Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 06CEJ300003. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Lee S. Guliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CORNELL, JUDGE
Martin P. appeals from an order that terminated the juvenile court’s jurisdiction and awarded the children’s mother, Melissa H., sole legal and physical custody of the children, G.P. and S.P. Martin argues reversal is required because he did not receive the notice required by Welfare and Institutions Code section 366.21. We conclude that if there was error, an issue we do not decide, the error was harmless beyond a reasonable doubt. Accordingly, we affirm the order of the juvenile court.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
On January 5, 2006, a petition was filed alleging that G.P. and S.P. were children described by section 300, subdivision (b) because of the ongoing drug abuse by both Melissa and Martin and because of a history of domestic violence between the two. The children were detained for their own safety. The juvenile court found jurisdiction after the parties submitted the matter on the report of the Fresno County Department of Children and Family Services (the Department), with some minor modifications. At the May 5, 2006, dispositional hearing, reunification services were provided to Melissa, but were denied to Martin because of his extensive history of drug abuse and his resistance to treatment. (§ 361.5, subd. (b)(13).)
Martin appealed from the order denying him reunification services. We affirmed the order in a prior appeal. (In re G.P. (Dec. 22, 2006, F050610) [nonpub. opn.] (F050610).)
Melissa entered a residential treatment facility and made good progress. At a review hearing on April 27, 2007, reunification services for Melissa were terminated, the children were returned to her custody, and family maintenance services were ordered. At an October 26, 2007, review hearing, family maintenance services were terminated, dependency was terminated, and Melissa was awarded sole legal and physical custody.
Conspicuously absent from the above review is any mention of Martin. He had minimal involvement in the lives of the children after their removal from his custody. He sporadically attended visitation and made virtually no effort to comply with services offered to him. His attendance in court also was sporadic. We will review the appearances to demonstrate our point.
Martin was present for the February 10, 2006, jurisdictional hearing and participated appropriately. He was ordered to return for the dispositional hearing. Martin was not present for the scheduled dispositional hearing, and it did not appear he had contact with his attorney. The hearing was continued for various reasons.
Martin was not present for the continued dispositional hearing, nor does it appear he had contact with his attorney. Martin’s attorney set the matter for trial to protect Martin’s rights. Martin was not present on the date set for trial. Martin’s attorney stated he was unable to contact Martin, but he understood since the inception of the case that Martin wished to reunify with the children. Counsel then submitted the matter on the information previously provided to the juvenile court. Reasonable supervised visits were ordered for Martin but no services.
Martin was present at the next review hearing. The juvenile court affirmed that Martin was to receive reasonable supervised visits. Martin was ordered to return for the next hearing. Martin was present at the next six-month review hearing, this time in custody. Supervised visitation was confirmed again, although it appeared that there had not been any visits since the last hearing. Martin was ordered to appear for the next review hearing, but he did not appear.
The next review hearing was scheduled for 90 days later, September 28, 2007. Martin was not present, although his attorney informed the juvenile court that he recently had learned Martin was incarcerated. The Department’s recommendation at this hearing was to award Melissa sole legal and physical custody of the children and to dismiss the petition. Martin’s counsel objected and requested a continuance to permit Martin to attend the hearing. The juvenile court granted the request, and the hearing was continued to a date after Martin’s scheduled release from incarceration. The juvenile court ordered Martin’s counsel to notify Martin of the next hearing.
Martin was not present at the next hearing. His attorney stated that Martin still was in custody and he (the attorney) had failed to request an order for his transportation to the hearing. Counsel again requested a continuance of the hearing. The juvenile court denied the request, finding Martin had ample opportunity to be present and participate and concluding there would be no detriment by his absence. Martin’s counsel requested joint legal custody of the children. The trial court granted Melissa sole legal and physical custody of the children and terminated its jurisdiction. Supervised visitation for Martin again was ordered.
DISCUSSION
Martin argues the Department failed to give him notice of the above proceedings, requiring reversal of the exit orders. He has not demonstrated, nor does it appear he could demonstrate, any prejudice from the lack of notice. Instead, he argues the lack of notice violated his right to due process and requires reversal of the contested orders without any showing of prejudice. We disagree.
We will not dwell on the question of whether Martin was properly served with the notice required by section 366.21. Nor will we consider whether notice to counsel was adequate, or whether Martin forfeited the issue by failing to preserve the issue in the juvenile court. We assume, without deciding, Martin did not receive the statutorily required notice.
The issue is whether the lack of notice is a structural defect that requires reversal without any showing of prejudice (reversal per se). Martin does not cite any relevant authority that supports his argument. Our review of the pertinent authority convinces us that reversal is not required if we determine the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 (Chapman).)
We begin with In re Jesusa V. (2004) 32 Cal.4th 588 where the juvenile court held the jurisdictional hearing in the absence of the father and over his attorney’s objections. The Supreme Court held that the father had a statutory right to be present at the hearing, but that the error was subject to harmless error analysis. (Id. at pp. 621-626.) In reaching this conclusion, the Supreme Court noted that only in a narrow class of cases does violation of a statutory mandate require reversal per se. (Id. at p. 624.) It then explained that the violation present in Jesusa did not deprive the juvenile court of jurisdiction, so the error was not reversible per se. (Id. at p. 625.)
