Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. J169843
Kline, P.J.
Appellant Kevin S. appeals from orders of the Alameda County Superior Court entered on October 8 and 21, 2008, and November 21, 2008, refusing to vacate the jurisdiction/disposition orders for his daughter L.S. He contends the failure of respondent Alameda County Social Services Agency (the Agency) to provide him with proper notice of the detention and the jurisdictional/dispositional hearings violated his statutory and constitutional due process rights and that automatic reversal is required. The court found there were errors in the notice provided Kevin S, but refused to find that such errors denied him due process. Kevin S. further contends that the finding at the six-month review hearing that he had been provided with reasonable reunification services was not supported by substantial evidence. We shall affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
First Dependency
Initial detention, jurisdiction and disposition. On January 1, 1997, one-year-old L.S. was delivered into protective custody with her older sister (who has a different father). A Welfare and Institutions Code section 300 petition was sustained by the juvenile court on January 30, 1997, finding true allegations under subdivision (b), that the mother had a substance abuse problem that interfered with her ability to care for the children, and under subdivision (g), that L.S. had been left without provision for support, as her father, Kevin S., was incarcerated at Santa Rita Jail and was unable to care for her. The social worker’s report prepared for the jurisdiction/disposition hearing of February 27, 1997, stated that both parents had substance abuse problems that interfered with their parenting abilities and that Kevin S. was at Santa Rita due to drug charges. At the uncontested February 27, 1997 hearing, the court adopted the findings recommended by the report, including the finding that the home of removal was the home of the mother. The court ordered the parents to participate in all aspects of the case plan, part of which required each parent to “[d]emonstrate a lifestyle free from drug dependency.” The children were placed in a foster home.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Six-month review. At the six-month status review set for August 12, 1997, both parents were out of compliance with their case plans and had not contacted the Agency in two months. Kevin S. had reported he could not attend substance treatment during the day because he was working. He never provided documentation for the 12-step meetings he claimed to be attending in the evening. The whereabouts of both parents were unknown. The last completed visit with the parents had been on May 24, 1997. They cancelled their next scheduled visit and had not been heard from since. The court ordered six more months of services.
Twelve-month review. The Agency report prepared for the 12-month review hearing recommended six more months of services for the mother, who had entered a residential drug treatment program and was in the late phase of the program. The report recommended termination of services for Kevin S., who had twice entered, but failed to complete, drug treatment programs. At the hearing held on January 20, 1998, the court ordered continued services to both parents.
Eighteen-month review hearing. The Agency report prepared for the 18-month hearing recommended both parents be granted an additional six months of reunification services. Both parents were living in a transitional housing program where they served as house managers. Kevin had participated in an out-patient drug treatment program, had participated in a weekly men’s group, and had completed an eight-week relapse prevention workshop; he was attending weekly AA meetings and had participated in drug testing in February 1998. The court again continued services and continued the 18-month review hearing to August 4, 1998. The continued 18-month review hearing was continued an additional two times and finally was held October 14, 1998. A memorandum report for the planned August 4, 1998 hearing, stated the parents had not been in compliance with the case plan after mother tested positive for cocaine in June, and did not test on three occasions in July. Kevin S. failed to participate in drug testing on July 17 and 20, 1998. The Agency recommended termination of services and a plan of long-term foster care. The Agency’s memorandum report for October 14, 1998, stated that the parents continued to be in noncompliance with the case plan. Moreover, they had moved without informing the worker. Kevin S. phoned the social worker to confirm a meeting, stating he was in Sacramento for two days, working for Office Max. When he did not show up for the meeting, the worker discovered he had never been employed by either Office Max or Office Depot. As of the report date of October 8, 1998, neither parent had visited L.S. since May 1998. The court ordered a section 366.26 hearing to be set for February 5, 1999.
