In re S.P., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, v. S.P.

Mother and father are not married, and have two children

together: “baby” (who is at issue in this dependency proceeding) and

“son,” who was in the dependency system since birth due to the

parents’ drug abuse and was adopted during the pendency of baby’s

case. Mother also has five older children – none with father – all of

whom were prior dependents of the juvenile court and eventually

adopted. At the time of the filing of these proceedings, baby resided

with mother.2



1 All subsequent statutory references are to the Welfare and

Institutions Code.

2 Mother has not appealed the order terminating parental rights.

3

1. DCFS Involvement

On October 16, 2018, father was arrested for possession of

narcotics and controlled substance. Five days later, DCFS received a

referral that the parents had neglected then- nine-month-old baby.

DCFS investigated, and mother tested positive for methamphetamine

and amphetamine.

On November 5, 2018, the juvenile court issued a removal

order for baby. When served, mother was uncooperative, appeared

under the influence of drugs and alcohol, refused to permit the social

worker inside the apartment, and refused to disclose baby’s

whereabouts. Even with law enforcement intervention, mother

refused to disclose baby’s location, so baby was detained “at large.”

Baby was physically detained a few days later.

On November 7, 2018, the social worker sent written notice by

certified mail to father’s last known address in Huntington Park,

informing father of DCFS attempts to contact father and asking him

to get in touch with DCFS.

On November 8, 2018, DCFS filed a section 300 petition under

subdivisions (b)(1) and (j), alleging as to mother (1) baby was at risk

due to mother’s 12-year history of illicit drug use and her current use

of amphetamine and methamphetamine, and (2) mother had failed

to reunify with baby’s six siblings, all of whom were permanently

placed with other families. The petition also alleged: (1) father had

failed to protect baby and son from mother’s illicit drug use,

(2) father had a history of substance abuse, which rendered him

unable to provide regular care of baby, and (3) son was a prior

dependent due to father’s substance abuse and had been

permanently placed.

On November 9, 2018, mother filed a Parentage Questionnaire

indicating she believed father was baby’s father and identified the

4

names of the paternal grandmother and aunt. Mother indicated she

did not know how to locate father.

On November 9, 2018, the juvenile court held the detention

hearing. Father was not present. The court questioned mother

regarding baby’s paternity, and mother identified father as the

biological father. Mother did not know where father currently

resided and did not have his phone number, but identified by name

the paternal grandmother and the paternal aunt. Mother said her

information was limited, she had no contact information for the

paternal relatives, and she had never been to the paternal

grandmother’s home. The court found father only to be baby’s

alleged father and ordered DCFS to conduct a due diligence search

for him. The court detained baby in foster care, with monitored

visitation for parents. Baby was placed in the home of a non-related

extended family member.

2. DCFS’s Investigation

Mother and father had extensive criminal histories. Father’s

dated to 2011 when father was 13. His record included drug

possession and sale, unlawful possession of paraphernalia,

vandalism, and burglary. On December 28, 2018, early in the

present dependency case, he was arrested for theft.

3 Mother also

had a criminal history involving drugs and theft dating back to her

minority.

Mother’s history with DCFS started in 2006. Although she had

previously been provided family reunification services, she lost

custody of six children to adoption due to her drug use. One of those

children was mother’s first child with father, a child who was



3 As we discuss, father would be arrested three more times

during the dependency proceedings.

5

adopted in July 2019. Mother informed DCFS that mother and

father used drugs together when she was pregnant with their first

child. Mother and father separated when she was three months

pregnant with baby because mother had decided to get clean but

father would not stop using. DCFS confirmed father’s history of

substance abuse, and reported that he was recently arrested for drug

possession and had attempted to forcibly enter mother’s home.

DCFS recommended no family reunification services for the

parents, given their extensive history of substance abuse, mother’s

failure to reunify with any of her children, the parents’ failure to

reunify with their older son, and father’s unknown whereabouts.

3. Jurisdiction, Disposition, and Due Diligence Finding

On January 14, 2019, the juvenile held the jurisdiction

hearing. The court found baby to be described by section 300,

subdivision (b)(1), due to mother’s history of illicit drug use and

current use of amphetamine and methamphetamine, father’s failure

to protect baby from mother’s illicit drug use, the dependency

proceedings and ultimate adoption of their older son, and father’s

failure to protect older son from mother. The court sustained the

petition as to mother.

