Filed 7/12/21 In re M.R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re M.R. et al., Persons 2d Juv. No. B308711
Coming Under the Juvenile (Super. Ct. Nos. 20JV00147,
Court Law. 20JV00148)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD WELFARE
SERVICES,
Plaintiff and Respondent,
v.
S.H. et al.,
Defendants and Appellants.
S.H. (Mother) and S.R. (Father) appeal from the
juvenile court’s order terminating their parental rights as to their
son M.R. and daughter E.R. (the children). (Welf. & Inst. Code,
1
§ 366.26.)1 They contend: (1) their failure to file a petition for
extraordinary writ does not preclude this appeal, and (2) their
counsel rendered ineffective assistance. Father further contends
his parental rights were terminated without due process of law.
We affirm as to Mother and reverse as to Father.
FACTUAL AND PROCEDURAL BACKGROUND
Facts regarding Mother
Mother began using methamphetamine at the age of
12. In approximately 2018, she began using heroin daily. She
participated in several substance abuse programs but admitted
that she continued to use methamphetamine on weekends while
enrolled in programs. Since age 12, her longest period of sobriety
was 13 months (January 2015 to February 2016).
In 2013, Mother tested positive for
methamphetamine during two prenatal visits and during
delivery of M.R. The department opened a Voluntary Family
Maintenance (VFM) case. During the VFM, mother was referred
to a residential program. She was on probation for driving under
the influence and reported she was enrolled for treatment at
Central Coast Headway and at Zona Seca. She later reported she
was no longer willing to enter residential treatment.
Later that year, when Mother was arrested for
firearm and narcotics violations, the VFM was terminated
because both parents were incarcerated and neither was
available for services. The criminal court placed Mother on drug
diversion. She did not successfully complete the program and
criminal proceedings were reinstated.
Another VFM was opened in 2014 because, while
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
drunk, Mother dropped four-month-old E.R. several times. She
was convicted of willful child cruelty. Mother again participated
in a substance abuse program.
In December 2019, as a condition of pretrial release
for first degree residential burglary, Mother agreed to attend
Alcoholics Anonymous twice a week or enroll in Coast Valley
treatment. The criminal court later ordered her to complete the
Coast Valley program. Mother felt the program “was too much
for her then” and instead admitted herself to a detox program.
In January 2020, the court ordered her to test at the
probation department that day or the next day. Nine days later,
the probation department advised her that she was in violation of
her pretrial supervision and was required to come to court in five
days. She failed to appear and the court issued a bench warrant.
In March 2020, the criminal court noted that she was in detox,
and ordered her to remain in the program. She completed the
detox program March 10, but twelve days later, she overdosed on
heroin while the children were in the room. She was taken to the
emergency room, leaving the children with an unidentified male.
The children were placed with their maternal grandparents.
The detention report prepared for the March 27
hearing states, “The mother was referred to call ACCESS and
understands she would best benefit from a residential program.”
Mother told her probation officer that she completed screening
through the ACCESS line, which referred her to Recovery Way.
But ACCESS and Recovery Way denied that a referral had been
made. The probation officer stated that “mother was not in
compliance with the terms of her probation and she was expected
to be in drug treatment.” Mother asked the probation officer if
she could attend Coast Valley outpatient treatment instead of
3
residential treatment. The probation officer said she was
required to enroll in residential treatment as recommended by
ACCESS.
In April, a manager at Recovery Way stated that she
had not received a referral from ACCESS for Mother, but Mother
had called and said she had been referred for detox. Recovery
Way did not have detox beds available and told Mother she would
not be appropriate for the residential program until she
completed opiate withdrawal at detox. Mother enrolled in
outpatient services at Coast Valley in May, and was referred to a
doctor for medication assisted treatment.
Mother had an appointment in May to enter
residential treatment at Recovery Way but missed her intake
appointment. She enrolled thirteen days later. At intake, she
tested positive for heroin and methamphetamine, and admitted
using those drugs the previous two days.
Between March and June, Mother visited the
children five times on the telephone and five times via video, and
missed four scheduled visits. She visited in-person five times in
August and three times in September. The Court Appointed
Special Advocate described Mother’s visitation as “very sporadic.”
Facts regarding Father
In 2014, Father was charged with dissuading a
witness by force or threat of force (Pen. Code, § 136.1, subd. (c)(1))
and other crimes. He was sentenced to 16 years in state prison.