Permanent plan hearing. The Agency’s report prepared for the section 366.26 hearing recommended a plan of long-term foster care rather than guardianship or adoption. The foster mother happened to see the parents on the street in Hayward in December 1998, and asked them to contact her for visits with the children. They had not had contact with the children or the Agency since June 1998. A supervised visit took place in late December 1998. The parents met with the worker on January 20, 1999, and expressed an interest in continuing visits. The Agency recommended the court’s continuing jurisdiction to provide support for the caretaker with supervised visits and financial assistance. The court adopted the Agency’s recommendations on February 5, 1999.
Permanent placement program review of July 14, 1999. The Agency’s permanent placement program report recommended continuation of reunification plans for both parents. It advised that the children had been moved to a new foster placement due to the pending decertification of the former home. The children had not had visits from either parent during the reporting period. Kevin S. had left a phone message with the Agency on June 9, 1999, but when the worker returned the call the next day she was told it was a shelter, appellant had moved out, and his whereabouts were unknown. A further report and review hearing was set for January 5, 2000. At that hearing, the report recommended the children be continued in long-term foster care, where they were adjusting well. Mother was in a drug treatment residential program and had started corresponding with the children. Kevin S. met with the social worker on November 19, 1999, at a recovery center where he informed the worker he was in intensive drug treatment. A further review hearing was set for June 14, 2000.
Post-permanent placement status review hearings. There followed a long series of post-permanent placement status review hearings:
As of the report prepared for the June 14, 2000 hearing, the Agency recommendation continued to be long-term foster care with the continuation of the original reunification plan. Kevin S. had made sporadic phone calls to the Agency regarding visits, but had not had contact with the children. There was no mention of his participation in a drug treatment program. Both children were scheduled for therapy to help them with the rejection they had experienced from their parents. From December 1998 to November 2001, Kevin S. had no visits with L.S. In August 2000, L.S. and her sister were placed in a new foster home after substantiated allegations of physical abuse toward another foster child in the former foster home. The parents moved to Michigan in June 2001, and returned sometime in October 2001. They had no documentation showing participation in any drug rehabilitation program. The parents had a supervised telephone visit with the children on November 15, 2001, and a one-hour supervised community visit on December 20, 2001. That was Kevin S.’s last contact with the children for a year and a half.
The parents did not show up at a scheduled meeting with the worker on April 2002, and there had been no further contact from either parent. Their phone had been disconnected and there was no response to the worker’s letters sent in September 2002. They had not appeared in their drug rehabilitation program since April 2002.
The parents surfaced again before the status review hearing on August 12, 2003. A one-hour, supervised visit occurred on July 19, 2003. Future visits were planned to begin once monthly, then more frequently. Kevin S. had completed a 30-day detox period at a residential program, but had not stayed for the recommended 90-day program the counselor felt was necessary. He had left the program to live in transitional housing, but when the social worker phoned on July 30, 2003, she was told that Kevin S. was no longer there. By January 20, 2004, both parents had again disappeared. Kevin S. had last contacted the Agency on July 28, 2003, to request a visit.
After 10 months of remaining out of contact, the mother contacted the worker on May 13, 2004, and advised the worker that she had enrolled in another drug treatment program. Kevin S.’s whereabouts remained unknown.
Kevin S. contacted the Agency on January 19, 2005, but was vague about what he had been doing for the previous year and a half. He stated he was now working, was no longer on probation, was clean and sober, and had lost the worker’s number. At his request, the social worker arranged visitation. He had two one-hour supervised visits on March 2 and April 13, 2005. Mother had completed 13 months of sobriety in her program and was regularly visiting the children. The parents stated they were not a couple and the worker arranged separate visits for each parent. Kevin S. stated he wanted to reunify with the children and he agreed to random, weekly drug testing. He tested positive for cocaine on May 11, 2005, and thereafter missed five drug tests. By July 2005, the worker ceased testing as Kevin S. was no longer complying. Arranging visits for Kevin was difficult because he did not confirm the visits a day ahead as he had agreed to do. When visits were canceled for lack of confirmation, he became angry. He was argumentative and made blatantly false statements as to what the worker had agreed to. He missed a visit on May 19, 2005, and did not request any further visits. By May 2006, the worker had no information on the current circumstances of Kevin S., who had not contacted the children since his last visit on April 13, 2005. Mother was making excellent progress on her case plan. She reported being clean and sober since April 2004, she had obtained permanent housing, and was supporting herself through SSI and working. The goal was for L.S. to reunify with her mother in August 2006.
