Filed 5/12/14 In re R.H. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

In re R.H., a Person Coming Under the Juvenile
Court Law.

MADERA COUNTY DEPARTMENT OF                                                                F067623
SOCIAL SERVICES/CHILD WELFARE
SERVICES,                                                               (Madera Super. Ct. No. MJP016702)

         Plaintiff and Respondent,
                                                                                         OPINION
                   v.

E.H.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Thomas L.
Bender, Judge.
         Gino de Solenni, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Douglas W. Nelson, County Counsel, Miranda P. Neal and Woodrow C. Whitford,
Deputy County Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
         This case involves a biological father’s due process rights. He contends he was
improperly deprived of a contested jurisdictional hearing because he was not advised of
his rights under California Rules of Court, rule 5.682 and did not personally waive those
rights. We agree. We recognize that, given the evidence against him, Father may face a
high hurdle in prevailing on the merits of his request for placement under Welfare and
Institutions Code1 section 361.2. However, due process compels us to afford him the
opportunity for a contested hearing. Therefore, we will vacate and remand.
                                      INTRODUCTION
       At a jurisdictional proceeding, “the court must advise the parents of their due
process rights to a hearing and must obtain an express personal waiver of those rights if
the hearing is to proceed without further evidence.” (In re Monique T. (1992) 2
Cal.App.4th 1372, 1374 (Monique T.). See also Cal. Rules of Court, rule 5.682.2) In this
case, the juvenile court did neither. The Madera County Department of Social
Services/Child Welfare Services (Department) concedes error, but contends it was
harmless under Monique T.
       While Monique T. found a similar error harmless under Chapman v. California
(1967) 386 U.S. 18 (Chapman), it did so because parent’s counsel had explained the right
to a contested hearing to her client. (Monique T., supra, 2 Cal.App.4th at p. 1378.) We
agree that when a parent is advised of his or her rights, reversal is not warranted merely
because the advisement came from counsel rather than the court.3 But that is not what
happened here. In this case, there is no evidence that appellant was advised of his rights
by the court, his counsel, or anyone else before his rights were waived at the
jurisdictional hearing. Therefore, we conclude the court’s failures to advise appellant of
his rights and obtain a personal waiver were not harmless. Accordingly, we reverse the


       1All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
       2   Hereafter, “rule 5.682.”
       3 A court’s failure to comply with rule 5.682 is always error, but it may not be
reversible error where the parent is fully advised of their rights through counsel. (See
Monique T., supra, 2 Cal.App.4th at p. 1378.)


                                             2.
jurisdictional and dispositional orders as to the placement of appellant’s biological child,
R.H.
                                          FACTS
       Appellant Eric H. (“Father”) is the biological father of minor R.H.4 R.H. has been
the subject of at least two dependency proceedings. The first proceeding began in 2011
and ended in 2012. The second proceeding began in 2013 and is the subject of this
appeal.
       2011 Dependency Proceedings
       In the 2011 proceedings, it was alleged that R.H.’s mother, Stacey F. (“Mother”),
had been arrested for several alleged crimes, including willful harm or injury to a child in
her care or custody. (Pen. Code, § 273a, subd. (a).) Mother claimed that Robert R. was
R.H.’s father.5
       At a jurisdictional hearing, the allegations were found true and the petition was
sustained. At the disposition hearing, the court declared R.H. and another child, Z.F., to
be dependents of the court. But the court allowed the Department to return R.H. and Z.F.
to mother at its discretion.
              Father’s Letter
       The record contains a letter, apparently written by Father to the juvenile court,
dated April 28, 2011. Father wrote that it had come to his attention that there was a child
custody case involving R.H. Father requested a DNA test to determine whether R.H. was


       4  From the 2011 proceeding through part of the 2013 proceeding, R.H. was
referred to with a different last name, “M.” Eventually, Father requested her name be
changed to R.H. Ultimately, the juvenile court granted the request. For simplicity, we
refer to the child as R.H. throughout this opinion.
       5 Father’s brief states that mother “told the Department that Jason M. was the
father of R.H.” Our review of the record indicates that during the 2011 proceedings
mother claimed Robert R., not Jason M., was the father of R.H. The record indicates that
it was not until the 2013 proceedings that mother claimed Jason M. was the father of R.H.


