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E.M., Jr., (father) appeals from the order of the juvenile

court taking jurisdiction over his son, Andrew M. He contends

the court erred by failing to appoint counsel for him, despite his

numerous requests. We agree and reverse the order with

directions.

BACKGROUND

I. The dependency of Andrew’s older brother, E.M.

In 2017, the juvenile court declared Andrew’s older brother

E.M. a dependent based on a petition alleging that father and

mother engaged in domestic violence in E.M.’s presence, both

parents abused marijuana, and mother abused

methamphetamines. The court ordered E.M. placed with father

under the supervision of the Department of Children and Family

Services (DCFS) and ordered father into a program of family

maintenance.

Andrew was born at the end of the same month. Father

lived with both children in an apartment upstairs from mother

and was complying with E.M.’s case plan. Two months after

Andrew’s birth, both parents were arrested. Father arranged for

maternal aunt to live in his apartment and take care of E.M. and

Andrew. He then filled out an “affidavit with consent” and asked

DCFS to place his children with maternal aunt or paternal

grandmother.

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In August 2017, DCFS filed an original petition (Welf. &

Inst. Code, § 300, subds. (a) & (b)(1))

1 on behalf of Andrew and

filed a subsequent petition on behalf of E.M. (§ 342).

II. There is no evidence the juvenile court appointed father an

attorney for Andrew’s detention hearing.

A. The August 8, 2017 hearing

Father was not notified of the August 8, 2017 detention

hearing for both of his sons. His attorney in E.M.’s case appeared

on father’s behalf, but only on E.M.’s subsequent petition. The

juvenile court granted that attorney’s request to continue

Andrew’s detention hearing, to enable father to be brought to the

hearing where the court would, among other things, consider the

question of appointment of counsel for him. (See § 316; Seiser &

Kumli, Cal. Juvenile Courts Practice and Procedures (2019)

§ 2.40 (Seiser & Kumli).) The court detained both Andrew and

E.M., scheduled father’s arraignment hearing2 on Andrew’s



1 All further statutory references are to the Welfare and

Institutions Code unless otherwise indicated.

2 The purpose of the initial or detention hearing is to

determine whether to detain the child from parental custody, to

notify parties of the allegations, to consider whether to appoint

counsel and whether to involve the court in supervision of the

case. (Seiser & Kumli, supra, § 2.40.) Some juvenile courts refer

to the initial or detention hearing as the “[a]rraignment

hearing[ ].” That is a misnomer because arraignment hearings

are conducted in criminal, not dependency, cases. (Ibid.)

However, we use the word arraignment here because it was used

in this case.

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petition, and set a later date for the children’s jurisdiction

hearing.

In October 2017, father was sentenced to 25 years in

prison.

B. The October 25, 2017 hearing

On October 25, 2017, the juvenile court offered to appoint

father’s attorney in E.M.’s case to represent father on Andrew’s

petition. Counsel explained that father had not yet been

arraigned on Andrew’s petition, and so such an appointment

would be premature. The court set November 20, 2017 for

father’s detention hearing and ordered him removed from jail.

C. The November 20, 2017 hearing

An unsigned, undated form JV-451, the prisoner’s

statement regarding appearance at hearing affecting parental

rights, which had been sent to father before the November 20,

2017 hearing, has the boxes checked requesting appointment of

an attorney and waiving the right to appear. On November 13,

2017, father executed a JV-451 form waiving his right to appear

at the November 20, 2017 hearing, but leaving unchecked the

boxes indicating that (1) he understood he had a right to

representation, and (2) already had representation, (3) wanted

representation, or (4) declined representation “at this hearing.”

On November 20, 2017, there were no appearances and so

the juvenile court trailed the case to the following day. No

appearances were made on November 21. The court “set[ ] a

further continuance,” to an unspecified date “[d]ue to Court

congestion,” while noting that January 17, 2018 remained the

date for the jurisdiction hearing. The court then continued the

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January 17, 2018 jurisdiction hearing so that father could be

brought into court.

D. The February 8, 2018 hearing

In advance of the scheduled arraignment hearing on

February 8, 2018, father signed a JV-451 form requesting

appointment of an attorney and indicating he wanted to appear.

There is no record of what occurred on February 8, 2018, but no

attorney was appointed for father.

III. The juvenile court did not appoint counsel for Andrew’s

jurisdiction hearing.