The Agency’s interim review report prepared for a special hearing on February 1, 2007, recommended that L.S. be returned to her mother’s custody and the dependency continue with family maintenance services. Kevin S. had had no contact with the Agency and/or the children since May 2005. His then current situation was unknown to the Agency. He contacted the family preservation worker on January 23, 2007, stating he intended to attend the hearing planned for February 1, 2007, but he did not show. He reported that he was working full time, but was not willing to give employment information. He confirmed that he continued to reside at an address on Corpus Christi Road in Alameda, and that he had received the interim review report dated February 1, 2007, which was sent to that address. It had been nearly two years since his last visit with L.S in April 2005. At the February 1, 2007 hearing, the court set aside its previous placement order and ordered the dependency to continue with L.S. residing in the home of her mother with family maintenance services.
Dismissal of the dependency. The report prepared by the Agency for the family maintenance review hearing of July 24, 2007, related that mother had stated she was three years four months clean and sober. She had been submitting to weekly drug tests, all of which were clean. Kevin S. had stated he had been on disability from work for medical reasons. He claimed to have four years clean from all substances (but had tested positive for cocaine on May 11, 2005). He kept in touch with L.S. by telephone and had a face-to-face supervised visit with her on July 6, 2007, after L.S. expressed that she wanted to see him. According to the report, Kevin S. presented well during the visit and seemed enthusiastic about becoming a regular part of L.S.’s life. At the July 24, 2007 hearing, the court followed the recommendation of the Agency and dismissed the dependency for L.S., giving physical custody to the mother and joint legal custody to both parents.
Second Dependency
A new petition. On April 8, 2008, the Agency filed a new petition on behalf of L.S. under section 300, subdivisions (b) and (g). The petition alleged that on or about April 4, 2008, the mother contacted child protective services and wanted L.S. brought into custody because the mother could no longer care for her. The mother stated the child was depressed and was stressing out the mother; the mother and L.S. agreed L.S. should live in the home of the previous foster parent; that mother and Kevin S. have had a long history of substance abuse which renders them unable to care for the child; and that mother has an open case with the child’s sister. The petition further alleged that the mother’s current whereabouts and her ability to provide and care for the child were unknown. It also alleged that Kevin S.’s current whereabouts were unknown and his ability to provide and care for the child was unknown. Kevin S.’s address was incorrectly stated in the petition to be the same as the mother’s address in Oakland, rather than his last known address on Corpus Christi Road in Alameda.
Detention hearing of April 9, 2008. The Agency’s detention report recommended L.S. be detained. It incorrectly listed Kevin S.’s address, but also stated, “The father’s whereabouts are unknown.” The proof of service indicated the notice of hearing was incorrectly served on Kevin S. at the mother’s address. Neither parent appeared at the detention hearing. The court ordered the child be detained and reunification services be provided if appropriate.
Jurisdiction/Disposition hearing of April 23, 2008. The Agency’s jurisdiction/disposition report prepared for the April 23, 2008 hearing recommended that L.S. be placed out of home. It again incorrectly listed Kevin S.’s last known address as that of the mother. It also stated incorrectly that the father’s last known address was in Oakland (it was in fact in Alameda) and that it was unknown whether he had had contact with the child. The proposed case plan included services for Kevin S. On April 23, 2008, county counsel filed “Edits to the Recommendations” of the report, recommending that services not be provided to Kevin S. under section 361.5.
