In re Christopher L.
- Reporters:
- , ,
- Before:
- Rothschild, Chaney, Bendix
We agree with Father that the trial court erred, and that these errors affected the due process afforded Father at the jurisdiction/disposition hearing in that they denied him counsel at that hearing. But even errors of a constitutional dimension can be subject to a harmless error analysis in dependency proceedings,
Father‘s parental rights to Christopher‘s older sister I.L. were terminated in a separate order, which Father did not appeal. Instead, 18 months after the time for filing such an appeal expired, Father moved this court to apply the doctrine of constructive filing and “extend” Father‘s appeal regarding Christopher to apply to I.L. as well. But Father concedes that he would make the exact same arguments in an appeal regarding I.L. that he made regarding Christopher, and that these arguments apply in the exact same way to both children. Given our conclusion that Father‘s arguments regarding Christopher do not warrant reversal, permitting Father to pursue them with respect to I.L. would serve no purpose. Therefore, we deny Father‘s motion.
A. Father‘s Older Children From a Previous Relationship
Father has three older children (not with Mother) who were the subject of separate dependency proceedings, and with whom he failed to reunify. The dependency proceedings regarding Father‘s older children were initiated in 2013 based on issues related to substance abuse by those children‘s mother. Father was incarcerated at the outset of the separate proceedings, released approximately three months thereafter, then rearrested for a drug-related offense and returned to prison approximately three months after that release. During the interim period when Father was not in prison, he failed to comply with juvenile court orders, which included an order for regular drug testing. Father‘s reunification services were terminated. As of the most recent information in the record, two of Father‘s older children are receiving permanent placement services with a plan of legal guardianship.
B. Family Background
Father is in his late 30‘s and has an extensive criminal record, as a result of which he was required to register as a controlled substance offender.2 Father‘s criminal history spans over a decade and includes a conviction for robbery, multiple convictions for possession of a controlled substance or being under the influence of a controlled substance, firearms offenses and multiple parole violations.
Mother and Father stopped living together in approximately April 2017, when Father was arrested for robbery, and Mother began living with a man named J.M. Mother and I.L. moved in with J.M. at some point in 2017.
Father was convicted of robbery in October 2017 and began serving a seven-year prison sentence. Months later, in December 2017, Mother gave birth to Christopher. Father‘s counsel represented during the hearing before this court that Father is eligible for parole in late 2020.
C. Section 300 Petition Regarding I.L. and Christopher
On December 28, 2017, the Los Angeles County Department of Children and Family Services (DCFS) filed a
D. Detention Hearing and Detention Report
The detention report listed Father as the alleged father of I.L. and J.M. as the alleged father of Christopher. The report noted that Mother and Father were married, and their marriage
DCFS provided written notice of the detention hearing to Father at the Sierra Conservation Center address. The detention hearing took place on December 29, 2017, at which time the court determined that notice had been provided as required by law. Neither parent, nor counsel for either parent, appeared. The court noted Father was in state custody and a statewide search was ordered for him. The court postponed findings regarding paternity of either child. The children were detained from Mother, Father, and J.M., and ultimately placed in the custody of the maternal great aunt S.M. (the maternal aunt). The jurisdiction/disposition hearing was set for March 9, 2018, and DCFS ordered to give notice. DCFS sent Father such notice at the Sierra Conservation Center address by certified mail and included his correct inmate identification number. The notice listed both children on it and attached a copy of the petition.
Apparently in response to this notice, on February 21, 2018, Father wrote to DCFS social worker Magdalena Elorriaga, thanking her for “reaching out” and indicating that he had “received [her] letter.”3 Father‘s letter discussed his participation in
dependency proceedings as follows: “I wanted to ask if a court appearance is necessary. In your letter you stated that a court date of 3/9/18 will be set. The reason why I‘m asking is that this court date will delay my process on being transferred to a California Fire Camp. If possible I was wondering can this matter be handled over the telephone. If so, it would be very much appreciated if we took that route. I love my kids and I will do anything in my power to be with them. The faster I get to camp, the faster I‘ll be home. . . . Please inform me of my options if a court appearance is needed to handle this matter.” Father also requested paternity testing, but indicated he considered both children to be his regardless: “[M]y wife . . . and I had our differences through the years and just so I can have some piece [sic] of mind I would like DNA testing on [I.L.] and [Christopher]. Regardless of the outcome I will love them as my own. They are still my kids and I love them dearly.” Father requested pictures of the children and that he be kept “updated with the status of my children.” Finally, Father asked that his mother be “allowed visitation rights” and inquired as to how she could “go about seeing the children.”
