In re Christopher L.
California law requires the appointment of counsel for parents whose children arе subject to dependency proceedings before the juvenile court. When such parents are incarcerated, the law specifically provides for notice and the opportunity to be present, and prohibits a juvenile court from adjudicating a dependency petition without the presence of both counsel and the incarcerated parent except upon affirmative waiver by the parent. These requirements, among others, protect the parent‘s interest in maintaining the parent-child relationship and the child‘s interest in having a dependency petition decided on the basis of all factors that bear on the child‘s well-being.
Here we decide whether it is structural error, and thus reversible per se, for a juvenile court to proceed with a hearing to determine its jurisdiction over a сhild and disposition of the wardship petition without an incarcerated parent‘s presence and without appointing counsel for the parent. We hold, as did the Court of Appeal, that while the provisions for presence and appointment of counsel are important protections for both the parent and the child, the juvenile court‘s failure to comply does not require reversal per se.
I.
Christopher L. was born in December 2017 with a positive toxicology screen for amphetamines. The Los Angeles County Department of Children and Family Services (Department) filed
The initial petition listed Carlos L. as I.L.‘s alleged father and another man as Christopher‘s alleged father. But the juvenile court was also presented with documents establishing that Carlos L. was entitled to “presumed father” status with respect to Christopher, which carries with it the right to appointed counsel. (In re Christopher L. (2020) 56 Cal.App.5th 1172, 1177 (Christopher L.); see In re T.R. (2005) 132 Cal.App.4th 1202, 1209;
The petition alleged that Mother‘s ongoing substance abuse and Father‘s criminal history and conduct placed the children at risk of serious physical harm. The petition and detention report also alleged that Mother and Father each had other children who were prior dependents of the court and had received permanent placement services. Based on these allegations, the Department indicated it might seek an order denying family reunification services pursuant to
At the time the children were detained and throughout the course of these proceedings, Father was incarcerated at the Sierra Conservation Center, a fire camp operated by the
Neither parent, nor counsel for either parent, appeared at the detention hearing. The juvenile court found that the Department made a prima facie case for detention, set a combined jurisdiction and disposition hearing for March 2018, and ordered the Department to give notice to the parents.
The Department provided notice to Father of the pending jurisdiction and disposition hearing. He responded: “I wanted to ask if a court appearance is necessary. In your letter you
Neither Father nor counsel for Father appeared at the March 2018 combined jurisdiction and disposition hearing. The juvenile court suggested that the onus was on Father to make himself available and said, contrary to Father‘s letter, that he had “not made himself available,” adding: “[H]e‘s been noticed, but he‘s made no contact with [the Department].” After hearing brief argument from the Department and counsel for the minors, the court sustained the petition as to both Father and Mother and denied the parents reunification services for both children. The court found it to be “in the best interest of these children to set a hearing to select a permanent plan of adoption, guardianship, or other planned living arrangements with a relative or foster care provider.”
In November 2018, the court appointed counsel for Father. Counsel stated that Father objected to the Department‘s request to terminate parental rights, and the matter was continued to the next month. In December, Father made his first personal
Christopher‘s permanency hearing was held in March 2020. Father was present telephonically and represented by appointed counsel. Counsel objected to the termination of parental rights but presented no evidence and offered no argument. The court terminated Father‘s parental rights.
As relevant here, Father argued on appeal that he was denied due process of law at the combined jurisdiction and disposition hearing in March 2018 because it was conducted in his absence and without counsel present on his behalf. (Christopher L., supra, 56 Cal.App.5th at pp. 1176–1177.) The Court of Appeal agreеd with Father that his status as presumed father of Christopher based on his marriage to Mother entitled him to appointed counsel at the hearing, and it held that the juvenile court violated
Although the Court of Appeal agreed with Father that these errors violated due process, it held that automatic reversal was not warranted. Citing In re James F. (2008) 42 Cal.4th 901, 915 (James F.), the court explained that not every due process error in dependency proceedings is reversible per se and that
The Court of Appeal concluded that the bypass provisions under
We agree with the Court of Appeal that the juvenile court erred in failing to appoint counsel for Father for the combined jurisdiction and disposition hearing and also failed to comply
II.
