California Juvenile Law Blog

IN RE KARLA C. (07/21/2010, No. A126685, 1st Dist.) Cal.App.4th

2010-07-21T17:06:00.000-07:00

May a juvenile court enter a temporary custody order placing the minor outside the boundaries of the United States? The Court of Appeal for the First District confronted this issue in In re Karla C. (07/21/2010, No. A126685) __ Cal.App.4th __ and concluded that such an order was proper only after the court had conducted a hearing to determine the enforceability of its jurisdiction in the foreign country, and after it had then taken appropriate measures to ensure it could maintain jurisdiction.

Five-year-old Karla C. was detained on a petition filed under subdivision (d) of section 300 of the Welfare & Institutions Code, which alleged that her stepfather had sexually abused her while she was in her mother's home, and that Mother had failed to protect her from the abuse. At the conclusion of a contested dispositional hearing, the trial court entered an order placing Karla, at least temporarily, in the custody of her father, a Peruvian national who (after being deported from the United States some years previously) now lives in Peru. Mother appealed, arguing among other things that the out-of-country placement was improper because such a placement would render reunification impossible, and because the Court had not obtained legal assurance from the Peruvian government that the court could effect the return of Karla to California if needed or that it could preserve its effective jurisdiction over Karla while she was in Peru.

The Court of Appeal, citing In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1412, noted that California law does not prohibit placing a child outside of the United States. However, the Court noted that several family law cases supported an argument that considerations of effective jurisdiction should be evaluated by a court contemplating an out-of-country placement for a dependent minor. Furthermore, the Court noted, Mother had failed to present any authority to the juvenile court or on appeal questioning whether Peruvian courts would accept and enforce the juvenile court's orders. Mother's counsel, the Court said, "only asserted a vague 'practical concern' that it would be 'difficult to effectuate any order from here once the child is [in Peru]'". "Mother", the Court declared, "simply asks us to presume that Peruvian courts will disregard the California juvenile court‘s jurisdiction."

However, despite the apparent forfeiture of this issue on appeal, the Court of Appeal nonetheless noted its concern "that the trial court has ordered a minor subject to its dependency jurisdiction placed abroad without any apparent consideration of its ability to make or enforce any further orders that may be necessary or appropriate." The Court therefore exercised its discretion to excuse forfeiture, and considered the issue on its merits.

The Court held that, while there is no basis to conclude without evidence that the Peruvian courts would (or would not) honor the juvenile court's orders, there is also cause to simply "[rely] on Father‘s word that he will honor the juvenile court‘s jurisdiction if the court orders Karla‘s return." Furthermore, the Court stated, "[n]or are we persuaded that either the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or the Hague Convention ensure the juvenile court‘s jurisdiction over Karla once placed in Peru." Specifically, the Court noted, the UCCJEA "provides no assurance that the sovereign Peruvian courts would agree and recognize California‘s continuing exclusive jurisdiction either as a matter of comity or under treaty" and the parties and the Court found no authority answering the question of whether the Hague Convention would protect the juvenile court's jurisdiction over the minor while she is in Peru.

"Thus," the Court of Appeal concluded, "the interests of justice require remand to the juvenile court for its consideration of (1) evidence regarding recognition and enforcement of the juvenile court‘s continuing jurisdiction under the laws of Peru and (2) imposition of any measures necessary or appropriate to ensure enforceability of the juvenile court‘s continuing jurisdiction and its orders while Karla is outside the United States."

The matter was thus remanded to the juvenile court for further consideration of these issues. Additionally, the juvenile court was directed to clarify, in its revised disposition orders, that Father was awarded temporary physical custody rather than sole legal and physical custody. In all other respects, the juvenile court's orders were affirmed.

The Court's opinion can be downloaded from http://courtinfo.ca.gov/opinions/documents/A126685.PDF.

GARCIA v. W&W COMMUNITY DEVELOPMENT, INC.

2010-07-19T11:12:00.000-07:00

GARCIA v. W&W COMMUNITY DEVELOPMENT, INC. (06/18/2010, No. E049099, 4th Dist.) __ Cal.App.4th __

Plaintiff Cesar Garcia's 2-year-old daughter Alexis and 4-year-old son were placed in a foster home licensed by defendant W&W Community Development (doing business as Children's Plus Foster Agency). While placed in the foster home, the foster mother left Alexis unattended in a half-full bathtub for several minutes, where Alexis drowned. Garcia sued the Foster Family Agency seeking damages on his own behalf and on behalf of Alexis's estate, alleging various deficiencies in the training, background investigation and licensing of the foster parents and asserting liability under the doctrines of negligence, wrongful death, and respondeat superior liability.

Defendant moved for summary judgment on various grounds, including the contention that, as a Foster Family Agency, it was performing a quasi-governmental function and was therefore immune from liability under section 820.2 of the California Government Code, which holds that "[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." The trial court agreed with this contention and granted defendant's motion for summary judgment as to defendant. Garcia timely appealed.

The Court of Appeal rejected this claim. The Court explained that, as a preliminary matter, counties are not generally immune from liability for the acts of its employees. Rather, the Court explained, section 815.2 of the Government Code provides that "[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative". The Court stated that "Even if we were to agree with defendant that it has the same liability as a county for the acts of its employees, that claim does not foreclose liability on defendant‟s part. The trial court was incorrect in finding otherwise."

Although the Court rejected defendant's assertion that section 820.2 of the Government Code provided the foster family agency with quasi-governmental immunity in this case, it concluded that Defendant was not liable under the doctrine of respondeat superiorbecause the character of the relationship between a foster family agency and its licensed foster parents is that of an independent contractor and not that of an employee or agent, and that plaintiff had failed to raise a triable issue of material fact as to the alleged deficiencies in defendant's training and oversight of the foster home. For those reasons, the trial court's grant of summary judgment was nonetheless affirmed.

The Court's opinion can be found online here (PDF).

Case Law Update - 05 May 2009

2009-05-05T17:13:00.000-07:00

In re R.M. and S.M., No. B210077

A 2004 Family Law order awarded custody of R.M. and his sister, S.M., to Mother and visitation rights to Father. In June 2008 the Department of Family and Children Services (DCFS) filed a petition in juvenile court only under 300(b) W&IC alleging that R.M. and S.M. had suffered and were at substantial risk of suffering serious physical harm as a result of their parents' inability to adequately supervise or protect them. The record does not disclose how the family came to the attention of the DCFS. Mother and Father waived their right to a trial on the allegations and the court sustained the petition on the basis of the reports submitted by the DCFS.

he court found that "periodic episodes of inadequate supervision of the children" caused by Mother's and Father's "divergent approaches to parenting" resulted in S.M.'s exposure to "inappropriate sexual conduct" by her brother, R.M. The court further found that Mother's "physical and emotional problems [and depression] . . . periodically render her unable to provide adequate care and supervision for the children" thereby placing the children "at risk of physical and emotional harm and damage."

Mother appealed, contending the evidence was insufficient to sustain the petition as to her.

The appellate court noted that the record contains evidence that R.M. and S.M. admitted engaging in inappropriate sexual contact with one another. However, it noted that "Nothing in the record, however, supports the conclusion that Mother inadequately supervised her children, for whatever reason, or that Mother should earlier have been aware of their inappropriate sexual conduct. For example, the record does not disclose when the conduct began, how frequently it occurred, or how long it continued. Nor is there any evidence that Mother condoned or facilitated the conduct. On the contrary, the evidence shows that once Mother became aware of the conduct she took steps to prevent it, including admonishing the children not to repeat the behavior, and going so far as locking the door to the bedroom where S.M. and she slept. Furthermore, there is no evidence that any inappropriate sexual conduct continued after Mother admonished the children and began locking the bedroom door."

The appellate court explained that, although past behavior may have some probative value, there must be "evidence that the circumstances existing at the time of the hearing make it likely the children will suffer the same type of 'serious physical harm or illness' in the future." (quoting from In re Janet T. (2001) 93 Cal.App.4th 377, 388). The appellate court further noted that "the record contains no evidence that this conduct occurred 'as a result of' Mother's or Father's 'divergent approach to parenting' or Mother's 'physical and emotional problems.'" Nor, in the appellate court's view was there any evidence to support the juvenile court's finding that Mother had any physical or emotional problems that interfered with her parenting.

The appellate court therefore concluded that no credible evidence supported the jurisdictional findings as to Mother. The court thus issued an order reversing those orders and directing the juvenile court "to dismiss the petition and return the children to the custody of their mother forthwith unless new circumstances would justify a new finding of jurisdiction."

Opinion: B210077.PDF, B210077.DOC

In re A.G. (Unpub'd), No. E046769

On September 20, 2007, Riverside County Department of Social Services (the Department) detained A.G., who was one month old. According to the section 300 petition filed by the Department on September 24, 2007, on behalf of A.G. against Mother and Father (who claimed to be the biological father), it was alleged pursuant to subdivisions (b)(1) and (b)(2) of section 300 that the parents were unable to supervise or protect the child adequately. It was also alleged under section 300, subdivision (j) that A.G.'s siblings all had suffered abuse or neglect and that A.G. was in danger of suffering similar harm. At a jurisdictional report, the juvenile court denied reunification pursuant to 361.5(b)(7), (10), (11) and 13 and calendared a 366.26 hearing.

Prior to the 366.26 hearing, both parents filed 388 petitions seeking additional reunification services. At the 366.26 hearing, the court denied the 388 petitions and terminated parental rights. Both parents appealed these judgments, contending that they should have been granted reunification services and that was insufficient evidence of current detriment to A.G. shown at the section 366.26 hearing to justify terminating their parental rights.

As to the 388 petitions, the appellate court noted that the juvenile court "stated that circumstances had changed, [but] it also stated that it was too late in the process." Accordingly, the appellate court concluded that "their circumstances were not sufficiently changed to warrant prolonging uncertainty for A.G. while they attempted to remain sober" and that the juvenile court had not abused its discretion in denying their petitions.

As to the order terminating parental rights, the appellate court explained that "both Mother and Father had been denied reunification services because they had failed to reunify with their son, H.G. By the time of the section 366.26 hearing, the court was not required to make a finding of current detriment as the denial of reunification services supported the termination of parental rights under section 366.26, subdivision (c)(1). As such, we reject their argument that the juvenile court erred in failing to make a finding of detriment at the time of the section 366.26 hearing. "

Accordingly, the orders of the juvenile court were affirmed, and the appeals were denied.

Opinion: E046769.PDF, E046769.DOC

In re Landon V. (Unpub'd), No. G040852

In January 2007, Stephanie V. (the mother) was 16 years old. She was residing in a group home under the jurisdiction of the Orange County Probation Department. She had a juvenile record that included assault and battery charges and probation violations. She also had a history of running away from home and taking drugs. The child, Landon, was three months old at the time, and the mother was breastfeeding him. A drug test at the group home showed that the mother tested positive for opiates, marijuana, and benzodiazepine. The mother ran away with Landon to a home where several people were using marijuana. As a result, she was arrested, and Landon was taken into protective custody.

In March 2007, the mother pleaded no contest and stipulated to the allegations in an amended petition under 300(b) and (g) W&IC. The court vested custody with the Orange County Social Services Agency (SSA) and ordered continued services for the mother. She was given a case plan that included counseling, parenting education, and drug testing. Monitored visitation was also authorized.

In June 2008, while a continued 12-month review hearing was on calendar, she filed a 388 petition requesting that all prior court orders be vacated and the case returned to the beginning of detention. She relied on In re M.F. (2008) 161 Cal.App.4th 673 (M.F.), which held that appointing a guardian ad litem was required when the parent is a juvenile herself. She argued that this case presented the required changed circumstances under section 388, and that it was in Landon's best interests because she needed a guardian ad litem to avoid a miscarriage of justice.

At a continued hearing, the court denied a hearing, stating that no prima facie case had been made and no best interest argument had been offered. Among other things, the court felt that M.F. was wrongly decided, and that a guardian ad litem should only be appointed if appropriate under the Welfare and Institutions Code. Further, the court felt that the facts were different and that any error was harmless. The court later terminated services and set a 366.26 hearing.

Mother appealed, contending the juvenile court abused its discretion in denying a hearing on her 388 petition. The appellate court noted that the instant case is easily distinguishable from M.F. because in the present case, the facts show that Mother was easily able to make her own arguments and that her attorney zealously argued for her interests. Thus, any potential error in failing to appoint a guardian ad litem was harmless. The appellate court also noted that M.F. has since been superseded by statute (326.7 W&IC, providing that "[a]ppointment of a guardian ad litem shall not be required for a minor who is a parent of the child who is the subject of the dependency petition, unless the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case.")

Further, the appellate court held that, at best, Mother's argument is a circular one: she argues, in effect that, the child's best interests would be served by protecting the mother's interests. However, the court noted, a 388 petition requires a showing "as to how the child's best interests would be served by a further one to two year delay in dependency proceedings." (Emphasis original.)

Accordingly, the juvenile court's order denying Mother's 388 petition was affirmed.

Opinion: G040852.PDF, G040852.DOC

In re J.F. (Unpub'd), No. B204204

A few days after J.F. was born with a positive toxicology for cocaine, the Los Angeles County Department of Children and Family Services detained him and placed him in the foster home of appellant R.P. A little over one year later, and after the juvenile court learned the Department was recommending that J.F. be placed for adoption with his maternal great aunt in Michigan, the juvenile court designated R.P. as J.F.'s prospective adoptive parent and scheduled a contested placement hearing. At the conclusion of the contested hearing, the juvenile court ruled J.F. should be placed with the great aunt. qAfter J.F.'s petition for writ of mandate challenging the placement order was denied, J.F., then 15 months old, was placed with the great aunt in Michigan, where he has resided for the past 20 months.

Several months after J.F. was placed with the great aunt, the juvenile court terminated the parental rights of J.F.'s parents and denied a petition by R.P. to vacate the placement order. R.P. appealed from the order denying her petition to vacate that order. The Department moves to dismiss the appeal on several grounds, including that R.P. lacks standing and she failed to challenge the order by a petition for extraordinary writ.

The appellate court held that the Department's arguments in support of dismissal (that R.P. was not aggrieved by the placement order and thereby lacked standing, and that the petition should be dismissed because R.P. failed to file a writ petition under 366.28) were unavailing. The appellate court noted that "in this case, R.P. purported to appeal from, and her opening brief purports to challenge, the order denying her section 388 petition to vacate the contested placement order. An order denying a section 388 petition is appealable even if a writ was not sought after the original placement order was made." Accordsingly, the motion to dismiss the appeal was denied.

However, the appellate court also held that the juvenile court did not abuse its discretion in denying her 388 petition to vacate the contested placement order, because she failed to present evidence of sufficient new information to support it, and because, "[w]hile the juvenile court would have been acting within its discretion if it had determined it was in J.F.'s best interests to remain with R.P., we cannot say that the court's decision to the contrary 'exceeded the bounds of reason.'"

Accordingly, the Department's motion to dismiss, and R.P.'s appeal were both denied, and the juvenile court's orders were affirmed.

Opinion: B204204.PDF, B204204.DOC

In re R.F. (Unpub'd), No. F056167

R.D. and A.V., de facto foster parents (collectively the foster parents), appeal from the juvenile court's orders (1) declaring their foster daughter R.F.'s maternal grandmother her de facto parent, and (2) granting the Madera County Department of Social Services' Welfare and Institutions Code section 388 petition, which removed R.F. from their home and placed her with her maternal grandmother. The foster parents contend there was insufficient evidence to support the court's order declaring the maternal grandmother a de facto parent, and the court erred in granting the section 388 petition because it incorrectly applied the relative placement preference (361.3(a) W&IC) and failed to apply the caretaker preference (366.26(k) W&IC).

The appellate court noted that sufficient changed circumstances, including that Father withdrew his request for reunification services and the grandmother requested placement), supported the petition. Further, the court noted that "[t]here was also evidence that placing the baby with grandmother would promote the baby's best interests, since such a placement would foster the baby's lifelong relationship with her grandmother and half-siblings." Accordingly, the appellate court held that the trial court did not abuse its discretion in granting the 388 petition.

The appellate court declined to address the contentions involving the relative placement and caretaker placement preferences, finding that "the juvenile court's decision to grant the section 388 petition is supported by evidence apart from the relative placement preference that placing the baby with grandmother was in the baby's best interest."

The appeal was therefore denied, and the juvenile court's order affirmed.

Opinion: F056167.PDF, F056167.DOC

Case Law Update - 04 May 2009

2009-05-04T17:12:00.000-07:00

Kim W. v. Superior Court (Unpub'd), No. A124209

Five-year-old J.J.is the sixth of seven children born to mother, who has a long history of drug abuse and criminal activity. J.J.'s five older half-brothers, ranging in age from 10 to 28 years old, were all removed from mother's custody due to neglect or abuse. J.J. was declared a dependent child in November 2005 after the court sustained a petition filed by real party in interest Contra Costa Bureau of Children and Family Services (Bureau) under 300(b) W&IC.

