as: 127 Cal.App.4th 1109, 26 Cal.Rptr.3d 394)
of Appeal, Fourth District, Division 3, California.
re JASMINE G., a Person Coming Under the Juvenile Court
County Social Services Agency, Plaintiff and Respondent,
G., Defendant and Appellant.
Lori A. Fields, Los Angeles, under appointment by the Court
of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Lori D. Barcelona,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
BEDSWORTH, Acting P.J.
Lisa G. appeals from an order that terminated parental rights
to her daughter, Jasmine G., pursuant to Welfare and Institutions
Code section 366.26.
[FN1] She argues the Orange County Social Services Agency (SSA)
failed to give her adequate notice of the selection and
implementation hearing, **396
and the evidence does not support a finding of sufficient
notice under Indian Child Welfare Act (ICWA) (25 U.S.C. § 1912(a).)
We agree on the first point, and so reverse.
All statutory references are to the Welfare and Institutions Code,
unless otherwise indicated.
In March 2003, Jasmine was born with methamphetamine in her
system. She was taken into protective custody shortly thereafter. SSA
filed a dependency petition alleging Lisa had a history of
substance abuse that impaired her ability to care for the
300, subd. (b).) Lisa appeared at the detention hearing and
the juvenile court ordered Jasmine detained.
The jurisdiction/disposition hearing was scheduled for May 2003. Lisa attended.
SSA reported possible Indian ancestry. Lisa told a social worker
she had checked with her mother and "there was no
American Indian ancestry in our
family." But the social worker's call to the mother revealed
ambiguity: "I remember someone talking about Indian ancestry in our
family and I don't want to say 'no' then 'yes'
later." Lisa's mother did some checking and called back to
say Lisa's grandmother believed "the family ha[d] Blackfeet and Cherokee
background." The juvenile court continued the hearing and ordered SSA
to notify the named tribes and the Bureau of Indian
The hearing was held in June 2003. Lisa appeared, pleaded
no contest, and the juvenile court sustained the petition. SSA
filed the notices it had sent to the Blackfeet, three
Cherokee tribes, and the BIA, along with proofs of *1113
service and certified mail return receipts for each. One Cherokee
tribe responded that Jasmine was not one of its members.
The court ordered SSA to re-notice the remaining tribes. It
declared Jasmine a dependent child, ordered reunification services, and ordered
Lisa to return for a six-month review.
Lisa appeared for the six-month review on November 18, 2003.
Despite her appearance, SSA filed a search declaration dated November
13, 2003. In it, a social worker recited various addresses
to which she had sent notice of the hearing. The
social worker also said she had spoken with Lisa the
previous day, told her of the hearing, and Lisa provided
a new, current address on Morgan Lane, Garden Grove. For
reasons that do not appear in the record, the matter
The hearing was held on December 17, 2003. This time,
Lisa did not show up. SSA filed an addendum report,
signed on December 10, 2003, that said Lisa's address and
telephone were "unknown." A status review report stated Lisa had
been discharged from an inpatient drug program for using drugs
and had failed to make any progress with her case
plan. Lisa had been visiting Jasmine regularly through June, with
positive interaction. After that, visitation was sporadic. SSA submitted the
second round of notices it had mailed to the remaining
Indian tribes and the BIA, along with certified mail return
receipts and said no one had responded. The juvenile court
terminated reunification services, ordered that a selection and implementation hearing
be held, and ordered SSA to attempt to notify Lisa.
It found the ICWA inapplicable.
On March 1, 2004, the juvenile court held a notice
review hearing. SSA re-filed its prior November 13, 2003 search
That is, it offered no evidence of any attempt to
locate Lisa after that date. Lisa's trial attorney stipulated to
SSA's due diligence, and on this basis the court found
SSA had exercised due diligence in its efforts to locate
Lisa. It authorized notice by service on her attorney.