Specifically, the “Edits” added a new paragraph to the recommendations of the jurisdiction/disposition report: “ ‘The Agency is not required to provide reunification services to the presumed father Kevin [S.] pursuant to Section 361.5, that the presumed father was given reunification services from 02/27/1997 to 10/14/1998 and failed to reunify with the child. In spite of these services, the presumed father has not alleviated or mitigated the problems causing initial dependency.’ ”
On April 23, 2008, the court adjudged L.S. a dependent child and adopted the Agency’s recommendations. The court ordered that the Agency was not required to provide reunification services to Kevin S, stating: “[T]he Agency is not required to provide reunification services to the presumed father Kevin [S.] pursuant to Section 361.5 in that the presumed father was given reunification services from February 27, 1997 to October 14, 1998 and failed to reunify with the child. In spite of those services, the presumed father has not alleviated or mitigated the problems causing [the] initial dependency.”
Kevin S. contacts the Agency. Kevin S. phoned the social worker on July 8, 2008, to make his whereabouts known. On July 16, 2008, a hearing was held and counsel was appointed to represent him. A CASA referral form filed on October 7, 2008, stated, “Minor is refusing to visit w/ father.” At the six-month dependency review on October 8, 2008, the court continued the hearing at Kevin S.’s request to October 21, 2008. The Agency’s status review report prepared for the six-month review hearing recommended that L.S. remain a dependent, that she remain in out-of-home care, and that reunification services be terminated for the mother. It further stated that Kevin S. had spoken to the worker and had said he would like L.S. placed in his care. His address at that time was on Martin Luther King Jr. Way in Oakland. The report related that Kevin S. had phoned the worker on July 8, 2008. It continued: “Unfortunately, the presumed father had become very irate during his telephone calls, and due to having difficulty discussing such topics as visitation and the Agency’s involvement in this case, communication with the father has been challenging. He has demonstrated an ability to make telephone calls complain [sic] to the Agency and his attorney but has not demonstrated his ability to follow through in getting his needs met. An example is that he telephoned the Child Welfare Worker, Child Welfare Supervisor, FFA, and his attorney to complain about not having visits, but when presented with solutions, was non-responsive to all parties. The presumed father’s living circumstances and employment status are unknown at this time.” The report further stated that L.S. “has not visited in person with her mother or her father during this reporting period. The minor is aware that both her mother and her father have telephoned in an attempt to speak with the minor and check on her well being....” The report further relates that after Kevin S. called seeking visitation, the worker asked L.S. if she was willing to have contact with her father. L.S. was hesitant, but agreed to do so. The foster family worker was asked to arrange for a supervised visitation and left several messages in mid-August for the father to return their call so that they might confirm the visit date, time and transportation, however father did not return the calls. When the social worker spoke with Kevin S., in late August, he said he had not received any messages from the foster family worker regarding visitation. In the meantime, “[L.S.] changed her mind and decided she did not want to visit her father because she did not want to be let down and disappointed again.” The social worker requested father’s attorney to encourage Kevin S. to write to L.S. as a first step in attempting to reengage her in visitation. When the worker spoke to Kevin S. about this proposal, he became irate and hung up the telephone. The worker had received no further calls from Kevin S. as of October 7, 2008, the date of the report.
L.S. wanted to remain in her foster placement until emancipation. She was doing well in school and wanted to go to college as her older sister had done. She stated that all of her needs were being met and she felt very comfortable with her foster parents.
Six-month review hearing of October 21, 2008. At the continued hearing on October 21, 2008, the court ordered mediation of the visitation issues, where Kevin’s attorney complained the Agency was refusing to set up visitation. Counsel also stated she planned to submit a motion to set aside the dispositional findings made in April as to Kevin S., and the court set a hearing date for that motion. Mediation resulted in a partial resolution of the visitation issue. Kevin S. agreed to begin communicating with his daughter by writing letters, with the hope this would lead to her wanting to visit with him.