At the time sentence was imposed, M.R. was two years old and
E.R. was 15 months old.
Mother told the department she was “in [a]
relationship with the father when he was sentenced to prison;
however, their relationship ended shortly thereafter and she has
4
not spoken to him in nearly six years.” The
jurisdiction/disposition report stated that the children “do not
have an established relationship” with Father.
Juvenile court proceedings
A dependency petition was filed in March 2020,
pursuant to section 300, subdivisions (b)(1) (failure to protect), (g)
(Father incarcerated without provision for support) and (j)
(sibling abused or neglected). Father was listed on the children’s
birth certificates, which were attached to the detention and
section 366.26 reports.
Mother appeared at the detention hearing. Father
was not given notice of the hearing and did not appear. Mother
confirmed that Father was “the alleged father,” but the court did
not make further inquiry regarding parenthood.
Attorney Jessica Martinez was appointed for Mother.
Attorney Erin Moore was appointed for Father as an “alleged
father.” The court found a prima facie case that the children
came within section 300.
At the request of Mother’s counsel, the court ordered
that she be provided services, including substance abuse
treatment. Mother was granted a minimum of four hours per
week of monitored visitation. All visitation was virtual due to
COVID-19. Father’s counsel said nothing at the hearing, and
visitation for Father was not discussed.
The court ordered the prison to produce Father for a
May 21 jurisdiction/disposition hearing. The department mailed
notice of the hearing to the prison addressed to Father; a certified
mail receipt was signed by an “Agent.” The department also sent
letters requesting that Father contact them. On May 6, Father
returned one of the letters to the department and wrote on the
5
back that he wished to be present at the hearing and “take the
steps necessary to be custodial parent.”
Neither parent appeared for the initial
jurisdiction/disposition hearing. Father was not transported due
to COVID-19. The court noted that Father was the “alleged
father.”
After a pretrial conference that neither parent
attended, the court continued the case for a
jurisdiction/disposition hearing. All counsel waived notice.
Mother but not Father appeared at the hearing. The
department announced a “settlement” with Mother: she would
rest on jurisdiction and disposition and would receive visits four
hours a month supervised by the maternal grandmother, or if
grandmother was unavailable, two hours a month supervised by
the department. Counsel for both Mother and Father rested on
jurisdiction and disposition.
The court’s written findings state that the parents
knowingly and intelligently waived their right to a court trial,
their privilege against self-incrimination, and their rights to
confront and cross-examine witnesses, subpoena witnesses, and
present evidence, and that they understood the nature of the
allegations and possible consequences of their submission.
However, no such advisements or waivers occurred in the oral
proceedings, and the record does not include a written waiver of
rights.
The court received all reports into evidence. The
court sustained the petition. (§ 300, subds. (b), (g) & (j).) The
court bypassed reunification services for Mother based on her
prior resistance to court-ordered drug or alcohol treatment.
(§ 361.5, subd. (b)(13).) The court set a hearing for October 15 to
6
select a permanent plan (§ 366.26). All counsel waived notice.
The clerk mailed Father a notice advising him that
the court set a permanent plan hearing pursuant to section
366.26, and if he wished to appeal that ruling, he must file a
notice of intent to file a writ petition, and must file a writ petition
within 10 days of filing the record. A blank writ petition and
notice of intent were enclosed.
Neither parent filed a writ petition. The court issued
an order that the prison produce Father for the 366.26 hearing.
The 366.26 report included a letter from Father in which he
requested prepaid phone calls to the grandmother and the
children, discussed his pending application for early release from
prison pursuant to Proposition 57, and stated he would be a great
father when released on parole.
At the hearing on October 15, Mother was present
with counsel. Father was not present but was represented by
counsel, who stated she had sent him letters. The court ordered
that offers of proof be filed. Neither parent did so.
Both parents appeared at a pretrial conference on
November 5. Father’s counsel was not present, and Mother’s
attorney appeared for both parents. Counsel noted that Father,
who “remains alleged,” opposed terminating his parental rights,
but rested on behalf of both parents. The court terminated their
parental rights and found adoption to be the children’s
permanent plan.
DISCUSSION
Writ requirement
Ordinarily, an order setting a 366.26 hearing, “or any
findings subsumed therein, [cannot] be appealed unless earlier
writ review of any substantive claim was first sought and
7
denied.” (In re Zeth S. (2003) 31 Cal.4th 396, 413; § 366.26, subd.
