Filed 11/12/20 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re CHRISTOPHER L., a Person 

Coming Under the Juvenile Court 

Law.

 B305225

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

CARLOS L.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. 17CCJP02800)

 ORDER MODIFYING

 OPINION AND DENYING

 PETITION FOR REHEARING 

 (NO CHANGE IN JUDGMENT)

THE COURT:

The opinion in the above-entitled matter filed on November

2, 2020 is modified as follows:

1. On page 11, in the first paragraph of the Discussion, 

the word “certain” is inserted between the words “to participate 

in” and “dependency proceedings.” That sentence now reads: 

Father also argues that when the juvenile court 

conducted the jurisdiction/disposition hearing without 

Father or Father’s counsel present, it violated Penal Code
2

section 2625, which guarantees incarcerated parents 

the opportunity to participate in certain dependency 

proceedings.

2. On page 12, the following is deleted: “(See In re 

Jesusa V. (2004) 32 Cal.4th 588, 625 (Jesusa V.) [applying Watson 

harmless error analysis to violation of Penal Code section 2625 

that denied the father the ability to personally participate in 

dependency hearing]; In re Andrew M. (2020) 46 Cal.App.5th 859, 

864, 867 (Andrew M.) [failure to appoint counsel for the presumed 

father reviewed for harmless error under Watson].)”

3. In the first full paragraph on page 13, the word “only” 

is deleted from the third sentence. That sentence now reads: 

Presumed fathers are entitled to appointed counsel and 

reunification services.

4. In the first full paragraph on page 13, “(In re Zacharia 

D. (1993) 6 Cal.4th 435, 451; see also Francisco G. v. Superior 

Court (2001) 91 Cal.App.4th 586, 596 [distinguishing the greater 

rights that presumed fathers have as opposed to biological 

fathers].)” is deleted and replaced with the following:

(In re Zacharia D. (1993) 6 Cal.4th 435, 451 [“only a 

presumed, not a mere biological, father is a ‘parent’ entitled 

to receive reunification services”]; In re Kobe A. (2007) 

146 Cal.App.4th 1113, 1120 [“ ‘[p]resumed father status 

entitles the father to appointed counsel, custody (absent 

a finding of detriment), and a reunification plan’ ”]; see also 

Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 

596 [distinguishing the greater rights that presumed fathers 

have as opposed to biological fathers].)
3

5. In the first sentence on page 14, the word “certain” 

is inserted between the words “participate in” and “dependency 

proceedings.” That sentence now reads:

Penal Code section 2625, subdivision (d) requires that 

a prisoner be permitted to participate in certain dependency 

proceedings.

6. On page 14, in the second paragraph, the first short 

form case citation, “Jesusa V., supra, 32 Cal.4th at pp. 621–622;”

is replaced with the long form of that citation: In re Jesusa V.

(2004) 32 Cal.4th 588, 621–622 (Jesusa V.);

7. On page 14, within the parenthetical in the second 

paragraph, the words “resulting in the father participating in 

hearing only through counsel” are inserted between the phrases 

“subdivision (d)” and “was not jurisdictional.” That parenthetical

(and its associated citation) now read:

id. at p. 625 [holding violation of Penal Code section 2625, 

subdivision (d) resulting in the father participating in hearing 

only through counsel was not jurisdictional, because “we have 

regularly applied a harmless-error analysis when a defendant 

has been involuntarily absent from a criminal trial . . . [and] 

do not believe the Legislature intended a different result . . .

when a prisoner is involuntarily absent from a dependency 

proceeding”].)

8. The “Andrew M.” citation at the bottom of page 15 is 

revised as follows: (In re Andrew M. (2020) 46 Cal.App.5th 849, 

867 (Andrew M.).)
4

9. On page 18, in the first sentence, the words “causing 

an incarcerated parent to appear only through counsel” are 

inserted between the words “notice errors” and “are reviewed.” 

That sentence now reads:

Moreover, the Supreme Court has held that Penal Code 

section 2625 notice errors causing an incarcerated parent 

to appear only through counsel are reviewed under a

harmless error analysis in dependency proceedings (see 

Jesusa V., supra, 32 Cal.4th at p. 625), and at least one 

Court of Appeal has concluded that an incorrect ruling as 

to a father’s parental status resulting in the father being 

denied appointed counsel was reviewable for harmless error.

These modifications do not constitute a change in the 

judgment.

Appellant’s petition for rehearing filed on November 4, 2020 

is denied.

______________________________________________________________

 ROTHSCHILD, P. J. CHANEY, J. BENDIX, J.
Filed 11/2/20 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re CHRISTOPHER L., a Person 

Coming Under the Juvenile Court 

Law.

 B305225

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

CARLOS L.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. 17CCJP02800)

APPEAL from order of the Superior Court of Los Angeles 

County, Marguerite D. Downing, Judge. Affirmed. 

Christopher Blake, under appointment by the Court of 

Appeal, for Appellant and Defendant. 

Mary C. Wickham, County Counsel, Kim Nemoy, Assistant 

County Counsel, and Sarah Vesecky, Deputy County Counsel, for 

Plaintiff and Respondent.
2

Christopher L., born in December 2017, and I.L., born 

in February 2017, are the children of appellant Carlos L. (Father)

and V.L. (Mother), who is not a party to this appeal. Father 

was represented by counsel in connection with, and personally 

participated in, the Welfare and Institutions Code section 366.261

permanency planning hearing at which his parental rights 

regarding Christopher were terminated. He appeals from that 

termination based on the juvenile court having conducted the

earlier jurisdiction/disposition hearing regarding both children

in his absence and without counsel present on his behalf. Father 

had not provided a written waiver of his right as an incarcerated 

parent under Penal Code section 2625 to participate, personally 

or through counsel, in the jurisdiction/disposition hearing; to the 

contrary, in documents provided to the juvenile court before that

hearing, Father requested that he be allowed to participate. Before 

the jurisdiction/disposition hearing, the court was also presented 

with documents establishing that Father was entitled to “presumed 

father” status, which carries with it the right to appointed counsel. 

On these bases, Father argues that he was denied due process at 

the jurisdiction/disposition hearing, that these due process errors 

affected the ultimate outcome of the proceedings, and that, in 

any case, they constitute structural error and trigger automatic 

reversal. 

We agree with Father that the trial court erred, and that

these errors affected the due process afforded Father at the 

jurisdiction/disposition hearing in that they denied him counsel at 

that hearing. But even errors of a constitutional dimension can 

be subject to a harmless error analysis in dependency proceedings,

1 Unless otherwise indicated, all further statutory references

and citations are to the Welfare and Institutions Code. 
3

given the unique nature of such proceedings, unless it is impossible

to assess prejudice without engaging in speculation. (See In re

James F. (2008) 42 Cal.4th 901, 915–919 (James F.); In re J.P.