Status review hearing of November 21, 2008. On November 7, 2008, Kevin S. filed a motion to set aside jurisdiction and disposition orders. The motion argued that Kevin S. had been denied due process in the failure to notice him of the proceedings following the new detention of L.S. and the Agency’s failure to show due diligence in trying to notice him where it failed to attempt to contact him at his last known address. It further argued that the denial of services was unsupported by statute where reunification had been successful. At the hearing held November 21, 2008, the Agency offered Kevin S. reunification services and he accepted. Counsel for Kevin S. nevertheless maintained that the court must find a due process violation and that “the resolution is I want services for my client.” The court responded by finding on the record “that there was an error with respect to finding his address.” The court refused to find that “the Agency in their failure to use due diligence in locating [Kevin S.] violated [his] rights as to statutory notice.”
The Agency’s counsel made changes to the status review report recommendations “to remove [any] negative references to the father with respect to any failures to comply with the reunification plan; and... to provide him with reunification services at this time.” A requirement for parenting classes was removed from the plan upon his objecting to the requirement. The court ordered the Agency to provide services to L.S. and to Kevin S., who was ordered to cooperate with the worker and participate in the case plan. The court set the 12-month dependency review hearing for March 26, 2009, noting that services would not extend beyond 12 months from the date L.S. again entered foster care “unless the Court finds that there is a substantial probability that [L.S.] will be returned within a total of 18 months from the date of removal.”
Finding recommendations stricken from the report included a finding that Kevin S.’s extent of progress was none (¶ 9); a finding of detriment to the child based on the facts that Kevin S. had not participated regularly and made substantive progress in court-ordered treatment programs, complied with the case plan, or alleviate the causes necessitating out of home placement (¶ 10); a finding that he did not comply with the case plan, failed to engage in services, and was non-cooperative with the Agency and service providers (¶ 13); and a finding that he was unwilling to make decisions regarding the child’s needs for medical care (¶ 15). The court also found that “as a result of the father’s appearance and as a result of our providing him with reunification services, we will not be establishing a permanent plan today.” The court also gave the worker discretion to facilitate visitation, with input from the child’s therapist.
In the interests of justice, we take judicial notice, on our own motion, of the minute order from the March 26, 2009 hearing, held after the filing of the notice of appeal in this matter, at which the court found Kevin S.’s progress had been “partial,” ordered reunification services to continue to be provided him, including ordering that visitation be as frequent as possible consistent with the child’s well being, and identified a date for return or permanent placement of L.S. as October 9, 2009. The court continued the review to September 9, 2009. (Evid. Code, § 452, subd. (d).)
Appeal. On December 3, 2008, Kevin S. filed a notice of appeal from the orders of October 8 and 21, 2008 and November 21, 2008, asserting the Agency failed to provide him with due process notice of the detention and jurisdictional hearing, preventing him from having L.S. placed with him, and delaying the provision of reunification services.
DISCUSSION
“ ‘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.]” ’ (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106 (DeJohn B.).) [¶] ‘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.’ (Cal. Rules of Court, rule 5.534(k).)” (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.’ (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 (Jasmine G.).) ‘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.]’ (In re Justice P. (2004) 123 Cal.App.4th 181, 188 (Justice P.).) Thus, where a parent cannot be located notwithstanding a reasonable search effort, the failure to give actual notice will not render the proceedings invalid. (In re Claudia S. (2005) 131 Cal.App.4th 236, 247....)” (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.’ (Justice P., supra, 123 Cal.App.4th at p. 191.)” (In re J.H., supra, 158 Cal.App.4th at pp. 182-183.)
Our review of constitutional issues is de novo. (In re J.H., supra, 158 Cal.App.4th at p. 183; Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433.)
The Agency concedes, and the juvenile court found, that Kevin S. was not properly provided notice of the April 9, 2008 detention hearing or of the April 23, 2008 jurisdictional/dispositional hearing for L.S. Nor did the Agency make any showing of reasonable diligence in attempting to locate him. On this record—which contains no attempt by the Agency to demonstrate due diligence or to explain why it continued to notice Kevin S. at his wife’s Oakland address, when the Agency knew they were not together, and when the Agency’s own reports identified Kevin S. as living at an address on Corpus Christi Road in Alameda—we have no choice but to view the failure of notice as a complete failure to attempt to serve notice on him.