(l)(1); Cal. Rules of Court, rules 5.590(b)2, 5.695(g)(6)-(g)(10),
8.450, 8.452.) Because the 366.26 referral was made at the
disposition hearing, the writ requirement applies to all orders
made at that hearing, including jurisdictional findings and denial
of reunification services. (Anthony D. v. Superior Court (1998) 63
Cal.App.4th 149, 153, 156; In re Tabitha W. (2006) 143
Cal.App.4th 811, 817.) Failure to file a writ ordinarily forfeits
the right to claim ineffective assistance of counsel at earlier
stages of the proceedings. (In re Meranda P. (1997) 56
Cal.App.4th 1143, 1150-1151 (Meranda P.).) But failure to file a
writ petition does not preclude appeal of the findings and orders
made at the 366.26 hearing itself. (Joyce G. v. Superior Court
(1995) 38 Cal.App.4th 1501, 1507 & fn. 3.)
Forfeiture pursuant to Meranda P. is not enforced if
doing so would violate due process. (In re Janee J. (1999) 74
Cal.App.4th 198, 208 (Janee J.).) The writ requirement may be
excused for “some defect that fundamentally undermined the
statutory scheme so that the parent would have been kept from
availing himself or herself of the protections afforded by the
scheme as a whole.” (Ibid.) The “defects must go beyond mere
errors that might have been held reversible.” (Id. at p. 209.)
Forfeiture regarding Mother
Mother claims her compliance with the writ
requirement is excused because her counsel provided ineffective
assistance. We disagree.
The court’s failure to obtain a personal waiver of a
contested jurisdictional hearing was error. When Mother’s
2 Rule references are to the California Rules of Court.
8
counsel “rest[ed]” on jurisdiction and disposition based on the
reports, she was “submit[ting] the jurisdictional determination to
the court based on the information provided to the court.” (Rule
5.682(d).) A submission requires the parent knowingly and
intelligently waive their right to a court trial, their privilege
against self-incrimination, and their rights to confront and
cross-examine witnesses, subpoena witnesses, and present
evidence. (Rule 5.682(b) & (e)(3).) The waiver must be personal
and cannot be “based only on counsel’s representations.” (In re
S.N. (2016) 2 Cal.App.5th 665, 672.) A juvenile court’s failure to
obtain a valid waiver of constitutional rights before the parent
submits on jurisdiction violates due process and is reversible
error unless it was harmless beyond a reasonable doubt. (Id. at
pp. 671-672.)3
The court’s failure to obtain Mother’s personal waiver
of a contested jurisdictional hearing was harmless beyond a
reasonable doubt because “[t]he evidence supporting a finding of
jurisdiction was overwhelming.” (In re S.N., supra, 2 Cal.App.5th
at p. 672.) The evidence established that Mother’s substance
abuse resulted in delivery of M.R. while Mother was positive for
methamphetamine. She dropped infant E.R. repeatedly when
she was drunk, was convicted of cruelty to a child, overdosed on
heroin in the children’s presence, and left the children in the care
3 The court’s written orders state that the required waivers
and findings were made. But they do not appear in the oral
record of the hearing, and the record does not include a written
waiver of rights (e.g., Judicial Council Forms, form JV-190).
Under these circumstances, the absence of waivers in the
reporter’s transcript or in a waiver form “‘is entitled to greater
credence’” and prevails over the court’s written findings. (People
v. Smith (1983) 33 Cal.3d 596, 599.)
9
of a stranger. Based on the evidence, counsel’s decision to rest as
to jurisdiction and disposition did not deny Mother “the
protections afforded by the scheme as a whole.” (Janee J., supra,
74 Cal.App.4th at p. 208.)
Nor was the juvenile court’s decision to bypass
reunification services for Mother a jurisdictional defect. (§ 361.5,
subd. (b)(13).) The bypass provision applies where, as here, the
parent failed to comply with an order for treatment in a criminal
case. (In re E.G. (2016) 247 Cal.App.4th 1417, 1427 [treatment
ordered as condition of diversion]; D.B. v. Superior Court (2009)
171 Cal.App.4th 197, 204 [treatment ordered as parole
condition].) Resistance to treatment may be based on a single
failure within three years. (In re B.E. (2020) 46 Cal.App.5th 932,
938.) Mother continued to use narcotics during and immediately
after completion of programs, and had been unable to maintain
sobriety for any significant period since 2016. Whether Mother
resisted treatment is not a jurisdictional issue, but a question of
fact reviewed on appeal for substantial evidence. (In re T.G.