E. Jurisdictional Hearing and Jurisdiction/Disposition Report
Father‘s letter is referenced in and attached to the report prepared in anticipation of the jurisdiction/disposition hearing. The report further summarizes J.M.‘s additional statements that “he believe[d] 80% [Christopher] is his child,” as well as Mother‘s additional statements denying this and identifying Father as the father of both children. The report summarizes Father‘s DCFS
The jurisdiction/disposition hearing for both I.L. and Christopher was held on March 9, 2018. The jurisdiction/disposition report and detention report were admitted into evidence at the hearing, including the attached marriage certificate and February 2018 letter from Father.
Neither Father nor counsel for him appeared at the jurisdiction/disposition hearing. Apparently unaware of Father‘s letter, the court indicated that “[Father] is currently incarcerated, and he has not made himself available . . . . [H]e‘s been noticed, but he‘s made no contact with [DCFS].” The court therefore proceeded with the hearing, at which counsel for DCFS and the minor‘s counsel very briefly argued that the petition should be sustained as pleaded. As to Father, DCFS argued that Father “ha[d] multiple convictions for possession and lost children for permanent placement for not complying with drug treatment.” The court sustained the petition as amended to indicate Father is a “registered controlled substance offender,” “[t]here is no information that he‘s ever complied with programming, and he‘s currently incarcerated based on his extensive criminal history.”
The court denied Father (and Mother and J.M.) reunification services for both children “pursuant to [
F. Permanency Planning Hearings
DCFS gave Father written notice of the permanency planning hearing, which he received. DCFS also submitted an order to prison authorities for Father‘s appearance at the permanency planning hearing.
On November 15, 2018, the court appointed Father counsel, who made a general appearance on Father‘s behalf. Father‘s counsel informed the court that Father was asking to participate in the permanency planning hearing telephonically and that he objected to the termination of parental rights.
The court found Father to be the presumed father of I.L. only, based on his having signed her birth certificate.
The permanency planning hearing for both children began on December 19, 2018. Father participated telephonically, as he had requested. Father‘s counsel indicated that Father would prefer legal guardianship with the maternal aunt, as opposed to adoption, as the permanent plan. The report for the hearing indicates that the children had been in the maternal aunt‘s care without interruption since their initial detention and were doing well, and that the maternal aunt was not interested in legal guardianship of the children, but was willing to adopt them.
The court proceeded to conduct the permanency planning hearing for I.L. only. Father‘s counsel objected to termination of parental rights as to I.L., but offered no evidence or argument. The court terminated Father‘s parental rights as to I.L. and gave oral notice of its decision. The court also advised both parents regarding appellate rights as follows: “I‘m advising [Father], who is on the phone, and . . . [Mother], who is not present in court, that having terminated their parental rights, each parent is entitled to a free copy of the transcript for appellate purposes. [¶] But they must file their notice of appellate [sic] within 60 days.” The December 29, 2018 minute order reflecting the termination of parental rights as to I.L. and related “Appeal Rights form(s)” were incorrectly sent to Father at the address on file for J.M.
At a later hearing, upon learning the results of the DNA test indicating that Father was the biological parent of Christopher, the court found Father to be Christopher‘s alleged father. Counsel for Father was present and did not object to this finding. The court continued the hearing, and Father‘s counsel indicated it would arrange for Father to participate in that hearing telephonically.
In the interim, Christopher continued to reside with his sister and the maternal aunt, referred to the maternal aunt as “mommy,” and was thriving in her care.
DCFS gave notice to Father of the permanency planning hearing for Christopher, which was ultimately held on March 5, 2020. Father was present via telephone and was represented by appointed counsel (a different attorney from the same firm). Father‘s counsel objected to termination of parental rights, but presented no evidence and offered no argument opposing it. The
G. Father‘s Appeal and Benoit Motion
On April 1, 2020, Father filed a notice of appeal from the order terminating his parental rights as to Christopher.