As for father, the court received DCFS’s Due Diligence Report

dated January 14, 2019 and signed six days earlier. Although the

report references some 17 “search sources,” under No. 12

“Relatives/Friends,” the DCFS investigator wrote: “No contact

letters were sent to relatives/friends.” The juvenile court found, “due

diligence has not been completed as to father.” Included in the

minute order for that date was, “The court will put the Jurisdictional

hearing over further to allow the Dept to submit the completed due

diligence search of the father as to the subdivision B-2 count.” The

court scheduled father’s jurisdictional hearing for February 13, 2019.

6

In an addendum report dated February 13, 2019, DCFS included the

following section:

“Due Diligence for father, [S.P.]

“A Due Diligence Report was submitted for the father,

[S.P.] The Department of Children and Family Services

was not successful in locating [S.P.].

“(The court is respectfully referred to the attached Due

Diligence Report.)”

In the Clerk’s Transcript, the document that follows the

February 13th report is not a new Due Diligence Report, but the

report dated January 14, 2019—the same report on which the

juvenile court based its finding on January 14th that “due diligence

has not been completed for father.” There does not appear in the

record a supplemental Due Diligence Report prepared shortly before

the February 13, 2019 hearing. For reasons that are not clear from

the record, at this hearing, the juvenile court found “that the Dept

has completed the due diligence search for the father.”

The court, having found jurisdiction as to father, proceeded to

the disposition hearing. The court admitted the due diligence report,

a letter from mother’s drug rehabilitation center, and testimony from

mother. The court declared baby a dependent of the court, ordered

baby removed from parental custody, denied family reunification

services for mother and father pursuant to section 361.5, subdivision

(b)(10) and (11), and set the case for a permanency planning hearing

on June 12, 2019.

4 The court found that due diligence had been



4 Section 361.5, subdivisions (b)(10) and (11), provides that

the juvenile court need not order reunification services when the

court previously had terminated parental rights to the child’s

sibling or half sibling or where it previously ordered termination

of reunification services when the parent failed to reunify with a

7

completed as to father. The court stated: “The court did put the trial

and dispo[sition] over for father. We do have good notice and I’m

ordering – finding that the petition is sustained as pled as to the

father. No [family reunification] for the father.” The court found

family reunification was not in baby’s best interest.

4. Post Disposition Events

Baby developed a strong bond with his caregiver, who wanted

to adopt him.

5 Mother, meanwhile, failed to maintain regular

contact with baby.

Approximately a month after the detention hearing, on

March 21, 2019, father was arrested for vehicular theft. On April 4,

2019, father was arrested again, this time for possession of narcotics.

Four days later, father was arrested for an earlier incident in which

he had threatened mother with a handgun at her home. He was

charged with terrorizing and dissuading a witness by threat or force.

On May 23, 2019, father was personally served in custody for

the previously scheduled June 12, 2019 hearing on termination of

parental rights. Father, still incarcerated, made his first

appearance at that hearing. Father informed the court that his

address was the paternal grandmother’s home in Cudahy. Father

said he had been sentenced to 16½ months in prison, had been given

a strike, and did not yet have a release date.6



sibling or half sibling, and the parent or guardian had not

subsequently made reasonable efforts to address the problems

leading to removal of the sibling or half sibling.

5 The caregiver was approved for adoption on April 10, 2019.

6 Father would remain in custody through baby’s section

366.26 hearing, which took place on November 21, 2019.

8

In October 2019, DCFS reported baby continued to progress

well in the caregiver’s home. During monthly home visits, DCFS

observed baby was appropriately bonded with the caregiver and her

adult children, he called the caregiver “mom,” followed the caregiver

around the home, and enjoyed being nurtured by her. DCFS

assessed that baby’s needs were met by the caregiver and observed

no safety concerns. Baby was receiving services through Regional

Center, was meeting his developmental milestones, and appeared

comfortable in the home. The caregiver and her husband were

committed to providing baby with a permanent home through

adoption.

5. Father’s Section 388 Petition

On October 8, 2019, father filed a section 388 petition,

challenging the juvenile court’s jurisdictional findings and

dispositional orders for lack of proper notice. Father also asserted

that granting the petition was in the best interest of baby because

father “has an interest in reunifying with his child,” father wanted

baby “placed with his relative, the paternal aunt” and baby “benefits

from being with his father and paternal relatives.” The only

statement father made about contact with baby was that he “had

visits with his child, and took the child in his home prior to [his]

incarceration.”

On November 5, 2019, baby’s caregiver reported that neither

father nor any member of the paternal family had ever contacted her

to inquire about baby. On November 15, 2019, DCFS filed its report

setting out the significant facts we have already detailed and

addressing father’s section 388 petition. DCFS noted father

provided no evidence that he had addressed his substance abuse.