(2015) 242 Cal.App.4th 976, 987.)
Mother relies on In re B.E., in which the Fourth
District, Division 3, “break[s] with the line of cases that have
interpreted subdivision (b)(13) as encompassing passive
resistance.” (In re B.E., supra, 46 Cal.App.5th at p. 934.) The
court held that the provision applies only to “active resistance”
where the parent refuses to attend or participate in a program.
(Id. at pp. 940-941.) In In re Brian M. (2000) 82 Cal.App.4th
1398, 1402, the same division previously held that “[p]roof may
come . . . in the form of resumption of regular drug use after a
period of sobriety.” Brian M. was followed by the First District,
Division 5, in D.B. v. Superior Court, supra, 171 Cal.App.4th at p.
10
206, and the Second District, Division 2, in In re Brooke C. (2005)
127 Cal.App.4th 377, 382-383. As noted by the Fourth District,
Division 3, in In re William B. (2008) 163 Cal.App.4th 1220, 1230,
a parent’s repeated drug use during and immediately following
treatment “cannot be considered a simple relapse; rather, it was a
resumption of drug use demonstrating resistance to treatment.”
In re B.E. is factually distinguishable from this case.
The parents in B.E. “participated in all of the services
recommended by the social worker” (In re B.E., supra, 46
Cal.App.5th at p. 937) and “enjoyed lengthy periods of sobriety
while participating in reunification services in prior cases” (id. at
p. 945). Mother here did not follow the probation department’s
directions to enter a program, delayed entry into programs,
continued to use drugs on weekends while in programs, and was
unable to maintain a year’s sobriety after 2016. The ruling
bypassing services did not violate Mother’s due process rights or
excuse compliance with the writ requirement.
Reduction in visitation did not excuse the
requirement to seek a writ because it is not a jurisdictional defect
that “fundamentally undermined the statutory scheme.” (Janee
J., supra, 74 Cal.App.4th at p. 208.) Once reunification services
were terminated, the focus shifted to the children’s permanency
and stability, and different statutes regarding visitation applied.
(In re D.B. (2013) 217 Cal.App.4th 1080, 1090-1091.)
The cases Mother relies on to excuse her failure to
seek a writ are inapposite. In Janee J., the court did not excuse
the writ requirement regarding the alleged failure of the juvenile
court to comply with several requirements, including notice that
parental rights could be terminated for failure to participate in
case plan services, adequate findings that return of the child
11
would create a substantial risk of detriment, a finding that the
parent had been offered six months of reasonable services, and
specification of the grounds to terminate parental rights. (Janee
J., supra, 74 Cal.App.4th at pp. 209-214.) In In re T.G., supra,
242 Cal.App.4th 976, the court did not resolve whether the
forfeiture rule applied but affirmed the trial court’s bypass of
reunification services on the merits.
This case is unlike In re S.D. (2002) 99 Cal.App.4th
1068, an appeal from termination of parental rights that found
counsel was ineffective at the jurisdictional hearing, even though
the parent had not appealed from that earlier hearing. The error
there “was entirely legal, and quite fundamental”—counsel was
not aware that jurisdiction pursuant to section 300, subdivision
(g), required not just that the parent was incarcerated but also
that they were unable to arrange for the children’s care. (In re
S.D., at pp. 1079-1080.) The issues raised by Mother here do not
involve an absence of jurisdiction. Accordingly, Mother has
forfeited an appeal of the order setting the 366.26 hearing, and
all orders on which it was based.
Termination of Mother’s parental rights
Mother is precluded from directly challenging the
order terminating her parental rights because she did not object
to it in the trial court. (In re Aaron B. (1996) 46 Cal.App.4th 843,
846.) Instead, she contends her counsel was ineffective when she
failed to provide an offer of proof for the 366.26 hearing.
Parents have a statutory and constitutional right to
effective counsel regarding termination of parental rights.
(§ 317.5, subd. (a); In re A.R. (2021) 11 Cal.5th 234, 246.) To
establish ineffective assistance of counsel, Mother must
demonstrate that “‘counsel failed to act in a manner to be
12
expected of reasonably competent attorneys practicing in the field
of juvenile dependency law,’” and “‘it is reasonably probable that
a result more favorable to [her] would have been reached in the
absence of the error.” (In re A.R., at pp. 251-252.) Mother does
not establish either requirement.
