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44 Cal.App.5th 652
Cal. Ct. App.
2020
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Background

  • Father was serving a multi-year prison term and was housed in Mississippi when the Department filed a dependency petition (mother’s drug use) and scheduled jurisdiction/disposition hearings in April–May 2015. The petition contained no allegations against father.
  • The Department mailed inadequate notice to father (April 21, 2015). Father promptly returned letters and a JV‑451 form (April 27, 2015) asking to appear; the court did not act on those communications, did not appoint counsel for father, and continued the hearing to May 4, 2015 when father was not present.
  • At the May 4, 2015 disposition the court removed the children from parental custody and denied reunification services to father under Welf. & Inst. Code § 361.5(e)(1). Father was not represented and there is no waiver in the record.
  • Father returned to California and filed a pro se § 388 petition seeking reunification; the court summarily denied it. When father first appeared in August 2016 he had a specially appearing attorney, who later filed a § 388 petition challenging notice and lack of counsel; the court denied that petition in December 2016.
  • The permanency (§ 366.26) hearing was repeatedly continued over ~2½ years; father maintained monitored visits after his 2016 release but had some arrests in 2018–2019. On April 30, 2019 the juvenile court terminated father’s parental rights. Father appealed.

Issues

Issue Plaintiff's (Department) Argument Defendant's (Father) Argument Held
Adequacy of notice of jurisdiction/disposition hearing Notice was adequate or any defect was harmless beyond a reasonable doubt Notice was inadequate; father promptly asked to appear and was deprived of opportunity to participate Court: notice was defective and the error was prejudicial (not harmless); reversal warranted
Failure to appoint counsel at disposition Court had no duty to appoint counsel absent a clear request; any notice error did not require reversal Father’s timely request to appear implied a request for counsel; deprivation of counsel prejudiced him Court: denial of counsel was prejudicial; counsel would likely have sought continuance, investigated, and pursued reunification services
Denial of reunification services under § 361.5(e)(1) Substantial uncontested evidence supported denial (e.g., long incarceration) Father had no opportunity to contest or present evidence; incarceration alone does not prove detriment Court: denial was prejudicial because father lacked counsel and opportunity to develop evidence; remand required to reconsider reunification
Denial of § 388 petitions / vacation of dispositional orders and termination Denial of § 388 was within trial court’s discretion; termination should stand The earlier notice/counsel defects infected dispositional orders and later termination; relief is required Court: because of prejudicial due process violations, reversed May 4, 2015 dispositional orders as to father, vacated April 30, 2019 termination, and remanded for new dispositional hearing and appointment of counsel

Key Cases Cited

  • In re Jesusa V., 32 Cal.4th 588 (Cal. 2004) (prisoner-parent notice, presence, and harmless‑error principles)
  • In re Celine R., 31 Cal.4th 45 (Cal. 2003) (Watson reasonable‑probability harmless‑error standard in dependency matters)
  • In re J.P., 15 Cal.App.5th 789 (Cal. Ct. App. 2017) (prejudice from denial of appointed counsel in dependency proceedings)
  • In re J.H., 158 Cal.App.4th 174 (Cal. Ct. App. 2007) (harmless‑beyond‑reasonable‑doubt review of notice defects)
  • In re Justice P., 123 Cal.App.4th 181 (Cal. Ct. App. 2004) (agency diligence and notice to parents)
  • In re James F., 42 Cal.4th 901 (Cal. 2008) (appointment procedure error subject to harmless‑error analysis)
  • United States v. Gonzalez–Lopez, 548 U.S. 140 (U.S. 2006) (structural‑error discussion on deprivation of counsel of choice)
  • Mark N. v. Superior Court, 60 Cal.App.4th 996 (Cal. Ct. App. 1998) (prisoner‑parent entitled to reasonable reunification services absent a clear showing of detriment)
  • In re G.L., 222 Cal.App.4th 1153 (Cal. Ct. App. 2014) (complexity of exceptions to providing reunification services to incarcerated parents)
  • In re A.L., 190 Cal.App.4th 75 (Cal. Ct. App. 2010) (reversal of dispositional error vacates subsequent termination orders and requires remand)
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Case Details

Case Name: In re A.J.
Court Name: California Court of Appeal
Date Published: Jan 23, 2020
Citations: 44 Cal.App.5th 652; 257 Cal.Rptr.3d 366; B297762
Docket Number: B297762
Court Abbreviation: Cal. Ct. App.
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