(2017) 15 Cal.App.5th 789, 800; In re S.P. (2020) 52 Cal.App.5th 

963, 972, petn. for review filed Sept. 1, 2020, S264203, time 

to grant or deny review extended to Nov. 30, 2020.) No such 

speculation is necessary here. The record clearly establishes 

that, had Father appeared and/or been represented by counsel 

at the jurisdiction/disposition hearing, Father would not have 

obtained a more favorable result. We decline Father’s invitation 

to expand current law and deem reversible per se an error 

in dependency proceedings that is amenable to harmless error

analysis. Accordingly, although we are troubled by the errors 

Father identifies in connection with the jurisdiction/disposition 

hearing, we conclude that they would not have affected the ultimate 

outcome of the dependency proceedings and affirm the trial court’s 

order regarding Christopher.

Father’s parental rights to Christopher’s older sister I.L. 

were terminated in a separate order, which Father did not appeal. 

Instead, 18 months after the time for filing such an appeal expired, 

Father moved this court to apply the doctrine of constructive 

filing and “extend” Father’s appeal regarding Christopher to 

apply to I.L. as well. But Father concedes that he would make

the exact same arguments in an appeal regarding I.L. that he

made regarding Christopher, and that these arguments apply in

the exact same way to both children. Given our conclusion that

Father’s arguments regarding Christopher do not warrant reversal, 

permitting Father to pursue them with respect to I.L. would serve 

no purpose. Therefore, we deny Father’s motion. 
4

FACTUAL AND PROCEDURAL BACKGROUND

A. Father’s Older Children From a Previous 

Relationship 

Father has three older children (not with Mother) who were 

the subject of separate dependency proceedings, and with whom he

failed to reunify. The dependency proceedings regarding Father’s 

older children were initiated in 2013 based on issues related 

to substance abuse by those children’s mother. Father was 

incarcerated at the outset of the separate proceedings, released

approximately three months thereafter, then rearrested for a drugrelated offense and returned to prison approximately three months 

after that release. During the interim period when Father was not 

in prison, he failed to comply with juvenile court orders, which 

included an order for regular drug testing. Father’s reunification 

services were terminated. As of the most recent information in 

the record, two of Father’s older children are receiving permanent 

placement services with a plan of legal guardianship.

B. Family Background

Father is in his late 30’s and has an extensive criminal 

record, as a result of which he was required to register as a

controlled substance offender.2 Father’s criminal history spans over 

a decade and includes a conviction for robbery, multiple convictions 

for possession of a controlled substance or being under the influence 

of a controlled substance, firearms offenses and multiple parole 

violations.

2 Former section 11590 of the Health and Safety Code 

required persons convicted of certain offenses to register as a 

controlled substance offender with law enforcement in the city 

or county where he or she resides. The Legislature repealed the 

requirement in 2019. (Stats. 2019, ch. 580, § 1, p. 5212.) 
5

Father and Mother have been married since December 2014.

In February 2017, Mother gave birth to I.L.; Father’s name is listed 

on I.L.’s birth certificate.

Mother and Father stopped living together in approximately 

April 2017, when Father was arrested for robbery, and Mother 

began living with a man named J.M. Mother and I.L. moved in 

with J.M. at some point in 2017.

Father was convicted of robbery in October 2017 and began

serving a seven-year prison sentence. Months later, in December 

2017, Mother gave birth to Christopher. Father’s counsel 

represented during the hearing before this court that Father is 

eligible for parole in late 2020.

C. Section 300 Petition Regarding I.L. and 

Christopher

On December 28, 2017, the Los Angeles County Department 

of Children and Family Services (DCFS) filed a section 300 petition 

on behalf of newborn Christopher and 10-month-old I.L., alleging 

they were at risk due to, inter alia, Christopher being born with 

a positive toxicology screen for amphetamines and Mother having 

a history of substance abuse. The petition further alleged risk 

to both children based on J.M. (who was initially identified as

Christopher’s father) having a history of substance abuse, and

Father’s extensive criminal history and status as a registered 

controlled substance offender. The petition lists Father’s address 

as that of Sierra Conservation Center, the facility at which he was 

incarcerated at the time.

D. Detention Hearing and Detention Report 

The detention report listed Father as the alleged father 

of I.L. and J.M. as the alleged father of Christopher. The report 

noted that Mother and Father were married, and their marriage 
6

certificate was attached to the detention report. The report 

summarized an interview with J.M., during which J.M. indicated 

Mother had a young daughter who was not J.M.’s child, and that he 

was “pretty sure [Christopher] [was] not [his] baby.” DCFS further 

reported that, on the day Christopher was born, Mother indicated 

J.M. was the father, but that she later told social workers she was 

uncertain who Christopher’s father was.

DCFS provided written notice of the detention hearing to 

Father at the Sierra Conservation Center address. The detention 

hearing took place on December 29, 2017, at which time the court 

determined that notice had been provided as required by law. 

Neither parent, nor counsel for either parent, appeared. The court 

noted Father was in state custody and a statewide search was 

ordered for him. The court postponed findings regarding paternity 

of either child. The children were detained from Mother, Father, 

and J.M., and ultimately placed in the custody of the maternal 

great aunt S.M. (the maternal aunt). The jurisdiction/disposition 

hearing was set for March 9, 2018, and DCFS ordered to give notice. 

DCFS sent Father such notice at the Sierra Conservation Center 

address by certified mail and included his correct inmate 

identification number. The notice listed both children on it and 

attached a copy of the petition.

Apparently in response to this notice, on February 21, 

2018, Father wrote to DCFS social worker Magdalena Elorriaga, 

thanking her for “reaching out” and indicating that he had “received 

[her] letter.”3 Father’s letter discussed his participation in 

3 The record suggests that what Father refers to as the 

“letter” from Elorriaga may be the notice of hearing on the petition, 

which indicates Elorriaga executed and served it via mail on Father 

10 days before the date of his letter to her. Further supporting 
7

dependency proceedings as follows: “I wanted to ask if a court 

appearance is necessary. In your letter you stated that a court date 

of 3/9/18 will be set. The reason why I’m asking is that this court 

date will delay my process on being transferred to a California Fire 

Camp. If possible I was wondering can this matter be handled over 

the telephone. If so, it would be very much appreciated if we took 

that route. I love my kids and I will do anything in my power to 

be with them. The faster I get to camp, the faster I’ll be home. . . . 

