view on the cases that have applied a rule
of automatic reversal where there was a complete absence of
notice. We note only that there was no failure to give notice
here, and no indication that the juvenile court’s or the
Department’s failure to act properly on Father’s response to the
notice arose from anything other than ordinary human error, or
that the mistake at one stage of the proceedings rendered the
entire process fundamentally unfair.
To be sure, Father’s right to be present with counsel at the
hearing may serve a dignitary interest apart from its utility in
ensuring the reliability of the outcome. (Cf. Weaver, supra, 582
U.S. at p. __ [137 S.Ct. at p. 1908] [structural error may arise
from violation of a right that “is not designed to protect the
defendant from erroneous conviction but instead protects some
other interest”].) But Father did receive proper notice of the
hearing, was present and represented at later hearings, and had
recourse to a mechanism for reconsideration. Any additional
dignitary interest that might be served by the juvenile court
acknowledging his desire to contest the matter is, in our view,
insufficient to justify a rule of automatic reversal when weighed
against Christopher’s “critical interest” in permanent
placement. (In re A.R., supra, 11 Cal.5th at p. 249.)
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In re CHRISTOPHER L.
Opinion of the Court by Liu, J.
In sum, the juvenile court committed serious errors when
it proceeded with a combined jurisdiction and disposition
hearing without appointing counsel for Father or providing for
his presence at the hearing. But the prejudicial effects of such
errors, if any, are not beyond the ability of the courts to assess.
Although this may not be true in all cases involving such errors,
the fact that it is true at least in cases like this one — together
with the “critical interest” that “dependent children have . . . in
avoiding unnecessary delays to their long-term placement” (In
re A.R., supra, 11 Cal.5th at p. 249) — leads us to conclude that
a rule of automatic reversal is unwarranted.
The question before us is limited to whether the errors
here require automatic reversal. We do not decide whether the
errors, singly or in combination, are subject to the prejudice
standard for state law error (see Watson, supra, 46 Cal.2d at
p. 835) or the more stringent standard for federal constitutional
error (see Chapman, supra, 386 U.S. at p. 24). Nor do we decide
the merits of the Court of Appeal’s determination that the errors
were harmless under either prejudice standard, as that issue is
beyond the scope of the question on which we granted review.
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In re CHRISTOPHER L.
Opinion of the Court by Liu, J.
CONCLUSION
We affirm the judgment of the Court of Appeal.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
PEÑA, J.*
*
Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
25
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re Christopher L.
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 56 Cal.App.5th 1172Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S265910
Date Filed: April 25, 2022
__________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Marguerite D. Downing
__________________________________________________________________
Counsel:
Christopher Blake, under appointment by the Supreme Court, for
Defendant and Appellant.
Mazanec Law, Nicholas J. Mazanec; and Suzanne M. Nicholson for
California Appellate Defense Counsel as Amicus Curiae on behalf of
Defendant and Appellant.
Mary C. Wickham and Rodrigo A. Castro-Silva, County Counsel, Kim
Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.
Jennifer B. Henning; and Johannah L. Hartley, Deputy County
Counsel (Santa Barbara), for the California State Association of
Counties as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Christopher Blake
P.O. Box 90218
San Diego, CA 92169
(858) 274-1722
Sarah Vesecky
Deputy County Counsel
500 West Temple Street, 6th Floor
Los Angeles, CA 90012
(213) 808-8777