"We will assume, without deciding, that the harmless beyond a reasonable doubt standard of review is applicable in this case, because it provides a more cautious approach in that if the error is harmless beyond a reasonable doubt it will also be harmless by clear and convincing evidence." (In re Esmeralda S. (2008) 165 Cal.App.4th 84, 94.) A due process violation may be held harmless if the record contains substantial evidence of the parent's incompetence (In re James F., at p. 911) or if the outcome of a proceeding has not been affected (id. at p. 918; see also In re Samuel A. (2021) 69 Cal.App.5th 67, 83, In re Esmeralda S., supra, 165 Cal.App.4th at p. 93).
(See James F., supra, 42 Cal.4th at p. 918; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 93 (Esmeralda S.).) Our Supreme Court has explained that when an error is amenable for harmless error analysis, it may be deemed harmless "[i]f the outcome of a proceeding has not been affected."
Due to that procedural posture, the court was considering the prejudicial effect on the appointment order, not any subsequent orders. A better analogy to our facts is found in In re Esmeralda S. (2008) 165 Cal.App.4th 84. There the reviewing court considered an appeal from an order terminating parental rights, and the parent asserted a due process challenge to an order appointing a guardian ad litem earlier in the proceedings.
(See James F., supra, 42 Cal.4th at p. 918; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 93 (Esmeralda S.).) The question of whether the appropriate harmless error standard is harmless by clear and convincing evidence rather than harmless beyond a reasonable doubt is somewhat of an open question.
In Sara D., therefore, there was some basis in the record for believing that the appointment of the guardian ad litem had changed the course of the litigation. That was apparently not the case in Jessica G., supra, 93 Cal.App.4th at page 1189, but we nevertheless follow the approaches taken by the reviewing courts in Enrique G., supra, 140 Cal.App.4th 676, and In re Esmeralda S. (2008) 165 Cal.App.4th 84. In Enrique G., the violation of the parent's due process rights in the appointment of a guardian ad litem was harmless because the parent did not cite any prejudice that resulted from the appointment.
"If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required." (Id. at p. 918; see In re Esmeralda S. (2008) 165 Cal.App.4th 84, 93 (Esmeralda S.) [hearing unaffected by violation is harmless error].) This is supported by the "strong public interest in prompt resolution of these cases so that the children may receive loving and secure home environments as soon as reasonably possible."
(In re James F., supra, 42 Cal.4th at pp. 911, fn. 1, 918-919.) This language was considered in In re Esmeralda S. (2008) 165 Cal.App.4th 84, which concluded that the "outcome of the proceeding" referred, not to the outcome of the appointment of the guardian, but rather the outcome of the hearing from which the appeal was properly taken. (Id. at p. 93.)
As mother concedes, courts have considered — and rejected — this argument and have applied a harmless error standard to review challenges like the one mother makes here. (James F., supra, 42 Cal.4th at p. 915; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 96 (Esmeralda S.).) Under the harmless error standard, “[w]e do not set aside the judgment unless a different result would have been probable had the error not occurred. [Citation.]” (In re A.C. (2008) 166 Cal.App.4th 146, 157 (A.C.).)
Without deciding the issue, we will apply the harmless beyond a reasonable doubt standard in this case, "because it provides a more cautious approach in that if the error is harmless beyond a reasonable doubt it will also be harmless by clear and convincing evidence." (In re Esmeralda S. (2008) 165 Cal.App.4th 84, 94.) Here, although Mother claims that the juvenile court failed to follow proper procedures in appointing the guardian ad litem, she does not cite any actual prejudice resulting from the appointment.
The five cases and due process issues involved are: (1) Malaga County Water Dist. v. State Water Resources Control Bd. (2020) 58 Cal.App.5th 418, 445-446 (matter remanded for further consideration where the due process violation involved the use of "a void underground regulation to set hearing procedures"); (2) Hipsher v. Los Angeles County Employees Retirement Assn. (2020) 58 Cal.App.5th 671, 702-703 (prejudice found for the due process violation of failing to provide notice and the right to be heard); (3) Margarito v. State Athletic Com. (2010) 189 Cal.App.4th 159, 172-173 (no prejudice regarding alleged withholding of impeachment evidence); (4) In re Esmeralda S. (2008) 165 Cal.App.4th 84, 95 (no prejudice from appointment of guardian ad litem because appointment did not prevent mother from raising issues on her own); and (5) Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928 (no prejudice found from an agency's "failure to expressly inform [Hinrichs] of the name and rank of the officers interrogating her, or of the nature of the investigation …"). C. Conclusion