DCFS recommended that the court deny father’s section 388 petition

and proceed with adoption. In a subsequent report on November 21,

9

2019, DCFS reported that father had made no efforts to contact the

social worker or the caregiver. The social worker again asked the

juvenile court to deny the section 388 petition.

Father filed points and authorities supporting his claim that

DCFS had not acted with diligence in attempting to provide notice of

the jurisdiction and disposition hearings. Specifically, he claimed

DCFS failed to contact the paternal grandmother and aunt

regarding father’s whereabouts. Father also said that it was in

baby’s best interests to vacate the findings and orders because

father and baby then could establish a parent- child bond. Father’s

points and authorities did not provide any details about his alleged

contacts with baby.

6. Denial of the Section 388 Petition and Termination of

Parental Rights

On November 21, 2019, the juvenile court held the combined

hearing on the contested section 388 petition and the section 366.26

hearing. Father was present but still incarcerated. Father’s counsel

argued father was never given the opportunity to create a bond with

baby because he was not properly noticed or afforded visitation.

Baby’s counsel asked the court to deny the petition. Counsel

argued father had failed to meet the best interest requirement for

section 388 relief: baby had been placed with his caregiver for

almost a year, and father remained incarcerated. DCFS’s counsel

argued father and the paternal relatives knew that mother had given

birth to baby and reportedly were told by mother that baby had been

placed with a family. However, paternal relatives had made no

effort to contact baby, and father had not attempted to forge a

relationship with baby even during the time he was not in jail.

Father’s counsel did not contradict DCFS’s statements regarding

father’s lack of contact.

10

The juvenile court denied the petition, finding that father had

not demonstrated that granting the petition would be in baby’s best

interest. The court stated, “At this point, based upon the report

before the court and Justice P.[

7] There is not a sufficient bond and

it is certainly not in this child’s best interest so I’m going to deny the

388.”

The juvenile court then proceeded to the section 366.26

hearing. DCFS recommended the parents’ parental rights to baby be

terminated. Mother’s counsel indicated she had no direction from

mother. Father’s counsel stated if the court’s tentative were to

terminate parental rights, he was objecting for the record.

The juvenile court found by clear and convincing evidence baby

was adoptable and would be adopted, and terminated parental

rights.

On December 5, 2019, father filed a notice of appeal from the

termination of his parental rights.

DISCUSSION

Father argues that the court should have granted his section

388 petition because he did not receive notice of the jurisdiction and

disposition hearings, and that granting the petition would be in

baby’s best interests. Father argued in the trial court and repeats on

appeal that DCFS failed to use due diligence in trying to locate him

to give him notice of those hearings. Specifically, he claims DCFS

failed to contact the paternal grandmother or aunt for father’s

whereabouts, even though mother had provided their names to the

social worker.

1. Section 388, Due Process Notice, and Harmless Error

Section 388 affords a party a limited right to seek modification



7 In re Justice P. (2004) 123 Cal.App.4th 181 (Justice P.).

11

of a prior dependency order. The elements for relief are well known:

the moving party must show that (1) there is new evidence or

changed circumstances, and (2) a change in the order is in the best

interest of the child. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295,

317.) The decision of the trial court is typically reviewed for abuse of

discretion. (Ibid.) Some courts, however, use a bifurcated

substantial evidence/abuse of discretion standard. (See, e.g. In re

J.M. (2020) 50 Cal.App.5th 833, 846 [“We review a juvenile court’s

denial of a section 388 petition for abuse of discretion, and review its

factual findings for substantial evidence.”].)

Nearly 35 years ago, the Court of Appeal in Ansley v. Superior

Court (1986) 185 Cal.App.3d 477, 490, held that a section 388

petition could be used to challenge lack of notice of earlier

proceedings. There, the father had apparently left town following an

arrest for assault, and intentionally left no forwarding address. (Id.

at p. 489.) The appellate court found, “There is no evidence on the

record that the Department made any attempt to serve petitioner

with notice of the proceedings.” (Id. at p. 481.) Two years later, the

father received notice of the Department’s motion to terminate

parental rights. He then appeared in the dependency proceedings

and filed a section 388 petition. The 388 petition was based on

father’s lack of notice of the proceedings that had been ongoing for

two years. (Id. at p. 482.) The trial court denied the petition, stating

that the language of section 388 – “ ‘change of circumstances or new

evidence’ – permits motions based upon ‘. . . a change of

circumstances of a child’ ” only. (Id. at p. 483.)

The Ansley court had no occasion to consider whether any

error was prejudicial – the trial court had determined as a matter of

law that section 388 could not there be utilized. The Court of Appeal

disagreed and remanded for a hearing. (Ansley v. Superior Court

12

(1986) 185 Cal.App.3d at p. 483.)

