In re S.P., a Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.P., Defendant and Appellant.
B302804
(Los Angeles County Super. Ct. No. 18CCJP07212A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Filed 7/31/20
Stephen C. Marpet, Temporary Judge.
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen C. Marpet, Temporary Judge. (Pursuant to
Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff
INTRODUCTION
For the second time in less than a year, this court is presented with a parent who was denied notice of jurisdiction and disposition hearings, and later saw his parental rights terminated. In In re Al.J. (2019) 44 Cal.App.5th 652, the parties acknowledged that “father was not properly notified” of the jurisdiction and disposition hearings. (Id. at p. 665.) We found the error prejudicial and reversed. (Id. at p. 675.) Here, we agree with father that the Department of Children and Family Services (DCFS) did not act with due diligence in locating and notifying him of the jurisdiction and disposition hearings. However, we find the error was harmless and affirm.
Father appeals from the order terminating his parental rights to his child born in 2018. His sole challenge is the denial of his
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father are not married, and have two children together: “baby” (who is at issue in this dependency proceeding) and “son,” who was in the dependency system since birth due to the parents’ drug abuse and was adopted during the pendency of baby‘s case. Mother also has five older children – none with father – all of whom were prior dependents of the juvenile court and eventually adopted. At the time of the filing of these proceedings, baby resided with mother.2
1. DCFS Involvement
On October 16, 2018, father was arrested for possession of narcotics and controlled substance. Five days later, DCFS received a referral that the parents had neglected then- nine-month-old baby. DCFS investigated, and mother tested positive for methamphetamine and amphetamine.
On November 5, 2018, the juvenile court issued a removal order for baby. When served, mother was uncooperative, appeared under the influence of
On November 7, 2018, the social worker sent written notice by certified mail to father‘s last known address in Huntington Park, informing father of DCFS attempts to contact father and asking him to get in touch with DCFS.
On November 8, 2018, DCFS filed a
On November 9, 2018, mother filed a Parentage Questionnaire indicating she believed father was baby‘s father and identified the names of the paternal grandmother and aunt. Mother indicated she did not know how to locate father.
On November 9, 2018, the juvenile court held the detention hearing. Father was not present. The court questioned mother regarding baby‘s paternity, and mother identified father as the biological father. Mother did not know where father currently resided and did not have his phone number, but identified by name the paternal grandmother and the paternal aunt. Mother said her information was limited, she had no contact information for the paternal relatives, and she had never been to the paternal grandmother‘s home. The court found father only to be baby‘s alleged father and ordered DCFS to conduct a due diligence search for him. The court detained baby in foster care, with monitored visitation for parents. Baby was placed in the home of a non-related extended family member.
2. DCFS‘s Investigation
Mother and father had extensive criminal histories. Father‘s dated to 2011 when father was 13. His record included drug possession and sale, unlawful possession of paraphernalia, vandalism, and burglary. On December 28, 2018,
Mother‘s history with DCFS started in 2006. Although she had previously been provided family reunification services, she lost custody of six children to adoption due to her drug use. One of those children was mother‘s first child with father, a child who was adopted in July 2019. Mother informed DCFS that mother and father used drugs together when she was pregnant with their first child. Mother and father separated when she was three months pregnant with baby because mother had decided to get clean but father would not stop using. DCFS confirmed father‘s history of substance abuse, and reported that he was recently arrested for drug possession and had attempted to forcibly enter mother‘s home.
DCFS recommended no family reunification services for the parents, given their extensive history of substance abuse, mother‘s failure to reunify with any of her children, the parents’ failure to reunify with their older son, and father‘s unknown whereabouts.
3. Jurisdiction, Disposition, and Due Diligence Finding
On January 14, 2019, the juvenile held the jurisdiction hearing. The court found baby to be described by
As for father, the court received DCFS‘s Due Diligence Report dated January 14, 2019 and signed six days earlier. Although the report references some 17 “search sources,” under No. 12 “Relatives/Friends,” the DCFS investigator wrote: “No contact letters were sent to relatives/friends.” The juvenile court found, “due diligence has not been completed as to father.” Included in the minute order for that date was, “The court will put the Jurisdictional hearing over further to allow the Dept to submit the completed due diligence search of the father as to the subdivision B-2 count.” The court scheduled father‘s jurisdictional hearing for February 13, 2019.