Mother was given reunification services, which were extended for a full 18 months. Among the requirements of her case plan were visitation, the successful completion of an inpatient substance abuse treatment program, sobriety, and the avoidance of illegal activities. In July 2007, at the 18-month review hearing, the court terminated reunification services and set the case for a permanency planning hearing under section 366.26. Mother filed a petition seeking additional services under section 388. At the combined section 366.26/388 hearing held on October 26, 2007, the court vacated the section 366.26 hearing and ordered additional services. In May 2008, the court authorized J.J. to have overnight visits with mother. On August 19, 2008, the court authorized a 30-day visit with mother. J.J. was returned to mother with family maintenance services on September 23, 2008.

In late 2008, felony charges were filed against mother for forgery and burglary, and one of mother's adult sons (who was not supposed to be living with her) was taken into custody from her house after an incident of domestic violence. On the basis of these events and others, a 387 petition was filed to remove J.J. from mother's home.

The court found by clear and convincing evidence that reasonable efforts had been made to eliminate the need for J.J.'s removal, but that J.J.'s physical and emotional well-being required that he not be returned to mother's custody. Noting that mother had received at least 36 months of services, the court terminated family maintenance services, declined to order reunification services, and set the case for a permanency planning hearing under section 366.26.

Mother filed a petition for extraordinary relief, arguing that the factual underpinnings of the 387 petition do not support the order removing J.J. from her custody. She contended that the trial court should have ordered J.J.'s return rather than setting the case for a permanency planning hearing under section 366.26.

The appellate court rejected this contention, noting that "[v]iewed as a whole, the evidence was more than sufficient to support the juvenile court's order removing J.J. from mother's custody based on the section 387 petition. Having already received at least 36 months of services, she was not entitled to more time to attempt reunification yet again."

Accordingly, the petition for extraordinary writ was denied on its merits, and the stay of the juvenile court's 366.26 hearing was lifted.

Opinion: A124209.PDF, A124209.DOC

In re E.R. et al. (Unpub'd), No. C060219

On June 5, 2007, the Yolo County Department of Employment and Social Services (the Department) filed petitions under 300(b) W&IC regarding the minor children J.R. (13 months old) and E.R. (two years old). Removed from the family home and placed in foster care, the minors were detained by the court on June 6, 2007. The original petition alleged that Mother was arrested as a parolee at large, with a history of methamphetamine abuse, and the family's home was filthy, unsafe, and unsanitary. The petition also alleged that Mother previously failed to reunify with the minors' five siblings, and each of those children had been adopted into new families.

Prior to a contested disposition hearing, the SSA recommended a bypass of reunification for both parents pursuant to 361.5(b)(10) and 361.5(b)(11) W&IC. The disposition hearing proceeded as scheduled and the court adopted the Department's recommendation, refusing services to either parent. The court scheduled the section 366.26 hearing for July 16, 2008, and ordered both parents to appear. Father's attorney, along with Mother, requested a contested section 366.26 hearing; Father's attorney also requested time to file a section 388 motion. The court agreed with the Department's position that the case already had taken too long to reach resolution, but gave Father until August 1, 2008, to file a section 388 motion. The court then set the contested section 366.26 hearing for August 21, 2008, scheduling a trial readiness conference for August 13, 2008.

Neither parent appeared at either the trial readiness conference or the 366.26 hearing itself. At the August 21st hearing, Mother's counsel noted that mother had left a phone message indicating that she and father had been ill with the flu and unable to appear. The court proceeded, over Father's counsel's objection, to conduct the hearing and ordered parental rights terminated. Mother appealed, asserting the denial of her attorney's request for a continuance was an abuse of the trial court's discretion and contending that it requires reversal of the order terminating her parental rights.

The appellate court noted as an initial matter that mother's claim was forfeited on appeal since neither she nor her counsel raised the objection in the trial court. Further, the appellate court held that, even assuming an objection can be inferred, no good cause was provided why the hearing should have been continued and, furthermore, there was no indication that a different result would have occurred had a continuance been granted.

Accordingly, the juvenile court's orders were affirmed, and mother's appeal was denied.

Opinion: C060219.PDF, C060219.DOC

In re J.L. (Unpub'd), No. E046591

Appellant N.L. (mother) is the mother of J.L. (child), who was born in July 2007. Mother appealed from the juvenile court orders finding J.L. to be a dependent child and removing her from mother's care, based upon allegations that J.L was phsyically abused, causing fractured ribs, and that mother had a history of substance abuse that limited her ability to care for the child, and the whereabouts of the child's alleged father were unknown.

Mother appealed these findings, arguing that insufficient evidence supports the jurisdictional findings because mother's status as a drug abuser does not itself pose a substantial risk of harm to the child, and insufficient evidence supports removing J.L. from mother's care.

The appellate court held that the fact that J.L. had already sustained a serious injury (fractured ribs), the fact that the child was suffering methadone withdrawl at birth, and "Mother's difficulty in pulling it together for the short hour or 90-minute visits with the child" all "[illustrate] the substantial risk of harmful neglect the child would face if returned to mother custody for around the clock care." Accordingly, the appellate court held that substantial evidence supported the finding of substantial risk of harm.

As to the sufficiency of the evidence justifying removal, the appellate court noted that neither the SSA nor the minor's appellate counsel took a position on this issue, and that the agency had advocated at the jurisdiction and disposition hearing that the child be placed with mother on family maintenance. Nonetheless, the appellate court held that "[w]hile this is certainly a close call, we conclude that substantial evidence supports the trial court's disposition ruling."

Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: E046591.PDF, E046591.DOC

Case Law Update: 30 April 2009

2009-05-03T16:42:00.000-07:00

M.B. v. Superior Court (Unpub'd), No. F057020

At a section 366.26 hearing in August 2007, the juvenile court ordered then 12- year-old M. and 11-year-old A. into long-term foster care. In February 2009, at a permanency plan review hearing, the court set a section 366.26 hearing to consider a permanent plan of adoption after the children's foster parents expressed an interest in adopting them.

At the beginning of the review hearing, M.B. (mother), through her attorney, made an oral request for a continuance. Mother's attorney explained that petitioner had substantially changed her life and wanted to ask for reunification and visitation. She wanted to testify but did not believe she was physically able at that time. She testified she was having difficulty breathing, partly because of anxiety over permanently losing her children and partly because of a chest cold she had been suffering for three weeks and which was getting worse. She also testified she was being treated for cancer which was in remission. She believed she would be in a better position to testify if she were given a two-week continuance. The juvenile court denied the motion for a continuance and proceeded with the hearing. At the conclusion of the hearing, the juvenile court set a section 366.26 hearing.

Mother filed a petition for extraordinary writ seeking to vacate the court's order setting the 366.26 hearing, arguing the juvenile court erred in not granting her request for a continuance.

The appellate court held that "Once adoption became a viable permanent plan for the children, the court had no option but to set a section 366.26 hearing... Further, though petitioner may not have been feeling well, she failed to show she was too ill to testify and, in fact, did so without difficulty following the court's denial of her motion to continue. Consequently, she failed to show good cause and the court did not abuse its discretion" in denying the continuance.

Accordingly, the petition for extraordinary writ was denied.

Opinion: F057020.PDF, F057020.DOC

In re N.N. (Unpub'd), No. C059461

N.N. (then eight years old) was removed from his mother's custody on November 19, 2007, after an officer spoke to him while investigating a dispute between the minor's maternal grandmother and her landlord. The minor told the officer his family was homeless. The officer took the minor to several locations in an unsuccessful attempt to find his mother.

On November 21, 2007, the Sacramento County Department of Health and Human Services (DHHS) filed a petition alleging jurisdiction under 300(b) W&IC based on domestic violence and the mother's substance abuse problem. The mother admitted prior drug use but asserted she did not have a drug problem. She had two prior misdemeanor convictions and an extensive child welfare history. At the initial hearing on November 26, 2007, the court continued removal of the minor from the mother's custody.

Nicholas N. (father) expressed an interest in his son and said he wanted to do all he could for the boy. However, he had an extensive criminal record which included several violent felonies. Due to his incarceration, he had not seen the minor since the boy was about four years old. The social worker found a connection between the minor and appellant based on "knowledge of and a love for one another" but concluded "the child does not have a deep emotional investment in his father nor has he relied on his father for his care or welfare." The minor did not ask to visit appellant and did not show emotion where appellant was concerned. The social worker concluded the minor had not bonded with his father.

Father petitioned the court under 361.2 W&IC for custody of the minor and placement with appellant's wife. Although the juvenile court ordered the Department of Corrections and Rehabilitation to deliver appellant to the contested jurisdiction and disposition hearing on April 14, 2008, appellant declined to attend because he did not want the minor to see him in shackles and prison clothing. At that hearing, the court sustained the petition and ordered reunification services for the mother but denied services for Father based on his lengthy incarceration. The court also denied visitation for Father but ordered DHHS to assess him for visitation should he be released from prison before the case concludes.

Father appealed these orders, contending the juvenile court abused its discretion by not allowing him visitation with his young son while serving a 16-year prison term for robbery.

The appellate court explained that 361(f) W&IC states that "[t]he court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." The court further explained that "[s]ince appellant was denied reunification services, it was not necessary for the juvenile court to first establish detriment before denying visitation." Further, the court held, "[n]othing in the record establishes that visitation will benefit the minor. Although there was some connection between the two, the minor had not bonded with appellant and showed no emotional attachment to him."

Accordingly, the appellate court concluded that denial of visitation was not an abuse of the trial court's discretion, and denied the appeal.

Opinion: C059461.PDF, C059461.DOC

In re J.D. #1 (Unpub'd), No. F056615

In re J.D. #2 (Unpub'd), No. F056616

In December 2007, the Stanislaus County Superior Court adjudged J.D. and her four younger siblings dependent children and removed them from parental custody. The court previously determined J.D., in particular, came within its dependency jurisdiction under 300(b) and (c) W&IC, based on neglect caused by parents' history of developmental delays. Because of extreme behavioral challenges, J.D. was placed in a group home; her siblings were placed in both relative and foster homes.

Once the court removed the children from parental custody at the December 2007 dispositional hearing, it also ordered the parents to complete a psychological evaluation to determine if they were able to benefit from reunification services. It was agreed that, if they were unable to benefit from services, the court would order a second psychological evaluation. In the meantime, the court ordered: both parents to complete a parenting class and utilize services offered through the Regional Center; and appellant to complete an anger management class and a substance abuse assessment as well as submit to random drug testing. The court also ordered counseling for the children and set a six- month review hearing.

The psychiatrist who performed the psychological evaluations concluded that "the provision of services would not enable either parent to adequately care for and control the children within the statutory period of 12 months." As of mid 2008, the parents participated in and complied with the services offered them. There was also no question the parents loved their children. However, they did not demonstrate any insight into the parenting problems that contributed to their children's removal and there were serious concerns regarding each parent's inability to make progress in correcting those problems.

At a July 2008 status review hearing, the juvenile court found the agency provided reasonable services and, although the parents were "trying very hard," they made "almost minimal" progress. The court continued the children's out-of-home placement and reunification services. It also ordered the parents to participate in a second psychological evaluation as well as additional parent-child labs to see if the parents made any improvement. It concluded by setting a 12-month review hearing for November 2008. The parents completed the second psychological evaluation in August 2008 with a different evaluator, who reached the same conclusion as the first evaluator.

In September 2008, the agency filed a 388 petition recommending the court terminate the parents' reunification services based on the psychologists' conclusions that the parents could not benefit from further reunification services. The agency filed Dr. Carmichael's psychological evaluations, along with the section 388 petition. A contested hearing on the 388 petition was set for October 2008. Meanwhile, the agency filed its 12-month status review report, recommending the juvenile court terminate reunification services for the parents based on their poor progress and because there was not a substantial probability that the children would be returned to parental custody in what remained of the maximum 18-month period for reunification.

In November 2008, the juvenile court conducted a contested hearing on the agency's section 388 petition followed by the 12-month dependency status review. Following argument on the agency's section 388 petition, the juvenile court granted the petition. In so doing, the court explained it did not believe continuing services would increase the likelihood of reunification. Further, in the interest of permanency, the court concluded terminating reunification services would serve the children's best interests. Regarding the 12-month review phase of the hearing, no additional evidence or argument was offered. The juvenile court adopted the agency's recommended findings, terminated services for both parents. While it set a section 366.26 hearing for J.D.'s siblings, the court found such a hearing would not be in J.D.'s best interests because she was not adoptable and no one was interested in becoming her legal guardian.

Both parents appealed these orders. Father argued that contends the agency should have been held to a clear and convincing standard of proof for its modification petition since that is the evidentiary standard required to bypass reunification services in the first instance. Mother claimed the agency's section 388 petition was essentially untimely in that at the 12-month stage the court should no longer evaluate the parents' inability to benefit from services under 361.5(b)(2), subdivision (b)(2), a bypass ground available for denying reunification services at the outset.

With regard to father's claims, the appellate court held that the juvenile court properly terminated reunification services as part of its 12-month status review. Further, the court noted that 388 W&IC was amended, effective January 1, 2009, to address its use in terminating reunification services, and that the juvenile court's decision was proper under the amended provisions of 388(c) W&IC.

With regard to mother's claims, the appellate court explained that "the scope of our appellate authority on issues of fact begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible." The appellate court further held that "there was no evidence of any significant progress on appellant's part in resolving problems that led to J.D.'s removal from the home." Additionally, to the extent that Mother's argument rests upon the admissabilty of the report of the psychological evaluations, the appellate court held such claims were forfeited because Mother did not object to the admission of the reports in the trial court.

Accordingly, the juvenile court's orders were affirmed, and both appeals were denied.

Opinion: F056615.PDF, F056615.DOC (father) Opinion: F056616.PDF, F056616.DOC (mother)

J.A. v. Superior Court (Unpub'd), No. A124046

On February 23, 2007, the San Francisco County Department of Human Services filed a section 300 petition alleging that father's daughter K.A. (born May 2001) suffered physical abuse by father and step-mother, as well as sexual abuse by her mother's boyfriend while in mother's care. On February 28, 2007, the court ordered K.A. detained but granted father visitation.

The SSA's dispositional report noted that "K.A. entered foster care with multiple medical problems due to long term neglect by mother, 'presents with many behavioral concerns,' and has been referred for Fetal Alcohol assessment. It also notes K.A. had alleged sexual abuse by father. On this point, the report opined that K.A. is "confusing the historic sexual abuse [by Mother's boyfriend], and attributing it to father here in San Francisco' because what K.A. reported is 'word for word' what she previously told a school counselor had happened in Pennsylvania."

On May 16, 2007, at the conclusion of the disposition hearing, the court found by clear and convincing evidence that K.A. could not return home safely and declared her to be a dependent of the court. The court ordered that K.A. continue to reside in foster care and adopted the reunification requirements recommended by the Department.

The Department filed a twelve month status review report (12-month review) on April 25, 2008. Regarding father's situation, the 12-month review noted that "after a long period of excellent progress towards reunification, the situation took a dramatic and unfortunate turn." Father had been "complying well with services" and visitation had been steadily increasing. However, "despite the successful visits, [K.A.] continued to express reluctance to reunify," so it was decided to delay reunification until K.A. completed the current school year. In the meantime, father was arrested by San Francisco police on March 31, 2008, after allegedly stealing a bicycle. On April 2, the father was taken into the custody of the Immigration and Customs Enforcement office (ICE) on account of his undocumented immigration status. Father remained in ICE custody and was likely to be deported to Honduras.

The court held a twelve month review hearing on May 14, 2008. The court found that father's compliance with the case plan was substantial. The court adopted the Department's recommendation that six additional months of reunification services be provided to father and set the matter for an 18 month review in November, 2008. Meanwhile, on May 16, 2008, the foster parents filed a petition for de facto parent status. In their petition, the foster parents stated they love K.A. and want to adopt her if father could not assume custody. Foster parents stated they were concerned about K.A.'s emotional health and reported that she has "a lot of anxiety and fear" associated with visiting father. Foster parents stated that K.A.'s emotional turmoil in association with visitation manifested in nightmares, potty accidents, vomiting, and angry outbursts. On June 18, 2008, the court denied the foster parents' petition for de facto parent status.

The Department filed an 18-month status review report (18-month review) on October 21, 2008. Regarding father's progress, the 18-month review stated he was in ICE custody until August 2008, after which he was deported to Honduras. Father returned to San Francisco during the week of October 13, 2008. K.A. continued to express severe reluctance regarding visitation. On November 12, 2008, the court set a contested 18-month review hearing for November 26, 2008. The court also ordered three hours per week supervised visitation between father and K.A. In November 26, 2008, the court continued the 18-month review hearing to February 2, 2009 and ordered that supervised visitation be continued.

The Department filed a further addendum report on January 27, 2009. The addendum report stated that ICE officials detained father on December 3, 2008, after the mother called ICE to report father's undocumented status. Father was again deported back to Honduras. On February 2, 2009, the court conducted the 18-month review hearing. Father, having just returned from Honduras, was present but did not testify. The court ordered that reunification services be terminated and that a 366.26 hearing be set. Father filed a petition for extraordinary writ, alleging the reunification services provided to him were inadequate because he Department failed to institute family therapy upon assuming jurisdiction and failed to provide such therapy between April 2007 until November 2007.

