Supreme Court of California Justia
Citation 42 Cal. 4th 901, 174 P.3d 180, 70 Cal. Rptr. 3d 358

In re James F.

Filed 1/17/08

IN THE SUPREME COURT OF CALIFORNIA

In re JAMES F., a Person Coming Under
the Juvenile Court Law.

)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
S150316
Plaintiff and Respondent,
Ct.App. 2/7 B188863
v.
Los Angeles County
MARCUS M.,
Super. Ct. No. CK37046
Defendant and Appellant.

In a dependency case (Welf. & Inst. Code, § 300 et seq.), the juvenile court
may terminate a parent’s interest in a child’s companionship, care, and custody
after the child has been removed from the parents’ home, efforts to reunify the
family have failed, and adoption has been identified as the permanent placement
goal. (Id., § 366.26, subd. (b)(1); see In re Celine R. (2003) 31 Cal.4th 45, 52-53.)
Because a basic civil right of the parent is thus at stake (In re Marilyn H. (1993) 5
Cal.4th 295, 306), significant due process safeguards have been built into the
dependency scheme (id. at p. 307), including a right to court-appointed counsel for
a parent who cannot afford to retain counsel (Welf. & Inst. Code, § 317).
In a dependency case, a parent who is mentally incompetent must appear
through a guardian ad litem, to whom the parent yields management and control of
1