In an addendum report dated February 13, 2019, DCFS included the following section:
“Due Diligence for father, [S.P.]
“A Due Diligence Report was submitted for the father, [S.P.] The Department of Children and Family Services was not successful in locating [S.P.]. “(The court is respectfully referred to the attached Due Diligence Report.)”
In the Clerk‘s Transcript, the document that follows the February 13th report is not a new Due Diligence Report, but the report dated January 14, 2019—the same report on which the juvenile court based its finding on January 14th that “due diligence has not been completed for father.” There does not appear in the record a supplemental Due Diligence Report prepared shortly before the February 13, 2019 hearing. For reasons that are not clear from the record, at this hearing, the juvenile court found “that the Dept has completed the due diligence search for the father.”
The court, having found jurisdiction as to father, proceeded to the disposition hearing. The court admitted the due diligence report, a letter from mother‘s drug rehabilitation center, and testimony from mother. The court declared baby a dependent of the court, ordered baby removed from parental custody, denied family reunification services for mother and father pursuant to
completed as to father. The court stated: “The court did put the trial and dispo[sition] over for father. We do have good notice and I‘m ordering – finding that the petition is sustained as pled as to the father. No [family reunification] for the father.” The court found family reunification was not in baby‘s best interest.
4. Post Disposition Events
Baby developed a strong bond with his caregiver, who wanted to adopt him.5 Mother, meanwhile, failed to maintain regular contact with baby.
Approximately a month after the detention hearing, on March 21, 2019, father was arrested for vehicular theft. On April 4, 2019, father was arrested again, this time for possession of narcotics. Four days later, father was arrested for an earlier incident in which he had threatened mother with a handgun at her home. He was charged with terrorizing and dissuading a witness by threat or force.
In October 2019, DCFS reported baby continued to progress well in the caregiver‘s home. During monthly home visits, DCFS observed baby was appropriately bonded with the caregiver and her adult children, he called the caregiver “mom,” followed the caregiver around the home, and enjoyed being nurtured by her. DCFS assessed that baby‘s needs were met by the caregiver and observed no safety concerns. Baby was receiving services through Regional Center, was meeting his developmental milestones, and appeared comfortable in the home. The caregiver and her husband were committed to providing baby with a permanent home through adoption.
5. Father‘s Section 388 Petition
On October 8, 2019, father filed a
On November 5, 2019, baby‘s caregiver reported that neither father nor any member of the paternal family had ever contacted her to inquire about baby. On November 15, 2019, DCFS filed its report setting out the significant facts we have already detailed and addressing father‘s
Father filed points and authorities supporting his claim that DCFS had not acted with diligence in attempting to provide notice of the jurisdiction and
6. Denial of the Section 388 Petition and Termination of Parental Rights
On November 21, 2019, the juvenile court held the combined hearing on the contested
Baby‘s counsel asked the court to deny the petition. Counsel argued father had failed to meet the best interest requirement for
The juvenile court denied the petition, finding that father had not demonstrated that granting the petition would be in baby‘s best interest. The court stated, “At this point, based upon the report before the court and Justice P.7 There is not a sufficient bond and it is certainly not in this child‘s best interest so I‘m going to deny the 388.”
The juvenile court then proceeded to the
The juvenile court found by clear and convincing evidence baby was adoptable and would be adopted, and terminated parental rights.
On December 5, 2019, father filed a notice of appeal from the termination of his parental rights.