The appellate court held that father waived the finding of reasonable services at the six-month review hearing by failure to object to it at that time, and that the problem was in fact that "due to father's extended absences, he was not able to fully participate in and benefit from the services offered to him", not that inadequate services were offered. Accordingly, the petition for extraordinary writs was denied on its merits.

Opinion: A124046.PDF, A124046.DOC

In re D.E. (Unpub'd), No. B209038

D.E. (born in September 2006) and his sisters, G.E. (born in January 1993) and N.E. (born in December 1994), came to the attention of the Department of Children and Family Services (DCFS) when a urine sample taken from mother the day she gave birth to D.E. tested positive for methamphetamine, amphetamine, and cocaine. A urine sample taken from D.E. two days after his birth tested positive for cocaine metabolites. When interviewed by DCFS, mother denied using any form of controlled substance and stated that she did not know why the toxicology screening yielded positive results. The children were detained, and the girls were placed with a maternal aunt, C.L., while D.E. was placed in foster care

Shortly before the six-month review hearing, mother and father took the girls from school. When maternal aunt C.L. contacted mother in search of the children, mother stated she and father had taken the children because "'no one is going to take them away.'" On April 12, 2007, the court issued protective custody warrants for G.E. and N.E. and arrest warrants for mother and father. The six-month hearing was ultimately held in July, 2007, and the court found mother and father had abducted two of the children, failed to keep in contact with DCFS, and failed to comply with the case plan. Family reunification services were terminated as to all three children. Because of the age of the girls and their unknown whereabouts, the court ordered long-term foster care as their permanent plan. A 366.26 hearing was scheduled for D.E.

Mother returned the children to C.L. (via an uncle) in Tijuana in February, 2008, and shortly thereafter returned to the United States. The section 366.26 hearing for D.E. was held on June 9, 2008. The court found by clear and convincing evidence that D.E. is adoptable and that it would be detrimental to return him to his parents. The court also found the beneficial relationship exception did not apply. Mother's and father's parental rights as to D.E. were terminated. D.E.'s custody was transferred to DCFS for adoptive planning and placement. Mother appealed, contending that the beneficial relationship exception of 366.26(b)(1)(C)(i) should have been found to apply.

The appellate court noted that "the evidence of D.E.'s relationship with his mother before and after her time in Mexico is not such that the exception would have applied but for the period of absence." Accordingly, the appellate court held that the juvenile court did not abuse its discretion in finding the beneficial relationship exception did not apply. The court's order was thus affirmed, and the appeal was denied.

Opinion: B209038.PDF, B209038.DOC

In re D.S. (Unpub'd), No. A122419

A dependency petition was filed on January 31, 2008, alleging Father placed D.S. (then ten years old) at risk by punching and kicking him and denying him food. The petition also alleged that D.S. was suffering, or was at risk of suffering, serious emotional damage. D.S. was detained on February 1, 2008, and the matter was set for a contested jurisdictional hearing on March 5, 2008. The Department began the process of evaluating Mother's home in Nevada and the court, with Father's support, ordered the evaluation continue with the aim of placing D.S. with his mother.

At the jurisdictional hearing on March 5, 2008, Father admitted one of the section 300(b) allegations contained in the petition, as amended, and the other allegations were dismissed. The court accepted the parties' stipulation to jurisdiction of the juvenile court based on Father's admission.

A disposition report prepared on or about March 27, 2008, stated that D.S. was living with Mother in Las Vegas. Under the heading "prior child welfare history," the report set forth six prior referrals regarding D.S., beginning on May 21, 2000, when D.S. was almost two years old. All of those which involved Mother were ultimately held unfounded. The agency recommended that Mother have sole physical custody of D.S., with the parents sharing legal custody and Father having reasonable supervised visits. The agency also recommended that the juvenile court vacate dependency and dismiss the petition. Subsequently, Mother informed the agency of her plan to move to Louisiana.

At a disposition hearing in June, 2008, the juvenile court found that D.S. "is simply not at risk in the mother's home." It found that D.S. was a disturbed child but that this fact did not justify continuing jurisdiction over the case. It found Mother had done everything she could and was impressed with her decision to seek help and a support system from family members by moving to Louisiana. The court granted Mother sole physical custody of D.S., granted the parents joint legal custody, and ordered that Father shall have reasonable supervised visits with D.S. in the city in which D.S. resides and that D.S. shall not be required to visit Father against his wishes. The court terminated jurisdiction over D.S. and dismissed the case, finding D.S. was no longer at risk in Mother's home and that there was no reason for the dependency to continue in the case. Father appealed, arguing that the juvenile court abused its discretion in terminating jurisdiction over D.S. because there was a need for ongoing supervision.

The appellate court held that substantial evidence supports the juvenile court's finding that there was no need for ongoing supervision. The court observed that "[a]t the time of the June 17, 2008, disposition hearing, D.S. had been living with Mother for approximately four months. The placement was safe and D.S. was receiving excellent care in Mother's home. Although D.S. suffered from behavioral problems, Mother was aware of these issues, was committed to caring for him, and had sought appropriate services for D.S., including counseling and an evaluation at a behavior center. When Mother lost her medical benefits as a result of losing her job, she immediately sought other means to ensure D.S. received the counseling he needed. Although Mother and her fiance had both recently lost their jobs, they had made the decision to move to Louisiana where they had a support system, and where they could afford to have Mother stay home to provide attention and support to D.S."

Accordingly, the appellate court affirmed the dispositional order and denied father's appeal.

Opinion: A122419.PDF, A122419.DOC

In re C.P. (Unpub'd), No. A122677

On January 11, 2008, the San Mateo County Human Services Agency (Agency) filed a juvenile dependency petition pursuant to 300(b) W&IC on behalf of C.P. (born June 2007). After two amendments, the petition alleged: (1) Mother, who had a history of substance abuse, was terminated from the shelter where she had been living with C.P. for failure to comply with the rules of the program — specifically, by testing positive for drugs and alcohol, failing to pay deposits, having friends in the shelter after hours, and leaving C.P. unattended — thus placing the child at risk of significant harm and neglect; and (2) Mother had tested positive for marijuana at C.P.'s birth and had failed to comply with a voluntary case plan. C.P. was detained and placed in shelter care.

The detention report stated that Mother informed the Agency on January 10, 2008, that her mother had Cherokee blood, but she did not know whether they were enrolled in an Indian tribe. She apparently also told the Agency her father might have Blackfeet heritage. The Agency's combined jurisdiction and disposition report, as amended March 5, 2008, stated that ICWA notice had been sent to three Cherokee tribes and the Blackfeet Tribe of Montana, and all four tribes had responded that, based on the information provided, C.P. was not a member or eligible for membership.

Prior to the six-month review hearing, C.P.'s foster parents petitioned for de facto parent status, which was ultimately granted. Meanwhile, in its February 9, 2009, 12-month addendum report, the Agency recommended C.P.'s return to Mother's custody. The Agency also wrote that new ICWA notice had been sent to the three Cherokee tribes in December 2008. Two of the tribes had responded and more than 60 days had passed since the third tribe had been provided notice. The Agency recommended the court find that the ICWA did not apply. At a February 11, 2009 hearing, the court returned C.P. to Mother's custody, terminated Terry and Denise W.'s de facto parent status, and ruled that the ICWA did not apply.

Mother appealed both the granting of de facto parent status (arguing that "the issue is technically moot, but...it is capable of repetition yet evading review and...it is an issue of continuing public importance" and the sufficiency of the ICWA notices. However, the appellate court deemed both these issues moot and dismissed the appeal.

Opinion: A122677.PDF, A122677.DOC

In re A.O. (Unpub'd), No. A122663

A.O. was born in January 2007. Three days later, the Contra Costa County Department of Children and Family Services (the Department) filed a petition alleging she came within 300(b) W&IC because, among other things, A.O. and mother tested positive for methamphetamine, amphetamine, and ephedrine when A.O. was born, mother admitted using methamphetamine one day prior to A.O.'s birth, and Robert O. (alleged father) had a serious and chronic substance abuse problem which impaired his ability to parent A.O.

The court detained A.O. following a detention hearing on January 19, 2007. At a combined jurisdiction/disposition hearing on March 8, 2007, the court adjudged A.O. a dependent of the court and denied reunification services as to mother. The court set a date for the 366.26 hearing and advised mother and Robert O. of their right to seek writ relief. Derek O. (later found to be the minor's biological father) was not present at the detention, jurisdiction, or disposition hearings.

On June 8, 2007, the Department informed the court that Derek was A.O.'s biological father. The Department explained that Derek "voiced his desire to gain custody of [A.O.] and raise her. [Derek] currently resides with his parents. He has stated if he is unable to raise [A.O.] on his own, his parents would be able to help raise her." The Department further noted that A.O. had been placed with her half-sister's paternal grandmother and that her caretaker was completing an adoption home study. Shortly thereafter, the court appointed counsel for Derek. The Departement agreed to provide Derek "with referrals for random drug testing, drug treatment, and parenting classes" and recommended that Derek be provided with six months of family reunification services.

At an interim review hearing, Derek agreed with the Department's recommendations, but stated that he "would like things to go somewhat faster than what would be contemplated by a six- month review." The court followed the Department's recommendations regarding Derek's paternity status. The court advised him that he had six months to "successfully complete a reunification plan to reunify with [A.O.]" Derek indicated he understood the possible consequences of a failure to complete the reunification plan.

At a six-month review hearing, the Department noted that Derek had failed to comply with significant portions of his case plan, that he had tested positive for methamphetamine once and missed several other drug tests, and that he had violated his case plan by allowing mother to visit A.O. during one of his unsupervised visits. At the conclusion of the hearing, the court granted Derek three additional months of reunification services and ordered the Department to notify it immediately if he had a missed or positive drug test.

In late February, the Department submitted a memorandum updating the court on Derek's compliance with drug and alcohol testing. In the memorandum, the Department stated Derek had missed two drug tests in December 2007 and one test in January 2008. The memorandum noted, however, that he tested negative 13 times between December and February 2008.

In a report prepared for the 12-month review hearing, the Department recommended terminating reunification services and setting a .26 hearing. The Department noted that although Derek had "made more of an effort to complete his court ordered case plan," he "lack[ed] the commitment and drive towards getting to know his daughter and in meeting her essential needs." The Department faulted him for only visiting A.O. for two hours once a month and for not taking advantage of the Department's offer to "have more opportunities to visit with his daughter." According to the report, Derek seemed "very unaware of how to meet the basic needs of [A.O.]" and had an inexperienced "approach to parenting."

At the conclusion of the 12-month review hearing, the court terminated reunification services and set a 366.26 hearing. The court concluded returning A.O. to Derek's custody would create a substantial risk to her well-being. At a September, 2008, 366.26 hearing, the court terminated Derek's parental rights. It concluded by clear and convincing evidence that A.O. would be adopted and that it would be detrimental for her to return to Derek's custody.

Derek appealed, arguing that the Department had failed "to adhere to the required statutory procedure under section 361.2" at the July, 2007 hearing and that all orders made on or after that date were thus invalid and must be reversed. According to Derek, the court's failure to proceed under section 361.2 at the July 16, 2007 hearing "denied [him] his constitutional rights to due process and equal protection of the laws throughout the proceedings." He further argued that his attorney's failure to appeal those orders constituted ineffective assistance of counsel.

The appellate court held that, because Derek failed to appeal the dispositional order and failed to petition for extraordinary writ following the order setting the 366.26 hearing, those claims are waived in the present appeal. With regard to the ineffective assistance of counsel claim, the appellate court noted that "[w]e cannot assume that the decision was the result of negligence, when it could well have been based on some practical or tactical decision governed by client guidance". The appellate court also noted that "This case exemplifies the 'late- stage "sabotage of the process"' that the waiver rule is designed to prevent" and that Derek's claim of ineffective assistance of counsel was thus also barred by the waiver rule.

The juvenile court's orders were thus affirmed, and the appeal was denied.

Opinion: A122663.PDF, A122663.DOC

S.V. v. Superior Court (Unpub'd), No. F057041

In February 2007, S.V. (mother) was waiting at a bus stop with then 10-month-old D. when she left D. unattended in his stroller to fight with a woman at the bus stop. At the time, S.V., who has a history of drug and alcohol abuse, was under the influence of alcohol. She was involuntarily committed because she was acting strangely and D. was taken into protective custody by the department of social services (department) and placed in foster care.

The juvenile court adjudged D. a dependent of the court pursuant to section 300 and ordered him removed from petitioner and his father D.A. The court ordered reunification services for both parents. Services included parenting classes, mental health and substance abuse evaluations, and random drug and alcohol testing.

In its 12-month status review, the department reported petitioner and D.A. (father) made significant progress but had not ameliorated the problems that necessitated D.'s removal. However, the department anticipated the parents would complete all court-ordered services by the 18-month review hearing. Consequently, the department recommended the court continue reunification efforts and grant the department discretion to arrange liberal visitation.

In July 2008, at the 18-month review hearing, the juvenile court terminated petitioner's reunification services and placed D. with her under family maintenance. The court continued the matter to September 2008 and set a combined hearing to review petitioner's progress under family maintenance and adjudicate the department's recommendation to terminate D.A.'s reunification services.

In August 2008, a police officer was dispatched to a bus stop after an anonymous caller stated petitioner was drinking alcohol and asked the caller if she would take her children because she could no longer care for them. Petitioner was drinking malt liquor beer and, according to the police officer, was clearly intoxicated. She registered a reading of 0.11 on the breathalyzer. In addition, she was acting strangely. At one point, she picked then six-month old S. up and yelled, "Here take them if that is what you want." Petitioner was arrested and charged with felony child endangerment, public intoxication and resisting arrest.

The department took the children into protective custody and filed a 300 petition as to S., alleging petitioner and D.A.'s substance abuse and failure to comply with their court-ordered services placed S. at a substantial risk of harm. The department also filed a 387 petition as to D. alleging, family maintenance had not been effective in protecting D. because, despite 18 months of reunification services, petitioner relapsed and was intoxicated while caring for D. The court set a combined detention hearing for both petitions.

The juvenile court ordered the children detained and set a contested 18-month review hearing as to D.A. The court also set a jurisdictional hearing and ordered the department to continue providing petitioner and D.A reunification services. The court vacated the September 2008 family maintenance review hearing. In September 2008, the juvenile court terminated D.A.'s reunification services as to D.

In November 2008, the juvenile court sustained the original petition as to S. and the supplemental petition as to D. after petitioner and D.A. waived their trial rights. The court set the dispositional hearing on both petitions for December 2008. In its dispositional report, the department recommended the court deny petitioner and D.A. reunification services as to both children; petitioner under section 361.5(b)(13), and D.A. under 361.5(b)(10) and (b)(13).

A combined contested dispositional hearing was held in February 2009. Following testimony and argument, the juvenile court adjudged both children dependents of the court. The court terminated petitioner's reunification services as to D. and set a section 366.26 hearing to implement a permanent plan. As to S., the court found petitioner and D.A. made significant efforts and ordered the department to provide them reunification services.

Mother appealed (via extraordinary writ request) the order terminating reunification services as to D., arguing that the juvenile court's order granting her reunification services as to S. implies she has the potential to regain custody of her children, and that it is in D.'s best interest to be reunited with her and S.

The appellate court held that the juvenile court did not abuse its discretion in refusing to continue petitioner's reunification services as to D. because "the circumstances which prompted D.'s removal in August 2008 are a virtual replay of the circumstances which necessitated his removal in February 2007." Accordingly, the petition for extraordinary writ was denied on its merits.

Opinion: F057041.PDF, F057041.DOC

Case Law Update - 01 May 2009

2009-05-01T17:11:00.000-07:00

In re S.R. et al., No. C060404

In October 2006, the Department of Health and Human Services (DHHS) removed the three minors, all six years of age or younger, from parental custody due to domestic violence in the home and appellants' failure to protect the minors. Both parents speak Spanish and require interpreters. Visits were to be supervised by a Spanish-speaking observer. The juvenile court ordered reunification services for the parents but, after 18 months, the parents failed to reunify and services were terminated April 21, 2008. Both parents asked the court to order a bonding assessment. The minors' counsel took no position on the issue. Counsel for DHHS stated a bonding assessment would provide useful information and did not object to the request. The court agreed and ordered the assessment.

About two months later, DHHS filed an 388 petition seeking to vacate the order for the bonding study, on the basis that the Agency had not been able to find a Spanish-speaking evaluator to conduct it. Hearings on the 388 petition were continued twice to allow the Agency to find an evaluator (though they never contacted one specific Spanish-speaking expert suggested by the court and made only a token effort to find a suitable evaluator). Ultimately, the judge concluded that "the Court does not believe that it is at all fruitful or appropriate to continue the order that such assessment take place. It simply would be a futility at this point apparently", and granted the 388 petition. At a subsequent 366.26 hearing, the court held that the beneficial relationship exception did not apply and terminated parental rights.

The parents appealed, arguing that "the evidence that a Spanish-speaking psychologist qualified to perform the study was not available in Sacramento County did not constitute changed circumstances and there was no evidence the ruling was in the best interests of the minors.

