In re Jessica G. (2001)

In re JESSICA G., et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. HERMILA A., Defendant and Appellant.

[Modification fn. * of opinion (93 Cal.App.4th 1180) on denial of petition for rehearing with a change in judgment.]

THE COURT. fn. † --

It is ordered that the opinion filed herein on November 20, 2001, be modified as follows:

1. On page 2, first sentence of the second full paragraph [93 Cal. App. 4th 1183, advance report, 4th par.] is deleted and the following is inserted in its place

The appeal is taken from an order terminating parental rights, made under section 366.26 of the Welfare and Institutions Code.

2. On page 5, second sentence of the first full paragraph [93 Cal. App. 4th 1185, advance report, 4th par.], the word "dispositional" is changed to "section 366.26" so the sentence reads:

The court put the section 366.26 hearing over until March (and later, to April).

3. On page 8, second sentence of the first full paragraph [93 Cal. App. 4th 1188, advance report, 1st par.], the word "first" is deleted so the sentence reads:

The appointment occurred on January 12, 2001, the date noticed for the section 366.26 hearing.

4. On page 9, lines 3 and 4 [93 Cal. App. 4th 1189, advance report, 1st par.], the last sentence is deleted and the following sentence is inserted in its place:

The judge who made the nunc pro tunc order and section 366.26 order is Diana M. Wheatley.) [94 Cal. App. 4th 708b]

5. The paragraph commencing at the bottom of page 9 [93 Cal. App. 4th 1189, advance report, 3d par.] with "The Department devotes" and ending at the top of page 10 with the sentence "We simply do not know." is modified to read as follows:

We turn to the question of prejudice. The issue on appeal is not whether it is probable that the losing party would have achieved a better result but for the error, but the federal constitutional standard: whether the error is harmless beyond a reasonable doubt; for unless it is, the resulting adjudication must be reversed. (Sara D., supra, 87 Cal.App.4th at p. 673.) As in Sara D., we cannot say that standard is satisfied. We do not know what Mother might have done or suggested to her attorney if the guardian ad litem had not been interposed. She may have had supportive witnesses to testify about her performance at programs and in support of a continued relationship with her daughters, under section 366.26, subdivision (a)(1)(A); or she may have suggested that she finally had rid herself of Juan G. and experienced an improvement in her psychological prospects as a result; and she may have been able to suggest other evidence or leads. Or she may not have been able to offer anything helpful. We simply do not know.

6. On page 10, the second full paragraph is deleted and the following is inserted in its place:

That takes us to the Department's principal argument for affirmance. It invokes the so-called "waiver rule": that since Mother did not file a writ application challenging the previous appointment of the guardian ad litem, she cannot be heard to complain about that order on appeal from the final order terminating parental rights.

7. On page 12, the dispositional paragraph is deleted and the following is inserted in its place:

The order terminating parental rights and the order appointing a guardian ad litem are reversed and the case is remanded for further proceedings consistent with this opinion.

This modification changes the judgment.

Respondent's petition for rehearing is denied.

FN *. This modification requires movement of the text affecting pages 1189-1190 of the bound volume report.

FN †. Before Vogel (C.S.), P.J., Epstein, J., Curry, J.