the litigation. (In re Daniel S. (2004) 115 Cal.App.4th 903, 912; In re Sara D.
(2001) 87 Cal.App.4th 661, 665-667.) Before appointing a guardian ad litem for a
parent in a dependency proceeding, however, the juvenile court must hold an
informal hearing at which the purpose and powers of a guardian ad litem and the
reasons for believing the parent incompetent are explained to the parent and, if the
parent does not consent to the guardian ad litem’s appointment, the parent is given
an opportunity to argue that a guardian ad litem is not required. (In re Sara D.,
supra, at pp. 663, 671-672.)
At issue here is whether, as the Court of Appeal concluded, a juvenile
court’s error in the procedure used to appoint a guardian ad litem for a parent in a
dependency proceeding requires automatic reversal of an order terminating the
parent’s parental rights, or whether instead the error is subject to harmless error
review. We conclude that the error may be harmless and was so here.
Accordingly, we reverse the Court of Appeal’s judgment.
I
James F. was born on July 11, 2003. His mother is Cynthia F. and his
father is Marcus M. On September 11, 2003, when James was two months old,
the Los Angeles County Department of Children and Family Services
(Department) removed him from his parents’ custody and placed him with a foster
family.
On September 16, 2003, the Department filed a petition alleging that James
F. came within the juvenile court’s dependency jurisdiction because he had
suffered, or there was a substantial risk that he would suffer, serious physical harm
or illness as a result of his mother’s failure or inability to supervise or protect him
and because, due to his mother’s substance abuse, she was unable to provide
regular care for him. (Welf. & Inst. Code, § 300, subd. (b).) On the same day, the
juvenile court held a detention hearing (id., § 315). The court appointed attorneys
2
to represent James, mother Cynthia F., and father Marcus M. The court found a
prima facie case and ordered James detained in the Department’s custody.
On October 9, 2003, the Department filed an amended petition containing
additional allegations. Of relevance here, the Department alleged in the amended
petition that Marcus M. had been diagnosed with bipolar disorder, that this
disability “endangers the child’s physical and emotional health and safety and
places the child at risk of physical and emotional harm and damage,” and that
Marcus “has demonstrated numerous emotional and mental problems” rendering
him “unable to regularly care for [James].” In a report filed the same day, the
Department stated that Marcus had “an extensive criminal history” that included a
felony conviction in June 1998 for aggravated assault on a police officer (Pen.
Code, § 245, subd. (c)); that he had been admitted to Patton State Hospital in
November 1998 and again in November 2000 after being found incompetent to
stand trial (id., § 1370); that he “appeared agitated, unstable, and unpredictable”
when a Department social worker attempted to interview him at his father’s house
on September 25, 2003; that he was “incoherent” during a telephone conversation
with a social worker on September 26, 2003; that he “appeared anxious, edgy, and
even scared” and “seemed to have difficulty just staying calm and focused” when
interviewed at a Department office on September 29, 2003; and that his father
reported that Marcus had been diagnosed with bipolar disorder.
At a hearing on October 9, 2003, parents Marcus M. and Cynthia F. denied
the amended petition’s allegations, and the juvenile court set the matter for a
contested jurisdictional hearing on December 1, 2003. On October 23, 2003, the
superior court, in a separate proceeding, appointed Marcus’s parents conservators
of his person. (See Prob. Code, § 1801, subd. (a).)
In a report prepared for the jurisdictional hearing, the Department stated
that it had subpoened and reviewed Patton State Hospital’s mental health records
3
relating to Marcus M. According to the report, the hospital records indicated that
Marcus “suffers from severe psychological problems, and his behavior has
improved while prescribed a steady regimen of psychotropic medication.” At the
hearing on December 1, 2003, Marcus was not present, and the juvenile court
received information that he was in custody on a charge of robbery (Pen. Code,
§ 211). The court put over the jurisdictional hearing to a later date.
On December 16, 2003, Marcus M. appeared in juvenile court for the
jurisdictional hearing with appointed attorney Linda Nakamura. Attorney
Claudette Boehm told the court she was “available for appointment” as a guardian
ad litem for Marcus, and the court replied, “You will be appointed.” The court
announced that all parties had agreed to submit the matter on the Department’s
reports. The court then addressed Marcus, showing him a document that would
waive his rights to a trial, to cross-examine witnesses, to compel witnesses to
come to court, and to testify on his own behalf, and also waiving the privilege
against self-incrimination. When the court asked whether Marcus agreed “to give
up all of those rights,” he replied: “Yes. Yes. Why, no, I don’t think that’s right,
your Honor, because I want a trial, because I want to get my baby back.” The
court assured Marcus that “[t]hey are going to give you services to try to help you
get the child back” and that “[b]y entering a plea, we are going to take jurisdiction
over your case, and I am going to be ordering the Department to provide services
for you to try to help you get the child back.” Marcus agreed he wanted that to
happen. His attorney joined in the plea, concurred in the waivers, and stipulated to
a factual basis for jurisdiction. The court accepted Marcus’s plea to the amended
petition, found the allegations of that petition true, and declared James F. to be a
dependent of the court.
The attorney representing James F. expressed concern over “whether or not
the record is sufficient to warrant an appointment” of a guardian ad litem and
4
whether Marcus M. was competent to waive his trial rights. Marcus’s attorney
volunteered to “make a record” and began to question him, as follows:
Ms. Nakamura: “Mr. [M.], do you need help today working on your case?
Do you need to have two attorneys instead of one?”
Marcus M.: “Yes.”
Ms. Nakamura: “Does it help you to have another attorney help you with
your case?”
Marcus M.: “I understand.”
Ms. Nakamura: “Does it help you to have another attorney help you with
your case? Did you like having another attorney help you understand?”
Marcus M.: “Yes. Yes.”
James F.’s attorney objected that this was not the proper inquiry, and the
juvenile court permitted him to question Marcus M., as follows:
James F.’s attorney: “Mr. [M.], do you know what you are here for today?”
Marcus M.: “For my children, to get my son back.”
James F.’s attorney: “Do you know that today was set for a trial of the
issues in this case that you are alleged, things that you have been alleged to have
done?”
Marcus M.: “Oh.”
The attorney for the Department commented that Marcus M. appeared to be
looking to his relatives for cues. The juvenile court said it had decided to continue
the matter to give Marcus’s attorney and guardian ad litem more time “to confer
and to discuss this proceeding further” with Marcus, who then asked the court,
“What is the GAL [guardian ad litem]?” The court replied, “That’s Ms. Boehm,
your second lawyer.” James F.’s attorney suggested a hearing in chambers to
determine whether Marcus needed a guardian ad litem. The juvenile court replied:
“I think I can fairly say that he’s in a position or a condition where a [guardian ad
5
litem] would be to his benefit” and “[t]hat finding I would make today.” The
court struck Marcus’s plea to the allegations of the amended petition.
On December 19, 2003, the Department placed James F. in the home of his
maternal grandparents. In a report filed on March 10, 2004, the Department
reported that Marcus M. remained in custody on criminal charges and was
scheduled for transportation to Patton State Hospital. On the same day, Claudette
Boehm, as Marcus’s guardian ad litem, signed a document waiving his right to a
trial and submitting the jurisdictional issues on the social workers’ reports and
other documents. At a juvenile court hearing held that day, Boehm told the court
that she executed the document because she thought it would be beneficial for
Marcus, who was “being offered family reunification services,” and that “his
current functioning doesn’t really allow him to sign that himself.” She also stated,
in response to a question from the court, that “these rights were read to him” and
that “he understood these rights and the consequences of his plea.” Marcus was
present at this hearing but did not speak. Linda Nakamura, Marcus M.’s attorney,
concurred in the waivers and the submission of jurisdictional issues on the
Department’s reports and other documents. The court found the amended
petition’s allegations true, and it declared James a dependent of the court.
In a report filed on May 5, 2004, the Department informed the court that
Marcus M. had been transported to Patton State Hospital on March 23, 2004, after
being found incompetent to stand trial on criminal charges. Although the
dependency court had ordered reunification services for Marcus, he had not
complied with the reunification plan. He had been terminated from the hospital’s
Alcoholics Anonymous program because of “uncontrollable anxiousness.”