The parties in the present appeal do not dispute that section

388 is the proper vehicle for a due process challenge, or that the

abuse of discretion standard of review applies. Nor do they diverge

on whether any erroneous ruling made by the trial court should be

put to a harmless error test.

We agree on all counts. Nevertheless, we observe that this

appeal does not ask us to consider a more typical section 388

petition, in which a parent asks the court to change a prior order

because, for example, the parent completed a drug program or recent

history supports that monitored visitation should become

unmonitored. The claimed error here – lack of notice – is of

constitutional dimension. (Justice P., supra, 123 Cal.App.4th 181,

189.) “Due process requires that a parent is entitled to notice that is

reasonably calculated to apprise him or her of the dependency

proceedings and afford him or her an opportunity to object.

[Citation.] The child welfare agency must act with diligence to locate

a missing parent. [Citation.] Reasonable diligence denotes a

thorough, systematic investigation and an inquiry conducted in good

faith.” (Id. at p. 188.)

The lack of due process in a dependency proceeding raises the

specter of structural error but this approach was firmly rejected by

our Supreme Court in In re James F. (2008) 42 Cal.4th 901, 915-916.

“The harmless error analysis applies in juvenile dependency

proceedings even where the error is of constitutional dimension.” (In

re J.P. (2017) 15 Cal.App.5th 789. 798 (J.P.).)8



8 J.P. involved the wrongful denial of right to counsel.

Justice Baker in his concurring opinion in J.P. warned that in

applying a harmless error analysis to every denial of right to

counsel in a dependency case may be inappropriate. “But for

13

As we observed in AI.J., some courts of appeal have applied a

Chapman9 “harmless beyond a reasonable doubt” standard (e.g. In

re J.H. (2007) 158 Cal.App.4th 174, 173; Justice P., supra,

123 Cal.App.4th at p. 193). At least two Supreme Court cases have

embraced the Watson10 more probable than not standard. (See In re

Jesusa V. (2004) 32 Cal.4th 588, 625 [incarcerated father not

brought to court for hearing]; In re Celine R. (2003) 31 Cal.4th 45, 59-

60 [failure to appoint separate counsel for siblings]). In AI.J., supra,

44 Cal. 5th at page 666, we found that under either standard, the

failure to provide notice was harmless.

Here we apply the Watson standard, “which requires the

appellant to show a reasonable probability of a more favorable

outcome.” (AI.J., supra, 44 Cal.App.5th at p. 665.) We only reverse

if “it reasonably probable the result would have been more favorable

to the appealing party but for the error.” (Ibid.)

11



cases in which there is an egregious deprivation of the

foundational right to counsel, we should do more thinking. When

a counterfactual inquiry appears too difficult to responsibly

undertake, or a counterfactual conclusion relies on inferences

that really amount to guesswork, the bias should be in favor of

reversal.” (J.P., supra, 15 Cal.App.5th at p. 804.) Appellant’s

brief focuses on lack of notice although implicit is that he had no

counsel because he received no notice.

9 Chapman v. California (1967) 386 U.S. 18.

10 People v. Watson (1956) 46 Cal.2d 818.

11 We observe father and DCFS assert an abuse of discretion

standard applies here to evaluate the constitutional error in the

context of a section 388 petition.

14

2. Application of Principles to the Present Case

A. Due Diligence

The juvenile court continued the January 14, 2019 jurisdiction

hearing as to father because as of that date the court found DCFS

had not acted with due diligence in trying to locate father. At that

time, DCFS had searched multiple sources for information on

father’s whereabouts but expressly stated it had not contacted

paternal relatives who mother had identified. The court continued

the jurisdiction hearing as to father to allow DCFS additional time to

locate father. On February 13, 2019, at the combined jurisdiction

hearing for father and disposition hearing for both parents, the trial

court stated, “We do have good notice.” The minute order for that

date included, “Court finds due diligence has been completed for

father.” In fact the record does not disclose that any further

diligence was undertaken. For example, it was undisputed that

DCFS had not contacted the paternal grandmother or aunt. Yet,

DCFS told the court that the parental relatives knew of mother’s

pregnancy. At a minimum, inquiring of paternal relatives as to

father’s whereabouts was required.12

Considering that DCFS conducted no additional due diligence

between January 14th (when the court found diligence inadequate)

and February 13th (where the court found it sufficient), and DCFS



12 At the hearing where the section 388 petition was denied

and parental rights were terminated, DCFS’s counsel told the

court: “The father, the paternal grandmother, the parental

aunt all knew that mother was pregnant, all knew the mother

had given birth but relied on statements from the mother

saying that she had placed the child with family members.”