The department’s reports outlined the visits Mother
attended and those she missed. She does not describe what
additional offer of proof she could have made to establish she
“maintained regular visitation and contact” (§ 366.26, subd.
(c)(1)(B)(i)) or that giving her custody would “‘outweigh the
well-being the child[ren] would gain in a permanent home with
new, adoptive parents’” (In re Collin E. (2018) 25 Cal.App.5th
647, 663). Mother has failed to “prove prejudice that is a
‘“demonstrable reality,” not simply speculation.’ [Citations.]”
(People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Mother’s reliance on In re A.G. (2020) 58 Cal.App.5th
973, is unavailing. There, the mother submitted a detailed offer
of proof “demonstrating that the parent will present specific
evidence to support the [beneficial relationship] exception.” (Id.
at pp. 1006-1007.) Here, no offer of proof was submitted, and the
record contains no suggestion of the evidence counsel might have
offered.
Forfeiture regarding Father
Father contends his right to due process was denied,
and the denial was prejudicial, which excuses his failure to seek
an extraordinary writ. We agree.
1. Parenthood status
In dependency proceedings, fathers are divided into
four categories: de facto fathers, alleged fathers, natural
(biological) fathers, and presumed fathers. (In re Jerry P. (2002)
13
95 Cal.App.4th 793, 801.) A presumed father has greater rights
than an alleged father. (Ibid.) Only a presumed father is
entitled to reunification services (§ 361.5, subd. (a)) or custody
(§ 361.2). (In re Zacharia D. (1993) 6 Cal.4th 435, 451; In re
Jerry P., supra, 95 Cal.App.4th at p. 801.)
The juvenile court has a duty to inquire of the mother
and others as to presumed or alleged fathers, and shall attempt
to determine the child’s parentage. (§ 316.2, subd. (a); rule
5.635(a).) The inquiry may include factors such as marriage,
cohabitation, support payments, and whether any man has
formally acknowledged paternity, “including by signing a
voluntary declaration of paternity.” (§ 316.2, subd. (a); rule
5.635(b).) Although Father is listed on the children’s birth
certificates and Mother confirmed he was the father, the court
referred to him throughout the proceedings as the “alleged
father” and did not inquire further.
Father made clear his desire to become a custodial
parent when released from prison. As an alleged father, due
process required he be given “‘an opportunity to appear and
assert a position and attempt to change his paternity status.
[Citations.]’” (In re Paul H. (2003) 111 Cal.App.4th 753, 760.)
Father was not given that opportunity.
An alleged father shall be provided Judicial Council
form JV-505, Statement Regarding Parentage. (§ 316.2, subd.
(b).) The form allows him to state his position regarding
parenthood. Even when represented by counsel, form JV-505
acts as a “failsafe mechanism” to advise of the steps to establish
paternity. (In re J.W.-P. (2020) 54 Cal.App.5th 298, 308.) The
record does not show that the form was ever sent to Father. This
was error. (Id. at p. 306.) The error was not harmless because
14
providing the form “could have made all the difference to father.”
(Id. at p. 308.)
If the juvenile court had inquired, Father likely could
have established presumed fatherhood. Presumed fatherhood
may be established in several ways, including (1) by executing a
voluntary declaration of parentage, or (2) by receiving the child
into his home and openly holding the child out as his natural
child. (Fam. Code, §§ 7571, 7611; rule 5.635(c); In re Jerry P.,
supra, 95 Cal.App.4th at p. 802.) A parent who is not married to
the mother can be listed on the birth certificate only if he signs a
voluntary declaration of parentage. (Health & Saf. Code,
§ 102425, subd. (a)(4)(C).) Because Father was listed on the
children’s birth certificates, there is a presumption that he signed
voluntary declarations of parentage. (In re Raphael P. (2002) 97
Cal.App.4th 716, 738.)
In addition, the court knew Father was “in [a]
relationship” with Mother until he was incarcerated when the
children were young, but the court never inquired whether he
“receive[d] the child[ren] into [his] home” or held them out as his
natural children. Failure to consider elevating Father’s status to
presumed father excused the writ requirement because it
“fundamentally undermined the statutory scheme” and kept him
“from availing himself . . . of the protections afforded by the
scheme as a whole.” (Janee J., supra, 74 Cal.App.4th at p. 208.)
