Opinion
E053838
10-11-2011
R.C., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Anastasia M. Georggin for Petitioner. No appearance for Respondent. Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIJ120016)
OPINION
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Matthew Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition Denied.
Anastasia M. Georggin for Petitioner.
No appearance for Respondent.
Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
Petitioner R.C. (Father) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order denying his petition to modify or set aside the court's previous order and setting a hearing pursuant to Welfare and Institutions Code section 366.26 as to his four children: nine-year-old L.C., seven-year-old R.C., five-year-old T.C., and four-year-old V.C. On appeal, Father contends (1) he was denied his constitutional due process rights because he did not have a meaningful opportunity to be heard at the jurisdictional/dispositional hearing; (2) he had a statutory and constitutional right to appointed counsel at the jurisdictional/dispositional hearing; (3) the errors of being denied a hearing and counsel were structural and therefore no showing of prejudice is required; and (4) the juvenile court erred in denying his petition to modify or set aside the court's previous order. As explained below, we reject these contentions and deny Father's writ petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Riverside County Department of Public Social Services (DPSS) in July 2010 after the youngest child of the mother (Mother) tested positive for amphetamines at birth. DPSS subsequently filed a petition pursuant to Welfare and Institutions Code section 300 on behalf of the children. Father's whereabouts were unknown at the time. Mother had a permanent restraining order against Father due to domestic violence issues and had had no contact with Father for about four years due to the restraining order. Mother reported that her relationship with Father was unhealthy in that Father had physically and mentally abused Mother in front of the children. Mother had a history with DPSS due to substance abuse issues.
Mother is not a party to this appeal. She has a total of seven children by three different men.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
The detention hearing was held on July 8, 2010. Father was not present. He was declared an alleged father. The children were formally removed from parental custody and placed in a foster home.
The social worker later learned that Father was incarcerated as a result of pleading guilty to assault with a deadly weapon. He had been incarcerated since July 18, 2008, with a release date of October 13, 2011. Father had an extensive criminal history and was identified by the Riverside Police Department as a known gang member. Mother's permanent restraining order was issued in December 2005; Father had violated the restraining order on multiple occasions.
The social worker interviewed Father by telephone at the La Palma Correctional Center in Arizona. Father had originally been placed in a prison in California but had been transferred to Arizona due to prison overcrowding. Father acknowledged that he and Mother had a history of engaging in acts of domestic violence and that there was a permanent restraining order in place. Father also stated "true" in regard to allegation b-7 (Father was not a member of the children's household and failed to support his children). The last time he had contact with his children was when V.C. was about six months old. Father claims that Mother had prevented him from seeing his children. Father had admitted that he would not recognize the children if he saw them, but he desired contact with his children. He also requested that his family be given an opportunity to have contact with his children.
The contested jurisdictional/dispositional hearing was held on August 23, 2010. Father was not present, was identified as an alleged father, and was not provided with appointed counsel. The court found the allegations true as amended, and the children were declared dependents of the court. Father was denied reunification services pursuant to section 361.5, subdivision (e)(1). Mother and one of the fathers of the children's half siblings were provided with services.
Father wrote to the social worker on a regular basis to inquire about the well-being of his children and stated that he desired an opportunity to be a parent to them. He also wrote to his children. However, the letters had not been provided to the children due to the children not having any contact with Father for more than four years and the children's therapist first needed to assess giving the letters to the children as being appropriate. The social worker had maintained regular contact with Father and had informed Father of this; Father stated that he understood the precautions. Father had requested referrals to services. The social worker had explained to Father that the court did not provide him with reunification services; however, he had been encouraged to obtain services on his own.
On March 2, 2011, the social worker received a letter from Father indicating his potential release date of January 3, 2012, and his desire to be provided with legal representation. The social worker provided the letter to the court.
The court appointed counsel for Father on March 9, 2011, and directed DPSS to provide counsel with a copy of the file. The court also directed Father's counsel to prepare a transportation order. The transportation order was filed on March 15, 2011.
In April 2011, the social worker discovered that Father's possible release date had been moved to October 19, 2011. The social worker had given Father's letters, cards, gifts, and pictures to his children. For the most part, the content of the letters had been appropriate. Father had requested a visit with his children while in county jail. However, the two youngest children had no memory of him, and the two oldest had a limited memory of him and were not interested in visiting him while he was incarcerated. The children all had expressed a desire to remain with their relative foster mother, since they had developed a strong bond with her and referred to her as "mom." The children had thrived in her care, "excelling both academically and emotionally."
