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Name: In re Al.J.
Case #: B297762
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 12/24/2019
Summary

Order terminating father’s parental rights was reversed following defective notice of the jurisdiction and disposition hearings and failure to appoint counsel. Appellant father was in custody of the CDCR serving a sentence for robbery. He was housed in a facility in Mississippi due to overcrowding. In April 2015 he received untimely notice of a jurisdiction and disposition hearing regarding the minors, who had been removed from mother. He promptly responded with letters to the court and social worker stating that he wished to appear. The court did not continue the hearing date or appoint counsel for father. It ordered that father would not receive reunification services under section 361.5, subdivision (e)(1). In 2016, father was returned to prison in California. He was personally served with notice of the 366.26 hearing, and indicated his desire to appear. He also filed in pro per a petition under section 388, notifying the court that he would be released in six months and asking for reunification services and visits. The court summarily denied the petition. Father was transported to the 366.26 hearing and was appointed counsel. Counsel filed another 388 petition, challenging the adequacy of notice for the jurisdiction and disposition hearing, and asking the court to vacate the prior orders. The court denied that petition as well. After father’s release from prison, he began weekly monitored visits with the minors. The 366.26 hearing was repeatedly continued for more than two years, and father’s visits continued. On appeal following the termination of his parental rights, father challenged the validity of the disposition order denying him reunification services, as well as the order denying his second section 388 petition. Both parties agreed that father was not properly notified of the jurisdiction and disposition hearing. Father contended that the improper notice of the hearing led to a series of prejudicial errors, including the court’s failure to appoint counsel to represent him. The Agency argued that any notice error was harmless. The appellate court held there was prejudicial error. It is reasonably probable that absent the notice error and the related denial of legal representation, father would have been granted reunification services and his parental rights would not have been terminated. It is unclear whether the court or the Department received father’s request to appear at the jurisdiction and disposition hearings, but it is clear that the court did not appoint an attorney to represent father and no action was taken to facilitate his appearance. The Department’s harmlessness argument ignores the fact that the defective notice caused father to lose his right to appear and legal representation at critical stages of the dependency case. Not only did the Department fail to show that the notice error was harmless, but father has demonstrated miscarriage of justice warranting reversal.