Please inform me of my options if a court appearance is needed to

handle this matter.” Father also requested paternity testing, but 

indicated he considered both children to be his regardless: “[M]y 

wife . . . and I had our differences through the years and just so I 

can have some piece [sic] of mind I would like DNA testing on [I.L.] 

and [Christopher]. Regardless of the outcome I will love them as 

my own. They are still my kids and I love them dearly.” Father 

requested pictures of the children and that he be kept “updated 

with the status of my children.” Finally, Father asked that his 

mother be “allowed visitation rights” and inquired as to how she 

could “go about seeing the children.”

E. Jurisdictional Hearing and Jurisdiction/ 

Disposition Report

Father’s letter is referenced in and attached to the report 

prepared in anticipation of the jurisdiction/disposition hearing. 

The report further summarizes J.M.’s additional statements that 

“he believe[d] 80% [Christopher] is his child,” as well as Mother’s 

additional statements denying this and identifying Father as the 

father of both children. The report summarizes Father’s DCFS 

this conclusion is the fact that Father’s letter refers to Christopher 

as “Baby Boy [L.],” the name used to refer to Christopher in the 

petition and notice of petition.
8

history, including that he had failed to reunify with three of his 

older children in separate dependency proceedings several years 

earlier.

The jurisdiction/disposition hearing for both I.L. and

Christopher was held on March 9, 2018. The jurisdiction/ 

disposition report and detention report were admitted into evidence

at the hearing, including the attached marriage certificate and 

February 2018 letter from Father.

Neither Father nor counsel for him appeared at the 

jurisdiction/disposition hearing. Apparently unaware of Father’s 

letter, the court indicated that “[Father] is currently incarcerated, 

and he has not made himself available . . . . [H]e’s been noticed, 

but he’s made no contact with [DCFS].” The court therefore 

proceeded with the hearing, at which counsel for DCFS and the 

minor’s counsel very briefly argued that the petition should be 

sustained as pleaded. As to Father, DCFS argued that Father 

“ha[d] multiple convictions for possession and lost children for 

permanent placement for not complying with drug treatment.” 

The court sustained the petition as amended to indicate Father 

is a “registered controlled substance offender,” “[t]here is no 

information that he’s ever complied with programming, and he’s 

currently incarcerated based on his extensive criminal history.”

The court denied Father (and Mother and J.M.) reunification 

services for both children “pursuant to [section] 361.5[, subdivision] 

(b)(10)”—that is, on the basis that they had previously failed to 

reunify with children deemed dependents and that placement 

with them would not be in the best interests of the children. (See

§ 361.5, subd. (b)(10).) The court confirmed both children were

suitably placed with the maternal aunt, who had already adopted 

two of Mother’s other children. The paternal grandparents were 

present, and the court ordered that they be assessed for visits.
9

The court later set a permanency planning hearing for both

children, for which the court would “order [Father] out.” Adoption 

with the maternal aunt was the recommended permanent plan. 

No paternity findings regarding either child were made. The court

asked a Los Angeles Dependency Lawyers, Inc. firm to act as a 

“friend of the court” and contact Father before the permanency 

planning hearing.

F. Permanency Planning Hearings

DCFS gave Father written notice of the permanency planning 

hearing, which he received. DCFS also submitted an order to 

prison authorities for Father’s appearance at the permanency 

planning hearing.

On November 15, 2018, the court appointed Father counsel, 

who made a general appearance on Father’s behalf. Father’s 

counsel informed the court that Father was asking to participate 

in the permanency planning hearing telephonically and that he 

objected to the termination of parental rights.

The court found Father to be the presumed father of I.L.

only, based on his having signed her birth certificate.

The permanency planning hearing for both children began on 

December 19, 2018. Father participated telephonically, as he had

requested. Father’s counsel indicated that Father would prefer 

legal guardianship with the maternal aunt, as opposed to adoption,

as the permanent plan. The report for the hearing indicates 

that the children had been in the maternal aunt’s care without 

interruption since their initial detention and were doing well, and 

that the maternal aunt was not interested in legal guardianship of 

the children, but was willing to adopt them.
10

Father’s counsel requested DNA testing with respect to

Christopher. The court granted the request and continued the 

permanency planning hearing with respect to Christopher.

The court proceeded to conduct the permanency planning 

hearing for I.L. only. Father’s counsel objected to termination 

of parental rights as to I.L., but offered no evidence or argument. 

The court terminated Father’s parental rights as to I.L. and gave 

oral notice of its decision. The court also advised both parents 

regarding appellate rights as follows: “I’m advising [Father], who

is on the phone, and . . . [Mother], who is not present in court, that

having terminated their parental rights, each parent is entitled 

to a free copy of the transcript for appellate purposes. [¶] But 

they must file their notice of appellate [sic] within 60 days.” The 

December 29, 2018 minute order reflecting the termination of 

parental rights as to I.L. and related “Appeal Rights form(s)” 

were incorrectly sent to Father at the address on file for J.M.

At a later hearing, upon learning the results of the DNA test 

indicating that Father was the biological parent of Christopher, the 

court found Father to be Christopher’s alleged father. Counsel for 

Father was present and did not object to this finding. The court 

continued the hearing, and Father’s counsel indicated it would 

arrange for Father to participate in that hearing telephonically.

In the interim, Christopher continued to reside with his sister 

and the maternal aunt, referred to the maternal aunt as “mommy,” 

and was thriving in her care.

DCFS gave notice to Father of the permanency planning 

hearing for Christopher, which was ultimately held on March 5, 

2020. Father was present via telephone and was represented 

by appointed counsel (a different attorney from the same firm).

Father’s counsel objected to termination of parental rights, but 

presented no evidence and offered no argument opposing it. The 
11

court found that Christopher was adoptable, and that none of the 

exceptions for adoption existed. Accordingly, the court terminated 

Father’s parental rights.

G. Father’s Appeal and Benoit Motion

On April 1, 2020, Father filed a notice of appeal from the

order terminating his parental rights as to Christopher.

On June 25, 2020—18 months after his parental rights 

as to I.L. had been terminated—Father filed a motion “to extend 

his notice of appeal to apply to both [I.L. and Christopher] and/or 

motion for constructive notice of appeal” pursuant to In re Benoit 

(1973) 10 Cal.3d 72 (Benoit). (Capitalization omitted.) DCFS 

opposed the motion, and this court deferred ruling on the motion

pending consideration of this appeal.

