In re M.R. CA2/6
B308711
| Cal. Ct. App. | Jul 12, 2021Background
- Children M.R. and E.R. placed with maternal grandparents after Mother overdosed on heroin while the children were present; Mother has long history of methamphetamine and heroin use, prior convictions, repeated treatment noncompliance, and sporadic visitation.
- Father (S.R.) has a 16-year prison sentence imposed when the children were toddlers; he was listed on the birth certificates but had little or no relationship with the children since incarceration.
- Dependency petition alleged failure to protect (Mother) and Father incarcerated without provision for support; Mother appeared at hearings and received counsel; Father was often not personally present, was treated as an "alleged father," and was represented by counsel.
- The juvenile court sustained the section 300 petition, bypassed reunification services for Mother, set a section 366.26 termination/adoption hearing, and terminated parental rights to both parents.
- Mother appealed arguing ineffective assistance of counsel and that failure to seek writ should be excused; Father appealed asserting due process violations (lack of inquiry into presumed father status, failure to provide JV-505, absence at jurisdiction/disposition hearings, and lack of valid waivers).
Issues
| Issue | CWS Argument | Parent's Argument | Held |
|---|---|---|---|
| Whether failure to file an extraordinary writ precludes appellate review | Writ review required for orders subsumed in section 366.26; failure to file forfeits review | Mother: counsel ineffective so forfeiture excused; Father: due process defects excuse forfeiture | For Mother: forfeiture not excused. For Father: forfeiture excused due to fundamental due process defects, so appeal may proceed. |
| Whether submission on reports without a personal waiver of trial rights was reversible | Submission / resting on reports was procedurally permissible | Parents: no personal waivers in record; constitutional rights not waived orally or by form | For Mother: failure to obtain personal waiver was harmless beyond reasonable doubt. For Father: failure to obtain waiver was not harmless and violated due process. |
| Whether bypass of reunification services for Mother under section 361.5(b)(13) was lawful | Bypass justified by Mother's prior resistance to court-ordered treatment and continued drug use | Mother: challenges scope of "resistance" (cites In re B.E.) and argues due process error | Held: Bypass was supported by substantial evidence of treatment resistance and was lawful here. |
| Whether court erred by not inquiring into father's status, failing to provide JV-505, and by holding hearings in his absence | Father had notice and counsel; court acted within discretion treating him as alleged father | Father: no JV-505, no inquiry into presumed-father indicators, he wanted to be custodial and was denied opportunity to establish paternity or seek reunification | Held: Reversible error. Court failed to perform required inquiry and to provide procedural protections (JV-505, presence at hearings); prejudice not harmless; termination reversed as to Father and remanded. |
Key Cases Cited
- In re Zeth S., 31 Cal.4th 396 (writ review ordinarily required before appealing orders subsumed in section 366.26)
- In re Meranda P., 56 Cal.App.4th 1143 (failure to file writ ordinarily forfeits claims of ineffective assistance at earlier stages)
- In re Janee J., 74 Cal.App.4th 198 (forfeiture may be excused where defects fundamentally undermine scheme and deny parent protections)
- In re S.N., 2 Cal.App.5th 665 (personal waiver required before submission on reports; failure to obtain waiver violates due process unless harmless beyond reasonable doubt)
- In re J.W.-P., 54 Cal.App.5th 298 (JV-505 functions as a failsafe to advise alleged fathers of steps to establish paternity)
- In re Paul H., 111 Cal.App.4th 753 (alleged fathers entitled to opportunity to assert paternity and change status)
- In re Jesusa V., 32 Cal.4th 588 (due process and harmless-error analysis for procedural defects in dependency proceedings)
- In re S.D., 99 Cal.App.4th 1068 (counsel may be ineffective at jurisdictional stage when legal errors are fundamental)
- In re A.G., 58 Cal.App.5th 973 (contested jurisdictional hearings can affect eligibility for reunification and the ultimate outcome)