Marcus was “participating in a behavior modification program to relieve his
anxiousness” and upon completion of that program would be transferred back to
the Alcoholics Anonymous program. Marcus was not being tested for drug use,
6
nor was he taking any parenting classes, because the hospital did not offer those
programs to its patients. The hospital reported that Marcus was extremely anxious
and was “exhibiting obsessive/compulsive behavior.” He was taking anti-anxiety
medication and his diagnoses were “[s]chizoaffective disorder suspected” and
substance abuse. The Department recommended termination of Marcus’s
reunification services.
At a juvenile court hearing on May 12, 2004, Claudette Boehm, appearing
as Marcus M.’s guardian ad litem, informed the court that Marcus was “in anger
management, stress management and AA [Alcoholics Anonymous], and he
enrolled as soon as he was able to and he’s soon to start parenting [classes].” She
requested that the matter be set for a contested hearing. Linda Nakamura,
Marcus’s attorney, said that she would be presenting evidence from the hospital
that Marcus was “in those programs.” The court directed the Department’s social
worker to submit a supplemental report about Marcus’s participation in programs
at Patton State Hospital, and the court set the matter for a contested hearing.
Addressing the court directly, Marcus said he wanted his parents “to keep the
baby.”
In a report filed on July 12, 2004, the Department stated that Marcus M.
was enrolled in a “Narcotics and Alcohol Anonymous program through Patton
Hospital” and that he “attends the programs ‘faithfully.’ ” Although the hospital
did not provide drug testing or parenting programs, the Department had given
Marcus “a folder with parenting literature regarding child development and
discipline techniques,” and the Department considered Marcus to be “in partial
compliance” with the court orders regarding the reunification program. When
Department social workers visited Marcus at the hospital on June 28, 2004, he told
them he wanted to “complete his rehabilitation at Patton Hospital” before
attending any more hearings in the dependency case because attending the
7
hearings distracted him and interfered with his recovery, but he also said he was
anxious to see his son, James F. Marcus’s mother, as conservator of his person,
signed a document waiving Marcus’s appearance at the dependency review
hearing on July 14, 2004.
At the review hearing on July 14, 2004, which Marcus M. did not attend,
his attorney submitted the matter on the Department’s reports, conceding that
Marcus would “not any time soon be ready to have the child returned to him.”
The court ordered termination of family reunification services for Marcus and set a
hearing to select a permanent plan for James F.
In its permanency planning report filed on November 8, 2004, the
Department told the court that James F. had been visiting Marcus M. at Patton
State Hospital “approximately every other week.” James continued to live with
his maternal grandparents, who wanted to adopt him. The Department
recommended adoption as the permanent plan for James, with termination of the
parental rights of Marcus M. and Cynthia F., and it was in the process of
conducting a home study of the maternal grandparents. In a status review report
filed on January 12, 2005, the Department stated that Marcus had been released
from Patton State Hospital in November 2004, that he was serving a sentence at
North Kern State Prison, and that his parents were no longer conservators of his
person.
Because the home study of the maternal grandparents had not been
completed and filed, the permanency planning hearing (Welf. & Inst. Code,
§ 366.26) was twice continued. The hearing was then scheduled for August 22,
2005, but Marcus M. did not appear on that date. According to a note in the
record, Marcus could not be transported from the prison because he was in “four-
point restraints” (meaning, apparently, restraints of both hands and feet). The
court again continued the permanency planning hearing. On September 12, 2005,
8
Marcus again did not appear, the court again received information that he was “in
four-point restraints,” and the court again rescheduled the hearing.
On October 20, 2005, Marcus M. again did not appear for the permanency
planning hearing. The juvenile court received information that Marcus had been
transferred from North Kern State Prison to the California Medical Facility in
Vacaville and that his mental condition was likely the reason for the transfer and
also the reason why he was not transported to court. The court again rescheduled
the hearing.
The juvenile court held the permanency planning hearing on December 7,
2005. Marcus M. was not present. Linda Nakamura, Marcus’s attorney,
explained that Marcus had decided not to attend the hearing because of concerns
for his own safety. After hearing testimony from James F.’s mother, Cynthia F.,
and from his paternal grandfather, the court found by clear and convincing
evidence that James was adoptable and that it would be detrimental for him to be
returned to his parents’ custody. The court selected adoption as the permanent
plan for James, and it terminated the parental rights of Marcus and Cynthia.
On Marcus M.’s appeal from the order terminating his parental rights, the
Court of Appeal reversed. Because the Department conceded that the juvenile
court had erred in appointing a guardian ad litem for Marcus M. without advising
him of the purpose or consequences of the appointment, the court focused its
analysis on whether the error was structural, requiring automatic reversal, or
instead was a trial error subject to harmless error analysis. In a two-to-one
decision, the Court of Appeal concluded that automatic reversal was required. We
granted the Department’s petition for review.
II
In a dependency case, a parent who is mentally incompetent must appear by
a guardian ad litem appointed by the court. (Code Civ. Proc., § 372; In re Sara
9
D., supra, 87 Cal.App.4th at p. 665.) The test is whether the parent has the
capacity to understand the nature or consequences of the proceeding and to assist
counsel in preparing the case. (In re Jessica G. (2001) 93 Cal.App.4th 1180,
1186; In re Sara D., supra, at p. 667.) The effect of the guardian ad litem’s
appointment is to transfer direction and control of the litigation from the parent to
the guardian ad litem, who may waive the parent’s right to a contested hearing.
(In re Jessica G., supra, at pp. 1186-1187; In re Sara D., supra, at p. 668.)
Before appointing a guardian ad litem for a parent in a dependency
proceeding, the juvenile court must hold an informal hearing at which the parent
has an opportunity to be heard. (In re Sara D., supra, 87 Cal.App.4th at p. 663.)
The court or counsel should explain to the parent the purpose of the guardian ad
litem and the grounds for believing that the parent is mentally incompetent. (Id. at
p. 672.) If the parent consents to the appointment, the parent’s due process rights
are satisfied. (Id. at p. 668.) A parent who does not consent must be given an
opportunity to persuade the court that appointment of a guardian ad litem is not
required, and the juvenile court should make an inquiry sufficient to satisfy itself
that the parent is, or is not, competent. (Id. at p. 672.) If the court appoints a
guardian ad litem without the parent’s consent, the record must contain substantial
evidence of the parent’s incompetence. (Id. at p. 673.)
Here, the Department concedes that the juvenile court did not explain to
father Marcus M. what a guardian ad litem is or what powers a guardian ad litem
has, nor did the court give Marcus a meaningful opportunity to be heard in
opposition to the appointment, and it inaccurately told Marcus that the guardian ad
litem was his “second lawyer.” Accordingly, there is no dispute that the juvenile
court erred in the process by which it appointed Claudette Boehm as guardian ad
litem for Marcus. The parties agree, moreover, that the procedures used in this
case for appointment of the guardian ad litem did not comport with due process.
10
We accept that concession and do not reach the issue of what due process requires
in this context. The issue we address here is whether a juvenile court’s error in the
procedure used to appoint a guardian ad litem always requires reversal or instead
is subject to harmless error analysis.1
III
The Courts of Appeal are divided on the issue before this court, whether a
juvenile court’s error in the procedure used for appointment of a guardian ad litem
for a parent in a dependency proceeding is a form of structural error that requires
automatic reversal of an order terminating the parent’s parental rights, or whether
it is instead subject to harmless error analysis.
The first decision to address the issue was In re Sara D., supra, 87
Cal.App.4th 661, in which the Court of Appeal for the Fifth Appellate District in
2001 concluded that a juvenile court’s error in the appointment of a guardian ad
litem for a parent in a dependency proceeding without holding the required
informal hearing does not require reversal of an order terminating parental rights if
the violation of the parent’s due process rights was harmless beyond a reasonable
doubt. (In re Sara D., supra, at p. 673.) But the court concluded that the error in
that case was not harmless under that standard, and it therefore reversed the
juvenile court’s order. (Id. at pp. 673-674.)