                                             3.
his biological child. The letter continued: “[I]f I am found to be the biological father of
[R.H.] … it is my wish to raise her myself.” Father enclosed an “Order for Genetic
(Parentage) Testing” (Judicial Council Form FL-627), which he had completed.
        He also stated that he was “indigent” and enclosed a form FW-001, Request to
Waive Court Fees along with an income and expense declaration.
        The letter states that because Father was incarcerated, he was not receiving copies
of court documents in the case. He asked that the court allow him to participate in the
case.
        The court set a hearing to “review” the letter sent by Father requesting a paternity
test. At the hearing, the court found that Father was no longer incarcerated and ordered
the Department to “perform due diligence for [Father].” The Department did so and was
unable to locate Father.
        Nonetheless, Father appeared at a review hearing on June 7, 2011. The court
granted father’s request for genetic testing. But as of May 1, 2012, Father had still not
reported for genetic testing.
        Jason M. did submit to genetic testing. The results were filed with the court on
February 3, 2012, and they indicated that Jason M. was not the biological father of R.H.
        On October 30, 2012, the court dismissed the dependency proceedings.
        2013 Dependency Proceedings
        In March 2013, the Department filed a section 300 petition involving Z.F., R.H.
and newborn S.T. The petition alleged that S.T. had been born four days earlier and
tested positive for methamphetamine. Mother also tested positive for methamphetamine.
        The petition also alleged that S.T.’s father, Charles T., had admitted to smoking
marijuana in the home where S.T. was born, one hour before her birth. Z.F. and R.H.
were allegedly present in the home while Charles T. smoked marijuana. The petition
alleged all three children faced substantial risk of serious physical harm and/or neglect
due to Mother’s substance abuse.

                                              4.
       One of the Department’s subsequent reports indicated that hair follicle samples
were taken of Mother, Charles T., Z.F. and R.H. on March 19, 2013. All four individuals
tested positive for amphetamines and methamphetamine.
       In the 2013 proceedings, Mother claimed Jason M. was the father of R.H. But, she
admitted that Jason M. “was not present at the birth, is not listed on the birth certificate,
[and] has never lived with her and the minor.”6
       The Department’s detention report discloses no effort to contact Father or notify
him of these proceedings. The report indicated that the three children had been placed
together in a foster home. The Department requested that the children remain in out-of-
home care pending further order of the court. The children were ultimately placed
together in a foster home.
       At the detention hearing on March 20, 2013, the court found: “Continuance of the
child [sic] in the home of the parents, is contrary to the child’s welfare and: There is
substantial danger to the physical health of the child [sic], or the child is suffering severe
emotional damage and there are no reasonable means to protect the child’s physical or
emotional health without removing the child from the parent’s physical custody.” The
court ordered the children detained and provided that the Department could temporarily
place them in a suitable relative’s home, foster home, or group home.
       A report by the Department indicates that on March 25, 2013, Father came in to
the Department’s office to speak with the social worker for R.H.’s case. The receptionist
indicated that Father was being “demanding.” The social worker spoke with Father.
Father was “mad” that no one at the Department knew where his daughter was. Father
conveyed that he was R.H.’s biological father as demonstrated by the genetic testing.
Also, father referenced a child support order. He also said he had visited with R.H. three


       6
      Mother also claimed that Jason M. had never submitted to genetic testing.
However, as noted above, results of Jason M.’s testing had been filed over a year prior.