Further support for our conclusion is found in In re Angela C. (2002) 99 Cal.App.4th 389 (Angela C.), a case factually similar to the present case. The minor’s mother appealed from an order terminating her parental rights pursuant to section 366.26. The mother was properly noticed of the date originally set for the section 366.26 hearing and failed to appear. The hearing was continued because of problems in noticing other parties. The mother was not notified of the continued hearing date. This court concluded that the mother’s right to due process was violated when she was not notified of the continued hearing date pursuant to statutory requirements. (In re Angela C., at p. 393.) We then proceeded to the question of whether reversal was required. The mother argued per se reversal was required. We concluded that standards of review in criminal cases would guide our analysis.
“Constitutional error as a general rule does not automatically require reversal. In determining the effect of ‘most constitutional errors,’ appellate courts can properly apply a Chapman harmless error analysis. (Arizona v. Fulminante [(1991)] 499 U.S. [279,] 306.) In Fulminante, the Supreme Court cited a wide range of errors susceptible to harmless error analysis. According to the Supreme Court, ‘[t]he common thread connecting [those] cases is that each involved “trial error”—error which occurred during the presentation of the case .…’ (Id. at p. 307.) An error in the trial process itself does not require automatic reversal because a court may quantitatively assess such an error in the context of other evidence presented in order to determine whether the error was harmless beyond a reasonable doubt. (Id. at pp. 307-308.) In applying harmless error analysis to these many different constitutional violations, the court explained the harmless error doctrine is ‘essential to preserve the “principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.”’ (Id. at p. 308.)
“By comparison, ‘structural’ error or a ‘structural defect[] in the constitution of the trial mechanism … affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself’ defies analysis by a harmless error standard. (Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310.) A structural error requires reversal without regard to the strength of the evidence or other circumstances. (Id. at p. 310.)
“The United States Supreme Court has found structural errors, however, only in a very limited class of cases: the total deprivation of the right to counsel at trial [citation], a biased judge [citation], unlawful exclusion of members of the defendant’s race from a grand jury [citation], denial of the right to self-representation at trial [citation], denial of the right to a public trial [citation], and erroneous reasonable-doubt instruction to jury [citation]. (Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310.) With regard to such structural errors, Fulminante explained: ‘“Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.”’ (Id. at p. 310.)” (Angela C., supra, 99 Cal.App.4th at pp. 394-395.)
We concluded that the error was subject to harmless error analysis under the “harmless beyond a reasonable doubt” standard enunciated in Chapman because it was a trial error and not a structural error. (Angela C., supra, 99 Cal.App.4th at p. 395.) “Appellant has had notice of these dependency proceedings from the outset, as well as the opportunity to be heard. Additionally, appellant received proper notice of the originally scheduled section 366.26 hearing date. The error at most affects the manner in which the court conducts the termination hearing in that it becomes an uncontested hearing. However, had the court proceeded on the originally scheduled hearing date, as it had every right to do with respect to appellant, that hearing too would have been uncontested in that appellant failed to attend the hearing as originally noticed or notify anyone as to her position. Also, given appellant’s prior participation in the proceedings, as well as her election not to attend the originally scheduled termination hearing, we can quantitatively assess the error in the context of other evidence presented in order to determine whether the error was harmless beyond a reasonable doubt. [Citation.]” (Ibid.)
We cannot discern any reason why the Angela C. analysis should not apply here. As in Angela C., Martin was present for the initial hearings in this case, received actual notice of the hearing that was to take place, had the opportunity to be heard at every stage, was represented by counsel throughout the proceedings and, because of his participation, we can evaluate the impact of the asserted error. Accordingly, we conclude that, at most, the lack of statutory notice is reversible only if we cannot conclude the error was harmless beyond a reasonable doubt.
We have no difficulty concluding the error was harmless beyond a reasonable doubt. Martin was present at the detention and jurisdictional hearings. He was denied reunification services, an order we affirmed in a prior appeal. (F050610, supra). Supervised visitation for Martin was ordered throughout the pendency of the case, yet he visited the children sporadically, at best. He did not complete the substance abuse course in which he was enrolled and made little effort to participate in the proceedings after the juvenile court found it had jurisdiction, as evidenced by his failure to maintain contact with his attorney and inform the juvenile court of his current residence. In contrast to Melissa’s commendable efforts to change her life so she could reunite with the children, Martin continued down the path that led to removal of the children from his custody. From this evidence, and Martin has not suggested there is any evidence that would lead to a different conclusion, we are certain Martin’s presence at the hearing would not have changed the orders of the juvenile court.
DISPOSITION
The juvenile court’s order of October 26, 2007, is affirmed.
WE CONCUR: LEVY, Acting P.J., KANE, J.