Kevin S. contends that, in these circumstances, his statutory rights to notice under the Welfare and Institutions Code, and his constitutional due process right to notice, were violated by the Agency. He further contends that the absence of notice in this case constitutes a structural error, requiring reversal per se. (DeJohn B., supra, 84 Cal.App.4th at p. 110; Jasmine G., supra, 127 Cal.App.4th 1109, 1116; see In re Arlyne A. (2000) 85 Cal.App.4th 591, 593, 599 (Arlyne A.); In re J.H., supra, 158 Cal.App.4th at p. 183.)
Unless their parental rights have been terminated, both parents must be notified of all proceedings involving their child. (§ 302, subd. (b).) Section 307.4 requires a good faith effort to immediately notify parents of a child taken into protective custody. Upon filing a petition for a detained child, the social worker must immediately give notice to the mother and father. (§ 290.1.) Section 366.21, subdivision (b), requires notice of all status review hearings. Section 358, subdivision (a)(3), specifies that where the agency seeks to bypass reunification services pursuant to section 361.5, the court must continue the proceedings and the social worker must notify the parents that reunification bypass is being sought.
The Agency asserts that the errors in notice procedures constituted harmless error and urges us to apply either the “reasonable probability” standard of People v. Watson (1956) 46 Cal.2d 818, 836, or the “clear and convincing” standard advocated in Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515 (Denny H.), which used the clear and convincing evidence standard rather than the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), but observed the error “would also be harmless under Chapman.”
Although it does not contend that Kevin S. “waived” his constitutional claim either below or in this court, the Agency nevertheless argues that “there is no clear statement” in Kevin S.’s opening brief “as to the type of due process violation he is claiming in relation to the admitted error of the Agency in providing him notice of the proceedings, i.e., whether it was statutory or constitutional.” We believe Kevin has adequately raised his claim that the lack of notice constituted both a statutory violation and a constitutional deprivation of due process. As the opening brief's reliance upon DeJohn B., supra, 84 Cal.App.4th 100 makes clear, the failure of notice has “ ‘constitutional implications.’ ” (Id. at p. 107.) “Notice is both a constitutional and statutory imperative.” (Jasmine G, supra, 127 Cal.App.4th at p. 1114; accord, In re J.H., supra, 158 Cal.App.4th at p. 182; see Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 556-558 (Judith P.) [the failure of the agency to serve its status review report on mother at least 10 days before the section 366.21 status review hearing was a statutory violation, but the Legislature set the statutory 10-day requirement as “the constitutional due process standard” and failure to comply with that due process standard rendered the section 366.21 hearing and termination of reunification services to mother fundamentally unfair and invalid].)
In the trial, counsel for Kevin S. not only sought reunification services, but also moved the court to vacate its jurisdiction and disposition orders for the due process failure to provide him notice.
Next, the Agency contends that because “this is not an appeal of termination of parental rights, and the minor was not removed from appellant’s custody when detained..., it would appear that federal constitutional considerations do not come into play.” The Agency cites no authority for this astonishing proposition, and we have found none. (See Judith P., supra, 102 Cal.App.4th 535 [termination of reunification services at § 366.21 status review hearing]; see Arlyne A., supra, 85 Cal.App.4th 592 [reversing jurisdictional and due diligence findings and the adjudication of children to be dependents under § 300].)
We are persuaded that the failure of notice in this case not only violated statutory requirements, but deprived Kevin S. 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 In re J.H., supra, 158 Cal.App.4th 174 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 (Jasmine G., supra, 127 Cal.App.4th at p. 1116; DeJohn B., supra, 84 Cal.App.4th at pp. 109-110), errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice. (In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913; Justice P., supra, 123 Cal.App.4th at p. 193.)” (In re J.H., 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. In re 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.’ (United States v. Gonzalez-Lopez [(2006)] 548 U.S. [140,] 150.)” (In re James F., at p. 915.) 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, supra, 386 U.S. 18, or the “clear and convincing evidence” standard promoted by Denny H., supra, 131 Cal.App.4th 1501, 1514-1515. (In re 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., 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....” (In re 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 by In re 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’ [(Arizona v. Fulminante (1991) 499 U.S. 279, 309)] [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.4that 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.) The court 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., 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; see Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (Lexis Nexis 2009) § 2.194[2], pp. 2-491 through 2-494.)