Even if the representation about placement was true, it does

not explain DCFS’s failure to contact the parental relatives in

an effort to locate father.

15

never asked the parental relatives for father’s whereabouts, we

conclude efforts to locate and notice father were deficient.

B. Harmless Error

We apply the Watson standard to determine whether the

failure to provide notice was prejudicial. Father has not shown that

there was a reasonable probability of a more favorable outcome (i.e.

that he would have been granted reunification services and his

parental rights would not have been terminated) absent the error in

giving notice.

Father’s history did not support an order of reunification

services. Father does not argue the contrary. The juvenile court

found reunification services were properly denied under section

361.5. Under section 361.5, reunification need not be ordered where

the parent “has not subsequently made a reasonable effort to treat

the problems that led to removal of the sibling or half sibling of that

child from that parent . . . .” (§ 361.5, subds. (b)(10) and (11).) The

court’s decision was supported by the record.

Father lost his first child (son) to adoption, following

termination of reunification services in that case. The record is

devoid of evidence that father made an effort to address the

problems that led to the denial of reunification services for son and

the termination of father’s parental rights to him. Father had an

extensive criminal history that included four arrests and significant

incarceration during the pendency of this case. In one incident,

father was charged with threatening mother with a handgun.

Father’s history of substance abuse was equally troubling. It was

apparently unresolved as of the 388 hearing. At a minimum, father

failed to produce evidence that he had addressed his drug abuse.

The record makes clear that from the time he was served in

May 2019 until the filing of his October 2019 section 388 petition,

16

father was incarcerated, but did not seek visitation or other

reunification services. Even before his incarceration, there was no

evidence father formed any kind of bond with baby. Although his

section 388 petition asserted that he had contact with baby and

brought him into his home, there was no evidence to support the

assertion, which was essentially abandoned by counsel at the

hearing.

13

Father asserts that if the juvenile court had found father to be

the presumed father, there would have been a preference to place

baby with his paternal relatives. “Only a presumed, not a mere

biological, father is a ‘parent’ entitled to receive reunification

services, and only a presumed father is entitled to custody of his

child.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586,

596; § 361.5, subd. (a).) In none of the papers filed with the juvenile

court did father ask to be granted presumed father status. To the

extent he now claims the trial court erred in not according him

presumed father status, the point is thus waived. As we explain

below, even if the juvenile court had granted presumed status, the

outcome would be no different.

On appeal, father nominates paternal aunt as a potential

caregiver. Yet, the aunt specifically told DCFS that baby would

likely not be placed with her because she had an extensive criminal

record and was a recovering methamphetamine user who had been

sober for only one year (as of the hearing on the 388 petition). The

aunt thought baby could be placed with the paternal grandmother.



13 Because the juvenile court denied father’s petition, we

imply necessary findings that support the decision, to the extent

they are based on substantial evidence. (See In re Andrea G.

(1990) 221 Cal.App.3d 547, 554–555.) Here, we imply that the

court found father’s vague assertion that he had had contact with

baby either not credible, or legally insignificant.

17

However, the grandmother had a history of homelessness, and the

woman who answered the door at the grandmother’s alleged

residence told DCFS grandmother did not live there.

Neither the grandmother nor the aunt made an effort to see

baby during the dependency case, which the grandmother said they

learned about in May or June 2019. When asked in November 2019

why she had not visited, the aunt reported she lost the social

worker’s phone number and that “the family was quite unstable and

did not have a permanent home in the months following the child’s

detention.” The grandmother claimed that she could not visit

because she was too busy with work. Even if father had been

accorded presumed father status, father would be faced with the fact

that neither paternal grandmother nor aunt were likely placement

candidates.

Given the fact that father had lost reunification services and

then custody to son, father’s proposed paternal caregivers were

either unwilling or unqualified, father’s illicit drug use remained

unaddressed, and father continued to commit violent acts (including

toward mother) during the early pendency of this case, we conclude

our affirmance stands not on guesswork or speculation, but on the

undisputed facts before us. Under the Watson standard, it is not

reasonably probable that absent the notice error, father would have

been granted reunification services or his parental rights would not

have been terminated. (Cf. AI.J., supra, 44 Cal.App.5th at p. 666.)

14



14 In a more traditional 388 petition, the facts we have

considered under harmless error would likely have been analyzed

as part of the second part of section 388 that the parent

demonstrate granting relief would be in the child’s best interests.

Because we conclude that father has not suffered prejudicial

error from his lack of notice, he has not demonstrated the

required changed circumstance or new evidence – the first

The juvenile court’s order terminating parental rights is

affirmed.