In an unusually strongly worded opinion, the appellate court concluded that "[t]hough the task given DHHS by the court may have appeared to the agency difficult to complete, that perception and the scant effort given the task provided no basis to modify the original order. Despite expressing incredulity at the apparent unavailability of a qualified expert, the court 'accepted' the meager efforts by DHHS, effectively abdicating its factfinding function and compromising its exercise of discretion. The hollow evidence tendered by DHSS did not support a finding of changed circumstances, only a finding that a further continuance was required until DHSS located a satisfactory expert."

The appellate cour tadditionally noted that "if the minors would benefit from a continuing relationship with the parents, termination of parental rights is detrimental to the minors' interests. (366.26(c)(1)(B)(i) W&IC) The expert evidence of a bonding study goes directly to this interest. While a bonding study is not statutorily mandated in a dependency proceeding, once ordered, the court has necessarily found it is required by the court or a party. In such a circumstance, the court is without discretion to modify or, more correctly, vacate the order, without substantial evidence on the record that the bonding study is no longer necessary or appropriate for legitimate reasons other than apparent difficulty by DHSS in complying with the order. The only evidence adduced in this case establishes that inadequate effort by DHHS led to the failure to complete the court-ordered bonding study. Thus, there is no basis for the court to conclude that the minors' interests are served by vacating the court's order. The juvenile court erred in granting the petition to modify (or vacate) its order for a bonding study."

The appellate court thus reversed the juvenile court's order granting the Agency's 388 petition to vacate the order for the bonding study, and also reversed the juvenile court's orders finding that 366.26(c)(1)(B)(i) W&IC did not apply and terminating parental rights.

Opinion: C060404.PDF, C060404.DOC

J.Y. v. Superior Court (Unpub'd), No. E047690

K.Y. (aged 7) was adopted by J.Y. (mother) in 2007. She was detained in September, 2008, after school personnel reported that K.Y. arrived at school with visible burns on her feet and red marks on her buttocks and legs. K.Y. told the responding social worker that her "father," R.M., had "disciplined" her by forcing her into a bath of very hot water. The minor had reported an earlier similar incident to her therapist, but the allegations were not established at that time. The minor also told the social worker that R.M. had struck her in the face and that both he and Mother punished her with a belt.

In the initial SSA report, the social worker was critical of mother for entrusting treatment of K.Y.'s burns to R.M. rather than taking time off work to care for them herself. The social worker also expressed doubt that Mother could adequately care for the children and continue to work, suggesting that her work was her main concern. It was therefore recommended that an adoptive home be sought 9 and that services not be provided to Mother.

The trial court found that K.Y. came within the jurisdiction of the juvenile court pursuant to 300(a), (b), (c) and (i) W&IC. At the contested dispositional hearing, testimony was offered that Mother had made significant changes to her life, including seeking a new job, a restraining order against R.M., and individual counseling and parenting classes for herself, that she planned to testify against R.M. in the crminal case stemming from the abuse and had waived her own Fifth Amendment right in the dependency proceeding for the sake of regaining custody of K.Y. Testimony was also offered that K.Y. loved Mother and wanted to return home.

The social worker testified and agreed that Mother had "absolutely" not missed any visits and that they "always go well." She speculated that K.Y.'s failure to seek help from Mother immediately after R.M. injured her "it speaks to - maybe the situation in the home that was present prior to this incident". Despite conceding that "things probably have changed", she nonetheless recommended that no services be provided and a nonrelative home be found for K.Y.

The trial court found that Mother's progress "toward alleviating or mitigating the causes, which necessitated treatment, has been minimal", that reunification should be denied under 361.5(b)(6) W&IC, and that it would not benefit K.Y. to offer Mother reunification services.

Mother appealed both the jurisdictional findings under 300(a) and 300(i), and further argued that the juvenile court erred in denying her reunification services.

The appellate court held that a finding under 300(a) was not supported, because the statute requires the injury to have been inflicted by the parent or guardian who is the subject of the finding and it was uncontroverted that R.M., not Mother, inflicted the injury. The appellate court rejected the SSA's claim that this issue was waived on appeal because "if the evidence shows that the statutory conditions for a dependency finding do not exist, a parent may not be barred from challenging the order whether the challenge is viewed as one of pleading or the sufficiency of the evidence." The court affirmed the finding under 300(i), however, on the basis that the trial court could have reasonably found that Mother, in fact, chose not to seek immediate medical care for the minor for selfish reasons despite the fact that she must have known the burns were painful.

As to the denial of reunification services, the appellate court held that the denial constituted a clear abuse of discretion by the trial court because "there is no substantial evidence that to do so would not benefit the minor, and there was overwhelming evidence that it was in the minor's best interests to attempt reunification." The appellate court noted that "[i]t is true that the image of K.Y. quietly attempting to alleviate her pain with wet towels is heartrending, but to leap from the natural sympathy to the conclusion that she did so because she knew she could not expect help from Mother is not logical."

Further, the appellate court noted that "[t]urning to Mother, unusually for dependency matters, there is little question she is capable of providing for K.Y.'s physical and material needs. She is not a drug addict and has no mental health issues. She has demonstrated her commitment to K.Y. not only by independently enrolling in educational and counseling modules, but by making drastic changes in her life with respect to distancing herself from R.M. and changing jobs to the benefit of her relationship with K.Y." Given this, the appellate court concluded, "here is simply no substantial evidence that it would not benefit the minor to at least attempt reunification. Looking at the reverse, there is clear and convincing evidence that the minor's best interests require that the attempt be made."

In a footnote, the appellate court also noted that "There may be a temptation to say, 'Well, Mother can find her own "services," so she has not been harmed by the court's failure to provide them.' However, if services are denied, the burden would be on Mother in the future to prove that changed circumstances justified the modification of the current orders. If services are authorized, however, then at each review hearing the presumption is for the return of the minor, and the burden would be on the Department to show detriment."

For these reasons, the appellate court directed that a peremptory writ of mandate be issued directing the Superior Court of San Bernardino County to vacate the jurisdictional finding under section 300, subdivision (a), and the order denying reunification services to Mother, and to enter a new order directing that such services be provided.

Opinion: E047690.PDF, E047690.DOC

In re A.M. (Unpub'd), No. E047006

D.A. (alleged father)'s child was detained by the SSA under 300(b) and 300(g) W&IC upon allegations that mother suffered from a mental disease that interfered with her ability to parent and that father had been imprisoned for inflicting great bodily harm on mother while she was pregnant with the child, thus placing the child at risk of injury or death, and that because of his incarceration, father provided no care or emotional support for the child. The child was detained, and counsel was appointed for father.

At a contested disposition hearing, D.A. sought DNA testing to prove his paternity so that he could obtain Presumed Father status. The court denied this request as untimely (because D.A. had been appointed counsel since detention and failed to request paternity testing earlier) and denied D.A. reunification services pursuant to 361.5(b)(12) (because of father's prior conviction for felony kidnapping).

D.A. appealed the dispositional orders, contending that nobody sent him a JV-505 form (to establish paternity) and that the agency failed to inquire of him about possible Indian heritage and thereby failed to comport with the notice and inquiry provisions of ICWA.

As to the issue of the JV-505 form, the appellate court held that any purported error in failing to supply the form was harmless because D.A. failed to come to court (where the form was available) for the juris/dispo hearing and because he was represented by counsel throughout the proceeding. The appellate court also noted that, since D.A. met the requirements for bypass of reunification under 361.5(b)(12), a different outcome would not have been obtained had he been able to assert (and even establish) his paternity.

As regards the ICWA notification issue, the appellate court noted that, even on his appeal, D.A. made no offer of proof or affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. Echoing its language in In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, the appellate court explained that "[t]he burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal."

Accordingly, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: E047006.PDF, E047006.DOC

R.G. v. Superior Court (Unpub'd), No. F057022

R.G. (father) in propria persona seeks an extraordinary writ to vacate the order of the juvenile court setting a 366.26 hearing for his daughter D., who was detained after R.G. and W. (mother) engaged in severe domestic violence which left W. dead from stab wounds and R. facing first-degree murder charges. Reunification services were denied and a 366.26 hearing was set, whereupon R.G. filed a petition to vacate the hearing.

The appellate court explained that "Petitioner does not challenge the correctness of the juvenile court's order setting the section 366.26 hearing. Rather, he states he expects to be exonerated and released soon. Meanwhile, he would like to participate in reunification services. Since petitioner fails to set forth a claim of error, his petition fails to comport with rule 8.452 and is therefore inadequate on its face."

Accordingly, the petition for extraordinary writ was dismissed as facially invalid.

Opinion: F057022.PDF, F057022.DOC

Case Law Update: 29 April 2009

2009-04-29T16:41:00.000-07:00

In re T.B. (Unpub'd), No. G040648

T.B. was detained at birth, August 2006, for a positive toxicology screen. He was declared a dependent of the juvenile court and, at the request of the mother's family, he was placed with T.C., who was ultimately granted de facto parent status. The mother was provided reunification services.

On January 10, 2008, while the 6- and 12-month review hearing was going on, the maternal grandmother filed a petition under Welfare and Institutions Code section 388, seeking to remove the child from T.C.'s home and have him placed in her home or, alternatively, to increase her visits with the child. She claimed the child was "in imminent threat" of "both physical and emotional harm" in his current placement and should be placed with his biological family. The juvenile court stated it would consider the maternal grandmother's petition after the review hearing concluded. It did so on February 28, 2008 and found the petition failed to show a change of circumstances or that the requested order would be in the best interests of the child.

The maternal grandmother prepared a newsection 388 petition in late April, seeking to change the juvenile court's order allowing SSA to place the child in its discretion. She claimed there was new evidence "show[ing] that the minor is in imminent threat of danger of neglect, physical and emotional harm if he remains in the current foster placement." The maternal grandmother asked for the child's immediate removal from T.C.'s home and placement with her or another family member; alternatively, she asked for increased visitation and the removal of the visitation monitor. She claimed the new order would be in the best interests of the child because he was bonded to her and her husband and he was familiar with and comfortable in their home. Both maternal grandparents had completed SSA's foster parent program. This 388 petition was denied without a hearing.

Grandmother appealed the denial of her 388 petition without a hearing, alleging the juvenile court had abused its discretion. The appellate court noted that events subsequent to her petition had, however, rendered the petition moot, explaining that "[t]he relief sought by the maternal grandmother's petition was an order removing the child from T.C.'s home and placing him with her or a family member. She also sought liberalization of her visitation. Since that time, the child has been with the mother on an extended six-month trial release; we assume the maternal grandparents have as much visitation as the mother deems appropriate. The stay restricting the child's change of placement from T.C.'s home has been lifted, and both the court and SSA have indicated their intention to formally remove him from her home. The relief sought by the petition is no longer necessary."

Accordingly, the appeal was dismissed as moot.

Opinion: G040648.PDF, G040648.DOC

In re R.S. (Unpub'd), No. A122616

R. S. (Mother) and G. S. (Father) appeal an order filed by the Napa County Superior Court, Juvenile Division, on August 25, 2008, in which that court terminated their parental rights to the minor R. S. (born Apr. 2004), after finding the minor to be adoptable pursuant to 366.26(c)(1) W&IC.

Mother and Father challenge the finding of adoptability, arguing that the minor is not generally adoptable because he is a medically fragile child with developmental delays and other special needs, and that there was insufficient evidence to support the finding of specific adoptability by the foster parents, because "critical information" concerning the minor's medical status was "incomplete and still being gathered" at the time the juvenile court made the finding.

As to the first claim, the appellate court held that there was substantial evidence to support the finding of specific adoptability because "there was no evidence of any specific legal impediment to successful adoption by the foster parents, and the evidence otherwise showed that those parents had successfully completed the adoption process with another child whom they had successfully raised to adulthood, that they had successfully cared for the minor and his special needs for over four years, and that the Department had approved them as identified prospective adoptive parents through a preliminary assessment that satisfied the requirements of section 366.22, subdivision (c)(1)(D)".

As to the second claim, the appellate court found that "by July 2008 the minor's medical, developmental, mental and emotional status appeared, if anything, to be stabilizing and improving rather than worsening" and that therefore "the case worker's assessment of the minor's medical, developmental, mental and emotional status was in no way so egregiously insufficient as to impair the basis for the juvenile court's adoptability finding."

Accordingly, the appeal was denied, and the juvenile court's orders were affirmed.

Opinion: A122616.PDF, A122616.DOC

In re J.L. & L.L. (Unpub'd), No. A122401

On January 2, 2008, respondent Alameda County Social Services Agency (Agency) filed a petition (under 300(b), (f) and (j) W&IC with respect to J.L., alleging that his half sibling, two-month-old C.A., had died under suspicious circumstances on December 28, 2007. The petition reports that A.L. (mother)'s husband A.N.L. allegedly "dropped" C.A., after which the couple did not seek appropriate medical care for the baby, who subsequently died. The petition also alleges that mother and her husband had no stable housing or income, and that they had been known to use drugs and alcohol "to excess."

On January 3, 2008, the juvenile court ordered J.L. detained based on a prima facie showing that he was a child described by section 300. The court found there was a substantial danger to J.L.'s physical health, or that he was suffering severe emotional damage, and there was no reasonable means to protect the child's physical or emotional health without removing him from his parents' custody. J.L. was placed with his maternal grandparents.

On March 3, 2008, the Agency filed a petition alleging that newborn L.L. came within section 300, subdivisions (b), (g) and (j). The grounds stated in the petition were much the same as those that had been alleged in the earlier petition filed on behalf of J.L., focusing on the events that led to C.A.'s death. The agency's detention report states that appellant had tested negative for drugs at the time of birth. On March 4, 2008, the trial court ordered L.L. retained pursuant to a protective custody warrant. She was placed in the maternal grandmother's home.

A contested hearing on jurisdiction and disposition was held on June 10, 2008. The court found the allegations in the petitions to be true. The court sustained dependency jurisdiction on both J.L. and L.L., and ordered both minors removed from their parents' custody. Reunification services were granted to A.L. and denied to A.N.L. A.L. appealed, contending that the jurisdictional findings for J.L. and L.L. are not supported by substantial evidence.

The appellate court held that substantial evidence supported the juvenile court's findings, including "a history of drug use, and...compelling evidence that (Mother) consumed methamphetamine at a time when she knew she was pregnant with L.L." Accordingly, the appeal was denied and the juvenile court's orders were affirmed.

Opinion: A122401.PDF, A122401.DOC

In re Cody E. (Unpub'd), No. D054035

Cody was born in December 2006 to W.E. and Robert C. W.E. has another child, seven-year-old Ashley E., whose father is Michael H. Cody and Ashley are registered members of the Bad River Band of Lake Superior Tribe of Chippewa Indians (Tribe) through maternal lineage.

Ashley was the subject of two dependency proceedings, in 2002 and 2006, based upon allegations of maternal drug use and neglect. In both cases, Ashley was reunified with her parents after services were provided, and the court terminated jurisdiction. W.E. gave birth to Cody during the time period of the second dependency proceeding.

Just weeks after Ashley's second dependency case was closed, W.E. relapsed into drug and alcohol use. A dependency petition was filed for Ashley and Cody under 300(b) W&IC alleging Ashley and Cody were at substantial risk of harm due to W.E.'s psychiatric admission, Ashley's prior dependencies and W.E.'s history of substance abuse and relapse. The court detained Ashley and Cody in out-of-home care and found ICWA applied. Phillip Powers, an Indian expert witness for ICWA purposes, submitted a declaration stating it was his opinion that active efforts had been made to provide rehabilitative and remedial services to prevent the breakup of the Indian family, but these efforts were unsuccessful. Powers agreed with Agency's recommendation against offering reunification services to W.E.

The Tribe intervened on behalf of Cody and recommended services be provided for W.E. At a jurisdiction hearing, the court sustained the allegations of the petition and set the matter for disposition. After considering the evidence and hearing argument of counsel, the court declared Cody a dependent and removed him from W.E.'s care. At a contested disposition hearing, the court found active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of this Indian family, but these efforts were unsuccessful. The court noted that although W.E. successfully reunified with Ashley, she repeatedly relapsed. The court denied W.E. reunification services under 361.5(b)(13) based on her lengthy history of drug abuse and "exceptionally serious relapse."

W.E. appealed the dispositional order, contending the court erred by denying her reunification services because ICWA requires "active efforts" to prevent the breakup of the Indian family through the provision of services. She asserted that ICWA's "active efforts" requirement means reunification services must be provided for each child placed in foster care, and no such efforts were made as to Cody.

The appellate court noted that an analogous issue — whether "active efforts" as defined in ICWA require that services be provided for each child, or whether the state is free to consider what it defines as recent but unsuccessful reunification efforts with the same parent but a different child sufficient to satisfy the mandate of 25 U.S.C. 1912(d) — was recently considered by the appellate court in Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016. The appellate court explained that "Recognizing that the law does not require idle acts, the [Letitia V.] court held 'where substantial but unsuccessful efforts have just been made to address a parent's thoroughly entrenched drug problem in a juvenile dependency case involving one child, and the parent has shown no desire to change, duplicating those efforts in a second case involving another child—but the same parent—would be nothing but an idle act."

