46 Cal.App.5th 859
Cal. Ct. App.2020Background
- Juvenile court previously adjudicated older brother E.M. dependent; Andrew born same month and DCFS filed a section 300 petition for Andrew as well.
- Father was incarcerated during much of the proceedings; he arranged informal placements and completed JV-451 forms.
- Father repeatedly (six of nine times) requested appointment of counsel via JV-451 and waived personal appearance at several hearings.
- The juvenile court never appointed counsel for father in Andrew’s case, found him to be Andrew’s biological father, and sustained the section 300(b) petition, awarding monitored visitation.
- Father appealed, arguing the court erred in failing to appoint counsel; the Court of Appeal reversed and directed appointment of counsel and de novo arraignment and jurisdiction hearings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the juvenile court erred by failing to appoint counsel for an indigent, incarcerated father after he requested representation | Father waived participation and therefore lacks standing; prior authority allows no appointment when parent does not request or participate | Father repeatedly requested appointment of counsel and was indigent and incarcerated; Penal Code mandates representation for incarcerated parents who waive appearance | Court held error: repeated requests triggered statutory duty to appoint counsel; reversal ordered and counsel must be appointed |
| Whether the failure to appoint counsel is structural error requiring automatic reversal or subject to harmless-error review | Error is not structural; reversal not automatic (DCFS urged waiver/no standing) | Error violates statutory and constitutional rights; may be structural or at least prejudicial | Court applied harmless-error principles but found it reasonably probable a different result would follow if counsel had been appointed and reversed |
| Whether lack of record that father received a copy of the petition is independently reversible | DCFS implied notice/waiver was adequate | There is no indication father received a copy of Andrew's petition; lack of notice would be structural | Court noted lack of petition delivery would be a structural error and provided as an independent ground for reversal if harmlessness could not be determined |
Key Cases Cited
- In re Ebony W., 47 Cal.App.4th 1643 (mother must communicate desire for counsel to obligate appointment)
- In re Jesusa V., 32 Cal.4th 588 (incarcerated parent may waive presence but adjudication requires counsel under Penal Code)
- In re J.P., 15 Cal.App.5th 789 (harmless-error analysis appropriate for some counsel-appointment errors)
- In re Joseph G., 83 Cal.App.4th 712 (distinguishable authority about waiver and noncustodial fathers)
- In re James F., 42 Cal.4th 901 (discusses structural-error doctrine and its fit in dependency cases)
- In re Zacharia D., 6 Cal.4th 435 (reunification-service entitlements differ for biological vs. presumed/presumed-parent status)
- People v. Watson, 46 Cal.2d 818 (standard for establishing prejudice under harmless-error review)