The record also shows that Father's children were very attached to their half siblings. The social worker noted, "[I]t would be detrimental to all seven children if any of the children were separated from their siblings, as they have only known one another and through the chaos and instability created by the mother's abusive relationships with the fathers, as well as their father's [sic] criminal activity resulting in their incarcerations, they have depended on one another for support and protection. Separating any of them to [be] placed with their fathers, whom all of them have had limited relationships with, would not be in their best interest, especially since [DPSS] has an identified relative that is willing and able to adopt [all] the children . . . ." The relative foster mother had also repeatedly expressed her desire to allow the children to maintain contact with their parents.
At a hearing on April 27, 2011, Father was present in custody. The court found Father to be the presumed father of the children. The court ordered an after-court visit between the two youngest children and Father. L.C. did not want to visit Father; the social worker noted that L.C. had a lot of anger.
Father filed a section 388 petition on June 8, 2011, requesting that the jurisdictional and dispositional orders be vacated. In the alternative, Father requested reunification services.
A hearing on the section 388 petition was held on June 17, 2011. Following testimony, the court denied the section 388 petition. The court explained: "It's clear from reviewing the file and the reports in this case that [Father's] statutory rights as a father were violated. He had the right to appointed counsel. The Department and County Counsel knew that he was a California State prisoner being housed in Arizona and did have a duty to point that out to the court.
"The court also had a duty to appoint counsel when it learned that [Father] was located and was in state prison. That, I believe, was clear to the court on both August 17 and August 23, 2010. August 17, 2010 was the original contested jurisdictional hearing date. For some reason it was continued until August 23, 2010.
"When it was heard, the court should have appointed counsel at that time. I was not the bench officer on either of those days. We had a visiting judge. Regarding the request to change court order, we do have new evidence. However, the second prong of that test being the best interest of the child, clearly it would not be in the best interest of the children rather to grant [Father] services.
"The evidence is clear he has no relationship with these children, has not for approximately five years. He has a serious criminal record and currently is incarcerated in state prison. Regarding the failure to appoint counsel, the court finds that had counsel been appointed, the result would not have been any different.
"[Father] was sentenced to a four-year prison sentence on July 14th, 2008. This matter was heard on August 23rd. He would have had six months to complete services. He would have remained incarcerated past the statutory time for services. Even if the court had continued it out an additional six months, he would have remained incarcerated.
"If the court were making an independent determination today, he still has another four months to go of incarceration, and it's still a six-month case because the children are a sibling set. The court would make the same finding that it made in August, that he remains incarcerated and is unlikely to re-unify within a six-month period of time, especially given the fact that there is no relationship between these children and the father.
"Additionally, the court could not have and would not have granted services due to the violent felony conviction of the father which has been suffered rather recently on July 14, 2008. Welfare and Institutions Code Section 361.5(B)(12) states that reunification services need not be provided to a parent when the court finds by clear and convincing evidence any of the following:
"And one of them is that a parent of the child has been convicted of a felony violent felony as described in subdivision C of Welfare and Institutions Code Section 667.5. [Father's] July 14, 2008 conviction clearly falls within that category.
"Furthermore, Welfare and Institutions Code Section 361.5(c) states very clearly, that the court shall not order reunification services for persons described in Welfare and Institutions Code Section 361.5(b)(12), unless the court finds by clear and convincing evidence that reunification services were in the best interest of the child.
"Clearly the court could have not made that finding back in August of 2010 given the lack of relationship between the father and the children due to the father's continued lengthy incarceration. . . . [¶]
"Additionally, if the matter [were] being heard all over again, the court could still not make that finding by clear and convincing evidence that reunification services would be in the best interest of the children."
The juvenile court thereafter terminated reunification services as to Mother and the father of the children's half siblings, and a section 366.26 hearing was set.
II
DISCUSSION
A. Notice and Opportunity to Be Heard
Father argues that he has been denied his constitutional due process rights when he did not have a meaningful opportunity to be heard at the jurisdictional/dispositional hearing.
"'Parents have a fundamental and compelling interest in the companionship, care, custody, and management of their children. [Citation.] "[T]he state also has an urgent interest in child welfare and shares the parent's interest in an accurate and just decision. [Citation.]" [Citation.] To ensure that result, "[u]ntil parental rights have been terminated, both parents must be given notice at each step of the proceedings. [Citation.]"' [Citation.] [¶] 'At each hearing under section 300 et seq., the court must determine whether notice has been given as required by law and must make an appropriate finding noted in the minutes.' [Citation.]" (In re J.H. (2007) 158 Cal.App.4th 174, 182.)
