Structural Error Doctrine in Dependency Proceedings in California

In Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, the social service agency did not provide the mother and her attorney with a copy of the status report until the morning of the section 366.21, subdivision (f) review hearing, at which the juvenile court terminated reunification services, contrary to the express statutory mandate requiring service of the report at least 10 calendar days before the hearing. (Judith P., supra, 102 Cal.App.4th at pp. 539-540.)

The Court of Appeal held that because neither the mother nor her counsel received the statutorily required report, they did not have "reasonable notice of the issues raised by such report, and no reasonable opportunity to prepare to rebut the evidence contained in the report via a contested hearing." (Id. at p. 558.) Relying on precedent pertaining to the consequences of an error implicating the constitutional rights of a criminal defendant, the appellate court concluded the failure to give a copy of the report to mother and her attorney was a structural error and therefore reversible per se. (Id. at pp. 554-559.)

However, after Judith P., our Supreme Court clarified the application of the structural error doctrine to dependency proceedings in In re James F. (2008) 42 Cal.4th 901 (James F.). There, the juvenile court appointed a guardian ad litem for a mentally incompetent father without conducting an appropriate hearing. (Id. at pp. 906-907.) The guardian acted on the father's behalf in the subsequent proceedings, which resulted in a termination of his parental rights. (Id. at pp. 907-910.) The appellate court concluded the error in appointing the guardian was structural, requiring automatic reversal. (Id. at p. 910.)

The California Supreme Court concluded that error in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding was amenable to harmless error analysis, rather than a structural defect requiring reversal without regard to prejudice. (James F., supra, 42 Cal.4th at p. 915.)

In so holding, the Court identified "significant differences between criminal proceedings and dependency proceedings that 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." (James F., supra, 42 Cal.4th at pp. 915-916.) The rights and protections afforded parents in a dependency proceeding differ from those afforded defendants in criminal proceedings. (Id. at p. 915.)

Furthermore, "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 , a factor having no clear analogy in a criminal proceeding." (Ibid.)

In view of these differences, the Court concluded the error in appointing the guardian was amenable to harmless error analysis, as determining prejudice -- unlike the task often presented by structural error -- did not defy the assessment of harm or "require 'a speculative inquiry into what might have occurred in an alternate universe.'" (James F., supra, 42 Cal.4th at p. 915, quoting United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150.) Appointing the guardian did not result in any actual prejudice to the father, whom the record unequivocally demonstrated to be mentally incompetent. (James F., supra, at p. 916.) Accordingly, the Court reversed the appellate court's decision, stating that "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." (Id. at pp. 918-919.)

In In re A.D. (2011) 196 Cal.App.4th 1319 (A.D.), the mother was not given proper notice of a hearing, or a copy of the agency's report, at which the court terminated reunification services and selected a permanent plan of long-term foster care for the minor. (Id. at pp. 1323-1324.) Relying heavily on our Supreme Court's decision in James F., the appellate court rejected the mother's contention that the agency's failure was structural error and thus reversible per se, and held that the case was amenable to a harmless error analysis. (A.D., supra, at pp. 1325-1327.)