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., supra, 131 Cal.App.4th 1501, to measure error of federal constitutional dimension. In re 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....” ’ (Denny H., supra, 131 Cal.App.4th at p. 1515.) 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.” ’ (Denny H., at p. 1515.)” (In re Mark A., at p. 1146.) Finally, In re 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.]” (In re Mark A., at p. 1146; see also Patton, To Err Is Human, To Forgive, Often Unjust:—Harmless Error Analysis In Child Abuse Dependency Proceedings (2009) 13 U.C.Davis J. of Juv. Law and Policy 99, 131-141.)
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.
Kevin S. argues that any assessment of prejudice to him from the lack of notice is impossible as we can only speculate as to what might have occurred had he been present at the jurisdiction/disposition hearing. He further argues that had he been properly noticed, it is unlikely that the petition would have been sustained as to him under subdivision (g) on the basis that his whereabouts were unknown. He contends that he might well have appeared at the disposition hearing to dispute the bypass of services and would likely have received services in the new dependency, eight months earlier than he otherwise received them.
The Agency asserts that the notice error was harmless under a clear and convincing evidence standard, as jurisdiction and placement orders would not be different had he been present, arguing that “the Agency would not likely have been required to provide reunification services” to Kevin S. had he been present, as he was ineligible for services based on his history of chronic use of drugs and resistance to treatment. (See § 361.5, subd. (b)(13).) Finally, the Agency asserts the findings that Kevin S. argues to reverse, e.g., the finding at the jurisdiction/disposition hearing that notice had been provided to him according to law, that the lack of notice did not amount to a due process violation, and that he was not entitled to reunification services, were effectively corrected by the juvenile court.
We are confident that “determining prejudice in this context does not necessarily require ‘a speculative inquiry into what might have occurred in an alternate universe.’ [Citation.]” (ln re James F., supra, 42 Cal.4th at p. 915, quoting United States v. Gonzalez-Lopez, supra, 548 U.S. 140, 150.)
Although counsel for Kevin S. argued below that he wanted physical custody of L.S., on appeal, Kevin S. does not argue he would have sought physical custody or that there was any possibility that the court would have granted him physical custody had he appeared at the jurisdiction or disposition hearing. Nor does he contend he would have put forth an alternative caregiver or that the court would have done anything other than take jurisdiction over L.S. and place her in the same long-term foster home in which she and her sister had been placed successfully from August 2000, until L.S.’s reunification with her mother and dismissal of the dependency on July 24, 2007.
On the record before us, we find no possibility that Kevin S.’s presence at the jurisdiction/disposition hearing would have resulted in anything other than the court’s taking jurisdiction over the child and placing her with the foster parent. That record includes Kevin S.’s repeated failures to comply with previous reunification requirements, whether related to drug treatment and testing or visitation with L.S. The gaps in visitation alone were huge, sometimes encompassing more than a year or two at a time between visits. In making its jurisdiction and disposition orders, the court could not ignore these previous failures, even though they occurred in the prior dependency that had been dismissed upon L.S.’s reunification with her mother. L.S. had never reunified with Kevin S., had not been removed from his physical custody at the beginning of the new dependency, had not lived with him since her initial removal in 1997, and had only sporadic visitation with him over the course of more than 11 years. The court would doubtless have found under section 361.2, subdivision (a), that placement with Kevin S. at that time “would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
Nevertheless, we do not accept the Agency’s claim that the court necessarily would have denied Kevin reunification services had he been present at the jurisdiction/disposition hearing. “Where jurisdiction has been terminated... the parent-child relationship is restored to its former status, free from governmental interference absent extraordinary circumstances, and a new dependency proceeding must include all the statutory provisions designed to protect that relationship.” (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1189 [holding mother who had successfully reunified was entitled to 12 months of services, absent findings that the case fell within one of the enumerated exceptions of § 361.5, subd. (b)].) Although it could have denied him services under section 361.5, subdivision (b)(13), the court would not have been compelled to do so. The court’s award of services to appellant at the six-month review in November 2008 belies that it necessarily would have denied him services had he appeared at the jurisdiction/disposition hearing seven months earlier.