1
The California State Association of Counties, appearing as amicus curiae,
has asked us to decide not only that the error is amenable to harmless error
analysis, but also that the appropriate harmless error standard is harmless by clear
and convincing evidence rather than harmless beyond a reasonable doubt. (See
Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515.) Because
we did not grant review on the appropriate harmless error standard and the parties
have not briefed it, we do not address that issue here.
11


Several months later, the issue was addressed by Division Four of the
Second Appellate District in In re Jessica G., supra, 93 Cal.App.4th 1180. In that
dependency case, the juvenile court had appointed a guardian ad litem for the
mother without explaining to her the purpose or effect of the appointment and
without questioning her to determine whether or not she was competent. (Id. at
p. 1189.) The Court of Appeal concluded that the juvenile court’s error was not
harmless beyond a reasonable doubt, and on this basis it reversed the orders
appointing a guardian ad litem and terminating the mother’s parental rights. (Id. at
pp. 1189-1191.)
Thereafter, in 2004, Division One of the Fourth Appellate District
addressed the issue in In re Daniel S., supra, 115 Cal.App.4th 903. In that
dependency case, the mother, a chronic paranoid schizophrenic, was hospitalized
under Welfare and Institutions Code section 5150 because she was considered a
danger to herself and others. During her hospitalization, the juvenile court
appointed a guardian ad litem for her without giving her notice of the
jurisdictional hearing, the dispositional hearing, or the hearing to appoint the
guardian ad litem, and without giving her an opportunity to state her views on the
appointment of the guardian ad litem. (In re Daniel S., supra, at p. 912.) The
Court of Appeal concluded that the juvenile court had erred, but that the error was
harmless beyond a reasonable doubt and did not require reversal of the
jurisdictional or dispositional orders. (Id. at pp. 913-916.) At the time of the
appointment, the mother was in psychiatric intensive care, she was unable to
“process anything,” and the hospital authorities would not allow her to attend the
dependency hearings in juvenile court. Because of the “strict time lines” that
govern dependency proceedings, the Court of Appeal stated, the juvenile court
was not required to “wait for an indefinite period of time for [the mother] to
sufficiently regain her mental faculties to be able to appreciate notice of the
12
jurisdictional and dispositional hearing or the hearing to appoint a guardian ad
litem.” (Id. at p. 914.)
Then came In re C. G. (2005) 129 Cal.App.4th 27, another decision from
Division Four of the Second Appellate District, and the first to apply an automatic
reversal standard. In that dependency case, the Court of Appeal concluded that the
juvenile court had erred in appointing a guardian ad litem for the mother without
explaining to her the purpose and consequences of the appointment, and without
adequate inquiry into her mental competence. (Id. at pp. 32-33.) The court
concluded that “in the circumstances of this case” the error was structural “as
explained in Arizona v. Fulminante [(1991) 499 U.S. 279],” requiring automatic
reversal of the order placing the dependent child under legal guardianship, because
the erroneous appointment of the guardian ad litem “deprived [the] mother of her
status as a party in the case.” (In re C. G., supra, at p. 34.)
Division One of the Fourth Appellate District addressed the issue a second
time in In re Enrique G. (2006) 140 Cal.App.4th 676. In that dependency
proceeding, the juvenile court appointed a guardian ad litem for the mother
without notifying the mother of the proposed appointment or explaining to her its
purpose and effects, and without an inquiry into the mental competence of the
mother, who was given no opportunity to respond. (Id. at p. 684.) The Court of
Appeal concluded that the juvenile court violated the mother’s due process rights
by appointing the guardian ad litem without following the required procedures (id.
at pp. 683-684), but “that the appointment of a guardian ad litem in violation of a
parent’s due process rights is a trial error, not a structural one” (id. at p. 685). The
court reasoned that the error was “not like other errors that have been found to be
structural” because it was possible for a reviewing court to “assess the harm
resulting from the error.” (Id. at p. 686.) Because neither the mother’s attorney
nor the guardian ad litem compromised the mother’s fundamental rights, and
13
because the mother failed to participate in any of the reunification services offered
to her (ibid.), it was “clear that the outcome of the proceedings would have been
the same even if the court had not appointed a guardian ad litem” for the mother
(id. at p. 687). The court affirmed the judgment terminating the mother’s parental
rights. (Ibid.)
In this case, Division Seven of the Second Appellate District stated that if
the juvenile court’s error in appointing a guardian ad litem for young James’s
father, Marcus M., were not structural error requiring automatic reversal, it would
find the error harmless beyond a reasonable doubt because it could not “conceive
of any additional testimony [Marcus] could have presented or evidence he could
have submitted which would have altered” the juvenile court’s decisions to
assume jurisdiction and to terminate Marcus’s reunification services and his
parental rights, inasmuch as Marcus “was never ready to assume custody of James
due to his mental condition and his incarceration” and Marcus’s brief and
infrequent contacts with James “could not have created the type of bond and
parent-child relationship necessary to force this child to forgo adoption.”
Nevertheless, the Court of Appeal concluded that the error was structural because
it “stripped [Marcus] of his right to participate in litigation involving his
entitlement to the companionship, care and custody of his son without affording
him the process he was due”; because designating the error as structural gives
juvenile courts “the enhanced incentive to avoid error of this nature”; and because
the error undermined the integrity and fundamental fairness of the dependency
proceeding.
Presiding Justice Perluss, in dissent, argued that error in appointing a
guardian ad litem for a parent in a dependency proceeding was not structural and
did not require automatic reversal, because an appellate court could accurately
14
determine whether the parent actually suffered prejudice, and also because of the
strong public interest in the expeditious resolution of dependency actions.
IV
In Arizona v. Fulminante, supra, 499 U.S. 279, a criminal case in which the
erroneous admission into evidence of a defendant’s coerced confession was at