                                              5.
weeks prior. Father requested a visit with R.H. The social worker told Father that there
was a court hearing scheduled for April 9, 2013. Father said he did not want to wait and
would file papers with the court sooner. Father said he did not know why Mother did not
try to keep R.H. out of foster care by telling the social worker that he was R.H.’s father.
Father told the social worker that if Mother would not protect R.H. from foster care, he
would. The social worker said she needed to contact Child Support Services to “get the
records” – presumably referring to the child support order Father had mentioned. The
social worker gave Father her business card. Father delivered the child support order to
the Department later that day. The social worker said Father was “agitated” and speaking
quickly.
       On March 26, 2013, the Department received a call from the Madera Police
Department indicating that Father was complaining the Department was keeping him
from seeing R.H. The same day, the Department received a call from the Madera
Sheriff’s Department indicating that Father “was at their office regarding his child,
[R.H.], being placed in foster care.” Unidentified staff at the sheriff’s department said
Father was agitated and “appeared to be under the influence of a controlled substance.”
       On March 26, 2013, the social worker met with Mother and Charles T. The social
worker conveyed the results of the March 19, 2013, hair follicle tests. Mother and
Charles T. expressed “shock[]” because they claimed not to have used methamphetamine.
They said that Father “had been coming to their home and was buying them and the kids’
drinks and he must have been putting methamphetamine in the drinks.” They said that
Father “slams meth,” prompting the social worker to ask why they would let Father
around their daughter. The social worker also told them that the levels of
methamphetamine found in R.H.’s sample were not consistent with their theory. The
Department concluded both Mother and Charles T. “were in denial.”
       On March 28, 2013, Mother and Charles T. failed to come to a scheduled
visitation with their children.

                                             6.
       April 9, 2013, Hearing
       At a hearing on April 9, 2013, the court appointed counsel for Father. The court
set the jurisdictional hearing for Thursday, April 11, 2013. The court told Father that his
appointed counsel is “difficult to reach” because “he’s a solo practitioner and he’s in
court quite a bit.” The court told Father that if he could not reach him, “just know that
you will be able to talk to him on Thursday.”
       Later, still during the April 9 hearing, Father informed the court that he had been
trying to obtain support for R.H. through Social Security because he is disabled. Father
obtained an order from another department of the court which contained mother’s social
security number. He obtained the order so that he could “get[] her support through my
Social Security benefits.” Father also explained he was frustrated with “CPS” because
their records should have reflected that he was R.H.’s biological father, considering the
genetic test results were filed in court.
       The court informed Father that if he wanted placement of R.H., he would have to
be assessed and that a home inspection would have to occur. Father said he had “a
beautiful home.”
       April 11, 2013, Hearing
       The jurisdictional hearing proceeded as planned on April 11, 2013. The court
asked Father’s counsel whether Father would be submitting on the Department’s report.
Counsel replied: “Your Honor, for the record, I was appointed Tuesday. [Deputy County
Counsel] worked quickly to serve me with – serve me with scanned copies of all the
documents in the case thus far, which I did review. I was able to meet with [Father] in
the hallway before the Court called the case, and we do not have an issue with the court
taking jurisdiction based on these allegations.” (Italics added.) The court did not advise
Father of his right to a contested jurisdictional hearing. (See Cal. Rules of Court, rule
5.682.) Nor did Father personally waive his right to a contested jurisdictional hearing.
(See ibid.)

                                             7.
         The court set the dispositional hearing for April 25, 2013. The court told Father,
“we’ll be looking at … the issues regarding you and your daughter [R.H.], and resolving
those issues when you come back.”
         The court then adopted the Department’s recommended findings and orders,
including an order that the children “shall remain in the temporary care and custody of
the … Department for placement in a suitable relative[’s] home, foster home or group
home.”
         Motion for Continuance
         Father told the social worker that he had been preparing his home for placement of
his daughter. He requested the home assessment occur on May 6, 2013. The Department
requested a continuance of the dispositional hearing so that the home assessment could
occur.
         Disposition Report
                Social Worker’s Meeting With Father
         According to the Department’s disposition report, a social worker met with Father
on April 29, 2013, to attempt to assess him for placement of R.H. The report indicated
that Father “has expressed that he wants his child, [R.H.], but has been uncooperative
with this Department in our attempts to assess him as a non-custodial parent.” Father
disclosed that he has a history of methamphetamine use. However, he indicated that he
received treatment for the abuse. Father declined to submit to a hair follicle drug test.
         The social worker attempted to conduct an Addiction Severity Index assessment of
Father. However, Father became angry and began yelling at the social worker. Father
complained he had not been notified immediately when his daughter was taken from her
mother. He said “he would not ‘go through the hoops’ to get his daughter because he had
not done anything wrong.”
         Father also disclosed that he is bipolar, psychotic and has “manic disorder.” He
said he has been prescribed medication for the disorders but does not take the medication.

