52 Cal.App.5th 963
Cal. Ct. App.2020Background
- Baby (born 2018) was detained after mother tested positive for methamphetamine; parents have extensive criminal and substance-abuse histories and an older son had previously been made a dependent and later adopted.
- DCFS filed a dependency petition naming mother and alleging father as an alleged father; mother identified the paternal grandmother and aunt but said she lacked contact information for father.
- At the January 14, 2019 hearing the court found due diligence to locate father incomplete and continued his jurisdictional hearing; DCFS’s January report admitted it had not contacted the paternal relatives.
- At the February 13, 2019 hearing the court found due diligence complete despite no record showing DCFS contacted the identified relatives; the court sustained the petition as to father and denied reunification services for both parents under Welf. & Inst. Code § 361.5.
- Father was later located and personally served while incarcerated; he filed a Welf. & Inst. Code § 388 petition seeking vacatur of the jurisdictional/dispositional orders for lack of notice and asked placement with paternal relatives.
- The juvenile court denied the § 388 petition as not in the child’s best interest, found the child adoptable, and terminated parental rights; the Court of Appeal affirmed, holding DCFS’s search was legally deficient but the notice error was harmless under the Watson standard.
Issues
| Issue | Plaintiff's Argument (DCFS/Respondent) | Defendant's Argument (Father/Appellant) | Held |
|---|---|---|---|
| Whether DCFS acted with due diligence to locate and notify father of jurisdiction/disposition hearings | DCFS implicitly argued its searches sufficed and that relatives knew of the child’s placement | Father argued DCFS failed to contact paternal relatives identified by mother and thus did not act with due diligence | Court: DCFS’s efforts were deficient; it did not contact identified relatives and the due diligence finding was erroneous |
| Whether lack of notice/appearance supports relief under Welf. & Inst. Code § 388 (due process challenge) | DCFS argued no prejudice and urged denial because relief would not be in child’s best interest | Father argued § 388 is the proper vehicle to challenge want of notice and vacate orders so he could reunify and seek placement with relatives | Court: § 388 is the proper vehicle, but even assuming constitutional error, father failed to show changed circumstances/best-interest justification for relief |
| Whether the notice error was prejudicial (standard of review/harmlessness) | DCFS: any error was harmless; outcome would not likely differ | Father: prejudice is inherent; lack of notice deprived him of counsel and chance to form bond (argued reversible) | Court: Applied Watson (more-probable-than-not) harmless-error standard and held error harmless — no reasonable probability of a more favorable outcome |
| Whether father’s lack of presumed-father status or proposed relative placements would have changed result | DCFS: father did not seek presumed status and proposed relatives were unfit/unwilling | Father: had he been noticed he could have been treated as presumed father and pursued placement with aunt | Court: Issue waived (no request below); even if considered, relatives were unlikely placements and father’s history (prior loss of sibling, unresolved substance abuse, incarceration, violent conduct) made reunification unlikely |
Key Cases Cited
- In re A.I.J., 44 Cal. App. 5th 652 (2019) (prior appellate decision addressing notice/due-diligence and harmless-error review)
- In re James F., 42 Cal. 4th 901 (2008) (Supreme Court: harmless-error applies in dependency proceedings; structural-error caution)
- In re Justice P., 123 Cal. App. 4th 181 (2004) (discusses due process notice and § 388 as vehicle for notice challenges)
- Ansley v. Superior Court, 185 Cal. App. 3d 477 (1986) (held § 388 may be used to challenge lack of notice of dependency proceedings)
- In re Jesusa V., 32 Cal. 4th 588 (2004) (discusses harmless-error review in dependency context)
- People v. Watson, 46 Cal. 2d 818 (1956) (articulates California’s "more likely than not" harmless-error standard)
- Chapman v. California, 386 U.S. 18 (1967) (discusses "harmless beyond a reasonable doubt" constitutional-error standard)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (lays out due-process notice principles)
- Troxel v. Granville, 530 U.S. 57 (2000) (reaffirms parental fundamental liberty interest in custody decisions)