The selection and implementation hearing was held on April 14,
2004. SSA's report for this hearing--signed on April 1, **397
2004 and filed on April 13, 2004--reported that a social
worker had spoken with Lisa eight times after the setting
order, and met with her once. That meeting took place
on January 27, 2004,
and the last telephone contact was on February 24, 2004.
[FN2] During all of these contacts, no one told Lisa
of the upcoming hearing. The report *1114
also set forth a new address for Lisa on West
Orangethorpe Avenue in Placentia, but did not indicate when it
had been obtained. Nothing in the record indicates SSA even
tried to notify Lisa at the new address, nor that
it advised her trial attorney of that address.
SSA reported telephone contacts with Lisa on December 24, 2003,
January 14, 20, 21, 2004, and February 4, 10, 11,
and 24, 2004, and it said a social worker had
met Lisa on January 27, 2004, during a visit with
At oral argument, counsel for SSA said it had served
the report on Lisa's trial counsel on April 6, 2004,
but this does not appear in the record.
The juvenile court denied a request by Lisa's trial attorney
for a continuance to allow him to locate and notify
her. SSA reported inconsistent visitation and recommended termination of parental
rights. Lisa's trial attorney did not cross-examine, offer evidence, or
argue. The juvenile court found Lisa "received notice as required
by law," and ordered parental rights terminated and
the child placed for adoption.
argues she was denied due process because her parental rights were terminated
without notice of the selection and implementation hearing. She
Notice is both a constitutional
and statutory imperative. In juvenile dependency proceedings, due
process requires parents be given notice that is reasonably calculated
to advise them an action is pending and afford them an opportunity to
defend. (See, e.g., In
re DeJohn B. (2000)
84 Cal.App.4th 100, 106, 100 Cal.Rptr.2d 649.)
Furthermore, notice of a selection and implementation hearing is mandated
by statute. SSA is required to give notice of a
selection and implementation hearing to the child's parents (among others)
by section 294, subdivison (a)(1). When a parent is not
present at the setting hearing, notice must be given by
one of following means: certified mail, return receipt requested at
the last known address, established by a signed receipt; personal
service; substituted service at the parent's usual place of residence
or business, with a second copy sent to that address
by first class mail; or, in certain cases not applicable
here, by first class mail. (§
294, subd. (f)(2)-(6).)
If SSA is unable to serve a parent in this
manner, it must file a declaration showing the efforts it
has made. (§
294, subd. (f)(7).) The juvenile court may
then permit service on a parent's attorney of record by
certified mail, return receipt requested, if it finds SSA exercised
"due diligence in attempting to locate and serve the parent"
and the case is one where adoption is recommended. (§
294, subd. (f)(7)(A).) However, "in any case where the *1115
residence of the parent becomes known, notice shall immediately be
served upon the parent" by one of the means set
out above. (§
294, subd. (f)(7)(C).)
to comply with the statute in this case resulted in a mistake of constitutional
v. Fulminante (1991)
499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, a criminal case, explained
that all constitutional errors are not equal. Trial errors--those
during presentation of the case to the trier of fact--may be evaluated
to see if the error was harmless beyond a reasonable doubt. (Id.
at pp. 307-308, 111 S.Ct. 1246.) Structural errors are different
and demand automatic reversal. "These are structural defects
in the constitution of the trial mechanism, which defy analysis by 'harmless-error'
at p. 309, 111 S.Ct. 1246.) Structural defects are those "affecting
the framework within which the trial proceeds, rather than simply an error
in the trial process itself. 'Without these basic protections, 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
at p. 310, 111 S.Ct. 1246.)
California courts have applied Fulminante
outside the criminal context, including notice failings in juvenile dependency
proceedings. Some have found structural error. (Judith
P. v. Superior Court
(2002) 102 Cal.App.4th 535, 126 Cal.Rptr.2d 14 [failure to file
a status report 10 days before review hearing as required
by statute, with result that parent was denied timely notice
of charges and witnesses, and adequate opportunity to prepare].) Others
have concluded there was only trial error. (In
re Daniel S.