                                              8.
              Criminal History
       The dispositional report says that the social worker contacted the Department of
Justice (DOJ) regarding Father’s criminal records on March 26, 2013. The DOJ reported
that Father’s “criminal records were too long to read them all over the telephone.” The
DOJ staff said they would provide the last two “charges” over the phone and mail the
entire criminal history to the Department. The report then lists the two charges.
However, notations after the charges suggest that some or all of the charges were dropped
or dismissed. It is unclear why the charges related to the March 27, 2010, entry were
“dismissed.” Considering the very serious nature of these charges, the reason for
dismissal seems particularly relevant. The list reads:

       “09/12/2011
       “Inflicted Corporal Injury on Spouse
       “Detention
       “Dropped Lack of Sufficient Evidence

       “03/27/2010
       “Murder in the First Degree
       “Child Cruelty
       “Violation of Parole
       “Felony
       “- Assault with a Deadly weapon (not Firearm)
       “- Great Bodily injury on Police officer/firefighter
       “- Obstruct/ Resist Executive Officer
       “- Obstruct police officer
       “Dismissed in court 4 counts.”
       As of May 8, 2013, the Department had still not received Father’s criminal history
from the DOJ.
       Dispositional Hearings
              May 9, 2013
       On May 9, 2013, Father’s counsel requested a contested dispositional hearing.
The grounds for requesting a contested hearing were twofold. First, when it was
confirmed that the Department was recommending no services be provided to Father,

                                            9.
counsel said he was “[o]bviously, not agreeable.” Counsel also raised the issue of
placement of R.H. with Father, and said he would “look[] into the evidence and
arguments that we have in support of that position.” The court responded, “Yeah, I need
to set a contested hearing.” Accordingly, the court scheduled a contested dispositional
hearing for June 6, 2013.
       The Department asked the court to order Father to submit to a hair follicle drug
test. The court explicitly declined to do so.
              June 6, 2013
       At the June 6, 2013, hearing, the Department announced that it had changed its
position and now agreed to recommend that Father receive services. The dispositional
hearing was continued to June 27, 2013.
              June 27, 2013
       At the June 27, 2013, hearing, Father’s counsel told the court they had “settled the
contest by the department agreeing to offer [services] to [Father].”7 The dispositional
hearing was continued again to July 11, 2013.
              July 11, 2013
       The dispositional hearing ultimately occurred on July 11, 2013. Though Father
had attended all prior dispositional hearings, he was inexplicably absent on July 11, 2013.
Father’s counsel submitted on the report “with comment” on an unrelated issue regarding
the Department’s recommended services. The issue of R.H.’s placement was not raised.
Each counsel eventually submitted on the Department’s report. The court then adopted
the Department’s recommended findings and orders. The court found Father was not a

       7 The record is not clear on why Father’s counsel viewed the “contest” as
“settled.” The reasons for requesting a contested hearing were (1) Father disagreed with
the recommendation not to provide him services and (2) Father wanted R.H. placed with
him. The Department addressed the first concern at the June 6, 2013, by agreeing to
recommend services for Father. But the record shows no resolution of Father’s
objections to R.H.’s placement outside his home.


