56 Cal.App.5th 1172
Cal. Ct. App.2020Background
- Christopher (b. Dec 2017) and I.L. (b. Feb 2017) were the subjects of a section 300 petition after Christopher’s positive toxicology and concerns about parental substance abuse and criminal history; father Carlos was incarcerated at Sierra Conservation Center when the petition was filed.
- Father and Mother were married; mother later disputed paternity of Christopher but father was listed on I.L.’s birth certificate and later proved to be Christopher’s biological father by DNA.
- Father wrote DCFS (Feb 2018) requesting participation (telephonically) and DNA testing; the March 9, 2018 jurisdiction/disposition hearing proceeded without Father or appointed counsel for him.
- The juvenile court sustained the petition and denied reunification services under section 361.5(b)(10) and (b)(12) (prior failure to reunify; violent felony conviction).
- Father later obtained counsel, participated telephonically at permanency hearings; parental rights to I.L. were terminated Dec 2018 (no appeal timely filed), and parental rights to Christopher were terminated Mar 5, 2020. Father appealed as to Christopher and sought to extend the appeal to I.L.; the Court of Appeal affirmed termination as to Christopher and denied the extension.
Issues
| Issue | Plaintiff's Argument (DCFS) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Failure to recognize presumed‑father status and appoint counsel at jurisdiction/disposition hearing | No reversible error because father received notice and later participated with counsel at permanency hearings; any error is subject to harmless‑error review | Father: marriage certificate established presumed‑father status entitling him to appointed counsel at the jurisdiction/disposition hearing; lack of counsel violated due process | Court: Trial court erred in not recognizing presumed‑father status and appointing counsel at that early hearing, but the error was harmless and did not change outcome |
| Violation of Penal Code §2625 (proceeding without prisoner’s presence or waiver) | Error is reviewable for prejudice; father received notice and later participated | Father: court violated §2625 because there was no written waiver and he had requested to participate, depriving him of his statutory right to be present | Court: §2625 was violated at jurisdiction/disposition hearing, but the violation is subject to harmless‑error analysis and was not prejudicial here |
| Whether denial of counsel/§2625 error is structural (automatic reversal) | DCFS: errors are amenable to harmless‑error review; dependency context differs from criminal structural‑error rules | Father: deprivation of counsel at a critical early hearing is a due‑process structural error requiring automatic reversal | Court: Adopts James F. approach—such errors are generally amenable to harmless‑error review in dependency cases; no automatic reversal herein |
| Constructive filing / extending appeal to I.L. (Benoit) | Deny extension: doctrine traditionally not applied in parental‑termination cases; permitting it would undermine finality of adoptions | Father: counsel failed to advise/file; seeks constructive filing or extension to preserve identical claims for I.L. | Court: Denied motion; even if extension were allowed, identical arguments would not change result, so extension would serve no purpose |
Key Cases Cited
- In re James F., 42 Cal.4th 901 (Sup. Ct. 2008) (dependency due‑process errors are often amenable to harmless‑error analysis rather than automatic reversal)
- People v. Watson, 46 Cal.2d 818 (Cal. 1956) (harmless‑error standard: reversal only if reasonably probable the outcome would have been more favorable)
- Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless beyond a reasonable doubt standard for some constitutional errors)
- In re Jesusa V., 32 Cal.4th 588 (Sup. Ct. 2004) (Pen. Code §2625 violations reviewed for harmless error in dependency cases)
- Gonzalez‑Lopez v. United States, 548 U.S. 140 (U.S. 2006) (discusses structural error doctrine in criminal context)
- In re Benoit, 10 Cal.3d 72 (Sup. Ct. 1973) (constructive filing doctrine for late notices of appeal in criminal cases)
- In re J.P., 15 Cal.App.5th 789 (Ct. App. 2017) (applies James F. harmless‑error approach in dependency context)
- In re S.P., 52 Cal.App.5th 963 (Ct. App. 2020) (applies Watson/James F. framework to determine prejudice from dependency‑procedure errors)
- In re Andrew M., 46 Cal.App.5th 859 (Ct. App. 2020) (failure to appoint counsel for presumed father reviewed under harmless‑error standard)
- In re Celine R., 31 Cal.4th 45 (Sup. Ct. 2003) (applies Watson standard to counsel‑related errors in dependency matters)
- In re Jasmine G., 127 Cal.App.4th 1109 (Ct. App. 2005) (distinguishes structural defect where no attempt to give statutorily required notice)
- In re Z.S., 235 Cal.App.4th 754 (Ct. App. 2015) (failure to attempt service of notice can be reversible per se)
- In re Marilyn H., 5 Cal.4th 295 (Sup. Ct. 1993) (emphasizes preference for adoption after reunification services end)
- In re Elizabeth M., 19 Cal.App.5th 768 (Ct. App. 2018) (noting adoption preference once reunification services are ended)
- In re James C., 104 Cal.App.4th 470 (Ct. App. 2002) (denial of reunification services upheld where release date exceeded reunification period)
- In re Ronell A., 44 Cal.App.4th 1510 (Ct. App. 1996) (discusses limits on continuances and reunification‑period extensions)