issue, the United States Supreme Court distinguished constitutional errors called
“trial errors” that “occur[] during the presentation of the case to the jury” and the
effect of which can “be quantitatively assessed in the context of other evidence
presented in order to determine whether [they were] harmless beyond a reasonable
doubt” (id. at pp. 307-308), from other, less common constitutional errors that are
“structural defect[s] affecting the framework within which the trial proceeds” so
that they “defy analysis by ‘harmless-error’ standards” and can never be harmless
(id. at pp. 309-310). Structural defects requiring automatic reversal of a criminal
conviction typically involve basic protections without which “ ‘a criminal trial
cannot reliably serve its function as a vehicle for determination of guilt or
innocence, and no criminal punishment may be regarded as fundamentally fair.’ ”
(Id. at p. 310; see also Neder v. United States (1999) 527 U.S. 1, 9 [stating that a
structural error is one that “necessarily render[s] a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence”].) These
include total deprivation of the right to counsel, denial of the right of self-
representation, trial before a judge who is not impartial, unlawful exclusion of
members of the defendant’s race from a grand jury, and denial of the right to a
public trial. (Arizona v. Fulminante, supra, at p. 310.) Admission of an
involuntary confession by the defendant, the high court concluded, was a trial
error subject to harmless error analysis. (Ibid.)
In United States v. Gonzalez-Lopez (2006) 548 U.S. __ [126 S.Ct. 2557],
the United States Supreme Court held that erroneous deprivation of a criminal
15
defendant’s Sixth Amendment right to counsel of choice was a structural defect
requiring reversal of the conviction without inquiry into prejudice. The court
explained: “It is impossible to know what different choices the rejected counsel
would have made, and then to quantify the impact of those different choices on the
outcome of the proceedings. Many counseled decisions, including those involving
plea bargains and cooperation with the government, do not even concern the
conduct of the trial at all. Harmless-error analysis in such a context would be a
speculative inquiry into what might have occurred in an alternate universe.” (Id.
at p. __ [126 S.Ct. at p. 2565].)
We conclude that error in the procedure used to appoint a guardian ad litem
for a parent in a dependency proceeding is trial error that is amenable to harmless
error analysis rather than a structural defect requiring reversal of the juvenile
court’s orders without regard to prejudice. Determining 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, supra, 548 U.S. at
p. __ [126 S.Ct. at p. 2565].)
Preliminarily, we observe 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. The rights and protections
afforded parents in a dependency proceeding are not the same as those afforded to
the accused in a criminal proceeding. 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. (See In re Malinda S. (1990) 51 Cal.3d 368, 373.) 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
16
deterrent effect which would result from suppressing evidence’ unlawfully
seized.” (In re Mary S. (1986) 186 Cal.App.3d 414, 418.)
Plea bargaining and other negotiated dispositions play a significant role in
criminal proceedings, but not in dependency proceedings. A defendant in a
criminal proceeding has a constitutional right to trial by jury (U.S. Const., 6th
Amend.), but in a dependency proceeding the juvenile court makes all factual and
legal determinations. The prosecution in a criminal proceeding must prove the
defendant’s guilt beyond a reasonable doubt; in dependency proceedings, the
burden of proof is proof by clear and convincing evidence. (Santosky v. Kramer
(1982) 455 U.S. 745, 769-770.) In a criminal prosecution, the contested issues
normally involve historical facts (what precisely occurred, and where and when),
whereas in a dependency proceeding the issues normally involve evaluations of
the parents’ present willingness and ability to provide appropriate care for the
child and the existence and suitability of alternative placements. Finally, the
ultimate consideration in a dependency proceeding is the welfare of the child (see
In re Marilyn H., supra, 5 Cal.4th at p. 307; In re Malinda S., supra, 51 Cal.3d at
p. 384), a factor having no clear analogy in a criminal proceeding.
These significant differences between criminal proceedings and
dependency proceedings provide reason to question whether the structural error
doctrine that has been established for certain errors in criminal proceedings should
be imported wholesale, or unthinkingly, into the quite different context of
dependency cases. (See In re Celine R., supra, 31 Cal.4th at pp. 58-59 [rejecting
analogy to criminal cases and applying harmless error analysis to improper joint
representation of children in dependency case]; In re Sade C. (1996) 13 Cal.4th
952, 991 [stating that criminal defendants and parents in dependency proceedings
“are not similarly situated”].)
17
Here, the Court of Appeal concluded that if harmless error analysis were
permissible, it would readily conclude that any error in the procedure by which the
juvenile court appointed the guardian ad litem for the child’s father, Marcus M.,
did not result in any actual prejudice to him. We agree that Marcus suffered no
actual prejudice. The evidence in the record all points to the conclusion that
Marcus was incompetent and thus in need of a guardian ad litem. Before the
juvenile court appointed the guardian ad litem, Marcus’s parents had already been
appointed conservators of his person under Probate Code section 1801, which
permits a conservator of the person to be appointed “for a person who is unable to
provide properly for his or her personal needs for physical health, food, clothing,
or shelter.” (Prob. Code, § 1801, subd. (a).) And Marcus was found mentally
incompetent to stand trial in criminal proceedings either shortly before or within
days after the guardian ad litem appointment; thus, he met the requirements of
Penal Code section 1367, which provides that a defendant in a criminal proceeding
is mentally incompetent to be tried “if, as a result of mental disorder or
developmental disability, the defendant is unable to understand the nature of the
criminal proceedings or to assist counsel in the conduct of a defense in a rational
manner.” (Pen. Code, § 1367, subd. (a).) In a dependency proceeding, a juvenile
court should appoint a guardian ad litem for a parent if the requirements of either
Probate Code section 1801 or Penal Code section 1367 are satisfied. (In re Sara
D., supra, 87 Cal.App.4th at p. 667.)
Moreover, the record also strongly indicates that Marcus M. would have
consented to the appointment of a guardian ad litem had the purpose and effect of