DISCUSSION

Father first argues that the court erred by failing to find 

that Father had “presumed father” status as to both children, 

which would have entitled him to appointed counsel at the 

jurisdiction/disposition hearing. Father also argues that when 

the juvenile court conducted the jurisdiction/disposition hearing 

without Father or Father’s counsel present, it violated Penal 

Code section 2625, which guarantees incarcerated parents the 

opportunity to participate in dependency proceedings. According to 

Father, these errors denied Father his due process right to counsel,

affected the ultimate outcome of the proceedings, and are in any 

event of such constitutional dimension that they should be reversed 

regardless of whether they prejudiced Father.4

4 DCFS argues that Father has forfeited these arguments, 

because he failed to raise them through a section 388 motion below, 

pursuant to Ansley v. Superior Court (1986) 185 Cal.App.3d 477. 
12

We agree that the trial court erred in the manner Father 

identifies, but disagree that these errors warrant automatic 

reversal. The errors identified were not prejudicial under 

the applicable harmless error analysis articulated in People v. 

Watson (1956) 46 Cal.2d 818 (Watson). (See In re Jesusa V. (2004) 

32 Cal.4th 588, 625 (Jesusa V.) [applying Watson harmless error 

analysis to violation of Penal Code section 2625 that denied the 

father the ability to personally participate in dependency hearing];

In re Andrew M. (2020) 46 Cal.App.5th 859, 864, 867 (Andrew M.) 

[failure to appoint counsel for the presumed father reviewed for 

harmless error under Watson].) Nor are they prejudicial under the

more stringent “harmless beyond a reasonable doubt” standard 

(See id. at pp. 487, 490 [section 388 petition can be used to 

challenge lack of notice of earlier proceedings].) Father anticipates 

this argument in his opening brief, and counters that, although a 

section 388 motion would have been the proper vehicle for raising 

these issues, his attorney’s failure to make such a motion was the 

result of ineffective assistance of counsel, and thus any forfeiture 

should be excused. According to Father, any competent counsel 

would have filed such a motion, or otherwise raised the errors 

identified on appeal with the juvenile court. We need not determine 

whether Father forfeited these arguments, however, because even if 

he did, we would exercise our discretion to address Father’s appeal, 

which raises fundamental due process issues. (See In re Gladys 

L. (2006) 141 Cal.App.4th 845, 849 [waiver rule not enforced where 

it conflicts with due process]; see also In re S.B. (2004) 32 Cal.4th 

1287, 1293 [“[T]he appellate court’s discretion to excuse forfeiture 

should be exercised rarely and only in cases presenting an 

important legal issue. [Citations.] Although an appellate court’s 

discretion to consider forfeited claims extends to dependency cases 

[citations], the discretion must be exercised with special care in 

such matters.”].) 
13

articulated in Chapman v. California (1967) 386 U.S. 18, 24

(Chapman). Accordingly, we affirm.

A. The Juvenile Court Erred

1. Error regarding Father’s parental status

“ ‘In dependency proceedings, “fathers” are divided into four 

categories—natural [or biological], presumed, alleged, and de facto.’ 

[Citation.]” (In re E.T. (2013) 217 Cal.App.4th 426, 436–437.)

“A father’s status is significant in dependency cases because it 

determines the extent to which the father may participate in the 

proceedings and the rights to which he is entitled.” (In re T.R. 

(2005) 132 Cal.App.4th 1202, 1209.) Only presumed fathers are 

entitled to appointed counsel and reunification services. (In re 

Zacharia D. (1993) 6 Cal.4th 435, 451; see also Francisco G. v.

Superior Court (2001) 91 Cal.App.4th 586, 596 [distinguishing the 

greater rights that presumed fathers have as opposed to biological 

fathers].)

The Family Code sets forth various circumstances under 

which a man may acquire presumed father status. (See Fam. Code, 

§ 7611.) These include that the man “and the child’s natural 

mother are, or have been, married to each other and the child is 

born during the marriage.” (§ 7611, subd. (a).) Thus, based on the

marriage certificate provided to the court at both the detention and 

the jurisdictional hearings, Father qualified as Christopher and 

I.L.’s “presumed father”—and, as such, should have been appointed 

counsel at the detention hearing. The trial court erred in failing 

to so find and appoint counsel for Father prior to the jurisdiction/

disposition hearing.
14

2. Penal Code section 2625 error

Penal Code section 2625, subdivision (d) requires that a 

prisoner be permitted to participate in dependency proceedings

regarding the prisoner’s child, if he or she desires. Specifically, 

it provides that a “petition to adjudge the child of a prisoner a 

dependent child of the court pursuant,” inter alia, section 300, 

subdivision (b), “may not be adjudicated without the physical 

presence of the prisoner or the prisoner’s attorney, unless the court

has before it a knowing waiver of the right of physical presence 

signed by the prisoner or an affidavit signed by the warden, 

superintendent, or other person in charge of the institution, or a

designated representative stating that the prisoner has, by express

statement or action, indicated an intent not to appear at the 

proceeding.” (Pen. Code, § 2625, subd. (d).) 

The record is clear that Father made no such written waiver. 

To the contrary, the juvenile court had before it a letter from Father 

informing DCFS that he wanted to participate in the proceedings, 

albeit via telephone. The trial court thus failed to comply with 

Penal Code section 2625, subdivision (d), when it conducted 

the jurisdiction/disposition hearing without Father or counsel 

appearing on his behalf. Although the failure to comply with 

Penal Code section 2625 did not, as Father implies, deprive the 

court of jurisdiction, it is error. (See Jesusa V., supra, 32 Cal.4th 

at pp. 621–622; id. at p. 625 [holding violation of Penal Code 

section 2625, subdivision (d), was not jurisdictional, because “we 

have regularly applied a harmless-error analysis when a defendant 

has been involuntarily absent from a criminal trial . . . [and] do not

believe the Legislature intended a different result . . . when a 

prisoner is involuntarily absent from a dependency proceeding”].)
15

B. The Errors Do Not Require Automatic Reversal

Father argues that because the errors he identifies deprived 

him of counsel at the jurisdiction/disposition hearing, they denied 

him due process and are reversible per se, regardless of prejudice. 

But the California Supreme Court has rejected the argument that, 

in dependency proceedings, every due process error is reversible 

per se. (See James F., supra, 42 Cal.4th at pp. 915–919.) In 

James F., the 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 of the juvenile court’s orders 

without regard to prejudice.” (Id. at p. 915.) In so holding, the 

Court first “observe[d] 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.” (Ibid.) On this basis, the 

Court rejected that “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.” (Id. at pp. 915–916.) 