                                                10.
presumed father under the Family Code, but did provide him with services. The court
declared R.H. a dependent of the court and removed her from the custody of Mother.
The Department was permitted to place R.H. “in any suitable placement in conformity
with applicable legal requirements.”
       Father appeals from the jurisdictional and dispositional orders.
                                        DISCUSSION
       Father claims the court violated his due process rights by failing to advise him of
his rights under rule 5.682, including the right to a contested jurisdictional hearing. (Rule
5.682(b)(1).) The Department concedes error, but argues it was harmless. We accept the
Department’s concession for the reasons explained below. Thereafter, we will analyze
whether the conceded error was prejudicial. We ultimately conclude the Department has
failed to show that the error was harmless.8
       A. Due Process in Jurisdictional Proceedings
       Procedural due process analysis involves two steps. First, we determine whether a
right to due process exists in a particular context. Then, we decide what procedures
satisfy the requirements of due process. (See Caloca v. County of San Diego (1999) 72
Cal.App.4th 1209, 1218.)

              1. The Right to Due Process Applies in the Context of Jurisdictional
                 Hearings

       Our Supreme Court has plainly held that due process protections apply to
jurisdictional hearings. “Although a jurisdictional finding in a section 300 proceeding
does not necessarily lead to a termination of parental rights, it is the first step in the




       8  Father also contends the court erroneously failed to grant him Kelsey S. status.
(Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).) Because we reverse on the
failure to hold a contested jurisdictional hearing and remand for the presentation of
Father’s evidence, this contention is moot.


                                               11.
termination process and must be protected by due process guaranties.” (In re Lucero L.
(2000) 22 Cal.4th 1227, 1247.)

              2. Due Process Confers a Right to “Trial” on Issues Raised by the Section
                 300 Petition
       “[O]nce it has been concluded that a due process right exists we … decide what
process is due. [Citation.]” (In re Malinda S. (1990) 51 Cal.3d 368, 383, superseded by
statute on another point as stated in People v. Otto (2001) 26 Cal.4th 200, fn. omitted.)
       Identifying the dictates of due process generally requires consideration of several
factors, including “the private interest that will be affected by the official action [and] …
the [dignity] interest in informing individuals of the nature, grounds and consequences of
the action and in enabling them to present their side of the story .…” (In re Malinda S.,
supra, 51 Cal.3d at p. 383. See also People v. Ramirez (1979) 25 Cal.3d 260, 269.) In
section 300 proceedings, parents have “substantial private interests at stake” and
“significant dignity interests in being fully and fairly able to present their sides.” (In re
Malinda S., supra, 51 Cal.3d at p. 383.) Therefore, due process imposes several
requirements in the context of jurisdictional hearings. “Among the essential ingredients
of due process are the right to a trial on the issues raised by the petition, the right to
confront and cross-examine witnesses, and to compel the attendance of witnesses.
[Citation.]” (Monique T., supra, 2 Cal.App.4th at p. 1377.)
              3. Waiver
       Like many constitutional rights, the right to a contested dependency hearing can
be waived. (See In re Shelley J. (1998) 68 Cal.App.4th 322, 328.) But, such waivers
must be knowing and voluntary. The Court of Appeal explained this concept in the
analogous context of termination of parental rights:

       “Because parents enjoy a fundamental liberty interest in the care, custody
       and control of their children, parental rights cannot be terminated except
       according to procedures that satisfy due process. [Citation.] At the same
       time, constitutional rights may generally be waived, provided the waiver is