"'Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend.' [Citation.] 'The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith. [Citation.] [¶] However, there is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings. [Citations.]' [Citation.] Thus, where a parent cannot be located notwithstanding a reasonable search effort, the failure to give actual notice will not render the proceedings invalid. [Citation.]" (In re J.H., supra, 158 Cal.App.4th at p. 182.)
"'It is not always possible to litigate a dependency case with all parties present. The law recognizes this and requires only reasonable efforts to search for and notice missing parents. Where reasonable efforts have been made, a dependency case properly proceeds. If a missing parent later surfaces, it does not automatically follow that the best interests of the child will be promoted by going back to square one and relitigating the case. Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them. Further, the very nature of determining a child's best interests calls for a case-by-case analysis, not a mechanical rule.' [Citation.]" (In re J.H., supra, 158 Cal.App.4th at pp. 182-183.)
Here, the record reveals that DPSS acted with due diligence to locate Father. Father had been located by early August, about a month after the section 300 petition was filed. We reject Father's claim that DPSS "surreptitiously utilized the court to deny [Father] [d]ue [p]rocess of law," and that DPSS had "failed to perform a declaration of search for the father in conjunction with the detention hearing." The issue is not whether DPSS acted with due diligence in locating Father, but whether Father was denied his due process rights when the juvenile court proceeded with the jurisdictional/dispositional hearing in Father's absence and without counsel appointed for Father, despite DPSS having knowledge of Father's whereabouts.
Subdivision (a) of section 316.2 requires the juvenile court to make inquiries at the detention hearing or as soon thereafter as practicable to determine who is, or might be, the father of a child subject to section 300. Subdivision (b) of section 316.2 provides that if, after court inquiry, one or more men are identified as an alleged father, each alleged father must be given notice at his last and usual place of abode that he is, or might be, the father of the child and that the dependency proceedings could result in the termination of parental rights and the adoption of the child. Subdivision (b) requires that Judicial Council form JV-505 (Paternity-Waiver of Rights) be served on the alleged father along with the notice described above.
Notice and service of form JV-505 as provided for in section 316.2 serves to facilitate the exercise of the limited due process rights accorded to alleged fathers. For an alleged father, due process "requires only that [he] be given notice and 'an opportunity to appear and assert a position and attempt to change his paternity status. [Citations.]' [Citation.]" (In re Paul H. (2003) 111 Cal.App.4th 753, 760.)
Here, it is undisputed that Father was not given notice or provided with an opportunity to be heard at the August 23, 2010, jurisdictional/dispositional hearing. Although the record shows that the social worker had located Father in an Arizona state prison sometime in late July 2010, prior to the jurisdictional/dispositional hearing, and he had been interviewed by the social worker on August 10, 2010, it is unknown why Father did not receive notice of the jurisdictional/dispositional hearing or have an opportunity to be heard at that hearing. As noted above, an alleged Father is entitled to statutory notice once his identity and address is known. (§ 316.2, subd. (b).)
It may be that the social worker had provided Father with a verbal notice of the jurisdictional/dispositional hearing. Nonetheless, the record is clear that no written notice was provided to Father, and that Father was not present at the August 23, 2010, jurisdictional/dispositional hearing.
In any event, as explained, ante, part II.C., Father has not demonstrated any prejudice resulting from any violation of his statutory or constitutional right to notice and opportunity to be heard.
B. Right to Appointed Counsel
Father also contends that he had a statutory and constitutional right to appointed counsel, which the juvenile court denied him.
Section 317 provides, in part: "(a)(1) When it appears to the court that a parent . . . of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section. [¶] . . . [¶] (b) When it appears to the court that a parent . . . of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel . . . , unless the court finds that the parent . . . has made a knowing and intelligent waiver of counsel as provided in this section."
The federal Constitution does not require the appointment of counsel in all termination of parental rights proceedings. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31 [101 S.Ct. 2153, 68 L.Ed.2d 640].) "[W]hether a due process right to counsel existed at the lower court hearing depends on whether the presence of counsel would have made a 'determinative difference' in the outcome of the proceeding." (In re Ronald R. (1995) 37 Cal.App.4th 1186, 1196.)