Father argues that the court should have granted his
1. Section 388, Due Process Notice, and Harmless Error
Nearly 35 years ago, the Court of Appeal in Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 490, held that a
The Ansley court had no occasion to consider whether any error was prejudicial – the trial court had determined as a matter of law that
We agree on all counts. Nevertheless, we observe that this appeal does not ask us to consider a more typical
The lack of due process in a dependency proceeding raises the specter of structural error but this approach was firmly rejected by our Supreme Court in In re James F. (2008) 42 Cal.4th 901, 915-916. “The harmless error analysis applies in juvenile dependency proceedings even where the error is of constitutional dimension.” (In re J.P. (2017) 15 Cal.App.5th 789. 798 (J.P.).)8
As we observed in Al.J., some courts of appeal have applied a Chapman9 “harmless beyond a reasonable doubt” standard (e.g. In re J.H. (2007) 158 Cal.App.4th 174, 173; Justice P., supra, 123 Cal.App.4th at p. 193). At least two Supreme Court cases have embraced the Watson10 more probable than not standard. (See In re Jesusa V. (2004) 32 Cal.4th 588, 625 [incarcerated father not brought to court for hearing]; In re Celine R. (2003) 31 Cal.4th 45, 59-60 [failure to appoint separate counsel for siblings]). In Al.J., supra, 44 Cal. 5th at page 666, we found that under either standard, the failure to provide notice was harmless.
2. Application of Principles to the Present Case
A. Due Diligence
The juvenile court continued the January 14, 2019 jurisdiction hearing as to father because as of that date the court found DCFS had not acted with due diligence in trying to locate father. At that time, DCFS had searched multiple sources for information on father‘s whereabouts but expressly stated it had not contacted paternal relatives who mother had identified. The court continued the jurisdiction hearing as to father to allow DCFS additional time to locate father. On February 13, 2019, at the combined jurisdiction hearing for father and disposition hearing for both parents, the trial court stated, “We do have good notice.” The minute order for that date included, “Court finds due diligence has been completed for father.” In fact the record does not disclose that any further diligence was undertaken. For example, it was undisputed that DCFS had not contacted the paternal grandmother or aunt. Yet, DCFS told the court that the parental relatives knew of mother‘s pregnancy. At a minimum, inquiring of paternal relatives as to father‘s whereabouts was required.12
Considering that DCFS conducted no additional due diligence between January 14th (when the court found diligence inadequate) and February 13th (where the court found it sufficient), and DCFS
never asked the parental relatives for father‘s whereabouts, we conclude efforts to locate and notice father were deficient.
B. Harmless Error
We apply the Watson standard to determine whether the failure to provide notice was prejudicial. Father has not shown that there was a reasonable
Father‘s history did not support an order of reunification services. Father does not argue the contrary. The juvenile court found reunification services were properly denied under
Father lost his first child (son) to adoption, following termination of reunification services in that case. The record is devoid of evidence that father made an effort to address the problems that led to the denial of reunification services for son and the termination of father‘s parental rights to him. Father had an extensive criminal history that included four arrests and significant incarceration during the pendency of this case. In one incident, father was charged with threatening mother with a handgun. Father‘s history of substance abuse was equally troubling. It was apparently unresolved as of the 388 hearing. At a minimum, father failed to produce evidence that he had addressed his drug abuse.
The record makes clear that from the time he was served in May 2019 until the filing of his October 2019
Father asserts that if the juvenile court had found father to be the presumed father, there would have been a preference to place baby with his paternal relatives. “Only a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services, and only a presumed father is entitled to custody of his child.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596;
On appeal, father nominates paternal aunt as a potential caregiver. Yet, the aunt specifically told DCFS that baby would likely not be placed with her because she had an extensive criminal record and was a recovering methamphetamine user who had been sober for only one year (as of the hearing on the 388 petition). The aunt thought baby could be placed with the paternal grandmother.
However, the grandmother had a history of homelessness, and the woman who answered the door at the grandmother‘s alleged residence told DCFS grandmother did not live there.
Neither the grandmother nor the aunt made an effort to see baby during the dependency case, which the grandmother said they learned about in May or June 2019. When asked in November 2019 why she had not visited, the aunt reported she lost the social worker‘s phone number and that “the family was quite unstable and did not have a permanent home in the months following the child‘s detention.” The grandmother claimed that she could not visit because she was too busy with work. Even if father had been accorded presumed father status, father would be faced with the fact that neither paternal grandmother nor aunt were likely placement candidates.