(2004) 115 Cal.App.4th 903, 9 Cal.Rptr.3d 646 [attempt to notify
mother of jurisdiction/disposition hearing but not temporary conservator appointed when
mother was placed in mental hospital]; In
re Angela C.
(2002) 99 Cal.App.4th 389, 120 Cal.Rptr.2d 922 [failure to give
parent notice of continued selection and implementation hearing when she
did not appear on originally noticed date].)
Our decision in In
re DeJohn B, supra,
84 Cal.App.4th 100, 100 Cal.Rptr.2d 649 implied there was structural
error where SSA never
to notify a parent of a six-month review hearing. The
result in that case was that reunification services were terminated
and a selection and implementation hearing set. We held the
lack of notice violated due process, the error was not
harmless, and it required reversal of a later order terminating
parental rights. As we explained: "Where, as here, the agency
has not even attempted to advise a parent
of proceedings that affect her fundamental rights as a parent,
we will not accept an argument *1116
that SSA's failure to give notice was harmless. We reject
the contention that we can ignore the lack of notice
because the parent was unworthy and, thus, was not prejudiced
by lack of notice." (Id.
at p. 102, 100 Cal.Rptr.2d 649.) Later, we said: "Where
SSA fails even to make an effort to provide mother
the procedural safeguard of notice, reversal is mandated." (Id.
at p. 110, 100 Cal.Rptr.2d 649.)
We now make explicit what is implicit in DeJohn
failure to attempt to give a parent statutorily required notice
of a selection and implementation hearing is a structural defect
that requires automatic reversal. It denies a parent the opportunity
to confer with her attorney, prepare her case, or defend
against the loss of parental rights. Without this, we cannot
say the loss of parental rights--or the hearing--is fundamentally fair.
The absence of any reasonable attempt to give notice goes
well beyond trial error. It is not merely a mistake
that hinders a party's ability to present the case effectively,
but rather a flaw in the systemic framework that denies
that party the opportunity to be heard at all. It
goes to the basic fairness of the structural scheme. Since
this was structural error, we do not consider whether it
was also harmless.
SSA's position in this case is very troubling, as it
was in DeJohn
It concedes only that "the record lacks evidence of attempts
to personally serve
Lisa." But **399
that is not the full of it. In fact, SSA
made no attempt, absolutely
to even look
for Lisa after the six-month review. It simply resubmitted the
November 2003 search declaration to show compliance with the later
December 2003 order to serve notice of the upcoming hearing.
Particularly astonishing is the apparent failure of anyone to even
read that declaration--which gave Lisa's then-current telephone number and address
(previously unknown to SSA) and identified a friend at one
of the known addresses who had delivered prior notices to
We are unable to imagine an explanation for failing to
tell Lisa about the hearing during eight telephone contacts and
one meeting following the setting order. This is such an
uncharacteristic failure that we must wonder if something was going
on that does not appear in our record. But no
one has been able to explain what that was, so
we are left wondering, "What were they thinking?" It is
equally inexplicable for SSA to have ignored the West Orangethorpe
Avenue address listed as Lisa's current residence in its own
report for the selection and implementation hearing.
SSA's arguments in deference of notice in this case are
unconvincing. It contends Lisa waived the notice issue when her
trial lawyer stipulated to due diligence, failed to file a
writ petition or an appeal from the due diligence order,
or object at the selection and implementation hearing. We disagree
When Lisa's trial lawyer stipulated to due diligence, he was
entitled to rely on SSA's representation that it did not
know her whereabouts. In essence, he took their word for
the proposition that his client was unlocatable even with all
the resources of the government brought to bear. Under such
circumstances, SSA can hardly be heard to assert there was
a knowing waiver of the notice issue.