2. Absence at jurisdiction and disposition hearing
Father may challenge due process errors at the
jurisdiction and disposition stages in this appeal from the
termination of his parental rights because they “affected the
ultimate outcome of the proceedings.” (In re Christopher L.
(2020) 56 Cal.App.5th 1172, 1177, review granted Feb. 17, 2021,
15
S265910.)
Both alleged and presumed fathers, including those
who are incarcerated, have the right to appear at detention and
jurisdictional hearings. (§ 349, subd. (a); see §§ 290.1, subd.
(a)(2), 290.2, subd. (a)(2); rule 5.530 (f)(1)(A).) A jurisdictional or
dispositional hearing may not proceed unless the incarcerated
parent is present or has waived their appearance. (Pen. Code,
§ 2625, subd. (d); rule 5.530(f)(4).) Father was not at the hearing,
even though he expressed his desire to be present and did not
waive his appearance. His absence violated his right to due
process, and requires reversal unless the error was harmless. (In
re Jesusa V. (2004) 32 Cal.4th 588, 625; In re Christopher L.,
supra, 56 Cal.App.5th at p. 1177, review granted.) As discussed
below, the error was not harmless.
3. Waiver of trial rights
The juvenile court’s failure to obtain a valid waiver of
Father’s constitutional rights before he submitted on jurisdiction
violated his right to due process. The error is reversible because
it was not harmless beyond a reasonable doubt. (In re S.N.,
supra, 2 Cal.App.5th at pp. 671-672.)
4. Harmless error
On this record, it is not clear that Father would have
been denied reunification services if he had been present and
afforded his right to a contested jurisdictional hearing. (See In re
A.G., supra, 58 Cal.App.5th at p. 1015-1016.) The dependency
petition focused primarily on the effect of Mother’s substance
abuse on the children. (§ 300, subd. (b)(1).) The petition alleged
that Father was “incarcerated in prison leaving the children
without any provision for support” (§ 300, subd. (g)), but the
department’s reports provided little support for the allegations
16
against Father.
“There is no ‘Go to jail, lose your child’ rule in
California.” (In re S.D., supra, 99 Cal.App.4th at p. 1077.)
Instead, “the issue is whether, as of the time of the jurisdictional
hearing, [the parent] could arrange for the care.” (Id. at pp. 1077-
1078.) The children here were placed with grandparents. Had
Father been given the opportunity to contest jurisdiction, he
could have attempted to show that his incarceration did not
constitute failure to protect the children or leave them without
support. But the court “provided no hearing whatsoever.” (In re
Lesly G. (2008) 162 Cal.App.4th 904, 915.)
“[A]n incarcerated parent is entitled to reunification
services unless it would be detrimental to the child. (§ 361.5,
subd. (e)(1)).” (In re R.A. (2021) 61 Cal.App.5th 826, 839.) The
court may bypass reunification services for a parent who has
been convicted of a “violent felony” (§ 361.5, subd. (b)(12)), and
may provide services for such a parent only if it finds clear and
convincing evidence that reunification would be in the child’s best
interest (§ 361.5, subd. (c)(2)).
The department contends the “only way” Father
could have received a prison sentence of 16 years is if the court
imposed a 10-year enhancement for commission of a gang crime
that “is a violent felony.” (Pen. Code, §§ 186.22, subd. (b)(1)(C),
667.5, subd. (c)(20).) But that is not the only possible conclusion
to be drawn from the limited information in the record about the
criminal case. The court could have sentenced Father to 16 years
without including a “violent felony” enhancement.4 We therefore
4 The information regarding the criminal sentence is
contained in Father’s summary criminal history (“rap sheet”). It
lists three substantive crimes (Pen. Code, §§ 136.1, subd. (c)(1),
17
cannot assume the court would have denied him reunification
services.
Termination of Father’s parental rights
The same prejudicial due process violations that
excuse Father from the writ requirement also require that we
reverse the order terminating his parental rights.
Father was denied his right to be present at the
jurisdiction/disposition hearing and did not waive his right to a
contested hearing. We cannot conclude that Father would be
“‘doomed to failure’” if a contested hearing had been held. (In re
A.G., supra, 58 Cal.App.5th at p. 1016.) Because Father did not
have the opportunity to establish presumptive fatherhood, the
court did not consider reunification services. “We cannot assume,
based on this dearth of information, that had [Father] established
his paternity . . . he would not have received reunification
services.” (In re Paul H., supra, 111 Cal.App.4th at p. 762.) Had
the court granted reunification services, “it was within the realm
of reasonable probability” that his parental rights would not be
terminated. (In re A.J. (2019) 44 Cal.App.5th 652, 674.)
