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