“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 determine whether [it was] harmless beyond a reasonable 

doubt.” ’ [Citation.] The structural error doctrine is used when 

‘ “assessing the effect of the error” ’ is ‘ “difficult[ ].” ’ [Citation.]” 

(Andrew M., supra, 46 Cal.App.5th at p. 867.) James F. also 

acknowledged that there are “very few constitutional errors that 
16

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” (James F., supra, 

42 Cal.4th at p. 917, citing United States v. Gonzalez–Lopez (2006) 

548 U.S. 140, 149 (Gonzalez–Lopez)), but noted that such authority

“has not applied this reasoning outside the context of criminal 

proceedings . . . nor has it ever held that harmlessness is irrelevant 

when the right of procedural due process . . . has been violated.” 

(James F., supra, at p. 917.) James F. concluded that prejudice was 

not irrelevant in the dependency context, because “the welfare of 

the child is at issue and delay in resolution of the proceeding is 

inherently prejudicial to the child,” and applied a harmless error 

analysis. (Ibid.)

Courts of Appeal have cited James F. for the proposition that 

“harmless 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; In re S.P., supra, 52 Cal.App.5th 

at p. 972, petn. for review filed Sept. 1, 2020, S264203, time to 

grant or deny review extended to Nov. 30, 2020.) “In juvenile 

dependency proceedings, no error—even one of constitutional 

dimension—can be examined based solely on legal principles (no 

matter how venerable) or only from the parent’s perspective.” (In re 

J.P., supra, 15 Cal.App.5th at p. 799; In re S.P., supra, at p. 972 

[the concept of automatically reversible structural error “was firmly 

rejected by our Supreme Court in . . . James F.”].) Rather than 

categorically deeming errors of a certain type “structural” and thus 

reversible per se, a reviewing court should first consider whether 

an error in dependency proceedings is amenable to harmless error 

analysis—that is, whether potential prejudice from the error can be 

assessed without “necessarily requir[ing] ‘a speculative inquiry into 
17

what might have occurred in an alternate universe’ ” (James F., 

supra, 42 Cal.4th at p. 915, quoting Gonzalez–Lopez, supra, 548 

U.S. at p. 150)—and, if so, apply a harmless error analysis.

5 

(In re J.P., supra, at p. 800 [“[a]ccordingly, because we conclude 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’ . . . , we proceed with 

the harmless error analysis”], quoting James F., supra, at p. 915.)

For reasons we discuss in detail in the following section, 

the circumstances of Father’s situation and the nature of 

the errors identified are such that we can assess whether the 

court’s Penal Code section 2625 error and/or Father being denied 

counsel at the jurisdiction/detention hearing prejudiced him 

at the subsequent permanency planning hearings, based “not 

on guesswork or speculation, but on the undisputed facts before us.” 

(In re S.P., supra, 52 Cal.App.5th at p. 975, petn. for review filed 

Sept. 1, 2020, S264203, time to grant or deny review extended to 

Nov. 30, 2020.)

5 Division Five of this court interpreted and applied 

James F. in the same way as we do recently in In re S.P., supra, 

52 Cal.App.5th 963. In arguing that we should take a different 

approach, Father notes that the appealing parent in In re S.P. 

has filed a petition for review with the Supreme Court based on 

several issues, including whether James F. “need[s] to be clarified 

to make sure that structural error is a concept that can apply to 

dependency proceedings depending on the nature of the right.” 

As of the date of this opinion, the Supreme Court has not ruled 

on the petition. This is not a basis on which to treat James F. any 

differently, as we agree with In re S.P.’s interpretation of our state 

Supreme Court’s unambiguous discussion of this issue in James F., 

and this interpretation is not novel. (See, e.g., In re J.P., supra, 15 

Cal.App.5th at p. 798.)
18

Moreover, the Supreme Court has held that Penal Code 

section 2625 notice errors are reviewed under a harmless 

error analysis in dependency proceedings (see Jesusa V., 

supra, 32 Cal.4th at p. 625), and at least one Court of Appeal 

has concluded that an incorrect ruling as to a father’s parental 

status resulting in the father being denied appointed counsel 

was reviewable for harmless error. (See Andrew M., supra, 46 

Cal.App.5th at pp. 864, 867.)

Father relies on cases involving a complete failure to

provide notice to a parent. (See, e.g., In re Jasmine G. (2005) 

127 Cal.App.4th 1109, 1116 (Jasmine G.) [“the failure to attempt 

to give a parent statutorily required notice of a selection and 

implementation hearing is a structural defect that requires 

automatic reversal”]; Andrew M., supra, 46 Cal.App.5th at p. 867, 

fn. 4 [noting in dicta that the father never having received a 

section 300 petition would be structural error under James F.].) 

These cases do not assist Father in arguing for automatic reversal

in this case, because the errors Father identified are a denial of 

counsel at the jurisdiction/disposition hearing and a violation of his 

Penal Code section 2625 right to be present at that hearing—not 

lack of notice. Indeed, Father expressly states in his opening brief 

that he “is not contesting that he received notice” of either the 

jurisdiction/disposition hearing or the permanency planning

hearings. The record also reflects he received notice of all hearings, 

and participated, with counsel, in the hearings resulting in the 

termination of parental rights from which he now appeals. Cases 

involving a complete lack of notice present unique concerns, none of

which is present here. (See In re Z.S. (2015) 235 Cal.App.4th 754, 

772 [“[o]nly the failure to attempt to give notice to a parent is a 

structural defect requiring automatic reversal”], citing Jasmine G., 

supra, 127 Cal.App.4th at p. 1116; see also In re R.L. (2016) 4 
19

Cal.App.5th 125, 146 [“Unless there is no attempt to serve notice on 

a parent, in which case the error is reversible per se, notice errors 

do not automatically require reversal but are reviewed to determine 

whether the error is harmless beyond a reasonable doubt.”].) 

Father’s reliance on such cases is thus unavailing. 

Harmless error analysis is appropriate here.

C. The Juvenile Court’s Errors Were Not Prejudicial

1. Watson and Chapman harmless error 

analyses

To assess whether an error in dependency proceedings 

is harmless, “some Courts of Appeal have applied a Chapman

‘harmless beyond a reasonable doubt’ standard [citations],

[and] [a]t least two Supreme Court cases have embraced the

Watson more probable than not standard.” (In re S.P., supra, 

52 Cal.App.5th at p. 972, fns. omitted, petn. for review filed 

Sept. 1, 2020, S264203, time to grant or deny review extended 

to Nov. 30, 2020; see, e.g., In re Celine R. (2003) 31 Cal.4th 45,

59-60 (Celine R.) [applying Watson standard for failure to 

appoint separate counsel for minor siblings].) Watson requires 

a “reasonable probability of a more favorable outcome,” absent 

the challenged errors, in order for an error to warrant reversal. 