the appointment been correctly explained to him. At the juvenile court hearing
where the appointment was made, he was observed to be looking to his relatives
for cues on how to answer the court’s inquiries, and he declined to attend other
hearings on the grounds that it would interfere with his recovery, thus
18
demonstrating his recognition that he needed the sort of assistance that a guardian
ad litem could provide. And on those occasions when Marcus did attend hearings
in the juvenile dependency matter, there is no indication that he ever disagreed
with the decisions of the guardian ad litem regarding management of the case.
Although the procedural error in the guardian ad litem appointment caused
no actual harm to Marcus M., the Court of Appeal nonetheless concluded that the
error was structural and therefore precluded harmless error analysis. But the
United States Supreme Court has explained that most structural defects “defy
analysis by ‘harmless-error’ standards.” (Arizona v. Fulminante, supra, 499 U.S.
at p. 309.) 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” (id. at p. 308) generally are not structural defects. (See United
States v. Gonzalez-Lopez, supra, 548 U.S. at p. __, fn. 4 [126 S.Ct. at p. 2564]
[“here, as we have done in the past, we rest our conclusion of structural error upon
the difficulty of assessing the effect of the error”].)
As the Court of Appeal majority noted, there are also a very few
constitutional errors that the United States Supreme Court has categorized as
structural, not because they defy harmless error analysis, but because prejudice is
irrelevant and reversal deemed essential to vindicate the particular constitutional
right at issue. (See United States v. Gonzalez-Lopez, supra, 548 U.S. at p. __, fn.
4 [126 S.Ct. at p. 2564] [“In addition to . . . difficulty of assessment [of prejudice]
. . . , we have also relied on the irrelevance of harmlessness . . . .”].) The United
States Supreme Court has not applied this reasoning outside the context of
criminal proceedings, however, nor has it ever held that harmlessness is irrelevant
when the right of procedural due process — the constitutional right on which
Marcus M. here relies — has been violated. We cannot agree with the Court of
Appeal majority that prejudice is irrelevant in a dependency proceeding when the
19
welfare of the child is at issue and delay in resolution of the proceeding is
inherently prejudicial to the child.
The Court of Appeal majority here decided that the juvenile court’s error in
appointing a guardian ad litem for Marcus M. was a structural defect because it
“stripped [Marcus] of his right to participate in litigation involving his entitlement
to the companionship, care and custody of his son without affording him the
process he was due”; because designating the error as structural gives juvenile
courts “the enhanced incentive to avoid error of this nature”; and because the error
undermined the integrity and fundamental fairness of the dependency proceeding.
We examine these reasons in turn.
The record does not support the Court of Appeal majority’s dramatic
assertion that appointment of a guardian ad litem for Marcus M. “stripped [him] of
his right to participate” in the action. Nothing suggests that Marcus was unable to
express his wishes to the court, either directly or through his appointed guardian,
that he lacked actual notice of the proceedings as they unfolded, that the guardian
and the attorney appointed for Marcus failed to properly advocate for his parental
interests, or that Marcus ever expressed dissatisfaction with the guardian ad litem
or asked the juvenile court to vacate her appointment.
The Court of Appeal majority’s second reason — that treating the error as
structural would give juvenile courts an added incentive to avoid the error in the
future — is similarly unpersuasive. We assume that juvenile courts make every
effort to follow required procedures, and we question whether treating a
procedural error as a structural defect requiring automatic reversal would
significantly decrease the frequency of such errors. Moreover, the price that
would be paid for this added incentive, in the form of needless reversals of
dependency judgments, is unacceptably high in light of the strong public interest
in prompt resolution of these cases so that the children may receive loving and
20
secure home environments as soon as reasonably possible. (See In re Josiah Z.
(2005) 36 Cal.4th 664, 674 [“the priority in dependency proceedings is to identify
and carry out the services and placement that best serve the child’s interests as
swiftly as possible”]; In re Jesusa V. (2004) 32 Cal.4th 588, 625 [the strong
interest in resolving dependency proceedings expeditiously “would be thwarted if
the proceeding had to be redone without any showing the new proceeding would
have a different outcome”].)
The Court of Appeal majority’s third reason was that the juvenile court’s
error undermined the integrity of the dependency proceeding. But in judicial
proceedings the essence of integrity is the use of fair procedures to achieve a just
result. The purpose of appointing a guardian ad litem in a dependency case is to
protect the parent’s rights (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453),
and it is reasonable to infer, in the absence of evidence to the contrary, that a
guardian ad litem has acted zealously to preserve the parent’s interest in the
companionship, care, and custody of the child, and thus that the parent benefited
from the guardian ad litem’s appointment. For this reason, the use of flawed
procedures in the appointment of a guardian ad litem for a parent does not
inevitably and necessarily render dependency proceedings unfair in any
fundamental sense. As noted above, the evidence in the record establishes that
Marcus M. was incompetent and in need of the guardian ad item when the juvenile
court made the appointment. Moreover, as the Court of Appeal reasonably
concluded, the result achieved here was certainly correct, and therefore just. Due
to his mental condition and incarceration, Marcus was never ready to assume
custody of his young son, James F. His contacts with James during the first two
months of James’s life and their biweekly visits between July and November of
2004 during Marcus’s confinement at Patton State Hospital, when James was only
21
one year old, “could not have created the type of bond and parent-child
relationship necessary to force this child to forgo adoption.”
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. (See
Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102,
1123-1124.) We conclude that a juvenile court’s error in the process used for
appointment of a guardian ad litem for a parent in a dependency proceeding is a
form of trial error that is amenable to harmless error analysis.2
The judgment of the Court of Appeal is reversed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