As noted above, section 317, subdivision (b) provides for the appointment of counsel for a "parent" who cannot afford counsel when the child is placed in out-of-home care. Here, once Father requested legal representation in March 2011, counsel was appointed for him. However, it appears that counsel was not appointed for Father at the detention hearing, prior to the jurisdictional/dispositional hearing, or at the August 23, 2010, jurisdictional/dispositional hearing. Assuming that Father was a "parent" (prior to attaining presumed-father status) entitled to counsel under the statute, numerous cases have applied a prejudice analysis in evaluating whether the absence of counsel at a termination of parental rights proceeding was grounds for reversal. (See In re Malcolm D. (1996) 42 Cal.App.4th 904 [deprivation of counsel at section 366.26 hearing]; In re Ronald R., supra, 37 Cal.App.4th 1186 [deprivation of counsel at six-month review]; In re Andrew S. (1994) 27 Cal.App.4th 541, 543-544 [deprivation of counsel at section 366.26 hearing]; In re Mario C. (1990) 226 Cal.App.3d 599, 606 [denial of appointment of separate counsel for children].)
As explained, ante, part II.C., we reject Father's claim that denial of appointed counsel was a structural error.
Even if Father had been represented by counsel and was able to demonstrate that he should be granted presumed-father status, the criteria under section 361.5, subdivision (e) would have precluded reunification services. As the appointment of counsel would not have made a determinative difference in the outcome of the proceedings, Father was not prejudiced by any statutory violation attendant to the juvenile court's failure to timely appoint counsel.
Section 361.5, subdivision (e)(1) sets forth criteria for determining whether to grant reunification services to incarcerated parents. This section provides, in relevant part: "If the parent or guardian is incarcerated . . . , the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, . . . the nature of the crime . . . , the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, the likelihood of the parent's discharge from incarceration . . . within the reunification time limitations as described in subdivision (a), and any appropriate factors. Reunification services are subject to the applicable time limitations imposed in subdivision (a)." (Italics added.) Section 361.5, subdivision (a)(2) limits reunification services to no more than six months for a child who is under the age of three years when removed from the parent, as two of Father's children's half siblings were, and the children were a sibling set.
C. Whether the Challenged Errors Were Structural Errors
Father argues that the failure to receive notice of the jurisdictional/dispositional hearing and timely appointment of counsel amounted to structural errors, requiring no showing of prejudice and an outright reversal of the jurisdictional/dispositional orders.
We are persuaded that the failure of notice in this case not only violated statutory requirements, but also deprived Father of his due process right to notice under the federal constitution. The question remains whether such deprivation in a dependency case can be subject to harmless error analysis. In 2007, the court in J.H., found a notice error to be harmless beyond a reasonable doubt, differentiating errors in notice from the failure to attempt to serve notice: "Unless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice. [Citations.]" (In re J.H., supra, 158 Cal.App.4th at p. 183.)
More recently, the California Supreme Court in In re James F. (2008) 42 Cal.4th 901, appears to have cast serious doubt on whether "structural error" analysis, developed in criminal cases, is ever warranted in a dependency context. James F. involved errors in the procedure used to appoint a guardian ad litem for the father in a dependency proceeding. The California Supreme Court held the juvenile court's error was trial error that 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.) The court concluded that "[d]etermining prejudice in this context does not necessarily require 'a speculative inquiry into what might have occurred in an alternate universe.' [Citation.]" (Ibid.) The court held the error harmless but did not specify whether it was measuring prejudice by the "harmless beyond a reasonable doubt" standard of Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] or the "clear and convincing evidence" standard promoted by Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515. (James F., at pp. 904-905, 918-919.)
The court declined the request of the California State Association of Counties, appearing as amicus curiae, to determine not only that the constitutional due process error at issue in In re James F. was amenable to the harmless error analysis rather than the structural error analysis, but also whether the appropriate harmless error standard in juvenile dependency proceedings for constitutional error was harmless beyond a reasonable doubt or another formulation such as the clear and convincing evidence error measure articulated in Denny H. v. Superior Court, supra, 131 Cal.App.4th at pages 1514 through 1515. (In re James F., supra, 42 Cal.4th at p. 911, fn. 1.) The court noted that it had not granted review on the appropriate harmless error standard, and the parties had not briefed it. (Ibid.)