Given the fact that father had lost reunification services and then custody to son, father‘s proposed paternal caregivers were either unwilling or unqualified, father‘s illicit drug use remained unaddressed, and father continued to commit violent acts (including toward mother) during the early pendency of this case, we conclude our affirmance stands not on guesswork or speculation, but on the undisputed facts before us. Under the Watson standard, it is not reasonably probable that absent the notice error, father would have been granted reunification services or his parental rights would not have been terminated. (Cf. Al.J., supra, 44 Cal.App.5th at p. 666.)14
The juvenile court‘s order terminating parental rights is affirmed.
RUBIN, P. J.
I CONCUR:
MOOR, J.
In re S.P.
B302804
BAKER, J., Dissenting
Today‘s majority opinion is further evidence the courts of appeal are applying harmless error doctrine in juvenile court cases to excuse fundamental constitutional errors—errors that strike so deeply at the edifice of our legal system that, despite all pretenses, judges have no realistic ability to determine the probability of a different outcome absent the error. I do not believe this state of affairs is required by our Supreme Court‘s decision in In re James F. (2008) 42 Cal.4th 901 (James F.), and I accordingly dissent.
I
Dependency proceedings in this case began in October 2018 when the Los Angeles County Department of Children and Family Services (Department) received a referral that minor S.P.‘s mother (Mother) was neglecting the child. The Department‘s subsequent investigation revealed Mother was using methamphetamine. Pursuant to court order, the Department removed S.P. from Mother‘s custody and filed a dependency petition in November 2018.
Once dependency proceedings were underway, Mother completed a parentage questionnaire identifying S.P.‘s father (Father) by name, as well as the names of S.P.‘s paternal grandmother and paternal aunt. Mother claimed she had no contact information for Father, and the Department sent a certified letter regarding the commencement of dependency proceedings to what it thought was Father‘s last known address. The juvenile court ordered the Department to conduct a “due diligence” search for Father to give him notice of the proceedings.
By the time of a jurisdiction hearing in January 2019, the Department had not located Father and had not notified him of the pending dependency case. The Department‘s jurisdiction report stated a separate due diligence report on
The Department submitted another due diligence report to the court in February 2019 and it was not materially different from the prior report. It stated the Department ran various database searches in an unsuccessful effort to ascertain Father‘s whereabouts, including searches of records maintained by the Los Angeles County Probation/Parole Office, the Los Angeles County Sheriff‘s Department of Inmate Information Center, the California Department of Corrections, the DMV, and the Federal Bureau of Prisons. The Department‘s report also stated the Department did not attempt to contact any of Father‘s relatives or friends because there was “no information regarding any potential relatives/friends.” That, of course, was false. Mother previously identified Father‘s mother and sister in a parentage questionnaire and in open court. The Department simply did not contact them in an effort to notify Father of the pending proceedings.
At a hearing that same month (February 2019), the juvenile court found—based on the Department‘s due diligence report—that there had been “good notice” as to Father. Father was not present at this hearing, nor was there an attorney in court to advocate on his behalf or raise objections to the Department‘s evidence. The court sustained the dependency petition against Father in absentia and ordered he was to receive no reunification services.
Months later, the Department reported it had located Father and personally served him on March 11, 2019, with notice of the pending dependency proceedings. Father was arrested in April 2019 and remained incarcerated (serving a 16-month sentence for a threats crime) at the time of a June 12, 2019, hearing where he entered his first appearance and was appointed counsel. At that hearing, Father told the court his address was the same as the paternal grandmother‘s—one of the two family members previously identified by Mother.