2
To the extent it is inconsistent with this conclusion, we disapprove In re C.
G., supra, 129 Cal.App.4th 27.
22



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re James F.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 146 Cal.App.4th 599
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S150316
Date Filed: January 17, 2008
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: David S. Milton

__________________________________________________________________________________

Attorneys for Appellant:

John L. Dodd, under appointment by the Supreme Court, and Ellen Forman Obstler, under appointment by
the Court of Appeal, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Raymond G. Fortner, Jr., County Counsel, Larry Cory and James M. Owens, Assistant County Counsel,
Frank J. DaVanzo, Principal Deputy County Counsel, and Kim Nemoy, Deputy County Counsel, for
Plaintiff and Respondent.

Jennifer B. Henning; John J. Sansone, County Counsel (San Diego), John E. Philips, Chief Deputy County
Counsel and Paula J. Roach, Deputy County Counsel, for California State Association of Counties as
Amici Curiae on behalf of Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA 92780
(714) 731-5572

Kim Nemoy
Deputy County Counsel
201 Centre Plaza Drive, Suite 1
Monterey Park, CA 91754-2143
(323) 526-6293

Paula J. Roach
4955 Mercury Street
San Diego, CA 92111-1703
(888) 492-2500


Petition for review after the Court of Appeal reversed an order terminating parental rights. This case presents the following issue: Is any error in appointing a guardian ad litem in a juvenile dependency proceeding structural error - and thus automatically reversible - or may the error be found harmless?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 01/17/200842 Cal. 4th 901, 174 P.3d 180, 70 Cal. Rptr. 3d 358S150316Review - Civil Appealclosed; remittitur issued

S. (JACLYN), IN RE (S153178)


Parties
1Los Angeles County Department Of Children And Family Service (Plaintiff and Respondent)
Represented by Frank Joseph Davanzo
Office of the County Counsel/Children's Services
101 Centre Plaza Drive
Monterey Park, CA

2Los Angeles County Department Of Children And Family Service (Plaintiff and Respondent)
Represented by Kim Nicole Nemoy
Office of the County Counsel
201 Centre Plaza Drive, Suite 1
Monterey Park, CA

3M., M. (Defendant and Appellant)
Represented by John L. Dodd
John L. Dodd & Associates
17621 Irvine Boulevard, Suite 200
Tustin, CA

4M., M. (Defendant and Appellant)
Represented by Ellen Forman Obstler
Attorney at Law
524 San Anselmo Avenue, Suite 207
San Anselmo, CA

5F., J. (Overview party)
Represented by William Pirtle
Children's Law Center
201 Centre Plaza Drive, Suite 8
Monterey Park, CA

6California State Association Of Counties (Amicus curiae)
Represented by Paula Jean Roach
California State Association of Counties
4955 Mercury Street
San Diego, CA


Opinion Authors
OpinionJustice Joyce L. Kennard

Disposition
Jan 17 2008Opinion: Reversed

Dockets
Feb 16 2007Petition for review filed
  Respondent Los Angeles County Department of Children and Family Services Attorney Frank Da Vanzo, Deputy County Counsel
Feb 16 2007Request for depublication (petition for review pending)
  Respondent Los Angeles County Department of Childrean Family Services Attorney Frank Da Vanzo, Deputy County Counsel
Feb 20 2007Record requested
 
Feb 22 2007Received Court of Appeal record
 
Mar 28 2007Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Apr 3 2007Letter sent to:
  counsel - regarding briefing
Apr 4 2007Received Court of Appeal record
 
Apr 17 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, John Dodd is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. Your attention is directed to California Rules of Court, rule 8.520, for the briefing requirements. Please note also that, because this is a child dependency case, the court may grant an extension of time only on 'an exceptional showing of good cause." (Code Civ. Proc., 45; Cal. Rules of Court, rule 38.2(d).)
Apr 27 2007Opening brief on the merits filed
  Respondent Los Angeles County Department of Children & Family Services Senior Deputy County Counsel Kim Nemoy
May 22 2007Answer brief on the merits filed
  Marcus M., appellant John L. Dodd, counsel
Jun 11 2007Reply brief filed (case fully briefed)
  Respondent Los Angeles County Department of Children & Family Services Senior Deputy County Counsel Kim Nemoy
Jun 12 2007Received:
  Notice of Errata to Reply Brief/Merits Respondent Los Angeles County Department of Children & Family Services
Jun 13 2007Compensation awarded counsel
  Atty Dodd
Jul 11 2007Received application to file Amicus Curiae Brief
  California State Association of Counties, amicus curiae Paula J. Roach, counsel
Jul 20 2007Amicus curiae brief filed
  The application of the California State Association of Counties for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 16 2007Received:
  Amended proof of service California State Association of Counties, Amicus Curiae Maggie Sakadelis, counsel
Oct 25 2007Case ordered on calendar
  to be argued Tuesday, December 4, 2007 at 2:00 p.m., in Los Angeles.
Nov 5 2007Motion filed (non-AA)
  to divide oral argument time Respondent Los Angeles County Department of Children & Family Srvcs Deputy County Counsel Kim Nemoy
Nov 8 2007Order filed
  The request of counsel for respondent in the above-referenced cause to allow two counsel to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to amicus curiae California State Association of Counties 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
Nov 30 2007Received:
  letter from counsel for respondent dated November 30, 2007, regarding recent decision in In re Mark A. (Nov 13, 2007, G038332) Cal.App. 4TH [2007 Cal.App.Lexis 1848],
Dec 4 2007Cause argued and submitted
 