On June 25, 2020—18 months after his parental rights as to I.L. had been terminated—Father filed a motion “to extend his notice of appeal to apply to both [I.L. and Christopher] and/or motion for constructive notice of appeal” pursuant to In re Benoit (1973) 10 Cal.3d 72 (Benoit). (Capitalization omitted.) DCFS opposed the motion, and this court deferred ruling on the motion pending consideration of this appeal.
DISCUSSION
Father first argues that the court erred by failing to find that Father had “presumed father” status as to both children, which would have entitled him to appointed counsel at the jurisdiction/disposition hearing. Father also argues that when the juvenile court conducted the jurisdiction/disposition hearing without Father or Father‘s counsel present, it violated
A. The Juvenile Court Erred
1. Error regarding Father‘s parental status
” ‘In dependency proceedings, “fathers” are divided into four categories—natural [or biological], presumed, alleged, and de facto.’ [Citation.]” (In re E.T. (2013) 217 Cal.App.4th 426, 436–437.) “A father‘s status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled.” (In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) Only presumed fathers are entitled to appointed counsel and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 451; see also Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596 [distinguishing the greater rights that presumed fathers have as opposed to biological fathers].)
The Family Code sets forth various circumstances under which a man may acquire presumed father status. (See
The record is clear that Father made no such written waiver. To the contrary, the juvenile court had before it a letter from Father informing DCFS that he wanted to participate in the proceedings, albeit via telephone. The trial court thus failed to comply with
Father argues that because the errors he identifies deprived him of counsel at the jurisdiction/disposition hearing, they denied him due process and are reversible per se, regardless of prejudice. But the California Supreme Court has rejected the argument that, in dependency proceedings, every due process error is reversible per se. (See James F., supra, 42 Cal.4th at pp. 915–919.) In James F., the Supreme Court concluded that error in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding was “amenable to harmless error analysis rather than a structural defect requiring reversal of the juvenile court‘s orders without regard to prejudice.” (Id. at p. 915.) In so holding, the Court first “observe[d] that juvenile dependency proceedings differ from criminal proceedings in ways that affect the determination of whether an error requires automatic reversal of the resulting judgment. The rights and protections afforded parents in a dependency proceeding are not the same as those afforded to the accused in a criminal proceeding.” (Ibid.) On this basis, the Court rejected that “the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases.” (Id. at pp. 915–916.)
”James F. cited United States Supreme Court authority to explain that generally, an error is structural when it ’ “def[ies] analysis by ‘harmless-error’ standards” ’ and cannot ’ “be quantitively assessed in the context of other evidence presented in order to determine whether [it was] harmless beyond a reasonable doubt.” ’ [Citation.] The structural error doctrine is used when ’ “assessing the effect of the error” ’ is ’ “difficult[ ].” ’ [Citation.]” (Andrew M., supra, 46 Cal.App.5th at p. 867.) James F. also acknowledged that there are “very few constitutional errors that
Courts of Appeal have cited James F. for the proposition that “harmless error analysis applies in juvenile dependency proceedings even where the error is of constitutional dimension.” (In re J.P., supra, 15 Cal.App.5th at p. 798; In re S.P., supra, 52 Cal.App.5th at p. 972, petn. for review filed Sept. 1, 2020, S264203, time to grant or deny review extended to Nov. 30, 2020.) “In juvenile dependency proceedings, no error—even one of constitutional dimension—can be examined based solely on legal principles (no matter how venerable) or only from the parent‘s perspective.” (In re J.P., supra, 15 Cal.App.5th at p. 799; In re S.P., supra, at p. 972 [the concept of automatically reversible structural error “was firmly rejected by our Supreme Court in . . . James F.“].) Rather than categorically deeming errors of a certain type “structural” and thus reversible per se, a reviewing court should first consider whether an error in dependency proceedings is amenable to harmless error analysis—that is, whether potential prejudice from the error can be assessed without “necessarily requir[ing] ‘a speculative inquiry into
For reasons we discuss in detail in the following section, the circumstances of Father‘s situation and the nature of the errors identified are such that we can assess whether the court‘s
Father relies on cases involving a complete failure to provide notice to a parent. (See, e.g., In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 (Jasmine G.) [“the failure to attempt to give a parent statutorily required notice of a selection and implementation hearing is a structural defect that requires automatic reversal“]; Andrew M., supra, 46 Cal.App.5th at p. 867, fn. 4 [noting in dicta that the father never having received a section 300 petition would be structural error under James F.].) These cases do not assist Father in arguing for automatic reversal in this case, because the errors Father identified are a denial of counsel at the jurisdiction/disposition hearing and a violation of his
Harmless error analysis is appropriate here.