The appellate court in the instant case agreed with the holding and reasoning of Letitia V., noting that "Congress could not have intended that agencies provide remedial services and rehabilitative programs again and again to parents, despite their lack of progress or inability to benefit from them." Accordingly, the order denying reunification services was affirmed, and the appeal was denied.

Opinion: D054035.PDF, D054035.DOC

In re R.R. et al. (Unpub'd), No. C060422

The Department of Social Services (DSS) placed the five minors, J., age 15; O., age 13; B., age 9; P., age 4 and R., age 2, in protective custody in April 2007 as a result of appellant's ongoing substance abuse, failure to complete substance abuse treatment and arrest for possession of drug paraphernalia. After removal, the two youngest minors tested positive for exposure to methamphetamine. DSS initially recommended the court deny services to appellant due to her history of substance abuse, relapses and failure to participate in court-ordered treatment. However, at the court's request, DSS developed a reunification plan, which the court adopted in July 2007.

Appellant participated in some of the plan services but had ongoing violations of visitation rules, talking about the case and her health problems and thereby upsetting the older minors, particularly J. who felt he needed to go home and take care of her. Appellant also had several positive tests during the reunification period. At the contested 12-month review hearing in May 2008, the court terminated services and set a selection and implementation hearing.

In September 2008, appellant filed a petition for modification under 388 W&IC seeking to reinstate services based upon her ongoing participation in services and negative drug tests. An addendum report conceded that appellant had made a concerted effort in the last four months to complete services and remain clean and sober but questioned the soundness of her judgment and whether she had benefitted from the services.

At the combined hearing on the petition for modification and to select and implement a permanent plan for the minors, the court, relying in part on factors for assessing a petition for modification discussed in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, found appellant's substance abuse problem had not been resolved and the minors would not be safe in her care, and denied the 388 petition. It then found P. and R. were likely to be adopted and terminated parental rights as to them. The court further found J., O. and B. were not likely to be adopted and selected a permanent plan of long-term foster care for them.

Mother appealed both orders. As to the 388 petition, she argued the court abused its discretion in failing to grant her petition for modification as to the three older children because their permanent plan was long-term foster care and continuing services for her would not delay their permanency. As to the order terminating parental rights, she argued that the beneficial sibling relationship exception of 366.26(c)(1)(B)(v) should have been found to apply.

With regard to the 388 petition, the appellate court noted that "[i]n this case, appellant's unresolved substance abuse was an extremely serious problem. She had been addicted to methamphetamine for many years and was provided extensive services to address her substance abuse in both California and Nevada. She was even successful in reunifying with the minors for a time. Despite this, she returned to substance abuse and illegal drug-related activity." Accordingly, the appellate court held that she had failed to show changed circumstances or that the proposed change would be in the minors' best interest.

With regard to the order terminating parental rights, the appellate court noted that mother had forfeited this issue by failing to raise it during the 366.26 hearing. Further, the appellate court explained that "[i]n applying the sibling exception, the juvenile court must consider the interests of the adoptive child, not the siblings in determining whether termination would be detrimental to the adoptive child" and that "[n]othing in the record indicates that either of the two adoptive children had any significant bond to the older siblings..."

Accordingly, the appeal was denied and the juvenile court's orders were affirmed.

Opinion: C060422.PDF, C060422.DOC

In re D.F. et al. (Unpub'd), No. C058782

In March 2007 dependency petitions were filed by respondent Sacramento County Department of Health and Human Services (Department) concerning two-year-old D.F. and six-week-old M.F. based on the discovery of physical injuries to their half- siblings. Based on Mother's assertion of Indian heritage, ICWA notices were sent to the Oneida tribe. After mother reviewed the ICWA notice at the court's request, a letter was sent to the Oneida Tribe providing the correct spelling of M.F.'s first name. The Oneida Tribe responded that the minors were not enrolled or eligible for enrollment.

Following a contested jurisdictional hearing, the juvenile court sustained the allegations in the petitions. At a subsequent hearing, the court denied appellants reunification services and set the matters for a hearing pursuant to 366.26 W&IC to select and implement a permanent plan for the minors. At a hearing prior to the 36.26 hearing, mother's attorney disclosed that mother was enrolled in the Oneida Tribe but did not have her enrollment card with her. The court set the matter for an ICWA compliance hearing.

At the ICWA compliance hearing, the juvenile court, noting that "we have done all we can as to noticing in this case" and that mother had been given nine months to provide an enrollment number so that an updated notice could be provided to the tribe, concluded the minors were not Indian children. The court noted that if mother came forward with further information such as her enrollment number, it might again be necessary to notice the tribe. At a subsequent 366.26 hearing, the juvenile court found the minors likely to be adopted and terminated parental rights.

The parents appealed the termination of parental rights, claiming the ICWA notice was deficient because the maternal grandmother's maiden name and enrollment number were not properly designated on the notice; mother's middle name was not provided; the Department's inquiry into the minors' Indian heritage was inadequate because they did not attempt to obtain further information from the maternal grandmother and they put the burden on mother to gather information without informing her which information was required; and notice of corrected information was sent to the tribe by letter.

The appellate court held that, to the extent any of these complaints constitute error, such error is harmless because "there is no reason to suspect that further inquiry or inclusion on the ICWA notice of any of the allegedly omitted or misidentified information would have led to a different determination by the tribe." Accordingly, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: C058782.PDF, C058782.DOC

In re B.R. et al. (Unpub'd), No. B212029

B.T. (mother) appealed from a jurisdictional order affecting her children. Noting that such orders may not be appealable, the appellate court issued an order to show cause regarding the dismissal and permitted the parties to argue the matter. The appellate court, citing In re Dolly D. (1995) 41 Cal.App.4th 440, 444, held that jurisdictional orders are not appealable, and thereby dismissed the appeal.

Opinion: B212029.PDF, B212029.DOC

In re E.G. (Unpub'd), No. A122814

B.F. is the mother of E.G., who was declared to be a dependent child by the Contra Costa Juvenile Court in January 2008. B.F. appealed from the order of that court made on August 14, 2008 dismissing the dependencies of E.G. and his two brothers. B.F. contended that it was error for the court to dismiss the dependencies without vacating the jurisdictional findings because "there never was justification for the assumption of juvenile court jurisdiction from the beginning."

The appellate court noted that "[t]he record of the August 14 hearing shows that B.F. never objected or raised the point she now identifies as prejudicial error" and, further, that "by appealing from the dismissal order itself, B.F. is attempting to obtain what in plain effect is an impermissible rehearing of the merits of [the appellate court's] decision to dismiss the prior appeal as moot." Accordingly, the court held that it "will not undertake an examination of the validity of the jurisdictional findings" and denied the appeal.

Opinion: A122814.PDF, A122814.DOC

Case Law Update: 28 April 2009

2009-04-28T16:39:00.000-07:00

In re C.S. (Unpub'd), No. G041263

A.S. (mother) appealed from orders terminating her parental rights to her son C.S. (now 14) at a 366.26 hearing, after the trial court found C.S. was likely to be adopted. Mother argued that C.S. was ineffectively assisted by counsel because counsel allegedly failed to tell him that he could object to being adopted. The appellate court, confining itself to that single issue, ruled that "[a] review of the record makes it clear C.S. wanted to be adopted and that, even if the absolutely correct words advising him of his rights are not in the record, the result would have been the same if the proper formula had been used." Accordingly, Mother's appeal was denied, and the juvenile court's orders were affirmed.

Opinion: G041263.PDF, G041263.DOC

In re L.C. et al. (Unpub'd), No. E046593

L., born in May 2007 only 29 weeks' gestation and weighing only three pounds one ounce at birth, came to the attention of the SSA after positive toxicology tests for amphetamines and Mother's lack of prenatal care. L. was born with severe disabilities, which Mother appeared not to understand. Initially, the SSA (which also raised concerns about her other children), recommended maintaining the five older children in Mother's care pursuant to a family maintenance plan while detaining L., but later opted to remove all six children. During the six-month reunification period, Mother barely attempted to participate in her case plan and failed to stay in contact with the social worker.

On April 3, 2008, the court terminated Mother's services and set a section 366.26 hearing for the children. In August, 2008, Mother filed a 388 petition seeking the restoration of reunification services and liberalized visitation, which was denied at a hearing on September 2. At the section 366.26 hearings on September 8 and October 29, 2008, the court terminated parental rights and placed all six children for adoption. Mother appealed both the termination of parental rights and the denial of her 388 petition, arguing violations of her due process rights, insufficient evidence to show L. was adoptable, and that the juvenile court erroneously concluded that the parental benefit exception to the adoption preference did not apply to any of the six children. L.C. (Father) also appealed the 366.26 orders, claiming L.C. claims there was insufficient evidence L. was either "generally" or "specifically" adoptable. Father and Mother joined each other's claims.

Turning its attention first to the 388 petition, the appellate court held that the juvenile court did not err in refusing to allow Mother to present live testimony from herself and her substance abuse counselor at the hearing because Calif. Rules of Court rule 5.570(h) gives the juvenile court discretion to decide what evidence to allow at hearings on 388 petitions, and because the juvenile court could reasonably have concluded, given the severity of L.'s medical needs, that even were the evidence Mother claimed to want to present true, it would nonetheless be insufficient to support a finding that granting Mother's petition would be in L.'s best interests.

As regards L.'s adoptability, the appellate court held, despite L.'s severe medical needs (including hydrocephalus, spastic cerebral palsy, developmental delays and seizures), that the willingness of an identified prospective adoptive family to adopt him notwithstanding these difficulties was sufficient to support a finding of adoptability.

The appellate court further held that substantial evidence showed that none of the children were bonded to Mother "as a parental figure" and that "the court reasonably determined that the benefits to the children of being adopted into a permanent stable home would outweigh any benefit they would realize in maintaining a relationship with Mother", and that therefore the juvenile court did not abuse its discretion in determining the beneficial relationship exception of 366.26(c)(1)(B)(1) did not apply.

Accordingly, the appeals were denied and the juvenile court's orders were affirmed.

Opinion: E046593.PDF, E046593.DOC

In re J.M. (Unpub'd), No. B210845

J.M. (aged six) first came to the attention of respondent Los Angeles County Department of Children and Family Services (the department) on August 18, 2008, after her 12-year-old half sister, E.A., was raped by their mother's boyfriend in the same room where the mother was sleeping. The mother blamed E.A. for the incident and hit her with a broom. The boyfriend was arrested and the minors were removed from their mother and placed in foster care. During E.A.'s medical examination and in her interview with the department's social worker, E.A. reported that she had also been sexually abused by B.P. (Father) from the age of nine to 11, while he resided in the same home. She reported that at first B.P. fondled her and then had full intercourse with her on almost a daily basis while her mother was at work. E.A. did not tell her mother because she did not want to be blamed and did not want J.M. to suffer the same abuse.

Both children were detained upon allegations under 300(b), (d) and (j) W&IC. t the detention hearing, the court found B.P. to be the presumed father of J.M., returned the minors to their mother over the department's objection and ordered that B.P.'s visits with J.M. be monitored at the department's office. Neither B.P. nor the boyfriend were to have any contact with E.A. At a juris/dispo hearing, E.A. testified regarding the abuse. The court found E.A.'s testimony credible and sustained the petition as to B.P. The court ordered reunification services for B.P. to include participation in a perpetrator's sexual abuse program and individual counseling, monitored visits with J.M. and no contact with E.A.

B.P. appealed the juvenile court's jurisdictional order, arguing that there was insufficient evidence to support the finding that his abuse of E.A. placed J.M. at substantial risk of sexual abuse. The appellate court rejected this claim, noting that the nature and duration of the abuse supported the finding of risk of harm to J.M. Accordingly, the orders were affirmed and the appeal was denied.

Opinion: B210845.PDF, B210845.DOC

In re J.C. et al. (Unpub'd), No. E046910

J.C., born in 2004, and H.C., born in 2007, were first detained after H.C. was born and tested positive for drugs. Father had been in prison since January 2007. Both parents had criminal and drug histories. The court terminated reunification services in May 2008 and parental rights in October 2008. Prior to the October hearing, Father filed a 388 petition seeking additional reunification services. The court denied his petition, finding it did not state new evidence or a change of circumstances and was not in the best interests of the children.

Father appealed the denial of the 388 petition, asserting that the juvenile court relied on the timeliness of the petition as an improper factor, that there are no disputed facts, and that the petition was based wholly on documentary evidence. He also objected to the termination of parental rights on the grounds that the notice provisions of ICWA had not been properly complied with, asserting that he has a paternal history of Cheyenne and Choctaw heritage.

The appellate court found that, because the record does not demonstrate the Department made any inquiry of father about his Indian heritage and now he is asserting he does have Indian ancestry, the order terminating parental rights must be conditionally reversed and the matter remanded for ICWA noticing. The appellate court directed that, if the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights.

As regads the denial of Father's 388 petition, the appellate court held that father had not made a showing either of changed circumstances or that granting his petition would be in the children's best interests, and rejected his appeal of that denial.

Opinion: E046910.PDF, E046910.DOC

In re Grace P. (Unpub'd), No. D053605

Taylor P. appealed a judgment of the superior court rejecting his status as a presumed father of his biological daughter, Grace P., terminating his parental rights as to her and transferring the matter to the Alameda County Superior Court for completion of proceedings on a petition by T.B. and G.I. to adopt her. Taylor contended that the trial court erred in finding that he was not entitled to rights as a presumed father in accordance with Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).

The appellate court held that substantial evidence, including Taylor's failure to provide emotional and financial support during the pregnancy and his decision to wait "until very late in the pregnancy to file a petition to establish that he was Grace's biological father", supported the trial court's finding. Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: D053605.PDF, D053605.DOC

In re Candace O. (Unpub'd), No. B210136

Candace O., age 15, was the daughter of T.H. (Mother). Candace's father was deceased. On February 22, 2008, the Department of Children and Family Services (DCFS) received a referral that Candace was a victim of Mother's physical and emotional abuse. Candace was afraid of Mother, who verbally abused her and hit her at least twice weekly. Mother drank daily and could not control her anger. Candace reported that when Mother did not take her psychotropic medications, she lost control, was easily irritated, and became angry. The juvenile court ordered Candace detained on February 29, 2008.

On May 13, 2008, the juvenile court adjudicated the matter and sustained a section 300 petition as to three counts: Mother's threats to inappropriately discipline Candace; Mother's past and current alcohol abuse, and numerous occasions being under the influence of alcohol while Candace was in her care; and Mother's mental and emotional problems, including bipolar disorder and depression, rendering her periodically unable to provide care for Candace.

After detention, Candace exhibited severe behavioral challenges, including self-mutilation, AWOL patterns, and acting out. At a contested dispositional hearing on June 5, 2008, the juvenile court declared Candace a dependent child of the juvenile court pursuant to 300(b) W&IC; found by clear and convincing evidence that substantial danger existed to Candace's physical health and/or Candace suffered from severe emotional damage, and there was no reasonable means to protect Candace without removal from Mother's physical custody; removed custody from Mother and placed custody of Candace with the DCFS for suitable placement; and ordered the DCFS to provide family reunification services for Candace and Mother.

The juvenile court ordered Candace to have individual counseling, to participate in conjoint counseling with Mother when appropriate, to have a psychiatric evaluation, and to take prescribed medication. The juvenile court ordered Mother to participate in parenting education and individual counseling to address case issues including anger management, to complete an alcohol rehabilitation program with random weekly alcohol testing, testing on demand, and an aftercare program, to have a sponsor, to participate in conjoint counseling with Candace, and to see a psychiatrist and to take prescribed medication. The juvenile court ordered Mother to have unmonitored visits with Candace in placement, monitored visits outside of placement, three times weekly for three hours each visit.

Mother appealed, contending that substantial evidence did not support the finding that there were no reasonable means to protect Candace without removing her from Mother's care. The appellate court held, since Mother conceded to the placement of Candace outside Mother's home (by stating at the dispositional hearing that "I would like to see her in appropriate placement", for example), that it was not necessary for the DCFS to produce evidence that there were no reasonable means to protect Candace's physical health without removing her from Mother's physical custody. Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: B210136.PDF, B210136.DOC

In re L.B. (Unpub'd), No. B210574

L. (born 2005) and A. (born 2007), and their half-sister J., were detained in November 2007 based upon Mother's history of substance abuse which rendered her incapable of providing regular care for her three children. However, at the time of the detention hearing, L. and A.'s whereabouts were unknown. Neither Mother nor Father appeared at the November 8 hearing, and arrest warrants were ordered for each parent. Additionally, the court ordered protective custody warrants to be issued and held for the two boys. The court found a prima facie case for detaining the children, the existence of a substantial danger to the physical or emotional health of the children, and that there were no means of protecting the children short of removal from the parents.

In a subsequent hearing, the juvenile court stated that it could not do anything regarding L. and A. as they had still not been located. The court declared J. a dependent of the court. DCFS was ordered to provide family reunification services (although the parents' whereabouts were unknown), and set the six-month review hearing for May 7, 2008. Mother was arrested on April 19, 2008. At that time, the police apparently turned the boys over to the children's maternal grandfather, who in turn delivered A. to his paternal grandparents and L. to his cousin, to care for them.