By resubmitting the November 2003 search declaration, SSA represented it
had no more recent information about Lisa's whereabouts. But that
was not true. As later revealed in SSA's report for
the selection and implementation hearing, a social worker spoke with
Lisa by telephone on December 24, 2003, January 14, 20,
and 21, 2004, February 4, 10, 11, and 24, 2004,
and the social worker met with Lisa on January 27,
2004. Since trial counsel stipulated to due diligence based on
misinformation from SSA, and presumably refrained from challenging the due
diligence order for the same reason, we cannot accept the
argument there was a waiver of the notice issue.
The record also suggests SSA had a current address for
Lisa by March 1, 2004, the date it refiled the
November 2003 search declaration. That address, on West Orangethorpe Avenue,
was first revealed in SSA's April 1, 2004 report for
the selection and implementation hearing. The report does not say
when it was obtained. At oral argument, counsel for SSA
did not know when it first learned of the address.
We believe a reasonable inference is that SSA had to
have known the address no later that its last contact
with Lisa on February 24, 2004--nothing else in the report
explains how the information might have been obtained.
SSA argues any failure of notice was harmless based on
two recent decisions. Both are distinguishable. In In
re Daniel S., supra,
115 Cal.App.4th 903, 9 Cal.Rptr.3d 646, a social worker tried
to notify a parent, detained in a mental hospital, but
not her temporary conservator. The court found this was harmless
error without considering whether it was a structural error. Here,
there was no attempt to give notice, and we believe
that makes all the difference.
The other case SSA cites is In
re Angela C., supra,
99 Cal.App.4th 389, 120 Cal.Rptr.**400
2d 922. There, a parent had been given proper notice
of a selection and implementation hearing but did not appear,
and the social services agency failed to give notice of
the continued date. The court held this was trial error,
and harmless. *1118
It said the parent had received notice of the originally
scheduled hearing, and the juvenile court could have proceeded without
her at that time. Again, we find the failure here
qualitatively different. In this case, SSA never even tried to
give Lisa notice of the selection and implementation hearing, despite
having been in regular contact with her and having a
current address. That is the difference between
a sound structure which fails due to human error and
an unsound structure which can never support a fair process.
It is the difference between reversible error and error per
se, and in this case it requires reversal.
does not fare as well on the ICWA argument. She asserts the juvenile
court cannot properly find the act inapplicable until all tribes sent
notice have responded. But that is not the law.
The ICWA provides that where termination of parental rights is
sought and a state court has reason to know an
Indian child is involved, it must require the party seeking
termination to notify the Indian child's tribe of the pending
proceedings and the right to intervene. (25 U.S.C. § 1912(a).)
Once proper notice is given, "the lack of any response
from BIA, and the absence of any communication sent to
[the social services agency] by a tribe, were tantamount to
determinations that the minor was not an 'Indian child' within
the meaning of the Act." (In
re Levi U.
(2000) 78 Cal.App.4th 191, 198, 92 Cal.Rptr.2d 648.)
Here, the relevant tribes and the BIA were given notice
by SSA twice, and each time several of them failed
to respond. That is sufficient to support the finding that
the ICWA does not apply and Jasmine is not an
Indian child within the meaning of the act.
Lisa argues a finding of notice is impermissible when a
social services agency does
not file responses from the tribes, citing In
re Karla C.
(2003) 113 Cal.App.4th 166, 175-176, 6 Cal.Rptr.3d 205. But the
case does not go that far. It only holds the
actual notices sent must be filed (along with the return
receipts) so the juvenile court can determine if they complied
with the ICWA. (Id.
at p. 178, 6 Cal.Rptr.3d 205.) Lisa does not deny
the notices were filed in this case, or challenge their
content, so this argument is unavailing.
Since SSA made no attempt to notify Lisa of the
selection and implementation hearing, the order terminating parental rights and
directing the minor be placed for adoption is reversed. The
case is remanded for a new selection and implementation hearing,
to be held only after proper notice to Lisa.
WE CONCUR: MOORE and FYBEL, JJ.