(In re A.J. (2019) 44 Cal.App.5th 652, 665 [applying Watson 

harmless error standard]; Celine R., supra, at p. 60 [court must 

find it “reasonably probable the result would have been more 

favorable to the appealing party but for the error”].) Under

Chapman, by contrast, “the court must be able to declare a belief 

that it was harmless beyond a reasonable doubt.” (Chapman, 

supra, 386 U.S. at p. 24.)

Two divisions of this court have applied the Watson standard 

to errors relating to a parent’s right to appointed counsel. (See, e.g., 
20

Andrew M., supra, 46 Cal.App.5th at pp. 864, 867; In re J.P., supra, 

15 Cal.App.5th at pp. 798–800 [erroneous failure to grant mother’s 

request for reappointment of counsel before the hearing on her 

petition for modification].) We conclude that this standard should 

apply here as well. But even if we were to analyze the errors 

Father identifies under the more stringent Chapman standard, our 

analysis would yield the same result. 

2. Application of harmless error analysis 

to the errors Father identifies

Had Father’s presumed father status been recognized

when the court was first provided with the marriage certificate 

establishing this status, Father would have been represented 

by appointed counsel at the jurisdiction/disposition hearing. 

Separately, had the court complied with Penal Code section 2625, 

Father or his counsel would have been present at the hearing. 

Father argues these changes could have led to the marshaling of 

additional evidence or the pursuit of additional arguments, based 

on which the court might have provided him with reunification 

services,

6 thereby changing the trajectory of the proceedings and, 

potentially, preserving his parental rights.

In light of the applicable statutory presumptions and 

showings required under section 361.5, however, the errors at 

issue do not warrant reversal under either a Watson or Chapman 

harmless error analysis, as discussed below. 

a. Section 361.5, subdivision (b) bypass 

provisions 

Section 361.5, subdivision (b) contains several reunification 

“bypass provisions” permitting (or, in some cases, requiring) a 

6 Father concedes that jurisdiction would have been proper 

regardless.
21

court to deny a parent reunification services. (See In re A.E. (2019) 

38 Cal.App.5th 1124, 1141; Cheryl P. v. Superior Court (2006) 

139 Cal.App.4th 87, 96.) Once the juvenile court determines

by clear and convincing evidence that a case presents one of the 

situations set forth in section 361.5, subdivision (b), “the general 

rule favoring reunification is replaced by a legislative assumption 

that offering [reunification] services would be an unwise use of 

governmental resources.” (In re Baby Boy H. (1998) 63 Cal.App.4th 

470, 478.) Here, as the court correctly noted, the bypass provision 

in section 361.5, subdivision (b)(10) applied: A juvenile court had 

previously “ordered termination of reunification services for . . . 

half siblings of [Christopher] because [Father] failed to reunify 

with the . . . half sibling[s]” and “[Father] has not subsequently 

made a reasonable effort to treat the problems that led to removal 

of the . . . half sibling of [Christopher] from [Father].” (See § 361.5, 

subd. (b)(1).) Father does not challenge the applicability of this 

bypass provision, nor could he. Father failed to reunify with two 

of his older children in dependency proceedings based on substance 

abuse issues, and Father has since continued his drug-related 

criminality. Even if Father could offer evidence of efforts to address 

these issues, no such efforts could have supported a “reasonable 

effort to address” finding (see § 361.5, subd. (b)(10)), given Father’s 

continuous drug-related criminality.

The services bypass provision in subdivision (b)(12) of 

section 361.5 applied as well, based on Father’s violent felony

conviction (robbery), for which he is currently incarcerated. 

(§ 361.5, subd. (b)(12) [“[r]eunification services need not be 

provided . . . when the court finds, by clear and convincing 

evidence . . . [¶] . . . [¶] . . . the parent or guardian of the child 

has been convicted of a violent felony”]; see Pen. Code, § 667.5, 

subd. (c)(9) [“any robbery” constitutes a violent felony].)
22

If, as occurred here, a bypass provision is found to apply, a

juvenile court “shall not” order reunification unless the court makes 

certain countervailing factual findings. (§ 361.5, subd. (c)(2).) The 

countervailing factual finding necessary to support reunification 

services here would be a finding “by clear and convincing evidence[ ]

that reunification is in the best interest of the child.” (Ibid.) Father 

has never even met Christopher, acknowledges having “little to no 

relationship with either child,” and will be incarcerated until at 

least late 2020. Both children have been living with the maternal 

aunt since Christopher’s birth (and thus for almost three years), 

are thriving in her care, and are on a path to being adopted by 

her. Given these facts, there is no basis on which even the most 

competent counsel could have shown it was in Christopher’s best

interest to override the statutory presumption that reunification 

services should be denied. (See In re Marcos G. (2010) 182 

Cal.App.4th 369, 390–391 [no abuse of discretion in court’s 

conclusion that reunification services not in child’s best interest 

where the child was bonded to and had been living with his foster 

parents for 20 months, and the father’s weekly visits with child 

“were nothing more than friendly visits between the two in which 

[they would] play”].)

Indeed, Father makes no attempt to argue how a court could

have concluded that services would have been in Christopher’s 

best interest, nor does he argue the bypass provision under 

section 361.5, subdivision (b) is inapplicable. 

b. Section 361.5, subdivision (e) regarding 

services for incarcerated parents 

Section 361.5, subdivision (e) instructs a court to order 

reasonable reunification services for an incarcerated parent “unless 

the court determines, by clear and convincing evidence, those 

services would be detrimental to the child.” (Ibid.) Father does not
23

explain how the juvenile court could have found that reunification 

services would not be detrimental to Christopher under the factors 

identified in the statute. The statutorily-enumerated factors 

potentially applicable here are: “[T]he age of the child, the degree 

of parent-child bonding, the length of the sentence, . . . the nature 

of the crime . . . , the degree of detriment to the child if services 

are not offered . . . , the likelihood of the parent’s discharge from 

incarceration . . . within the reunification time limitations[,]” and 

“any other appropriate factors.” (Ibid.) 

Applying these factors, there is not a reasonable probability

that reunification services would not be detrimental to 

Christopher—even if Father had had counsel to advocate against 

such a finding. Indeed, undisputed facts in the record establish 

beyond a reasonable doubt that such services would be deemed 

detrimental to Christopher under section 361.5, subdivision (e)(1). 