The California Cоnstitution provides: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (
But not all errors are amenable to harmless error analysis. We have, “in a number of contexts, [found] that certain errors, by their nature, result in a ‘miscarriage of justice’ within the meaning of the California harmless-error provision requiring reversal without regard to the strength of the evidence received at trial.” (People v. Cahill (1993) 5 Cal.4th 478, 493 (Cahill).) For example, per se reversal is required when a court refuses or fails to allow a party to present its entire case before the trier of
The same is true under federal law. In holding that some errors of a constitutional dimension are amenable to harmless error analysis, the court in Chapman also recognized that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error . . . .” (Chapman, supra, 386 U.S. at p. 23.) This category includes deprivation of the right to counsel (Gideon v. Wainwright (1963) 372 U.S. 335) and denial of the right to trial by an impartial judge (Tumey v. Ohio (1927) 273 U.S. 510). (Chapman, at p. 23, fn. 84; see Arizona v. Fulminante (1991) 499 U.S. 279, 309–310 (Fulminante).)
We adopted the term “structural” error in accordance with its usage in Fulminante: “[J]ust as the United States Supreme Court recognized in its recent Fulminante decision that certain federal constitutional errors representing ‘structural defects in the constitution of the trial mechanism’ are not amenable to harmless error analysis (Fulminante, supra, 499 U.S. [at p.] 309–310 (opn. by Rehnquist, C. J.)), under the California constitutional harmless-error provision some errors similarly are not susceptible to the ‘ordinary’ or ‘generally applicable’ harmless-error analysis . . . and may require reversal of the judgment notwithstanding the strength of the evidence contained in the record in a particular case.” (Cahill, supra, 5 Cal.4th at p. 493.)
In James F., we observed that the high court had not applied structural error analysis “outside the context of criminal proceedings” (James F., supra, 42 Cal.4th at p. 917), and we cautioned against “import[ing] wholesale, or unthinkingly,” the analysis of structural error from criminal cases into other contexts (id. at p. 916). At the same time, we have never held that structural errors can arise only in the criminal context. (Cf. Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233 [holding that an error regarding who should interpret a class action provision in an arbitration agreement was not amenable to prejudice analysis].)
Father asks us to import the rule of structural error into the dependency context. We considered in James F. whether a procedural error in appointing a guardian ad litem for a parent in a dependency proceeding was amenable to harmless error analysis. The superior court in that matter failed to “explain to [the parent] what a guardian ad litem is or what powers a guardian ad litem has, nor did the court give [the parent] a meaningful opportunity to be heard in opposition to the appointment, and it inaccurately told [the parent] that the guardian ad litem was his ‘second lawyer.’ ” (James F., supra, 42 Cal.4th at p. 911.) We concluded that the juvenile court‘s failure to follow the proper procedure in appointing a guardian ad litem was amenable to harmless error analysis because “[d]etermining prejudice in this context does not necessarily require ‘a speculative inquiry into what might have occurred in an alternate universe.’ ” (Id. at p. 915.)
In reaching this holding, we observed that “[t]he rights and protections afforded parents in a dependency proceeding are
As Father observes, James F. did not address or disturb several Court of Appeal decisions that had found structural error in the dependency context, including cases involving failure to provide notice to the parent. (See, e.g., In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 [failure to give proper notice to a parent facing termination of her parental rights]; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 558 [failure to timely serve report recommending termination of reunification services in advance of a dependency hearing]; In re Josiah S. (2002) 102 Cal.App.4th 403, 417–418 [improper denial of a parent‘s request for a contested hearing in a dependency proceeding]; In re Kelly D. (2000) 82 Cal.App.4th 433, 440 [failure to provide notice and a contested hearing on the issue of
In sum, although we declined to find structural error in James F., we did not foreclose its application in the dependency context.
B.