C. The Juvenile Court‘s Errors Were Not Prejudicial
1. Watson and Chapman harmless error analyses
To assess whether an error in dependency proceedings is harmless, “some Courts of Appeal have applied a Chapman ‘harmless beyond a reasonable doubt’ standard [citations], [and] [a]t least two Supreme Court cases have embraced the Watson more probable than not standard.” (In re S.P., supra, 52 Cal.App.5th at p. 972, fns. omitted, petn. for review filed Sept. 1, 2020, S264203, time to grant or deny review extended to Nov. 30, 2020; see, e.g., In re Celine R. (2003) 31 Cal.4th 45, 59-60 (Celine R.) [applying Watson standard for failure to appoint separate counsel for minor siblings].) Watson requires a “reasonable probability of a more favorable outcome,” absent the challenged errors, in order for an error to warrant reversal. (In re A.J. (2019) 44 Cal.App.5th 652, 665 [applying Watson harmless error standard]; Celine R., supra, at p. 60 [court must find it “reasonably probable the result would have been more favorable to the appealing party but for the error“].) Under Chapman, by contrast, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.)
Two divisions of this court have applied the Watson standard to errors relating to a parent‘s right to appointed counsel. (See, e.g.,
2. Application of harmless error analysis to the errors Father identifies
Had Father‘s presumed father status been recognized when the court was first provided with the marriage certificate establishing this status, Father would have been represented by appointed counsel at the jurisdiction/disposition hearing. Separately, had the court complied with
In light of the applicable statutory presumptions and showings required under
a. Section 361.5, subdivision (b) bypass provisions
The services bypass provision in subdivision (b)(12) of section 361.5 applied as well, based on Father‘s violent felony conviction (robbery), for which he is currently incarcerated. (
Indeed, Father makes no attempt to argue how a court could have concluded that services would have been in Christopher‘s best interest, nor does he argue the bypass provision under section 361.5, subdivision (b) is inapplicable.
b. Section 361.5, subdivision (e) regarding services for incarcerated parents
Section 361.5, subdivision (e) instructs a court to order reasonable reunification services for an incarcerated parent “unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.” (
Applying these factors, there is not a reasonable probability that reunification services would not be detrimental to Christopher—even if Father had had counsel to advocate against such a finding. Indeed, undisputed facts in the record establish beyond a reasonable doubt that such services would be deemed detrimental to Christopher under section 361.5, subdivision (e)(1). Father is not eligible for parole until approximately three years after Christopher was first detained, so Father‘s incarceration would have fallen well outside the maximum reunification period, even if the court permitted an extension beyond the applicable six-month limit for children under three years old. (See
That the length of Father‘s sentence prevents him from reunifying with Christopher within the necessary time frame is not the only section 361.5, subdivision (e)(1) factor suggesting detriment to Christopher. As noted, Father admits he has no relationship with Christopher. Moreover, Father‘s lengthy criminal history of substance abuse related offenses, which caused him to lose custody of his three older children, has escalated to include, most recently, a violent felony conviction, as a result of which he has never even met Christopher. (See
We reject Father‘s suggestion that considering the duration of Father‘s incarceration in assessing detriment runs afoul of the admonition in In re Brittany S. (1993) 17 Cal.App.4th 1399, that there is no “go to prison, lose your child” law in California. (Id. at p. 1402.) Certainly a court may not deny reunification services based solely on a parent being incarcerated, but section 361.5, subdivision (e)(1) expressly provides that a court may consider whether imprisonment may make reunification impossible within the statutory timelines. Here, it would, and reunification services would thus almost certainly be to Christopher‘s detriment. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020) § 2.129[3][b], p. 2–540 [“[T]o attempt services in such circumstances may be setting everyone up for failure, including the parent, agency, and child” and “it may be possible to show that providing services to the incarcerated parent would be detrimental to the child since it would delay permanency with no likelihood of success” and “thus only serve[ ] to delay stability for the child.“].)