At a continued hearing on July 11, DCFS filed a first amended petition, alleging that Mother had a history of substance abuse which rendered her incapable of caring for the children, while Father had a history of domestic violence, having been convicted of violating Penal Code section 273.5, subdivision (a), infliction of corporal injury on a spouse or cohabitant. The court sustained the amended petition and ordered family reunification services. The children were ordered to be suitably placed, and the parents were allowed monitored visits (Mother's to commence upon release from custody). The court set the next hearing for December 17, 2008 as a 12-month review pursuant to section 366.21, subdivision (f), and DCFS was ordered to prepare and submit a section 366.21, subdivision (f) report for that hearing. The court explained that the reason it denominated the hearing a 12-month, rather than a six-month, review hearing, was that the time frame for ordering reunification services ran from the time the court found a prima facie case at the detention hearing held in November 2007.

Father appealed these orders, contending that the juvenile court erred in finding that "that the allotted time for the parents to receive reunification services [commenced to run] at the detention hearing, rather than when the children were placed in foster care." The appellate court held, since the court did not order fewer or different reunification services as a consequence of its conclusion that the hearing would proceed under subdivision (f), rather than subdivision (e), of section 366.21, that any purported error was prospective only and not yet ripe for appeal. Accordingly, the appeal was dismissed.

Opinion: B210574.PDF, B210574.DOC

Case Law Update: 27 April 2009

2009-04-27T20:11:00.000-07:00

In re A.G. et al. (Unpub'd), No. A123999

T.H. is the mother of two sons, A.G., who was born in January 2003, and J.A. who was born in October 2005. Both children were detained in November 2006 upon allegations of mother's substance abuse problem, an anger management problem, a criminal history, and mental health problems. At disposition, the court ordered the children removed from mother's custody and that mother be provided reunification services including substance abuse classes and psychological help.

Mother made significant progress in addressing the problems that led to the dependency. At the six-month review hearing held in August 2007, the court set a hearing to determine whether mother could regain custody of her children. Then in October 2007, the court ruled mother had made enough progress that the children could be returned to her custody, although it ordered that the dependency remain in place. In August 2008, a supplemental petition under section 387 was filed alleging that the prior disposition had been ineffective because mother failed to follow her case plan, one of the children had been exposed to a domestic violence incident, and mother did not have suitable housing.

At the conclusion of the hearing on the 387 petition, the court sustained the petition, ordered that the children be removed from mother's custody, terminated reunification services, and set the matter for a hearing on May 6, 2009, to determine whether mother's parental rights should be terminated. Mother filed a petition for extraordinary writ contending that the trial court applied an incorrect standard when making its decision, and that the court's ruling is not supported by substantial evidence.

As to the standard used by the juvenile court in evaluating the 387 petition, the appellate court explained that, absent evidence to the contrary, we must presume the court applied a clear and convincing standard when making its decision even though it did not expressly state it had done so. Accordingly, mother failed to show error in this regard.

As to the sufficiency of the evidence, the appellate court noted that "there was ample evidence that the children would be at risk if they were left in mother's custody. The record indicates and the trial court found that mother had a long-term drug problem that she was failing to address adequately. She failed to complete several aftercare treatment programs, and failed to submit to regular drug testing. In addition, the record indicates and the court found that one of the children had been exposed to an incident of serious domestic violence. The trial court reasonably could conclude that the children would be at substantial risk of physical or emotional harm if they were left in the custody of a parent who was struggling with ongoing drug addition and domestic violence issues. The court's ruling is supported by substantial evidence."

Accordingly, the petition for extraordinary writ was denied on the merits. Additionally, the appellate court ordered that Mother be barred in any subsequent appeal from making further challenges to orders terminating reunification services and setting a hearing under section 366.26.

Opinion: A123999.PDF, A123999.DOC

In re Raymond S. et al. (Unpub'd), No. C060208

In February 2005, mother gave birth to Raymond, tested positive for amphetamine, and admitted using methamphetamine. Dependency proceedings commenced relative to both Raymond and mother's older child, Eric O. Eric's father was given legal custody of him, and in March 2007, dependency jurisdiction was terminated as to Eric.

On March 18, 2007, mother tested positive for methamphetamine. A few days later mother gave birth to Alex, and both Alex and Raymond were taken into protective custody. On March 27, 2007, Welfare and Institutions Code section 3002 petitions were filed for both Alex and Raymond and they were placed in a foster home on March 28, 2007. Mother was ordered to participate in drug treatment programs and drug dependency court as part of her reunification plan. Mother did not actively engage in a drug treatment program until 11 months after the children had been declared dependents and removed from her custody.

Finding Mother's efforts "way too little and way too late", the juvenile court terminated reunification sevices in February 2008 and selected a permanent plan of adoption. On September 17, 2008, the court found by clear and convincing evidence that the children were likely to be adopted, and the parental rights of father and mother were terminated.

Mother appealed, contending there was insufficient evidence that the children were adoptable. The appellate court, explaining that "the children are young, part of a small sibling group, and are both physically healthy", and that "[t]he only potential obstruction to the children being adopted is that they may have developmental delays[; however], these delays are not so significant or severe that they are likely to dissuade individuals from adopting them", rejected mother's contention on factual grounds. The appellate court also noted that mother failed to object to the adoption assessment in the 366.26 proceeding and hence forfeited the right to raise it on appeal.

The juvenile court's orders were thus affirmed, and the appeal was denied.

Opinion: C060208.PDF, C060208.DOC

In re S.C. et al. (Unpub'd), No. B210850

M.R. (mother) has an extensive dependency history dating back to 2001; the instant case involving S.T. (born 2005) and M.P. (born 2006) was brought in March 2006, based upon allegations of maternal drug use and the fact that their siblings were already court dependencts as a result of sexual abuse by mother's boyfriend. Mother submitted to the drug use allegation in April 2006, and was given monitored visitation and reunification services.

Over the next 18 months, Mother exhibited an ongoing pattern of failure to comply with the terms of her reunification plan, failure to be honest with the SSA about her progress, and interference with the SSA's attempt to find a permanent placement for the children. A contested 366.26 hearing was set for September 2008. One day before the hearing, Mother filed a 388 petition seeking return of the children to her or resumption of reunification services.

At the conclusion of a contested hearing, the juvenile court denied Mother's 388 petition, found that the children were adoptable and that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply, and terminated parental rights. Mother appealed, contending that the denial of her 388 petition was an abuse of discretion and that the juvenile court erred in finding that the beneficial relationship exception did not apply.

As to the 388 petition, the appellate court found Mother's attempt to show changed circumstances was not sufficiently credible and that, in any event, she failed to establish that the modification would be in the best interests of the children. As regards the beneficial relationship exception, the appellate court held that "[t]here is no evidence to support a conclusion the girls would be greatly harmed if their relationship with mother was severed, especially when any marginal benefit they may have received from that relationship are weighed against the stability and permanency adoption will provide."

Accordingly, Mother's appeals were denied and the juvenile court's orders were affirmed.

Opinion: B210850.PDF, B210850.DOC

Case Law Update: 24 April 2009

2009-04-24T16:58:00.000-07:00

In re Baby Boy E. (Unpub'd), No. B208312

Baby Boy E. (minor) was detained at birth in August 2007 based on a positive toxicology result for cocaine. He was placed by DCCFS with L.R. (petitioner). L.R. was bonded with Child and expressed a desire to adopt him as early as October 2007. L.R. filed an application requesting that she be appointed Child's de facto parent in November 2007; in December 2007, the attorney for Child's mother opposed L.R.'s application, and the juvenile court denied the application without prejudice. February 13, 2008 hearing, L.R. renewed her application for de facto parent status; all parties stipulated to the granting of the application, and the juvenile court granted it. The juvenile court ordered that "the child not be removed from placement with [L.R.] absent 5 days written notice to all parties and counsel."

In early April 2008, a social worker preparing the adoptive home study for L.R. discovered that L.R., as a licensed foster mother, had a history of child neglect referrals in 2000 that she had not disclosed during her adoption interview. On that basis, DCFS removed Child from L.R.'s custody on April 16, 2008, and placed him in a prospective adoptive home. Subsequently, an investigation by the state Community Care Licensing agency determined that the neglect referrals which served as the basis for the denial of her adoptive home study and the Agency's removal, were not substantiated. L.R. filed two 388 petitions seeking return of the minor to her care.

At a hearing on the 388 petitions, the juvenile court denied them, explaining that "in light of the outstanding evidence that there's been substantiated claims, [and that] the home study has been denied[,] I am not going to make an affirmative [order] ordering [DCFS] to place that child" and denied visitation. L.R. appealed these orders, arguing, inter alia, that the juvenile court abused its discretion in failing to consider evidence supporting her 388 petition because it did not allow her to submit a supplemental memorandum or to cross-examine the social worker.

The appellate court held that, because the juvenile court noted that it had made no specific placement order with respect to L.R., and L.R. did not identify any error or abuse of discretion. The appellate court further held that that, because L.R. did not request to cross-examine the social worker, the court's failure to afford her that opportunity sua sponte did not constitute error. Further, the appellate court held that L.R.'s appeal did not address the issue of the court's exclusion as untimely of her suppelemental memorandum, and thus she failed to show the ruling was erroneous.

The juvenile court's orders were thus affirmed, and the appeal was denied.

Opinion: B208312.PDF, B208312.DOC

In re S.W. (Unpub'd), No. H033351

On June 27, 2008, the Santa Clara County Department of Family and Children's Service's (Department) filed a petition pursuant to 300(b) and 300(c) W&IC, in which it alleged that 16-year-old S.W. (minor) was at risk of suffering serious physical harm or illness as a result of her mother's failure or inability to protect her, and that minor was suffering or at risk of suffering serious emotional damage because she had no parent capable of providing appropriate care. The juvenile court sustained the allegations of the petition and adjudged minor a dependent child of the court.

M.N. (mother) appealed from the orders, arguing that there was insufficient evidence to support them. The appellate court held that substantial evidence, including mother's own statements that she "would not agree to taking minor back into the home, could not say when, if ever, she would be capable of providing appropriate parenting to minor, and insisted that she (mother) would not benefit from further services" supported the court's finding under 300(c) W&IC. The appellate court noted that "[s]ince there is substantial evidence to support the juvenile court's determination that the minor came within the provisions of subdivision (c), we need not address mother's claim that there was insufficient evidence to find jurisdiction under subdivision (b)."

Accordingly, the orders of the juvenile court were affirmed, and mother's appeal was denied.

Opinion: H033351.PDF, H033351.DOC

In re C.S. (Unpub'd), No. H033538

Appellant N.G., mother of C.S., a four year-old girl, appealed from a juvenile court jurisdictional and dispositional order pursuant to 300 W&IC based on allegations of domestic violence and criminal gang involvement by mother. On September 5, 2008, at the dispositional hearing, the juvenile court found the petition to be true, declared the child a dependent of the court, and adopted the Agency's recommendations to remove the child from parents' custody and place her in foster care. The court ordered reunification services be provided to both parents.

Mother appealed the jurisdictional and dispositional orders. Her appointed counsel filed an opening brief which raised no specific issues for appeal. In the opening brief, counsel acknowledged that this court has no duty to independently review the record pursuant to People v. Wende, but requested that appellant be given the opportunity to submit a brief in propria persona pursuant to Conservatorship of Ben C., (2007) 40 Cal.4th 529, 543, 544.

The appellate court, concluding that "the process of allowing the appellant to file a motion to vacate counsel's appointment and then file a supplemental brief . . . would likely take as long if not longer than directly notifying the appellant that he has the right to file a supplemental brief", granted N.G. the right to submit written argument in her own behalf within 30 days. She failed, however, to do so, and thus her appeal was dismissed as abandoned.

Opinion: H033538.PDF, H033538.DOC

In re B.G. et al. (Unpub'd), No. B210663

I.C. (mother) appealed from an order terminating her parental rights to four-year-old B.G. and two-year-old P.H. On appeal, mother argued that substantial evidence did not support the trial court's finding that the children are likely to be adopted and that the trial court should have applied the beneficial relationship exception to termination of parental rights of 366.26(c)(1)(B)(i).

The appellate court found that mother had waived the issue of the sufficiency of the adoption assessment by failing to raise it in the juvenile court and that, in any case, substantial evidence, including the foster parents' willingness to adopt the children, supported the finding of adoptability. The appellate court further found that, given mother's sporadic visits, non-compliance with her case plan, frequent complaints about the children's behavior, and her admission that she did not feel a strong bond with P.H., the juvenile court did not err in finding that the substantial relationship exception did not apply.

Accordingly, the juvenile court's orders were affirmed, and mother's appeal was denied.

Opinion: B210663.PDF, B210663.DOC

In re Genesis C. (Unpub'd), No. B210141

Genesis C. (Genesis, born January 2007), is the minor child in this case. Her parents are F.C. (Mother) and Jose L. (Father). The case came to the attention of the Los Angeles Department of Children and Family Services (the Department) when it received notice from a clinic where Mother received mental health care services that Mother was not taking prescribed psychotropic medication for her diagnosed condition of paranoid schizophrenia. In January 2007 the parents agreed to Department oversight of the minor's welfare through a Voluntary Family Maintenance Program (VFM), which included weekly in-home counseling.

Based on severe incidents of paranoia, Genesis was removed from her parents' care on June 13, 2007, and placed in a foster home, and a 300 petition was filed on her behalf based on Mother's diagnosed paranoid schizophrenia condition, Mother's inconsistent medication and participation in mental health services, Father's not demonstrating that he understands Mother's condition and medication needs, and his being away from the home for hours at a time because of his employment. The allegations were found true, Genesis was placed in a foster home, and ordered reunification services.

At a 12-month review hearing, the court terminated services for mother based upon her failure to make substantive progress in court-ordered treatment. Services were extended for Father, and stated the suitable placement order must remain in full force and effect, rather than returning the minor to him under a home of parent order, because the issue continued to be that Father resides with Mother and Mother continued to be as much of a risk to the child as she was at the time of the disposition hearing when the suitable placement order was made.

Both parents appealed these orders. Mother argued that it was an abuse of the trial court's discretion to terminate her reunification services. Father asserted that there was insufficient evidence to support the trial court's finding that returning the minor to his care under a home of parent order would create a substantial risk of harm to the child.

With regard to mother's contention, the appellate court held that the record, including evidence that mother had been placed on a 5150 hold during the period between the six-month and 12-month review hearings, supported the juvenile court's conclusion that she had not demonstrated an ability to complete her case plan. With regard to father's contention, the appellate court held that "[r]easonable inferences can be drawn that if Mother was not compliant with her medication regimen or the medication was not working sufficiently well such that she was not able to control her delusions, a likely result is that the delusions will occupy her attention and perhaps prevent her from devoting necessary attention to Genesis when Father is not available to look after the minor, or cause her to devote inappropriate attention, thus placing the minor at risk."

Accordingly, the appeals were denied, and the juvenile court's orders affirmed.

Opinion: B210141.PDF, B210141.DOC

In re D.B. (Unpub'd), No. G041243

D.B. was detained in May 2007 following mother's arrest on charges of willful cruelty to a child. The petition alleged father, who was not living with mother, had a history of domestic violence, anger management issues, and a criminal background. Dependent received various placements following his detention, but never with mother or father.

At a 12-month review hearing in July, 2008, the court declined to return dependent to either parent. On the other hand, the court found parents had not received reasonable services in a timely fashion. The court ordere continued services for parents and ordered the Orange County Social Services Agency (SSA) to investigate further father's psychiatric treatment needs. The court set an 18-month review hearing for October 30, 2008.

At the 18-month hearing, the SSA submitted a status review report, describing father's case plan progress as "moderate" and expressing concern about father's "impulse control issues". Reviewing the evidence presented at the 18-month review and the entire dependency file, the court found both parents had now received reasonable services. The court returned dependent to the custody of mother, and ordered family maintenance services to be provided to dependent, mother, and grandmother. The court terminated father's services, but provided for monitored visitation between father and dependent. Finally, the court identified the need for a restraining order against father to allow mother "to protect herself and the child."

Father appealed these orders, alleging the court abused its discretion in providing only monitored visitation, and that the court improperly issued a restraining order against him because there was insufficient evidence to support the order.

The appellate court explained that "[t]he record is replete with evidence supporting the court's exercise of discretion in setting the terms of father's visitation rights and in protecting dependent and mother against unmonitored contact by father by means of a restraining order." Accordingly, it affirmed the juvenile court's orders and denied Father's appeal.

Opinion: G041243.PDF, G041243.DOC

In re S.R. (Unpub'd), No. H033202

On May 18, 2006, the Department filed a juvenile dependency petition under 300(b), (g) and (j) W&IC. The petition stated that three of Ms. L.'s four other children were dependents of the juvenile court due to her extensive criminal and substance abuse history. The whereabouts of S.R.'s father Julius R. were unknown. Mr. R. had a criminal and substance abuse history dating back to 1981. While Ms. L. was incarcerated in state prison in May 2006, S.R. was born. Upon S.R.'s release from the hospital, she was placed in protective custody. Shortly thereafter, the juvenile court ordered that S.R. be detained.