                                              12.
         knowing, voluntary, and intelligent. [Citation.]” (Tyler v. Children’s
         Home Society (1994) 29 Cal.App.4th 511, 545–546.)
         The California Rules of Court also require certain specific advisements be given at
a jurisdictional hearing. (Rule 5.682(b).) Among the rights that must be explained to the
parent is the right to a contested hearing. (Rule 5.682(b)(1).) Once advised of these
rights, the parent has the option to “submit the jurisdictional determination to the court
based on the information provided to the court and waive further jurisdictional hearing.”
(Rule 5.682(e).) After such a submission, the court “must” find, inter alia, that the parent
(1) “has knowingly and intelligently waived the right to a trial on the issues by the
court …”; (2) “understands … the possible consequences of … submission”; and (3) has
entered the submission “freely and voluntarily.” (Rule 5.682(f)(3)–(5).)
         The parent must personally waive these rights; the representations of counsel
alone will not suffice. (See Monique T., supra, 2 Cal.App.4th at p. 1377.) Thus, when a
juvenile court does not explain the parent’s rights or obtain a personal waiver from the
parent, it is error to accept a waiver “based only on counsel’s representations.” (Ibid.)
         Here, the juvenile court did not explain Father’s rights under rule 5.682, nor did
Father personally waive those rights. Instead, the court accepted a waiver “based only on
counsel’s representations.” (Monique T., supra, 2 Cal.App.4th at p. 1377.) This was
error.
                       a. Harmless Error Analysis
         The Department concedes error, but contends it was harmless. In its brief
treatment of the prejudice issue, the Department relies entirely on Monique T., supra, 2
Cal.App.4th 1372.
                1. Monique T.
         In Monique T., the court similarly failed to give mother the advisement of trial
rights set forth in what is now rule 5.682. Moreover, the court failed to obtain a waiver
from the mother of her trial rights. However, the trial court in Monique T. did have the
following exchange with the mother’s counsel:

                                              13.
             “ ‘The Court: Are the reading of the petition and advice of rights
       waived, Ms. Gonella [mother’s counsel]?

              “ ‘Ms. Gonella []: Yes, they are waived, and at this time we’re
       prepared to submit the matter on the petition with the knowledge that the
       Court will almost undoubtedly find jurisdiction in this case.

               “ ‘The Court: All right, and you have explained to your client and
       are satisfied that she understands she’s giving up her rights to have other
       evidence presented and to have a contested matter?

              “ ‘Ms. Gonella: Yes, Your Honor, and I’ve also explained to her if
       the child is not returned to her care in one year, she runs the risk of losing
       her rights as a parent with the child.’ ” (Monique T., supra, at p. 1376.)
       Nonetheless, the appellate court concluded: “Because the juvenile court did not
explain the rights to the mother as required nor did it obtain her personal waiver of these
due process rights, we conclude it was error to accept a waiver of these rights based only
on counsel’s representations.” (Monique T., supra, 2 Cal.App.4th at p. 1377.)
       The appellate court proceeded to analyze harmlessness under the “beyond a
reasonable doubt” standard of Chapman. (Monique T., supra, 2 Cal.App.4th at pp. 1377–
1379.)9 The court ultimately found the error harmless, stating: “mother was represented,

       9  We question whether constitutional errors in section 300 cases should be
reviewed under the Chapman standard of harmlessness. With respect to dependency
cases generally, it may be more appropriate for the appellate harmlessness standard to
reflect the “clear and convincing” burden of proof below. (Cf. Haddad v. Lockheed
California Corp. (9th Cir. 1983) 720 F.2d 1454, 1458–1459 [standard of harmlessness on
appeal should mirror burden of proof at trial].) With respect to the specific error
presented here, we wonder whether harmless error analysis applies at all. (But cf. In re
James F. (2008) 42 Cal.4th 901, 915–916.) When the record is completely silent on
required advisements and personal waiver of the right to a contested hearing, we cannot
“quantitatively assess … [the] error in the context of other evidence presented” (In re
Angela C. (2002) 99 Cal.App.4th 389, 394) because only one side has presented
evidence. This issue may be ripe for review by the Supreme Court in the appropriate
case. In the meantime, we will follow our own precedent identifying Chapman as the
proper standard for constitutional errors in section 300 cases. (In re Angela C., supra, at
pp. 393–394.) Moreover, we note that the Department does not argue that the Chapman
standard does not apply. To the contrary, it relies solely on Monique T., which applied
Chapman.