Nevertheless, considering the record as a whole, we believe the court’s order of reunification services at the six-month review remedied any possible harm from the initial denial of services. Not only did the court order six months of appropriately tailored reunification services to Kevin S., but it struck it’s previous findings made at the jurisdiction and disposition hearing insofar as the findings were made as to him. Kevin S. was able to start with a clean slate on the current dependency. Moreover, any possible doubt that the notice error was harmless beyond a reasonable doubt was set to rest by the provision of six more months of additional reunification services to Kevin S. at the March 26, 2009 status review hearing.
Kevin argues that the denial of eight months of reunification services was time lost from his ability to reunify with L.S., pointing out that L.S. appeared to want visits when he initially reappeared in this dependency, but later refused to see him. This argument is somewhat disingenuous, given that the Agency made several attempts to arrange visits as early as mid-August, without a response from Kevin S. who, until the November 2008 hearing, also rejected the Agency’s attempts to provide solutions for L.S.’s understandable reluctance to visit with him. Moreover, it appears that Kevin S. has made sufficient progress toward reunification in the six months of services provided him, that the court has extended his services for an additional six months—to 18 months beyond the initial detention. (See § 361.5, subd. (a)(2).) In the circumstances, the error in failing properly to notice Kevin S. of the new dependency, jurisdiction and disposition hearings was harmless beyond a reasonable doubt.
“[C]ourt-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent... if it can be shown,... that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent... within the extended time period or that reasonable services have not been provided to the parent or guardian....” (§ 361.5, subd. (a)(2).)
Kevin argues that the juvenile court’s finding at the six-month review hearing that the Agency had provided reasonable services was not supported by substantial evidence. He does not attempt to explain how our reversal of that finding would change the outcome or prejudice him, given that the court reversed its previous denial of services at the six-month review and ordered services. In reviewing the sufficiency of the evidence of reasonable services, we consider the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference. (In re Mary G. (2007) 151 Cal.App.4th 184, 206; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
On November 21, 2008, the court found that reasonable services had been offered. The finding does not specify the nature of services to which it refers. With respect to Kevin S., the report prepared for the status review hearing states: “Reasonable efforts and services have been provided to the father in that the [worker] has attempted on multiple occasions to organize supervised visitation for the father, including transportation. However, the father has presented as verbally assaultive, blaming, and disrespectful in his communications with the Agency and non-responsive to solutions offered. The [worker] has been available to the father by telephone or in person to discuss the case as needed and to answer any questions or concerns he may have had.” We conclude that substantial evidence supports the court’s finding that reasonable services had been provided to Kevin S.
DISPOSITION
The challenged orders are affirmed.
We concur: Haerle, J., Richman, J.
Although not cited by Kevin S., we also note that section 291 requires that notice of a jurisdiction or disposition hearing be given to parents, and further provides: “(c) Notice shall be served as follows: [¶] (1) If the child is detained, the notice shall be given to the persons required to be noticed as soon as possible, and at least five days before the hearing, unless the hearing is set less than five days and then at least 24 hours prior to the hearing. [¶]... [¶] (d) The notice shall include all of the following [specified information] [¶] (e) Service of the notice of the hearing shall be given in the following manner: [¶]... [¶] (2) If the child is detained and the persons required to be noticed are present at the initial petition hearing, they shall be noticed by personal service or by first-class mail....”