In the report prepared for the jurisdictional and dispositional hearing, the social worker recommended that the juvenile court sustain the petition under section 300, subdivisions (b) and (g), adjudge S.R. a dependent of the court, remove her from Ms. L.'s custody, deny reunification services for Ms. L., and offer reunification services for Mr. R. The report also stated that S.R. was bonding well with her foster parents. After Ms. L. suggested her mother Lucy L. as a possible placement, the social worker interviewed her. Lucy L., however, was seeking approval to become a foster parent for A. G. and V. R., and felt that she could not care for an infant. Mr. R. provided no information about potential relative placements.

Following a contested jurisdictional hearing in August 2006, the juvenile court adjudged S.R. a dependent child, placed S.R. in foster care, denied reunification services to Ms. L., extended reunification services to Mr. R., and ordered visitation between S.R. and her siblings. The juvenile court also ordered that there be no visitation with Ms. L. until the Department determined that it would be safe for S.R. or until further court order.

While the Department was conducting an adoption homestudy of S.R.'s caregivers in the summer of 2007, concerns arose regarding the foster parents' frequent changes of address and cell phone numbers and their failure to provide the documentation required for completion of the adoption home study. On September 10, 2007, the Department received an anonymous report that a "suspicious individual" was visiting the foster parents' home. Following an investigation, the Department learned that this individual was the foster mother's ex-husband, who had been convicted of molesting her daughter. The foster parents had also allowed him to be with their children when they were not home.

On September 21, 2007, the 12-month permanency hearing was held. The SSA did not inform the parties or the court that the placement was under investigation. Following the hearing, the juvenile court terminated reunification services to Mr. R., continued prior orders, and set the matter for a section 366.26 hearing.

On October 5, 2007, the Department gave notice to the foster parents that S.R. would be moved. The foster parents objected to S.R.'s removal and requested a grievance hearing, which was held on October 15 and 18, 2007. The Department notified S.R.'s attorney, who was unable to attend. Neither the parents nor the parents' attorneys were notified. On October 29, 2007, the hearing officer upheld the Department's decision. On November 2, 2007, the Department moved S.R. from the foster parents' home.

On March 7, 2008, Ms. L. filed a modification petition under section 388 in which she sought return of S.R. to her. Ms. L. alleged that she would have had "the opportunity to lobby and seek related relative placement of" S.R. if she had been notified of the change in S.R.'s placement in November 2007. The juvenile ccourt oncluded that it would not be in S.R.'s best interest to reunify with Ms. L., because she was over two years old and had bonded with her current foster parents. Mother appealed, contending that the Department's failure to provide advance notice of S.R.'s change of placement violated her due process rights, that the Department erred in failing to consider relative placement when the decision was made to move S.R., that the juvenile court abused its discretion in denying her section 388 petition in which she sought placement of S.R. with her, and that the juvenile court had failed to properly comply with the notice provisions of ICWA.

As to the failure to provide advance notice of the change in placement, the juvenile court held that, unless the new placement is out-of-county, no statutory right exists to notice. Further, the appellate court noted that, although Ms. L. had a dignity interest in receiving notice regarding the change of placement, her liberty interest in the decision was minimal, her contribution to this decision was not likely to be significant, and the governmental interest in determining the best placement for S.R. with as few impediments as possible was substantial. Thus, the appellate court held that due process did not require advance notice. However, the court noted that "if Ms. L. had been receiving reunification services or her visits with S.R. had been affected by the placement change, our conclusion might very well have been different" and recommended that the SSA provide notice in the future in similar circumstances.

As to the failure to consider relative placement, the appellate court held that "Ms. L. has presented no legal authority that either she or S.R. had a substantive due process right that was violated by the Department."

As to the denial of her 388 petition, the appellate court held that Ms. L. had demonstrated a change of circumstances by making progress in substance-abuse treatment and other services. However, the appellate court held that she had failed to show that a change in placement would be in S. R.'s best interest given her 17 years of substance abuse and her failure to maintain sobriety outside of an institutional setting, and given S.R.'s attachment to the foster parents who sought to adopt her.

As to the ICWA noticing issue, the Department conceded that the matter must be remanded for compliance with the ICWA, and that their attempt to incorporate and rely on the ICWA notices that were sent in the case involving one of Ms. L.'s other children did not comport with the noticing requirements of ICWA.

Accordingly, the order terminating parental rights was reversed and the case was remanded to the juvenile court with instructions to complete ICWA notices. The appellate court directed that if, after proper notice, the court finds that S. R. is not an Indian child, the order shall be reinstated.

Opinion: H033202.PDF, H033202.DOC

Case Law Update: 23 April 2009

2009-04-23T16:58:00.000-07:00

W.R. v. Superior Court (Unpub'd), No. G041616

N.R. (minor, then seven years old) was taken into foster care in May, 2007, based on allegations of general neglect and substance abuse by mother. (W.R., Father, was at that time on parole in Texas and had no contact with N.R. since he was a baby.) N.R. and his half siblings were placed in the home of mother's godmother, N.H., where they had resided with mother for the previous three years. The juvenile court ordered family reunification services, and authorized visitation.

Father requested that N.R. be placed with him in Texas, but as of the date of a November 2008 status report, the social worker had not received necessary information to complete an evaluation of father's home in Texas. The social worker stated that the Agencycould not recommend placement of N.R. with father because (1) N.R. did not want to move away from N.H. or his half siblings, (2) N.R. and father had not spent enough time together to develop the trusting relationship and bond which would be vital to N.R.'s emotional well-being, and (3) father's status of being on active parole would place N.R. at risk of reentering the child welfare system. Father's parole officer further stated that Father "can not verify any income, he makes excuse after excuse and I am concerned how he is able to support himself without income that is verifiable".

At the 18-month review hearing, the juvenile court found that returning N.R. to father's custody would create a substantial risk of detriment. The court then terminated family reunification services, and set the matter for a permanency hearing. Father filed a petition for extraordinary writ, arguing that the SSA failed to meet its burden of proof in establishing substantial detriment.

The appellate court noted that participation in a case plan (which the SSA concedes Father did) is not prima facie evidence that return of the child to the parent's custody would not be detrimental, and that "the court must give consideration to the effect returning the child to the parent's custody might have on the child." The appellate court held that factors such as the minor's desire to remain with his siblings, Father's lack of understanding of or sensitivity to N.R.'s behavioral problems, and Father's arrest for domestic violence all supported the necessary finding of detriment.

Therefore, the petition for extraordinary writ was denied on its merits.

Opinion: G041616.PDF, G041616.DOC

In re J.C. (Unpub'd), No. D053742

J.C. (then five months old) was detained in October 2007 under 300(b) W&IC after police found Michael (father) "pushing J.C. in a stroller while he cursed and swore at imaginary people" and he told police that he was homeless. The SSA reported that Michael had an extensive criminal history, suffered from severe mental health problems and a history of violence, and frequently self-medicated with marijuana. In October 2007 the court held a detention hearing. The court declared J.C. a dependent and ordered he be placed in out-of-home care.

In March, 2008, Michael was found to be J.C.'s biological father. The court entered a judgment of paternity and ordered Michael to participate in reunification services and enroll in the Substance Abuse Recovery Management System (SARMS) program, therapy, a domestic violence program, a psychological evaluation, and psychotropic medication monitoring.

In May, 2008, the SSA prepared a six-month review report which recommended continuing services because Michael visited J.C. twice weekly, participated in the SARMS program (and had only one positive drug test) and had begun therapy. At that time, one positive drug test) and had begun therapy. At that time, Michael had not yet submitted to a psychological evaluation or participated in domestic violence courses. Michael admitted he was not yet in a position to take care of J.C. because he did not have a stable home or job. In July 2008, the SSA reported that Michael had been arrested and charged with assault with a deadly weapon, and the social worker believed there was no substantial probability the court would be able to place J.C. with Michael by the 12-month review hearing scheduled for November 2008. The Agency changed its recommendation as to Michael and reported services should be terminated.

A six-month hearing was held in August, 2008. The social worker testified that he "believed Michael would not be able to complete the evaluation, participate in SARMS or comply with the remaining components of his case plan by the 12-month review hearing. In addition, Michael's criminal case was still pending." The juvenile court found Michael had made substantive progress with the provisions of his case plan and ordered the Agency to provide Michael with an additional six months of services.

Counsel for J.C. appealed, arguing the juvenile court erred by continuing services because Michael had not made substantive progress with his case plan and there was no evidence showing the substantial probability that J.C. would be returned to Michael's care by the 12-month review hearing. The SSA joined in this appeal.

The appellate court concluded that the juvenile court had abused its discretion by continuing services because "the evidence in the record does not support the trial court's conclusion. Here, there was no showing Michael made substantive progress with his case plan or that there was a substantial probability J.C. would be returned to the custody of Michael by the 12-month review hearing." The appellate court further explained that "[t]here was no showing of any kind that Michael would be ready to properly care for J.C. in the foreseeable future. Under these circumstances, there was no substantial evidence on which it reasonably could be concluded J.C. would be returned to Michael by the review hearing."

Accordingly, the appellate court ordered that the juvenile court's order extending reunification services be reversed.

Opinion: D053742.PDF, D053742.DOC

In re M.M. (Unpub'd), No. A122925

M.M (then eight months old) was detained under 300(b) W&IC in March 2007 because of "[Mother] habitually leaving her child with other people without their permission, [Mother's] admitted drug use[,] and prior contacts and referrals regarding [Mother]." The court sustained the allegations, and ordered supervised visitation and the provision of reunification services to Mother. M.M. was placed in the home of Amanda W., who was a friend of M.M.'s maternal grandfather.

In January 2008, the court designated Amanda W. to be M.M.'s de facto parent. Following a contested six-month review hearing, the court found Mother had failed to participate in court-ordered treatment and services, and that M.M. would be at substantial risk of detriment if she were returned to Mother. The court terminated reunification services, and set a 366.26 hearing to terminate Mother's parental rights.

In August 2008, Mother sought to modify the order terminating her reunification services and filed a 388 petition asking that they be restored. Mother's petition alleged that "[t]he minor and mother have visited more consistently and the parental bond is growing. The minor is excited to see the mother and disappointed when the visits end. The mother has engaged in services which ameliorate the conditions which brought the minor before the court." At a combined hearing in September, 2008, the juvenile court denied Mother's 388 petition, ound by clear and convincing evidence that it was likely M.M. would be adopted, terminated Mother's parental rights, and issued an order permitting post-adoption visitationthrough a post-adoption contact agreement.

Mother appealed the orders, arguing that all of the parties except for M.M.'s counsel preferred guardianship as the permanent plan, and that the juvenile court entered an unenforceable visitation order as part of the termination proceedings and therefore the termination must be reversed, and that there was no substantial evidence to find that M.M. was adoptable.

As to the appropriateness of adoption as the permanent plan, the appellate court held that the record of the parties' preferences was more equivocal than Mother states, and that the preference of the parties is not the controlling criteria that is to guide the juvenile court's determination. Rather' it was Mother's burden to show that termination would be detrimental to M.M. and guardianship would be the better plan than adoption. The appellate court held that Mother had not met this burden.

As to the visitation issue, the appellate court held that "[t]he possible unenforceability of the visitation provisions in the juvenile court's termination order provides no basis to overturn the otherwise proper termination of Mother's parental rights. Mother cites no authority that holds a termination order is void simply because it contains provisions regarding post- termination visits. Moreover, it is clear from the record that the juvenile court did not improperly condition the termination of Mother's rights on her ability to have continuing contact with M.M."

As to the issue of the minor's adoptability, the appellate court explained that "specific questions about M.M.'s prospective adoptive placement were not relevant to the determination of adoptability" because "[t]his is not a case where the child was 'not otherwise adoptable if placement with the [prospective adoptive parent] were to fall through.'" The appellate court held that substantial evidence supports the juvenile court's finding of adoptability.

Accordingly, the orders of the juvenile court were affirmed, and the appeal was denied.

Opinion: A122925.PDF, A122925.DOC

In re Daniel C. (Unpub'd), No. D054001

On August 7, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Daniel under 300(b) W&IC, alleging Jessica (mother) used marijuana during her pregnancy with him, and she had lost custody of her other children because of her substance abuse. The paternal grandmother (the grandmother) had adopted Jessica and D.C. (father)'s other two children. The court ordered Daniel detained. D.C. said he and Jessica were no longer in a relationship. Both parents wanted Daniel placed with the grandmother.

At the six-month hearing on April 18, 2008, neither parent was present and Jessica's whereabouts were unknown. The court found the parents had not made progress with their case plans, and there was no substantial probability Daniel could be returned to parental custody by the next review hearing. It terminated services and referred the case for a section 366.26 hearing. The social worker said if Daniel's grandparents did not adopt him, there were 11 other families in San Diego interested in adopting a child with his characteristics. At the 366.26 hearing, the court found Daniel was generally adoptable and none of the statutory exceptions to termination of parental rights and adoption were present. It terminated parental rights and referred Daniel for adoption.

The parents appealed, contending that the adoption assessment was inadequate, that insufficient evidence supported the finding that Daniel was generally adoptable, and that the beneficial relationship exceptions of 366.26 W&IC should have been found to apply. The appellate court rejected all these claims as unavailing, and affirmed the juvenile court's judgment.

Opinion: D054001.PDF, D054001.DOC

Case Law Update: 22 April 2009

2009-04-22T16:59:00.000-07:00

In re J.W. (Unpub'd), No. A122051

J.W., then age 7, was detained in 2003 under 300(b) W&IC for allegations that included mother's alcohol abuse, lack of a stable and appropriate residence, and failure to ensure J.W.'s attendance at school. In the ensuing years, Mother showed a pattern of resistance to reunification services, lack of responsibility for her actions, and combativeness toward the SSA. The court ultimately, in 2005, adopted a plan of long-term foster care for J.W.

The instant action arose after Mother, who had by then achieved twice-monthly supervised visits, appeared in court for a status hearing while apparently intoxicated. The juvenile court continued J.W. in foster care and ordered that visits remain supervised, with Mother required to undergo a breathalyzer test prior to each visit. Mother appealed these orders, claiming the court erred in requiring the visits be supervised and that this order improperly delegated to the SSA the court's authority to supervise visitation.

The appellate court noted, given that a subsequent review hearing occurred after the date of the challenged orders, that Mother's appeal was likely moot. However, since no superseding orders were a part of the record, the appellate court elected to briefly address her claims.

The appellate court held that no issue exists as to whether the visitation order required supervised visits, because mother never requested that the visits be unsupervised and never objected to the supervision requirement in the juvenile court. Accordingly, the appellate court deemed this issue forfeited on appeal. As regard the delegation of authority issue, the appellate court held that the juvenile court had properly exercised its authority in ordering twice-monthly visits, and that its delegation of the "time, place and manner" of visits to the SSA was statutorily proper.

Accordingly, the juvenile court's order was affirmed, and Mother's appeal was denied.

Opinion: A122051.PDF, A122051.DOC

In re J.R. (Unpub'd), No. B212728

M.H. appealed the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to she children, and from the denial of a petition under 388 W&IC requesting that the court change its orders terminating reunification services and ordering DCFS to find a suitable placement for J.R.

Citing In re Sade C. (1996) 13 Cal.4th 952, her appellate counsel notified the court that he was unable to find any arguable issues for appeal.M.H. then filed a letter brief on her own behalf, in which she reported that she is currently enrolled in a residential drug and alcohol treatment center and that she plans to continue working to become a productive and responsible parent. She also stated that she is receiving reunification services for J.R.'s younger brother, and she feels that both children deserve to have a chance to live with their biological parents and experience life as a family unit with clean and sober parents.

The appellate court noted that "[w]hile we commend the positive steps mother has taken, her letter does not raise a claim of legal error or defect in the juvenile court's rulings in J.R.'s case." Accordingly, the appeal was dismissed.

Opinion: B212728.PDF, B212728.DOC

In re William O. (Unpub'd), No. B209426

William O. (minor) was detained in November, 2006, following allegations of emotional and physical abuse at the hands of William S. (Father), and drug use by Father. The juvneile court sustained the allegations, ordered reunification services for both parents, and ordered visitation.

By the time of the 18-month review hearing, Father had failed to comply with court-ordered counseling, denied that William was being abused or neglected, and refused to attend parenting and anger-management classes. The minor indicated he did not want to be reunified with his father, and the SSA reported only sporadic visitation. A contested hearing was set for July, 2008. At that hearing, the juvenile court ordered that William be returned to mother's home with family maintenance services to mother. Although father was granted monitored visitation, his reunification services were terminated. Father appealed, contending that he did not receive reasonable reunification services because the juvenile court failed to ensure regular visitation.

The appellate court held that Father had forfeited the right to challenge the termination of services by failing to raise it at the July, 2008 hearing. Furthermore, the appellate court noted that 361.5 W&IC does not give the juvenile court the discretion to extend reunification services beyond the statutory limit [absent extraordinary circumstances which were not present here], and in any case, the record supports that the court properly ordered visitation and it was Father's choice not to participate.