Father is not eligible for parole until approximately three years 

after Christopher was first detained, so Father’s incarceration 

would have fallen well outside the maximum reunification period, 

even if the court permitted an extension beyond the applicable

six-month limit for children under three years old. (See § 361.5, 

subd. (a)(1)(B), (3)(A) & (4)(A).) As such, any services the court 

might order could not have successfully reunified Father with 

Christopher within the statutory time frame, which section 361.5, 

subdivision (e)(1) instructs they must in order to avoid proceeding 

to a permanency planning hearing.7 (See In re Ronell A. (1995) 

7 Under certain “unusual” or “extraordinary circumstances” 

a juvenile court may extend the reunification period as an exercise 

of its discretionary power to “ ‘continue any hearing . . . beyond 

the time limit within which the hearing is otherwise required to be 

held.’ ” (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 
24

44 Cal.App.4th 1352, 1365–1366 [“Section 361.5, subdivision (e)(1) 

specifically states reunification services for an incarcerated parent 

are subject to the 18–month time frame. When a child cannot be 

returned to the parent within the statutory time frame, the court is 

required to establish a permanent plan for the child and refer the 

case for a section 366.26 hearing.”].) Instead, ordering reunification 

services for Father would serve only to delay establishing a 

permanent home for Christopher with the only caregiver he has 

ever known. Delaying Christopher a stable, permanent placement 

in the interest of pursuing a reunification doomed to fail would be

detrimental to Christopher. 

That the length of Father’s sentence prevents him from

reunifying with Christopher within the necessary time frame is

not the only section 361.5, subdivision (e)(1) factor suggesting 

detriment to Christopher. As noted, Father admits he has

no relationship with Christopher. Moreover, Father’s lengthy 

criminal history of substance abuse related offenses, which caused 

him to lose custody of his three older children, has escalated to 

include, most recently, a violent felony conviction, as a result 

of which he has never even met Christopher. (See § 361.5, 

subd. (b)(10) & (12).) In light of all of these facts—none of which 

Father contests—any additional evidence or argument counsel 

might have offered at the jurisdiction/disposition hearing would 

1510, quoting § 352, subd. (a); see, e.g., In re Elizabeth R. (1995) 35 

Cal.App.4th 1774, 1777–1778.) “[G]iven the imperative to resolve 

dependency cases in a timely fashion,” such a continuance that 

almost doubles the reunification period would, on the facts of 

this case, “be outside the scope of what the Legislature intended 

with enactment of the continuance statute.” (Denny H., supra, 

131 Cal.App.4th at p. 1511; id. at p. 1510 [rejecting a six-month 

illness-based extension of the reunification period on this basis].)
25

not have caused the court to award Father reunification services 

for Christopher. (See In re James C. (2002) 104 Cal.App.4th 

470, 486 [substantial evidence supported denial of reunification 

services where the father was convicted of several violent felonies 

and his release date from prison exceeded the maximum period of 

reunification services]; In re S.P., supra, 52 Cal.App.5th at p. 975, 

petn. for review filed Sept. 1, 2020, S264203, time to grant or deny 

review extended to Nov. 30, 2020 [finding it was not reasonably 

likely the father would have been granted reunification services 

when he had failed to reunify with other children, had no bond with 

the child at issue in the proceedings, had a lengthy criminal history 

and history of unaddressed drug abuse, and remained incarcerated 

at the time of the permanency planning hearing with no plan for 

the child’s care].)

We reject Father’s suggestion that considering the duration 

of Father’s incarceration in assessing detriment runs afoul of the

admonition in In re Brittany S. (1993) 17 Cal.App.4th 1399, that 

there is no “go to prison, lose your child” law in California. (Id.

at p. 1402.) Certainly a court may not deny reunification services 

based solely on a parent being incarcerated, but section 361.5, 

subdivision (e)(1) expressly provides that a court may consider 

whether imprisonment may make reunification impossible within 

the statutory timelines. Here, it would, and reunification services 

would thus almost certainly be to Christopher’s detriment. (See 

Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020) 

§ 2.129[3][b], p. 2–540 [“[T]o attempt services in such circumstances 

may be setting everyone up for failure, including the parent, 

agency, and child” and “it may be possible to show that providing 

services to the incarcerated parent would be detrimental to the 

child since it would delay permanency with no likelihood of success”

and “thus only serve[ ] to delay stability for the child.”].) 
26

Given our conclusion that the termination of reunification 

services for Christopher was inevitable, Father has presented no

basis on which to conclude that the challenged errors could have

somehow affected the juvenile court’s subsequent decision at the

permanency planning hearing to terminate his parental rights. 

Once “the court has decided to end parent-child reunification 

services, the legislative preference is for adoption.” (In re 

Elizabeth M. (2018) 19 Cal.App.5th 768, 780.) If, as the court 

found to be the case here, “adoption is likely, the court is required 

to terminate parental rights, unless specified circumstances compel

a finding that termination would be detrimental to the child.” 

(In re S.B. (2009) 46 Cal.4th 529, 532.) Father was both present for

and represented by counsel at the permanency planning hearings, 

during which the court concluded that no such countervailing 

factual finding could be made to override the presumption in favor

of adoption and the “compelling” interest in “providing stable,

permanent homes for children who have been removed from 

parental custody” following termination of reunification services. 

(In re Marilyn H. (1993) 5 Cal.4th 295, 307.) Although Father 

raises ineffective assistance of counsel arguments in an effort 

to rebut DCFS’s forfeiture arguments (see ante, fn. 4), these 

arguments are not based on any ineffective assistance in connection 

with the representation provided during the permanency planning 

hearings, save that his counsel made “ ‘general appearances’ when 

she should have only made special appearances” at those hearings.

Thus, Father cannot establish a reasonable probability that 

the challenged errors affected the court’s termination of Father’s 

parental rights as to Christopher.

8 The errors are therefore 

8 In his reply brief, Father appears to raise, for the first time,

the argument that such ineffective assistance of counsel—that is, 
27

harmless under Watson, the applicable framework for assessing 

prejudice here. (See Celine R., supra, 31 Cal.4th at pp. 59–60; 

In re S.P., supra, 52 Cal.App.5th. at pp. 973–974, petn. for review 

filed Sept. 1, 2020, S264203, time to grant or deny review extended 

to Nov. 30, 2020.) Moreover, even if the more stringent Chapman

framework were to apply, we further conclude, based “not on

guesswork or speculation, but on the undisputed facts before us”

(In re S.P., supra, at p. 975), and the portions of section 361.5 

discussed above, that the errors were also harmless beyond a 

reasonable doubt.