The juvenile court scheduled the jurisdiction hearing six

times from April 2018 to November 20, 2018. The court

continued each hearing and ordered that father be brought to

court. In advance of four of the hearings, father executed JV-451

forms requesting that an attorney be appointed to represent him

and declining to appear. Father declined representation before

two of the hearings scheduled in June 2018.

The juvenile court finally held the jurisdiction hearing on

November 20, 2018. Father again requested representation at

that hearing but declined to appear. Without appointing counsel

for father, the juvenile court found him to be Andrew’s biological

father and sustained the petition declaring Andrew to be

described by section 300, subdivision (b). The court awarded

father monitored visitation. Father filed two notices of appeal.3



3 Father’s appellate briefs raise issues as to Andrew only.

Therefore, any issues identified in the notices of appeal

concerning E.M. are deemed to have been abandoned. (Cf. In re

Sade C. (1996) 13 Cal.4th 952, 994.)

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DISCUSSION

I. The failure to appoint an attorney for father was error.

A juvenile court must appoint counsel for an indigent

parent when the agency recommends that the child be placed in

out-of-home care, “unless the court finds that the parent or

guardian has made a knowing and intelligent waiver of counsel

as provided in this section.” (§ 317, subd. (b), italics added.) The

representation shall continue unless the juvenile court relieves

counsel. (Id., subd. (d).)

Other statutes direct the juvenile court to address the

appointment of counsel for parents. The court must notify

parents of the right to representation at the initial or detention

hearing (§ 316; see Cal. Rules of Court, rule 5.534(d)(1)(B)) and

shall appoint counsel at the beginning of the hearing on a

petition, if a parent “desires to be represented by counsel” and

cannot afford one. (§ 353.)

Generally, however, counsel is only to be appointed for an

indigent parent when that parent “appears and requests such

appointment or otherwise communicates to the court such a

desire.” (Seiser & Kumli, supra, § 2.61, italics added.) A waiver

of the right to counsel must be made knowingly and intelligently

(§ 317, subd. (b)), whereas to obligate the juvenile court to

appoint counsel, the indigent parent need only give “some

manifestation . . . that he or she wants representation.” (In re

Ebony W. (1996) 47 Cal.App.4th 1643, 1647.) Section 317 merely

“requires the indigent parent to communicate in some fashion his

or her desire for representation before the juvenile court is

obligated to appoint counsel.” (Ebony W., at p. 1647, italics

added.)

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With respect to incarcerated parents in particular, Penal

Code section 2625, subdivision (d) bars the adjudication of a

section 300 petition without the physical presence of both the

incarcerated parent and his or her counsel, unless the parent

waives the right to attend. (In re Jesusa V. (2004) 32 Cal.4th

588, 621–624.) Thus, an incarcerated parent may waive his or

her appearance, but the juvenile court may only adjudicate the

petition if that parent has representation at the hearing. (Pen.

Code, § 2625, subd. (d).)

“ ‘There is nothing vague or ambiguous about the

legislative command—in the absence of a waiver, the juvenile

court must appoint an attorney to represent an indigent parent

at the detention hearing and at all subsequent proceedings.’ ”

(In re J.P. (2017) 15 Cal.App.5th 789, 796.)

DCFS contends, citing In re Joseph G. (2000) 83

Cal.App.4th 712, that father repeatedly waived his right to

attend the hearings with the result he has no standing to appeal

based on his disinterest in attending and participating in the

proceedings. In re Joseph G. involved a biological father who was

not in custody. (Id. at p. 714.) In contrast, father here, was

incarcerated and did not waive his appearance at the last

arraignment hearing scheduled for him on February 6, 2018.

Father had the right to anticipate representation at the

jurisdiction hearing after he requested counsel be appointed and

opted not to appear himself. (Pen. Code, § 2625, subd. (d); Welf.

& Inst. Code, § 317, subd. (b).)

DCFS next contends that the juvenile court was not

required to appoint an attorney to represent father in Andrew’s

case because on two occasions he waived his right to counsel. To

support this contention, DCFS argues this case is similar to In re

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Ebony W., supra, 47 Cal.App.4th 1643. There, the mother was

not in custody and never indicated a desire for representation.

(Id. at p. 1648.) The appellate court held under those

circumstances that the juvenile court was not required to appoint

counsel for the mother. (Ibid.)

The facts of this case are nothing like those of Ebony W.

Father was incarcerated and clearly unable to afford an attorney.

He requested representation six out of nine times. In particular,

he requested appointment of counsel repeatedly for each of

Andrew’s scheduled detention hearings and for the November 20,

2018 hearing at which the juvenile court adjudicated Andrew’s

petition. These repeated requests triggered the juvenile court’s

obligation to appoint counsel for father in Andrew’s case.