With this background, we turn to the question before us: whether the juvenile court‘s failure here to appoint counsel or provide for Father‘s presence at the combined jurisdiction and
It is not sufficient that Father was appointed counsel and was present telephonically at the permanеncy planning proceeding. The focus of that proceeding is different: ” ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ . . . ‘A [permanency planning] hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child.’ . . . It is designed to protect children‘s ‘compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 52–53, citations omitted.) Once a dependency proceeding moves into permanency planning, “the question is no longer whether the child should be returned to the parent, an issue already decided in the negative with the permanent plan of return to the parent
In classifying the error here, we draw on Weaver v. Massachusetts (2017) 582 U.S. __ [137 S.Ct. 1899] (Weaver), which explained that “[t]here appear to be at least three broad rationales” for treating an error as structural. (Id. at p. __ [137 S.Ct. at p. 1908].) “First, an error has been deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest. This is true of the defendant‘s right to conduct his own defense, which, when exercised, ‘usually increases the likelihood of a trial outcome unfavorable to the defendant.’ . . . [¶] Second, an error has been deemed structural if the effects of the error are simply too hard to measure. For example, when a defendant is denied the right to select his or her own attorney, the precise ‘effect of the violation cannot be ascertained.’ [Citation.] Because the government will, as a result, find it almost impossible to show that the error was
The first of the three Weaver rationales asks whether “the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest.” (Weaver, supra, 582 U.S. at p. __ [137 S.Ct. at p. 1908].) As an illustration, Weaver mentions a criminal defendant‘s right to conduct his or her own defense, “which, when exercised, ‘usually increases the likelihоod of a trial outcome unfavorable to the defendant.’ ” (Ibid.) “That right is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. [Citation.] Because harm is irrelevant to the basis underlying the right, the Court has deemed a violation of that right structural error.” (Ibid.)
Here, the value of counsel and the parent‘s presence at dependency proceedings is not limited to ensuring proper presentation of the parent‘s position; it also ensures that the juvenile court has the fullest picture of the relevant facts before disposing of a dependency petition. But this interest in the accuracy of the proceedings is not easily distinguished from the
Nor does Weaver‘s second rationale for finding structural error have applicability here. We find it significant, as did the Court of Appeal, that the question of whether the errors here were harmless does not invariably require “a speculative inquiry into what might have occurred in an alternate universe.” (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150.) We discuss at some length the Court of Appeal‘s assessment of prejudice not to express our view on whether the juvenile court‘s errors were harmless (that issue is not before us), but rather to examine the feasibility of harmless error analysis in this context.
The Department asked the juvenile court to exercise jurisdiction over Christopher and his sister based on allеgations that Father‘s criminal history and substance abuse endangered the children‘s health and safety and placed them at risk of serious physical harm. The Court of Appeal understood Father to have conceded that the juvenile court acted properly in sustaining the allegations and exercising jurisdiction over Christopher (Christopher L., supra, 56 Cal.App.5th at p. 1189, fn. 5); the only question was whether the court properly denied reunification services to Father. (Cf. post, at pp. 17–18.)
”
Second, it is also undisputed that
When either of these bypass provisions applies, reunification services “shall not” be ordered unless the juvenile court finds, “by clear and convincing evidence, that reunification is in the best interest of the child.” (
We emphasize, as did the Court of Appeal, that the fact of a parent‘s incarceration is not itself dispositive in the prejudice analysis. (See Christopher L., supra, 56 Cal.App.5th at p. 1192 [“there is no ’ “go to prison, lose your child” ’ law in California“], quoting In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402.)
Importantly, the statutory scheme provides a mechanism for reconsideration of the court‘s prior orders had Father believed there were grounds to do so.
In his briefing before this сourt, Father belatedly offers two theories of prejudice that should have been presented to the juvenile court in the first instance as possible grounds for reconsideration. First, he suggests that if he had attended the March 2018 jurisdiction hearing, he could have persuaded the
In any event, these arguments were not presented in a motion for reconsideration under
Finally, we turn to Weaver‘s third rationale for structural error: whether the error “always results in fundamental unfairness.” (Weaver, supra, 582 U.S. at p. __ [137 S.Ct. at p. 1908].) It is this rationale, Weaver explains, that calls for automatic reversal when “an indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction.” (Ibid.) Here, we note the significant differences between criminal and dependency proceedings, as articulated in James F.: “In a criminal prosecution, the contested issues normally involve historical facts (what precisely occurred, and where and when), whereas in a dependency proceeding the issues normally involve evaluations of the parents’ present willingness and ability to provide appropriate care for the child and the existence and suitability of alternative placements.” (James F., supra, 42 Cal.4th at p. 915.) The presence of counsel generally helps to facilitate this assessment by ensuring that a more complete picture of the parent‘s interests and ability to provide for the child‘s care are presented to the court. But it does not follow that the absence of counsel invariably results in unfairness in light of the statutory scheme governing reunification services. Nor does it follow that absence of counsel from one stage of the proceeding necessarily renders the entire proceeding fundamentally unfair, especially where, as here, counsel was provided after the jurisdiction and disposition hearing, and could have utilized a statutory mechanism to seek reconsideration of any prior order by the juvenile court.