In reaching its conclusion that the "structural defect" standard was not appropriate, the In re James F. court reasoned 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." (In re James F., supra, 42 Cal.App.4th at p. 915.) Differences identified by the court include differences in the rights and protections afforded parents in a dependency proceeding from those afforded the accused in a criminal proceeding; the insignificant role of plea bargaining or other negotiated dispositions in dependency proceedings; the lack of a jury trial right in dependency proceedings; the different burdens of proof in criminal (beyond a reasonable doubt) and dependency (clear and convincing evidence) proceedings; a criminal proceeding's usual focus on contested issues of historical facts versus evaluations of the parents' present willingness and ability to provide appropriate care for their child and the availability of suitable alternative placements; and the welfare of the child as the "ultimate consideration in a dependency proceeding . . . ." (James F., at p. 915.)
"For example, a juvenile court may rely on hearsay contained in a social worker's report to support a jurisdictional finding in a dependency case, although such evidence could not be used to establish guilt in a criminal proceeding. [Citation.] Also, unlike a defendant in a criminal proceeding, '[a] parent at a dependency hearing cannot assert the Fourth Amendment exclusionary rule, since "the potential harm to children in allowing them to remain in an unhealthy environment outweighs any deterrent effect which would result from suppressing evidence" unlawfully seized.' [Citation.]" (In re James F., supra, 42 Cal.4th at p. 915.)
The court concluded: "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." (In re James F., supra, 42 Cal.4th at p. 918, italics added.)
Under the analysis used in James F., the key to determining whether error is structural or is amenable to harmless error analysis appears to be whether the errors "'defy analysis by "harmless-error" standards[]' [citation] [or are errors] that can 'be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt' [citation] . . . ." (In re James F., supra, 42 Cal.4th at p. 917.) The Supreme Court agreed that the error in the procedure in that case appointing a guardian ad litem for the father "did not result in any actual prejudice to him." (Id. at p. 916.) The record evidence all pointed to the conclusion that the father was incompetent and in need of a guardian ad litem and that he would have consented to the appointment had it been correctly explained to him. Nothing suggested the father was unable to express his wishes to the court, directly or through his appointed guardian, or that he lacked actual notice of the proceedings as they unfolded, and there was no suggestion that the guardian and the father's attorney failed to properly advocate for his parental interests. (Id. at pp. 916-918.)
The Supreme Court rejected application in dependency cases of the second rationale for structural error analysis recognized by the United States Supreme Court in criminal cases: that "prejudice is irrelevant and reversal deemed essential to vindicate the particular constitutional right at issue. [Citation.]" (In re James F., supra, 42 Cal.4th at p. 917.) It observed that the United States Supreme Court had never applied this rationale outside of the criminal case context and had never held that harmlessness is irrelevant when the right of procedural due process had been violated. (Ibid.)
For the reasons recognized in In re James F., supra, 42 Cal.4th 901, we reject application of the structural error reversible per se standard. The question, then, is under what standard do we evaluate this error of federal constitutional dimension. As we have observed, the recent case of Denny H. v. Superior Court, supra, 131 Cal.App.4th 1501 held "the harmless error standard should be that of clear and convincing evidence." (Id. at p. 1515.) The Denny H. court based its conclusion on the observation that "the clear and convincing standard of persuasion is applicable at various phases throughout a dependency" (id. at pp. 1514-1515), and reasoned that the clear and convincing evidence standard "honors 'both the special nature and purpose of dependency proceedings as well as the importance of the right to parent, and assigns an increased significance to the federal constitutional error established [over that of a statutory error which uses the simple harmless error standard].'" (Id. at p. 1515.)
In re Mark A. (2007) 156 Cal.App.4th 1124 disagreed with the use of the clear and convincing evidence standard advocated by Denny H. to measure error of federal constitutional dimension. Mark A. argued that "where federally guaranteed constitutional rights are trampled, heightened harmless error scrutiny is appropriate, regardless of the burden of persuasion applicable in the trial court. . . . The difficulty with the Denny H. reasoning is that it seems to conflate the burden of persuasion in the trial court with the burden of persuasion in the reviewing court." (In re Mark A., at pp. 1145-1146.) In re Mark A. also disagreed that the reviewing court "may appropriately balance a federally guaranteed constitutional right against a state-created right so as to 'honor[ ] "both the special nature and purpose of dependency proceedings . . . ."' [Citation.] The United States Constitution is the supreme law of the land. Heightened scrutiny of any violation of rights guaranteed under the Constitution is appropriate and need not be lessened for the purpose of honoring the '"special nature and purpose of dependency proceedings."' [Citation.]" (Id. at p. 1146.) Finally, Mark A. observed that the "weight of authority in California applies the Chapman harmless error standard in juvenile dependency proceedings where the error is of constitutional dimension. [Citations.]" (Ibid.)