Father’s attorney in E.M.’s case reminded the court at the

outset of the November 20, 2018 jurisdiction hearing that “[f]irst,

just so that it’s clear on the record, our firm has not been

appointed for father as to the child Andrew. [¶] . . . Father has

never been arraigned.” (Italics added.) Counsel also told the

court that the petition was not attached to any notice given to

father and there was no indication that any DCFS report had

been mailed to him. When the court asked DCFS whether it

needed to appoint counsel, the agency responded that father was

aware of the case and had chosen not to participate. DCFS

omitted to make any mention of the fact that father had actually

requested appointment of counsel in nearly every one of his JV451 forms. The court knew that father had never been arraigned,

but found that that notice was given and that father had waived

appearance. On that basis, the court proceeded with the

adjudication. Father’s decision to waive his appearance did not

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constitute a knowing and intelligent waiver of his right to

representation. This was clear error.

II. Reversal

Father contends that the error, which violates a statute, is

structural and mandates reversal.

Trial errors “ ‘occur[ ] during the presentation of the case to

the jury’ and [their] effect . . . can ‘be quantitatively assessed in

the context of other evidence presented in order to determine

whether [they were] harmless beyond a reasonable doubt.’ ”

(In re James F. (2008) 42 Cal.4th 901, 914, quoting from Arizona

v. Fulminante (1991) 499 U.S. 279, 307–308.) In contrast,

“ ‘structural defect[s] affecting the framework within which the

trial proceeds’ . . . ‘defy analysis by “harmless-error” standards’

and can never be harmless.” (James F., at p. 914.)

Father cites In re Christina H. (1986) 182 Cal.App.3d 47,

49, that “[c]learly, . . . in many cases an indigent parent possesses

both a statutory and constitutional right to appointed counsel.”

(Italics added.) While an accurate statement, this quote does not

advance the analysis here. Generally, “[t]he harmless error

[rather than structural error] analysis applies in juvenile

dependency proceedings even where the error is of constitutional

dimension.” (In re J.P., supra, 15 Cal.App.5th at p. 798.)

Our Supreme Court in In re James F., supra, 42 Cal.4th at

pages 915 to 916, questioned whether structural error, a criminal

law doctrine, “should be imported wholesale, or unthinkingly,

into the quite different context of dependency cases.” James F.

cited United States Supreme Court authority to explain that

generally, an error is structural when it “ ‘def[ies] analysis by

“harmless-error” standards’ ” and cannot “ ‘be quantitively

assessed in the context of other evidence presented in order to

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determine whether [it was] harmless beyond a reasonable

doubt.’ ” (Id. at p. 917, italics added.) The structural error

doctrine is used when “ ‘assessing the effect of the error’ ” is

“ ‘difficult[ ].’ ” (Ibid.)

Following that lead, the appellate court in In re J.P., supra,

15 Cal.App.5th 789, analyzed whether the juvenile court’s error

in failing to grant mother’s request for re-appointment of counsel

before the hearing on her petition for modification under

section 388 deprived the mother of due process and prejudicially

affected the manner in which the hearing was conducted. The

J.P. court applied the harmless error analysis “because [it]

conclude[d] the juvenile court’s error here is ‘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. 800.)

Here, it is reasonably probable that a more favorable result

would have been reached had the juvenile court appointed an

attorney for father. (See In re J.P., supra, 15 Cal.App.5th at

pp. 798, 800, citing People v. Watson (1956) 46 Cal.2d 818.) At

the hearing, the court declared father Andrew’s biological father.

The effect of this determination will reverberate throughout

Andrew’s dependency: only mothers and presumed parents are

entitled to reunification services. (See In re Zacharia D. (1993)

6 Cal.4th 435, 451.) Juvenile courts may order services for a

biological father, but only if they find that services will benefit

the child. (§ 361.5, subd. (a).) But here, the record shows that

father was caring for Andrew during the time he was arrested

and created a plan for the baby, even making a placement

request of DCFS. These facts support a finding of presumed

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fatherhood, a result much more favorable to father.4 We

recognize that father will continue to be incarcerated until

Andrew reaches the age of majority. Nonetheless, that is not a

justification for failing to appoint father an attorney to advocate

for his participation in services and visitation with the child.

All orders as to E.M., Jr., (father) and Andrew M. are reversed. The trial court is directed to appoint counsel for father and commence de novo an arraignment hearing and a jurisdiction hearing without delay.