Accordingly, failure to afford Father his due process rights was
664/422, and 417, subd. (a)(1)), a prior serious felony conviction
(Pen. Code, § 667, subd. (a)(1)) and a prior prison term (Pen.
Code, § 667.5, subd. (b)). It notes “CRIM ST GANG” regarding
the charge of section 136.1. It does not specify which term was
selected from the sentencing triad for each offense, whether the
sentences were concurrent or consecutive, whether any of the
various gang enhancements specified in Penal Code section
186.22 were imposed, how many years, if any, were added for the
prior offenses, or whether any sentences were doubled pursuant
to the two strikes law (Pen. Code, § 667, subd. (e)(1)).
18
reversible error. (In re A.G., at p. 1016; In re Lesly G., supra, 162
Cal.App.4th at p. 916.)5
Conclusion
In summary, reversal is compelled as to Father
because he was denied his fundamental due process rights.
Although it is an unfortunate consequence that permanency will
be delayed, when due process is the issue it is not for us to
speculate about the outcome. The prognostication of the dissent
may turn out to be correct, but this is not a proper rationale to
deny Father his day in court. Assumptions are an unacceptable
substitute for due process.
DISPOSITION
The order terminating parental rights is affirmed as
to S.H. (Mother) and reversed as to S.R. (Father). The matter is
remanded to the juvenile court for further proceedings regarding
Father.
NOT TO BE PUBLISHED.
TANGEMAN, J.
I concur:
GILBERT, P. J.
5 Because it was reversible error for the court to fail to
inquire as to Father’s parental status, to hold the jurisdiction and
disposition hearing in his absence, and to allow submission on
the reports without a waiver of rights, we need not resolve the
additional contention that his counsel rendered ineffective
assistance when she failed to raise these issues. (See In re
J.W.-P., supra, 54 Cal.App.5th at p. 308.)
19
YEGAN, J., Dissenting.
I agree the judgment should be affirmed as to Mother. I
respectfully dissent as to the reversal for Father. Any error with
respect to Father’s not being personally present for the
dependency hearings and/or being deprived of procedural rights,
is harmless by any standard of appellate review. This is not
“structural error” requiring automatic reversal. At all times
during the dependency proceedings, Father was represented by
counsel. He was personally present at only one hearing. He was
not personally present at others because he was in prison and
locked down because of the covid pandemic.
If there is one thing to be learned by the trial court from
this reversal, it is that it must make a complete record of what
has transpired as to each parent. It does not appear that the
trial court intentionally or negligently trampled upon Father’s
due process rights concerning the children. Perhaps there were
unreported proceedings which could explain Father’s position in
the trial court. Perhaps trial counsel recognized the reality of the
situation: even though her client had procedural rights, there
was no arguable issue to present because Father was serving a
lengthy state prison sentence. Given Father’s non-relationship
with the two children, placement with the maternal
grandparents was about the best outcome that he could have
hoped for.
When Father was sentenced to state prison for 16 years,
the children were, respectively, 2 years and 15 months old. At
that point, even if Father is a “presumed father,” he had no
“established relationship” with the children. He was, and is, a
stranger to them. He had never “unified” with them. It appears
to me that absent “unification,” there can be no “reunification.”
1
And, of course, this begs the question of just how there could be
“reunification” in the confines of the California state prison
system.
Practically speaking, a 16-year prison sentence is
fundamentally incompatible with raising children. Childhood is
fleeting and the children cannot wait for Father to be released
from prison, even if he is released before serving his full term.
There is no miscarriage of justice here. Father has no
realistic hope of “reunifying” with the children because he will
not be released from prison before their childhoods are over. To
now vacate placement and start the dependency proceedings
anew, giving Father procedural rights, is, on this record, a
disservice to the children.
NOT TO BE PUBLISHED.
YEGAN, J.
2
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Nancy R. Brucker, under appointment by the Court
of Appeal, for Defendant and Appellant S.H. (Mother).
Deborah Dentler, under appointment by the Court of
Appeal, for Defendant and Appellant S.R. (Father).
Michael C. Ghizzoni, County Counsel, Lisa A.
Rothstein, Deputy County Counsel, for Plaintiff and Respondent.