                                             14.
at all stages of the proceeding, by an attorney, who explained her rights to her and who
indicated that she desired to waive them.” (Monique T., supra, at p. 1378, italics added.)
       The Department contends that the present error is harmless because, as in Monique
T., father “had an appointed attorney and was present at the time that the court found
[j]urisdiction.” However, unlike in Monique T., the Department here does not cite, and
we do not find, anything in the record indicating that counsel explained to Father his right
a contested jurisdictional hearing.
       Thus, the Department has failed to show the error was harmless under Monique T.
                  2. Father Failed to Show Prejudice
       Father argues that the error was prejudicial because he was deprived of the
opportunity to establish that he was a Kelsey S. father. This, in turn, prevented him from
obtaining placement of R.H. under section 361.2. The Department argues that even if
Father had been able to attain Kelsey S. status, he would still not be entitled to placement
under section 361.2. We will analyze this contention, beginning with a brief description
of the statute.
                        a. Section 361.2
       The purpose of section 361.2 is to “guide[] the court and the Agency in
determining the child’s placement” once the child is removed from the custodial parent.
(In re Luke M. (2003) 107 Cal.App.4th 1412, 1422.)10 Its provisions apply when the
juvenile court first takes jurisdiction of a child. (Bridget A. v. Superior Court (2007) 148
Cal.App.4th 285, 315.)
       Section 361.2, subdivision (a) provides: “When a court orders removal of a child
pursuant to Section 361, the court shall first determine whether there is a [noncustodial
parent] … who desires to assume custody of the child.” (§ 361.2, subd. (a).) “If [the
noncustodial] parent requests custody, the court shall place the child with the parent

       10   Of course, other statutes are involved in this determination as well.


                                               15.
unless it finds that placement with that parent would be detrimental to the safety,
protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) This
finding of detriment must be based on “clear and convincing” evidence. (In re Z.K.
(2011) 201 Cal.App.4th 51, 70.) “In the absence of a finding of detriment, the court must
place the child with the noncustodial parent. [Citation.]” (In re V.F. (2007) 157
Cal.App.4th 962, 970, undermined by statute on another point as stated in In re Adrianna
P. (2008) 166 Cal.App.4th 44.)
       The Department persuasively argues that even if Father were afforded Kelsey S. or
presumed father status, he would not be entitled to placement under section 361.2
because there was clear and convincing evidence of detriment. The Department cites an
extensive array of evidence: Father’s criminal record, history of drug use, expressions of
anger, mental health issues, and lack of a stable plan for residency.
       But the persuasiveness of the Department’s position is unsurprising because Father
presented no contrary evidence. And Father presented no contrary evidence because
there was no contested hearing. It would be specious reasoning to hold that the
deprivation of Father’s right to present evidence was harmless because of the weight of
the unchallenged evidence. The fact that the evidence against Father went unrebutted
does not support a finding of harmlessness.
       In sum, Father was unable to present his side of the story. It may be that he has an
unconvincing story to tell, but procedural due process requires that we hear it
nonetheless.
               3. Burden of Persuasion Rests with the Department
       Under Chapman, the Department bears the burden of persuasion on the issue of
prejudice. “Certainly error, constitutional error … casts on someone other than the
person prejudiced by it a burden to show that it was harmless.” (Chapman, supra, 386




                                              16.
U.S. at p. 24.) It has not carried that burden.11 Therefore, we cannot conclude that the
court’s error was harmless beyond a reasonable doubt and are compelled to reverse.
       Directions
       On remand, the court shall advise Father of his rights under rule 5.682. Assuming
Father elects to present evidence at a contested hearing, the court shall thereafter
determine whether Father is entitled to elevated fatherhood status and whether he is
entitled to placement of R.H. under section 361.2.
                                      DISPOSITION
       The jurisdictional and dispositional findings and orders are reversed as to Father
and the placement of R.H. The matter is remanded to the juvenile court.


                                                                  _____________________
                                                                  Poochigian, Acting P.J.
WE CONCUR:


______________________
Peña, J.


______________________
Sarkisian, J.




       11 It is doubtful whether the Department could ever carry its burden in a “silent
record” case like this. Again, we question, without deciding, whether the error presented
here is subject to harmless error analysis at all. (See fn. 9, ante.)
       Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


                                             17.
