L. A. Cnty. Dep't of Children & Family Servs. v. Carlos L. (In re Christopher L.), B305225

CourtCalifornia Court of Appeals
Writing for the CourtROTHSCHILD, P. J.
Citation56 Cal.App.5th 1172,271 Cal.Rptr.3d 147
Parties IN RE CHRISTOPHER L., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Carlos L., Defendant and Appellant.
Docket NumberB305225
Decision Date02 November 2020

56 Cal.App.5th 1172
271 Cal.Rptr.3d 147

IN RE CHRISTOPHER L., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
v.
Carlos L., Defendant and Appellant.

B305225

Court of Appeal, Second District, Division 1, California.

Filed November 2, 2020
As Modified on Denial of Rehearing November 12, 2020
As Modified November 24, 2020


Christopher Blake, under appointment by the Court of Appeal, for Appellant and Defendant.

Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

56 Cal.App.5th 1176

Christopher L., born in December 2017, and I.L., born in February 2017, are the children of appellant Carlos L. (Father) and V.L. (Mother), who is not a party to this appeal. Father was represented by counsel in connection with, and personally participated in, the Welfare and Institutions Code section 366.261 permanency planning hearing at which his parental rights regarding Christopher were terminated. He appeals from that termination based on the juvenile court having conducted the earlier jurisdiction/disposition hearing regarding both children in his absence and without counsel present on his behalf. Father had not provided a written waiver of his right as an incarcerated parent under Penal Code section 2625 to participate, personally or through counsel, in the jurisdiction/disposition hearing; to the contrary, in documents provided to the juvenile court before that hearing, Father requested that he be allowed to participate. Before the

56 Cal.App.5th 1177

jurisdiction/disposition hearing, the court was also presented with documents establishing that Father was entitled to "presumed father" status, which carries with it the right to appointed counsel. On these bases, Father argues that he was denied due process at the jurisdiction/disposition hearing, that these due process errors affected the ultimate outcome of the proceedings, and that, in any

271 Cal.Rptr.3d 152

case, they constitute structural error and trigger automatic reversal.

We agree with Father that the trial court erred, and that these errors affected the due process afforded Father at the jurisdiction/disposition hearing in that they denied him counsel at that hearing. But even errors of a constitutional dimension can be subject to a harmless error analysis in dependency proceedings, given the unique nature of such proceedings, unless it is impossible to assess prejudice without engaging in speculation. (See In re James F. (2008) 42 Cal.4th 901, 915–919, 70 Cal.Rptr.3d 358, 174 P.3d 180 ( James F. ); In re J.P. (2017) 15 Cal.App.5th 789, 800, 223 Cal.Rptr.3d 426. No such speculation is necessary here. The record clearly establishes that, had Father appeared and/or been represented by counsel at the jurisdiction/disposition hearing, Father would not have obtained a more favorable result. We decline Father's invitation to expand current law and deem reversible per se an error in dependency proceedings that is amenable to harmless error analysis. Accordingly, although we are troubled by the errors Father identifies in connection with the jurisdiction/disposition hearing, we conclude that they would not have affected the ultimate outcome of the dependency proceedings and affirm the trial court's order regarding Christopher.

Father's parental rights to Christopher's older sister I.L. were terminated in a separate order, which Father did not appeal. Instead, 18 months after the time for filing such an appeal expired, Father moved this court to apply the doctrine of constructive filing and "extend" Father's appeal regarding Christopher to apply to I.L. as well. But Father concedes that he would make the exact same arguments in an appeal regarding I.L. that he made regarding Christopher, and that these arguments apply in the exact same way to both children. Given our conclusion that Father's arguments regarding Christopher do not warrant reversal, permitting Father to pursue them with respect to I.L. would serve no purpose. Therefore, we deny Father's motion.

56 Cal.App.5th 1178

FACTUAL AND PROCEDURAL BACKGROUND

A. Father's Older Children From a Previous Relationship

Father has three older children (not with Mother) who were the subject of separate dependency proceedings, and with whom he failed to reunify. The dependency proceedings regarding Father's older children were initiated in 2013 based on issues related to substance abuse by those children's mother. Father was incarcerated at the outset of the separate proceedings, released approximately three months thereafter, then rearrested for a drug-related offense and returned to prison approximately three months after that release. During the interim period when Father was not in prison, he failed to comply with juvenile court orders, which included an order for regular drug testing. Father's reunification services were terminated. As of the most recent information in the record, two of Father's older children are receiving permanent placement services with a plan of legal guardianship.

B. Family Background

Father is in his late 30's and has an extensive criminal record, as a result of which he was required to register as a

271 Cal.Rptr.3d 153

controlled substance offender.2 Father's criminal history spans over a decade and includes a conviction for robbery, multiple convictions for possession of a controlled substance or being under the influence of a controlled substance, firearms offenses and multiple parole violations.

Father and Mother have been married since December 2014. In February 2017, Mother gave birth to I.L.; Father's name is listed on I.L.’s birth certificate.

Mother and Father stopped living together in approximately April 2017, when Father was arrested for robbery, and Mother began living with a man named J.M. Mother and I.L. moved in with J.M. at some point in 2017.

Father was convicted of robbery in October 2017 and began serving a seven-year prison sentence. Months later, in December 2017, Mother gave birth to Christopher. Father's counsel represented during the hearing before this court that Father is eligible for parole in late 2020.

56 Cal.App.5th 1179

C. Section 300 Petition Regarding I.L. and Christopher

On December 28, 2017, the Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition on behalf of newborn Christopher and 10-month-old I.L., alleging they were at risk due to, inter alia, Christopher being born with a positive toxicology screen for amphetamines and Mother having a history of substance abuse. The petition further alleged risk to both children based on J.M. (who was initially identified as Christopher's father) having a history of substance abuse, and Father's extensive criminal history and status as a registered controlled substance offender. The petition lists Father's address as that of Sierra Conservation Center, the facility at which he was incarcerated at the time.

D. Detention Hearing and Detention Report

The detention report listed Father as the alleged father of I.L. and J.M. as the alleged father of Christopher. The report noted that Mother and Father were married, and their marriage certificate was attached to the detention report. The report summarized an interview with J.M., during which J.M. indicated Mother had a young daughter who was not J.M.’s child, and that he was "pretty sure [Christopher] [was] not [his] baby." DCFS further reported that, on the day Christopher was born, Mother indicated J.M. was the father, but that she later told social workers she was uncertain who Christopher's father was.

DCFS provided written notice of the detention hearing to Father at the Sierra Conservation Center address. The detention hearing took place on December 29, 2017, at which time the court determined that notice had been provided as required by law. Neither parent, nor counsel for either parent, appeared. The court noted Father was in state custody and a statewide search was ordered for him. The court postponed findings regarding paternity of either child. The children were detained from Mother, Father, and J.M., and ultimately placed in the custody of the maternal great aunt S.M. (the maternal aunt). The jurisdiction/disposition hearing was set for March 9, 2018, and DCFS ordered to give notice. DCFS sent Father such notice at the Sierra Conservation

271 Cal.Rptr.3d 154

Center address by certified mail and included his correct inmate identification number. The notice listed both children on it and attached a copy of the petition.

Apparently in response to this notice, on February 21, 2018, Father wrote to DCFS social worker Magdalena Elorriaga, thanking her...

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