Dec 6 2007Received:
  11/30/07 letter from atty Paula Roach, amicus cnsl in support of respondent, re recent decision of In re Mark A.
Jan 17 2008Opinion filed: Judgment reversed
  Majority Opinion by Kennard, J. joined by George C. J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Feb 13 2008Compensation awarded counsel
  Atty Dodd
Feb 21 2008Remittitur issued (civil case)
 
Feb 27 2008Received:
  Receipt for Remittitur from the Second District Court of Appeal, Division Seven
May 7 2008Returned record
  3 doghouses, 1 confidental envelope - shipped to L.A. office on Wednesday, 5/14/08 via UPS Next Day Air.

Briefs
Apr 27 2007Opening brief on the merits filed
 
May 22 2007Answer brief on the merits filed
 
Jun 11 2007Reply brief filed (case fully briefed)
 
Jul 20 2007Amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2011
Annotated by Daniel Brown

FACTS:
Petitioner Los Angeles County Department of Health Services removed infant James F. from the custody of both his mother and Defendant Marcus M. The Department petitioned the juvenile court to assert dependency jurisdiction over James. The Department’s petition included statements that Marcus had a history of criminality, instability, and mental illness. Marcus denied that amended petition’s allegations. The court then appointed Marcus a guardian ad litem without advising him of the purpose or consequences of the appointment. Following that appointment, the court then announced that all parties had agreed to submit the matter based on the Department's petition. Marcus' parental rights over James were eventually terminated.

Both Petitioner and Defendant agree that the juvenile court was in error because it appointed a guardian ad litem for Marcus without advising him of the purpose or consequences of that appointment.

PROCEDURAL HISTORY:
Following the juvenile court's termination of Marcus's parental rights, a divided Court of Appeal reversed that termination, concluding that the juvenile court's error in appointing a guardian ad litem for Marcus was a structural error, and thus required an automatic reversal. The Los Angeles Department of Health Services petitioned the California State Supreme Court and the Court granted review.

ISSUE:
Whether any error in appointing a guardian ad litem in a juvenile dependency proceeding is necessarily structural error - thus requiring an automatic reversal - or whether the error may be found harmless.

HOLDING:
Errors in appointing a guardian ad litem in a juvenile dependency hearing may be found harmless. The judgment of the Court of Appeal is reversed.

ANALYSIS:
Until this opinion, Courts of Appeal were divided as to whether a juvenile court's error in the procedure used for appointment of a guardian ad litem for a parent in a dependency proceeding is a form of structural error that requires automatic reversal. The first case to address the matter was In re Sara D. (2001), 87 Cal.App.4th 661, which concluded that an error in appointing a guardian ad litem for a parent in a dependency hearing does not require reversal of an order terminating parental rights if the violation of the parent's due process rights was harmless beyond a reasonable doubt. (In re Sara D. at 673.) Other opinions followed suit. See In re Jessica G. (2001), 93 Cal.App.4th 1180 (applying a beyond a reasonable doubt standard for determining whether or not an error in appointing a guardian ad litem in a dependency hearing was a violation of a parent's due process rights); see also In re Daniel S., 115 Cal.App.4th 903 (finding the appointment of a guardian ad litem to a parent in a dependency hearing harmless error beyond a reasonable doubt even though the parent was afforded neither notice of the jurisdictional hearing, the dispositional hearing, nor the hearing to appoint the guardian ad litem, and even though the parent was not afforded an opportunity to speak on the matter of the appointment of the guardian ad litem.) The first case to apply an automatic reversal standard was In re C.G. (2005), 129 Cal.App.4th 27, in which Division Four of the Second Appellate District concluded that the erroneous appointment of a guardian ad litem was structural "as explained in Arizona v. Fulminante [(1991) 499 U.S. 279]."

The Fulminante decision, however, was based on a criminal proceeding, and this Court took issue with appropriating criminal law doctrines wholesale into dependency cases. Unlike criminal proceedings, wherein the liberty interest of a sole defendant is at stake, the paramount interest in dependency cases is the welfare of the child. Though the interest in caring for and being a companion to a child is great, it is a different case with different rights afforded to the parent than the parent would have in a criminal proceeding.

The Court disapproves In re C.G., 129 Cal.App.4th 27 to the extent it is inconsistent with this opinion.

The Court did not address the issue of whether the harmless error analysis should be done by a clear and convincing evidence standard or the more stringent beyond a reasonable doubt standard. Though the California State Association of Counties filed an amicus asking the Court to find that the appropriate standard to apply to errors of this sort is a clear and convincing evidence standard rather than the more stringent beyond a reasonable doubt standard, See Denny H. v. Superior Court (2005), 131 Cal.App.4th 1501, 1514-1515. The Court did not address that issue here, instead it left the issue unsettled.