D. Father’s Motion to Extend His Notice of Appeal 

to Apply to I.L.

In criminal cases, the doctrine of constructive filing permits 

an appellate court to construe a belated notice of appeal as having 

been timely filed under certain circumstances, including when an 

incarcerated criminal defendant made arrangements with his trial 

attorney to file the notice of appeal, and the attorney failed to do so. 

(In re Benoit, supra, 10 Cal.3d at p. 86.) The California Supreme 

Court has explained the goal of applying the doctrine under such 

circumstances is to avoid penalizing a defendant for justifiably 

relying on his attorney to file the notice of appeal in a timely 

fashion. (Id. at pp. 88–89.) 

the failure of counsel to bring a section 388 petition to challenge 

the court’s ruling at the jurisdiction/disposition hearing—is itself 

a basis for reversal (as opposed to a basis for avoiding forfeiture 

of Father’s arguments on appeal). We need not determine whether 

this constituted ineffective assistance of counsel, as there was no 

prejudice from the due process violations in connection with the 

jurisdiction/disposition hearing that such a petition would have 

raised, for the reasons discussed in the Discussion ante, section C.2.
28

Father concedes that, under longstanding precedent, 

the constructive filing doctrine does not apply to cases involving 

the termination of parental rights. (See, e.g., In re Z.S., supra, 

235 Cal.App.4th at p. 769.) “ ‘Numerous cases . . . have determined 

that the special need for finality in parental termination cases and

the danger of imperiling adoption proceedings prevails over the

policy considerations in favor of constructive filing.’ ” (Ibid., quoting 

In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1254; In re A. M. (1989)

216 Cal.App.3d 319, 322 [“While we recognize the importance of

a natural mother or father’s parental rights [citations], we deem

the special need for finality in [such] cases . . . of paramount 

importance. Adoption proceedings could be jeopardized if 

the finality of a judgment . . . were uncertain.”].) As one court 

explained, although the result of this approach “will be harsh 

in some cases . . . [w]e have considered the desirability of a more 

flexible standard, but can formulate no rules for the applicability 

of such a standard under which we could confidently predict 

that more good would be done than harm.” (In re Isaac J. (1992) 

4 Cal.App.4th 525, 534.)

Father’s motion nevertheless requests that the constructive

filing doctrine should apply here and permit him to “extend” 

his timely notice of appeal as to Christopher to also cover I.L., 

regarding whom he filed no notice of appeal. Father relies in large 

part on the fact that the California Supreme Court has granted 

review in In re A.R. (Jan. 21, 2020, A158143) [nonpub. order], 

petition for review granted May 13, 2020, S260928, to address 

the question whether “a parent in a juvenile dependency case ha[s]

the right to challenge her counsel’s failure to file a timely notice 

of appeal from an order terminating her parental rights.” (Supreme

Ct. Minutes, May 13, 2020, p. 612.) Based on this pending matter, 

Father argues that the Supreme Court “seems at least open to 
29

challenges to” the “widely accepted” policy of “all intermediate 

appellate courts in this state for more than a quarter of a century” 

regarding the inapplicability of Benoit to proceedings involving 

the termination of parental rights. He notes his motion is in part 

intended to preserve his right to seek relief, depending on the 

outcome of In re A.R.

Father further argues that the constructive notice of appeal 

doctrine should permit an appeal regarding I.L. According to 

Father, because I.L. has not yet been adopted by the maternal aunt 

(although this remains the permanency plan), the primary basis for 

not applying Benoit in the dependency context—that doing so would 

compromise the finality of adoptions—is not implicated here. 

Father further argues that we should permit this appeal to apply to 

I.L., because “if [I.L.]’s case had not become separated from that of 

Christopher . . . the exact same arguments would apply to both. . . . 

[Christopher’s] arguments would apply with equal force to [I.L.]

and with the same results had a timely notice of appeal been filed 

as to her. In other words, we may well have the anomaly of two full 

siblings, identically situated, with identical arguments that could 

[be] raised on behalf of both but parental rights will be reversed as 

to one but affirmed as to the other solely based upon judicial neglect

as aided by ineffective assistance of counsel. That cannot and 

should not be the law.”

Father argues he has satisfied the requirements of Benoit

based on facts, which he supports through attached declarations 

and citations to the appellate record, suggesting he was not 

sufficiently informed of how and when to appeal the order 

terminating his parental rights over I.L. He argues that the 

advisory of appellate rights the juvenile court provided at the 

permanency planning hearing regarding I.L. was incomplete, and 

he declares that his counsel never explained the deadline for an 
30

appeal (or anything else regarding his right to appeal), and that he 

never received a copy of the minute order terminating his parental 

rights to I.L. (which, as noted, the record on appeal reflects were 

mailed to an incorrect address). A declaration from an attorney at

the firm of his former counsel provides that Father’s file does not 

contain any indication Father’s counsel informed him of his right to 

appeal or provided him with the necessary paperwork for filing an 

appeal.

DCFS counters that Father did not file any notice of appeal 

regarding I.L. that we might be able to deem constructively filed, 

that Father’s bases for applying Benoit to these or other proceedings 

involving termination of parental rights lack merit, and that, in any 

event, Father has not satisfied the requirements of Benoit because 

he failed to exercise sufficient diligence in pursuing review of the 

order regarding I.L. (See In re Benoit, supra, 10 Cal.3d at pp. 88–89 

[court should “not indiscriminately permit a defendant whose 

counsel has undertaken to file the notice of appeal, to invoke the 

doctrine of constructive filing when the defendant has displayed 

no diligence in seeing that his attorney has discharged this 

responsibility”].)

Father’s motion raises important policy issues, and we 

are troubled by the fact that Father appears not to have received 

basic guidance from his attorney regarding his appellate rights. 

Nevertheless, Father’s motion does not present an opportunity 

to engage on these policy issues, and no prejudice resulted from 

Father’s inability to appeal the order regarding I.L. This is because 

Father makes clear that, were we to permit an appeal regarding the

I.L. order, Father would raise the exact same arguments that he

raised in his appeal regarding Christopher. Given our conclusion, 

for the reasons discussed above, that Father’s arguments regarding 

Christopher do not merit reversal, permitting Father to extend his 
31

appeal to I.L. would serve no purpose, even assuming this court 

has the ability and inclination to grant it. The motion is denied.

DISPOSITION

The order of the juvenile court terminating Father’s parental 

rights as to Christopher L. on March 5, 2020 is affirmed in all 

respects.

Father’s motion to extend his notice of appeal to apply to I.L.

and/or motion for constructive notice of appeal as to I.L. is denied. 

CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.