We need not wade into these waters, as we are convinced the notice error in this case was harmless beyond a reasonable doubt. Therefore, necessarily, clear and convincing evidence showed the error to be harmless.
We are confident that "[d]etermining prejudice in this context does not necessarily require 'a speculative inquiry into what might have occurred in an alternate universe.' [Citation.]" (in re James F., supra, 42 Cal.4th at p. 915.)
The record clearly shows that the allegations in the section 300 petition would have been found true even if Father had received notice and had been appointed counsel. Father acknowledged that he and Mother had a history of engaging in acts of domestic violence and that there was a permanent restraining order in place. He also stated "true" in regard to allegation b-7 that he was not a member of the children's household and failed to support them. Moreover, the allegations against Mother were found true, and "'a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citation.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent. [Citation.]'" (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
Additionally, even if Father had received notice and had been appointed counsel, as the juvenile court explained, reunification services as to Father would have been denied. Father admitted that he had not seen his children since the youngest was six months old and that he would not recognize his children. Father had had no contact with the children in about four years, and he was incarcerated for a violent felony with a release date of October 13, 2011. Hence, as the lower court found, Father would have been denied services under either section 361.5, subdivision (e)(1) or section 361.5, subdivision (b)(12).
Welfare and Institutions Code section 361.5, subdivision (b) provides, "Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (12) That the parent . . . has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code." Assault with a deadly weapon is such an offense. (Pen. Code, §§ 667.5, subds. (c)(8), (c)(23), 1192.7, subd. (c)(31)).
On the record before us, we find no possibility that Father's presence at the jurisdiction/disposition hearing with appointed counsel would have resulted in anything other than the court's taking jurisdiction over the children and denying Father reunification services. In making its jurisdictional and dispositional orders, the court could not ignore Father's circumstances. Under the circumstances of this case, we find the errors in failing to properly notice Father of the jurisdictional/dispositional hearing and timely appoint counsel for Father was harmless beyond a reasonable doubt.
C. Denial of Section 388 Petition
Finally, Father argues that the juvenile court erred in denying his section 388 petition because there was new evidence and reunification was in the children's best interest.
A section 388 petition is an appropriate method of raising a due process challenge based on lack of notice. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481, 487-488.) Section 388 allows the juvenile court to modify an order if a parent establishes, by a preponderance of the evidence, that there are changed circumstances or new evidence and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the denial of a section 388 petition for an abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Here, as the lower court found, we agree with Father that there was new evidence. However, Father has not demonstrated in this appeal that the juvenile court abused its discretion by denying his modification petition on the basis of the children's best interests. In his section 388 petition, Father alleged the children's best interests would be served because he "has maintained written contact w/the minors provided letters, hand made gifts, cards, and a picture of himself." The juvenile court reasonably concluded it was not in the children's best interests to delay permanency. Although Father is to be commended for his efforts while incarcerated and for now wanting to be involved in his children's lives, the children had not seen him in about four years. Indeed, the two youngest children had no memory of him, and the two oldest had a limited memory of him and were not interested in visiting Father while he was incarcerated. On the other hand, the record demonstrates that the children were thriving with their relative foster mother. The children all had expressed a desire to remain with their foster mother and had developed a strong bond with her, referring to her as "mom."
The record here is clear that there was no showing of a father/child bond. Further, given Father's background, it is unlikely he would be able to complete a case plan within six months. (§ 361.5, subd. (a).) The children have a compelling interest in remaining in a permanent placement with their prospective adoptive parent and half siblings, to whom they are very bonded. "If a missing parent later surfaces, it does not automatically follow that the best interests of the child will be promoted by going back to square one and relitigating the case. Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them. Further, the very nature of determining a child's best interests calls for a case-by-case analysis, not a mechanical rule." (In re Justice P., supra, 123 Cal.App.4th at p. 191; accord, In re J.H., supra, 158 Cal.App.4th at pp. 182-183.)
The juvenile court did not abuse its discretion by concluding Father had not demonstrated the best interests of the children would be served by granting his section 388 petition. There was no error.
III
DISPOSITION
The petition for extraordinary writ is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
HOLLENHORST
J.