Thus, Father cannot establish a reasonable probability that the challenged errors affected the court‘s termination of Father‘s parental rights as to Christopher.8 The errors are therefore
D. Father‘s Motion to Extend His Notice of Appeal to Apply to I.L.
In criminal cases, the doctrine of constructive filing permits an appellate court to construe a belated notice of appeal as having been timely filed under certain circumstances, including when an incarcerated criminal defendant made arrangements with his trial attorney to file the notice of appeal, and the attorney failed to do so. (In re Benoit, supra, 10 Cal.3d at p. 86.) The California Supreme Court has explained the goal of applying the doctrine under such circumstances is to avoid penalizing a defendant for justifiably relying on his attorney to file the notice of appeal in a timely fashion. (Id. at pp. 88–89.)
Father‘s motion nevertheless requests that the constructive filing doctrine should apply here and permit him to “extend” his timely notice of appeal as to Christopher to also cover I.L., regarding whom he filed no notice of appeal. Father relies in large part on the fact that the California Supreme Court has granted review in In re A.R. (Jan. 21, 2020, A158143) [nonpub. order], petition for review granted May 13, 2020, S260928, to address the question whether “a parent in a juvenile dependency case ha[s] the right to challenge her counsel‘s failure to file a timely notice of appeal from an order terminating her parental rights.” (Supreme Ct. Minutes, May 13, 2020, p. 612.) Based on this pending matter, Father argues that the Supreme Court “seems at least open to
Father further argues that the constructive notice of appeal doctrine should permit an appeal regarding I.L. According to Father, because I.L. has not yet been adopted by the maternal aunt (although this remains the permanency plan), the primary basis for not applying Benoit in the dependency context—that doing so would compromise the finality of adoptions—is not implicated here. Father further argues that we should permit this appeal to apply to I.L., because “if [I.L.]‘s case had not become separated from that of Christopher . . . the exact same arguments would apply to both. . . . [Christopher‘s] arguments would apply with equal force to [I.L.] and with the same results had a timely notice of appeal been filed as to her. In other words, we may well have the anomaly of two full siblings, identically situated, with identical arguments that could [be] raised on behalf of both but parental rights will be reversed as to one but affirmed as to the other solely based upon judicial neglect as aided by ineffective assistance of counsel. That cannot and should not be the law.”
Father argues he has satisfied the requirements of Benoit based on facts, which he supports through attached declarations and citations to the appellate record, suggesting he was not sufficiently informed of how and when to appeal the order terminating his parental rights over I.L. He argues that the advisory of appellate rights the juvenile court provided at the permanency planning hearing regarding I.L. was incomplete, and he declares that his counsel never explained the deadline for an
DCFS counters that Father did not file any notice of appeal regarding I.L. that we might be able to deem constructively filed, that Father‘s bases for applying Benoit to these or other proceedings involving termination of parental rights lack merit, and that, in any event, Father has not satisfied the requirements of Benoit because he failed to exercise sufficient diligence in pursuing review of the order regarding I.L. (See In re Benoit, supra, 10 Cal.3d at pp. 88–89 [court should “not indiscriminately permit a defendant whose counsel has undertaken to file the notice of appeal, to invoke the doctrine of constructive filing when the defendant has displayed no diligence in seeing that his attorney has discharged this responsibility“].)
Father‘s motion raises important policy issues, and we are troubled by the fact that Father appears not to have received basic guidance from his attorney regarding his appellate rights. Nevertheless, Father‘s motion does not present an opportunity to engage on these policy issues, and no prejudice resulted from Father‘s inability to appeal the order regarding I.L. This is because Father makes clear that, were we to permit an appeal regarding the I.L. order, Father would raise the exact same arguments that he raised in his appeal regarding Christopher. Given our conclusion, for the reasons discussed above, that Father‘s arguments regarding Christopher do not merit reversal, permitting Father to extend his
DISPOSITION
The order of the juvenile court terminating Father‘s parental rights as to Christopher L. on March 5, 2020 is affirmed in all respects.
Father‘s motion to extend his notice of appeal to apply to I.L. and/or motion for constructive notice of appeal as to I.L. is denied.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.