The day before the next scheduled hearing in the case, which was a hearing to consider termination of Mother and Father‘s parental rights, Father filed a
The juvenile court denied Father‘s request to vacate the prior court orders. The court did not reaffirm its prior finding that the Department had made good efforts to notify Father of the proceedings. Instead, citing a 2004 Court of Appeal case (In re Justice P. (2004) 123 Cal.App.4th 181 (Justice P.)), the court determined Father was not entitled to a new jurisdiction and disposition hearing in which he could participate solely because the court believed “there is not a sufficient bond and it is certainly not in this child‘s best interest.”
II
In this court, the Department does not defend the inadequate effort it made to notify Father of the proceedings before the court went forward with a jurisdiction and disposition hearing in his absence. The Department urges affirmance, however, because it believes the error was harmless. By harmless, the Department means Father‘s lack of notice did not affect the outcome of the proceedings beyond a reasonable doubt—an admittedly counterfactual standard, albeit one more demanding than the majority chooses to apply.
I have previously argued a juvenile court‘s considered failure to appoint counsel for a parent can be the kind of error that defies harmlessness analysis, and is per se reversible, because it is sometimes too difficult to determine what a parent might have done differently with advice of counsel, not to mention what the attorney would have done differently by way of advocating for a parent. (In re J.P. (2017) 15 Cal.App.5th 789, 803 (conc. opn. of Baker, J.) [criticizing the majority‘s affirmance on harmlessness grounds and quoting United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150, a case that explains the erroneous deprivation of counsel has ” ‘consequences that are necessarily unquantifiable and indeterminate’ ” and ” ‘[h]armless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe’ “].) In this case, the Department does the majority in In re J.P. one better by arguing the absence of any notice of the jurisdiction and disposition proceedings (which naturally means the absence of counsel as well) can be excused on harmlessness grounds too.
This is folly. We cannot reliably decide whether the outcome of these dependency proceedings might have been different if Father had been permitted to participate in the case from the outset—the various counterfactual possibilities are too numerous to even catalog. Consider just a few. Facts in
court proceedings once he was finally given proper notice if he were not led to believe all that was done in his absence suggested an order terminating his parental rights was probably a fait accompli.
The majority is right, however, that Justice P., supra, 123 Cal.App.4th 181, does apply harmless error doctrine to excuse a notice error. Insofar as Justice P. forecloses the possibility that notice errors can be per se reversible, we are not bound to follow that opinion—and we should not.2 The same is not true, of course, of our Supreme Court‘s decision in James F., supra, 42 Cal.4th 901. But that case does not compel the result the majority reaches.
The Supreme Court in James F. confronted an undisputed error in the procedure a juvenile court used to appoint a guardian ad litem for a mentally incompetent parent in a dependency proceeding: the court failed to explain, before appointing the guardian, what a guardian ad litem was and failed to give the
parent a meaningful opportunity to be heard in opposition to the appointment. (James F., supra, 42 Cal.4th at p. 911.) The Supreme Court rejected the view that the juvenile court‘s error was per se reversible “structural error” and cautioned that “the structural error doctrine that has been established for certain errors in criminal proceedings should [not] be imported wholesale, or unthinkingly, into the quite different context of dependency cases.” (Id. at 915-916.)
litem or asked the juvenile court to vacate her appointment“], italics added).
A lack of actual notice of the proceedings as they unfolded is precisely the error we confront here. James F. does not bar finding this type of fundamental error to be per se reversible, and that is what we should do for the reasons I have already given.
III
A harmlessness inquiry is usually required before reversing juvenile court dependency orders, and rightly so. But it is also true that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” (Troxel v. Granville (2000) 530 U.S. 57, 66.) The cornerstone of that right is the familiar basic requirement of notice and an opportunity to be heard. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) When a parent has no notice of a jurisdiction and disposition hearing that results in an order for the state to assume jurisdiction over the parent‘s child, and when the parent later complains about that lack of notice, the juvenile court should be required to redo the hearing because assessing prejudice will ordinarily be too difficult. Some consequences of a lack of proper notice may still be unrepairable, but holding the hearing anew is the best available means of assessing the impact of a fundamental notice error. If instead the majority‘s harmlessness approach here is to be the rule, one is left to wonder why we even go to
BAKER, J.