Weaver cautions that “[a]n error can count as structural even if the error does not lead to fundamental unfairness in every case.” (Weaver, supra, 582 U.S. at p. __ [137 S.Ct. at p. 1908].) But in the dependency context, automatic reversal for errors that do not invariably lead to fundamental unfairness would exact a particularly steep cost. “There is little that can be as detrimental to a child‘s sound development as uncertainty over whether he is to remain in his current ‘home,’ under the care of his parents or foster parents, especially when such uncertainty is prolonged.” (Lehman v. Lycoming County Children‘s Services (1982) 458 U.S. 502, 513–514.) “We emphatically agree that dependent children have a critical interest in avoiding unnecessary delays to their long-term placement.” (In re A.R. (2021) 11 Cal.5th 234, 249; see James F., supra, 42 Cal.4th at p. 915 [“the ultimate consideration in a dependency proceeding is the welfare of the child [citations], a factor having no clear analogy in a criminal proceeding“].) And we have repeatedly underscored the need to avoid delay in this context. (See, e.g., In re Sade C. (1996) 13 Cal.4th 952, 993 [noting “the pointed and concrete harm that the child may suffer” from prolonged proceedings]; In re Marilyn H. (1993) 5 Cal.4th 295, 306 [children have a “compelling right[] . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child“].) Accordingly, we decline to adopt a rule of automatic reversal in cases involving the errors that occurred here.
We caution that such assessment of harmlеssness is unlikely to be available in every instance where a parent has been denied the right to counsel and the right to be present at a combined jurisdiction and disposition hearing. These rights serve to ensure the fairness and reliability of the adversarial process, and there is likely to be “a grey area between the margins where the difference appointed counsel [or the parent‘s presence] might have made during a dependency proceeding will
C.
Finally, we address Father‘s argument that the errors here are analogous to a complete deprivation of notice. (Cf. In re Jasmine G., supra, 127 Cal.App.4th at p. 1116; In re Kelly D., supra, 82 Cal.App.4th at pp. 439–440.) Father acknowledges that the Department provided notice of the combined jurisdiction and disposition hearing, but he says, “[T]he trial court‘s fundamental error in not acknowledging petitioner‘s response to the notice that he did receive, has, in effect, resulted in a lack of notice altogether.” He asks: “What is the difference between a lack of notice and the failure of the trial court to acknowledge the defendant‘s desire to contest the matter after notice has been given?”
The Courts of Appeal that have addressed notice errors in the dependency context have attempted to draw a line between cases in which there was a complete deprivation of notice and cases in which there was some lesser defect as to notice, with only the former requiring automatic reversal. (See, e.g., In re Marcos G. (2010) 182 Cal.App.4th 369, 387 [“When there is no attempt to serve a parent with notice the error is reversible per se; when there is error in a notice the question is whether the error is harmless beyond a reasonable doubt.“].) One court has
We express no view on the cases that have applied a rule of automatic reversal where there was a complete absence of notice. We note only that there was no failure to give notice here, and no indication that the juvenile court‘s or the Department‘s failure to act properly on Father‘s response to the notice arose from anything other than ordinary human error, or that the mistake at one stage of the proceedings rendered the entire process fundamentally unfair.
To be sure, Father‘s right to be present with counsel at the hearing may serve a dignitary interest apart from its utility in ensuring the reliability of the outcome. (Cf. Weaver, supra, 582 U.S. at p. __ [137 S.Ct. at p. 1908] [structural error may arise from violation of a right that “is not designed to protect the defendant from erroneous conviction but instead protects some other interest“].) But Father did receive proper notice of the hearing, was present and represented at later hearings, and had recourse to a mechanism for reconsideration. Any additional dignitary interest that might be served by the juvenile court acknowledging his desire to contest the matter is, in our view, insufficient to justify a rule of automatic reversal when weighed against Christopher‘s “critical interest” in permanent placement. (In re A.R., supra, 11 Cal.5th at p. 249.)
The question before us is limited to whether the errors here require automatic reversal. We do not decide whether the errors, singly or in combination, are subject to the prejudice standard for state law error (see Watson, supra, 46 Cal.2d at p. 835) or the more stringent standard for federal constitutional error (see Chapman, supra, 386 U.S. at p. 24). Nor do we decide the merits of the Court of Appeal‘s determination that the errors were harmless under either prejudice standard, as that issue is beyond the scope of the question on which we granted review.
We affirm the judgment of the Court of Appeal.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
PEÑA, J.*
*