Accordingly, the appeal was denied, and the order terminating reunification services was affirmed.

Opinion: B209426.PDF, B209426.DOC

In re A.B. (Unpub'd), No. C059618

A.B. (minor, then seven years old) was detained in May, 2008, upon an allegation that P.L. (father) had physically abused A.B.'s half-sibling. However, a June 2008 DHHS report recommended dismissal of the dependency petition "without prejudice", based on its finding that the minor was not at risk of harm in the home of father.

K.B. (mother) appealed the court's order, arguing (inter alia) that the court's order dismissing dependency jurisdiction is an appealable order. However, the appellate court held that the dismissal order was not an appealable order as defined in 395 W&IC. Accordingly, the appeal was dismissed.

Opinion: C059618.PDF, C059618.DOC

In re I.H. (Unpub'd), No. B208137

I.H. (then an infrant) was detained in mid-2007 pursuant to 300(b) W&IC upon allegations relating to mother's medical neglect and her failure to provide adequate care and supervision, and also under 300(b) and 300(g) W&IC for failure of I.H.'s father (whose whereabouts were unknown) to provide support.

In February, 2008, Cynthia S. (maternal grandmother) filed a petition requesting that I.H. be placed with her, despite the fact that she had failed to comply with the terms of a safety plan she signed early in the process, and that she was "hostile, uncooperative, and resistant to DCFS." The juvenile court ultimately denied the petition, determining that "the child's best interests would not be served by the requested change of order."

Grandmother appealed the denial of the 388 petition, contending that it was denied because of her own prior dependency case and that it was denied without "any further discusion", constituting an abuse of discretion.

The appellate court noted that while, at one point in an earlier proceeding, the juvenile court did in fact comment on her prior dependency case, there was no evidence this fact formed any part of the basis for denying the 388 petition. Further, the appellate court held that the juvenile court conducted a full and proper hearing on the 388 petition and that substantial evidence supported the juvenile court's implicit conclusion that placing I.H. in Cynthia S.'s custody would not have been in I.H.'s best interest.

Accordingly, the juvenile court's denial of Cynthia S.'s 388 petition was affirmed, and the appeal was denied.

Opinion: B208137.PDF, B208137.DOC

In re A.B. (Unpub'd), No. B211762

A.B. (then six months old) was detained in March, 2008, after he was found to have 17 fractures, in various stages of healing, to his arms, legs and ribs, as well as multiple unexplained bruises. The juvenile court denied family reunification services for Mother under 361.5(b)(5) and 361.5(b)(6) W&IC and ordered the SSA to prepare an adoption assessment.

On the day of the October 29, 2009 366.26 W&IC hearing, by which time A.B. was living with prospective adoptive parents who were willing to adopt him, mother filed a 388 petition seeking to change the order denying her reunification services, on the basis of her recent enrollment in counseling. The juvenile court denied the 388 petition upon a finding that Mother was only in the "beginning stages" of addressing the problems that had brought A.B. under the court's jurisdiction, found him adoptable, and terminated Mother's parental rights.

Mother appealed the orders denying her 388 petition and terminating parental rights. The appellate court, pursuant to In re Sade C. (1996) 13 Cal.4th 952, appointed her appellate counsel. Appellate counsel ultimately reported to the court an inability to find any arguable issues. Mother filed a letter brief, arguing that she was denied a fair trial because she didn't understand the proceedings, she was denied reunification despite completing parenting classes and counseling, she could not reasonably be expected to know about the minor's injuries, and the minor's current placement is unsafe for him.

The appellate court, after finding that substantial evidence supported the juvenile court's conclusions and that those conclusions were not arbitrary or capricious, held that Mother did not raise any arguable issues in her letter. Therefore, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: B211762.PDF, B211762.DOC

Case Law Update: 21 April 2009

2009-04-21T20:02:00.000-07:00

In re Valerie W. et al. (Unpub'd), No. D053604

Greg W. and S.W. (together, the parents) appealed judgments terminating their parental rights to their minor children Valerie W. and Gregory W. (together, the minors) under Welfare and Institutions Code section 366.26. In a prior appeal filed by the parents, this court reversed the judgments terminating parental rights on the ground the evidence was insufficient to support a finding the minors were adoptable because the assessment report was inadequate in several respects. (In re Valerie W. (2008) 162 Cal.App.4th 1)

The appellate court at that time remanded the matter to have the San Diego County Health and Human Services Agency (Agency) prepare an assessment report in compliance with statutory requirements and to have the juvenile court conduct a new section 366.26 hearingl. In accordance with that opinion, the Agency prepared a second assessment report, and the juvenile court held a new selection and implementation hearing. The court found the minors were likely to be adopted within a reasonable time and terminated parental rights.

The parents challenged the sufficiency of the evidence to support the court's finding of adoptability. They asserted that the assessment report was inadequate under 366.21 W&IC because it does not include necessary information about the minors or their caregiver, that substantial evidence does not support the court's finding the minors are adoptable; and that Agency intends to allow the caregiver and her mother to jointly adopt the minors even though there is no legal authority for such an adoption.

With regard to the sufficiency of the adoption assessment, the appellate court held that "[t]he assessment report substantially complied with the statutory requirement of providing an evaluation of the minors' medical, developmental, scholastic, mental and emotional status". With regard to the juvenile court's finding of adoptability, the appellate court held that "the evidence showed the minors were adoptable based on their general characteristics, their placement in a prospective adoptive home and the interest of other prospective adoptive families". With regard to the last issue, the appellate court noted that the agency modified its plan and was, at the time of the second adoption assessment, seeking to allow the current caregiver alone to adopt the children, and explained that "[w]e are presented with no opportunity here to decide the propriety of a joint adoption by a mother and her adult daughter."

Accordingly, the juvenile court's judgments were affirmed, and the appeals denied.

Opinion: D053604.PDF, D053604.DOC

In re Angelina G. et al. (Unpub'd), No. D054328

On August 8, 2008, Angelina and Tessa were taken into protective custody after police found the family home in disarray, with numerous cats, trash and cat feces all over the floor. One-year-old Tessa was naked on the floor; three-year-old Angelina was wearing only a dirty diaper. Tessa was severely malnourished and weighed only 10 pounds. The children's father, Mathew G., had just returned from military deployment. Crystal was arrested for child endangerment.

The San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of Angelina and Tessa under 300(b) W&IC. Both petitions alleged the family home was filthy and unsanitary and the floors were covered with feces, trash and fleas. The petition on Tessa's behalf also alleged she was discovered naked amidst trash and feces and suffered from severe health conditions, including failure to thrive, hypernatremia, dehydration, renal failure, hyperchloremia and hair loss.

The Agency subsequently filed amended petitions on Tessa's behalf under 300(e) W&IC ["[t]he child is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child"] and on Angelina's behalf under 300(j) W&IC ["[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."]. The court found those allegations true and ordered the children placed with paternal relatives in Kentucky. The court denied reunification to Crystal under 361.5(b)(5) W&IC, finding that offering services would not prevent continued abuse.

Crystal appealed, contending that there was insufficient evidence to support the jurisdictional findings under 300(e) and 300(j) because the evidence did not show her actions in depriving Tessa of food were "willful", and that the court erred by denying reunification services to her under 361.5(b)(5) because the evidence showed services were likely to prevent reabuse and the Agency did not meet its burden to investigate as required by 300(c) W&IC.

With regard to the jurisdictional findings, the appellate court held that "[t]he evidence before the court fully supports a finding Crystal willfully deprived Tessa of food for a prolonged period." With regard to the denial of reunification services, the appellate court held that "Crystal has not shown the court erred by finding there was no likelihood that reunification services would prevent reabuse in the future."

Accordingly, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: D054328.PDF, D054328.DOC

In re R.B. (Unpub'd), No. H032978

R.B. (born in July 2002) was placed in protective custody after being severely abused by his maternal aunt and uncle, in whose care the mother had left him. The juvenile court detained the child and placed him with non-relative caretakers, with whom he had stayed for long periods in 2006 and 2007. At the time of the child's detention, the father (R.B.) was a federal prisoner facing deportation upon his anticipated 2008 release from prison.

The Department filed several amended petitions beginning in November 2007. In late February 2008, the father's attorney advised the court that he was seeking an order placing the child in his care as the noncustodial parent, with the paternal aunt as a possible placement.

At the conclusion of a contested juris/dispo hearing held in March, 2008, the court took jurisdiction over the child. In its oral comments, the court addressed each allegation of the third amended petition. The court sustained most of the allegations without change, but it did amend or reject others. The court found that the maternal relatives had subjected the child to physical and sexual abuse and that the mother had not protected the child from the abuse. The court also found that the father had committed domestic violence against the mother prior to the child's birth.

Concerning disposition, the court denied a motion made by the child's attorney for a bypass of reunification services for the mother. The court also denied the father's request for placement of the child with him. However, the court did make provisions for the father to send cards and letters to the child through the social worker; the court also asked the Department to "do an assessment of the paternal aunt" with authorization for monthly supervised visitation between her and the child. Without comment, the court adopted the Department's written recommendation that reunification services be provided only to the mother. The court's dispositional order also included this provision, submitted by the Department: "The previously noncustodial parent...shall not receive Family Reunification Services because he or she has not requested placement of the child."

The father appealed, contesting the jurisdictional finding of domestic violence, challenging the dispositional order to the extent that it denied him reunification services, and asserting that his counsel was ineffective in failing to pursue reunification.

As regards the jurisdictional finding, the appellate court held that, since the jurisdictional order concededly can be sustained on other grounds, the specific finding challenged by the father is not adverse, and therefore he lacks standing under 395 W&IC to challenge it.

As regards the denial of reunification services, the appellate court noted that, although Father failed to raise the issue in the juvenile court, it nevertheless was exercising its discretion to address Father's claims on the merits because "it is incumbent upon the juvenile court... to ensure a parent has a reasonable opportunity to pursue reunification" (quoting In re Luke L. (1996) 44 Cal.App.4th 670, 681) and because "to the extent that the father asserts the application of the wrong legal standard, the case for automatic forfeiture carries less weight".

Having thus decided, the appellate court noted that the original factual reason for the Department's recommendation for denial of reunification (that the father had not sought custody) no longer existed by the time of the juris/dispo hearing since Father had by then declared his desire for custody. The appellate court noted that the Department argued that "while it is always preferable for the juvenile court to specify its reasons for denying services to an incarcerated parent on the record, the required detriment can nevertheless be implied and supported by substantial evidence in the record."

The appellate court explained that, although it agreed that the evidence could support an implied finding of detriment, it nevertheless declined to reach such an inference here because the juvenile court did not make factual findings on the record explaining its reasons for the denial, and, as the appellate court explained, "the court's failure to do so is particularly troubling here, given the admittedly erroneous factual predicate for the denial of services." The court noted that factual evidence of detriment had been adduced on the record, but "that evidence apparently was adduced in connection with the court's placement decision, made under section 361.2, not in connection with its decision to deny reunification services, which must be made under section 361.5, subdivision (e)(1)."

Accordingly, the jurisdictional orders were affirmed. The dispositional order was reversed, and the matter was remanded to the juvenile court for a determination of detriment from the provision of reunification services to the father under the appropriate statute.

Opinion: H032978.PDF, H032978.DOC

In re Kendall R. (Unpub'd), No. A122322

L.R. appealed from an order of the juvenile court terminating her status as de facto parent to dependent child Kendall R. (Kendall). The order issued on the motion of T.R., who was also a de facto parent, as well as Kendall's maternal aunt and guardian. L.R. contended that: (1) T.R. lacked standing to bring the motion; (2) no change of circumstances supported the order; (3) the order did not serve the child's best interests; and (4) her own "outspoken concern" below about T.R.'s ability to care for him did not support the order. Having taken judicial notice of a subsequent order dismissing the dependency and terminating the court's jurisdiction, the appellate court dismissed the appeal as moot.

Opinion: A122322.PDF, A122322.DOC

In re F.R. et al. (Unpub'd), No. D054155

Julie R. (mother), who has CPS histories in Colorado and Maryland, was charged with first degree murder in July, 2008, after admitting that she gave birth to a baby and subsequently "put [her]hand over his mouth and let him die." She also admitted that the death was intentional.

On the basis of those admissions, the SSA filed dependency petitions for F.R. (then 15), Dominique (then 11), Jeremiah (then 9), Daniel (then 5) and E.S. (then 18 months) under 300(f) W&IC. At a juris/dispo hearing in October, the court entered true findings on the petitions, removed the children from Julie's custody, and denied her reunification services pursuant to section 361.5(b)(4) ["[r]eunification services need not be provided to a parent...when the court finds, by clear and convincing evidence...[t]he parent...has caused the death of another child through abuse or neglect."].

Julie appealed this determination, contending that reunification was in the children's best interests because of her bond with them, their continued contact with each other, and her acknowledgment of wrongdoing. The appellate court held that there was no evidence on the record to suggest that Julie will be able to provide the children with permanency and stability, and therefore concluded that substantial evidence supported the denial of reunification. The appeal was therefore denied, and the juvenile court's order was affirmed.

Opinion: D054155.PDF, D054155.DOC

A.K. v. Superior Court (Unpub'd), No. F056949

This case is a petition for writ relief by A.K. (Mother), in pro per, which accompanies a petition for writ relief by J.K. Sr. (No. F056946), decided on April 20. In this petition, Mother contends principally that the juvenile court erred in denying her request for additional time to reunify with her children, given her full compliance with her court-ordered services and the unique demands of her special needs children.

The appellate court explained that "[i]n this case, while there is evidence favoring an order continuing services (i.e. petitioner's progress, the strong parent/child bond, the children's desire to return home and the prospect of long-term foster care), we cannot say the juvenile court abused its discretion in denying petitioner's request for a continuance." The court noted that "[t]his court was impressed with the sincerity with which petitioner argued her case and her commitment to reunify with her children. Nevertheless, we conclude the juvenile court did not abuse its discretion by denying petitioner's motion for a continuance. Nor do we find error in the court's order setting a section 366.26 hearing to implement a permanent plan."

Accordingly, the petition for extraordinary writ was denied.

Opinion: F056949.PDF, F056949.DOC

S.L. v. Superior Court (Unpub'd), No. F056960

S.L. (father)'s children, then 13- year-old S., 8-year-old J., and 7-year-old K., were adjudged dependents of the court in March, 2004 because of their mother's substance abuse and petitioner's imprisonment. amily reunification efforts failed and, in October 2005, at a section 366.26 hearing, the juvenile court ordered the children placed in long-term foster care with a goal of legal guardianship. Over the ensuing years, the children remained in foster care as ordered by the juvenile court at periodic post-permanency plan review hearings (review hearing). During that time, petitioner remained incarcerated with a projected release date of December 2010.

At a January 2009 review hearing, the SSA reported that K.'s foster parents wanted to assume guardianship of her. Consequently, the juvenile court set a 366.26 hearing as to K. and set review hearings as to S. and J. The court also ordered monthly visitation for petitioner and K.

S.L., in pro per, filed a petition for extraordinary writ to vacate those orders. However, he failed to challenge the correctness of the juvenile court's order issued at the setting hearing. Since he failed, to set forth a claim of error, the appellate court deemed his petition facially inadequate under Calif. Rules of Court rule 8.452 and consequently dismissed it.

Opinion: F056960.PDF, F056960.DOC

Case Law Update: 20 April 2009

2009-04-20T20:01:00.000-07:00

In re A.W (Unpub'd), No. B213417

T.W. (mother) appealed an order terminating parental rights to her child A.W. (born 2007) and establishing adoption as the permanent plan. Appointed counsel advised that there were no arguable issues in mother's appeal. The appellate court granted Mother leave to personally submit any contentions she wished considered, but received no response. Accordingly, the appeal was dismissed as abandoned.

Opinion: B213417.PDF, B213417.DOC

J.K. Sr. v. Superior Court (Unpub'd), No. F056946

J.K. (then two years old) and I.K. (then 14 months old) were detained in 2007 after police responded to a domestic disturbance at J.K. Sr. (father)'s home and found feces, urine and trash on the floors, and evidence of drug and alcohol abuse. The juvenile court sustained the dependency allegations and placed the children with their maternal aunt and her husband. Reunification services, including parenting classes, substance abuse, mental health and domestic violence evaluations, and random drug testing were ordered for J.K. Sr.

A contested 18-month review hearing in January, 2009, the court found the department provided reasonable services and it would be detrimental to return the children to parental custody. The court terminated reunification services and set a 366.26 hearing. Father petitioned for extraordinary writ relief, arguing the juvenile court erred in failing to allow him additional reunification services.

The appellate court held that, given it cannot reweigh the evidence, it could not say that the juvenile court abused its discretion in terminating services and setting a 366.26 hearing. Accordingly, the petition for extraordinary writ was denied.

Opinion: F056946.PDF, F056946.DOC

O.V. v. Superior Court (Unpub'd), No. F056532

In February 2008, the department of social services (department) took then three- year-old I. and 17-month-old J. into protective custody after their mother, M.D., 2 left them with their maternal aunt without making provisions for their care. At the time, petitioner was serving a three-year sentence at Avenal State Prison (Avenal) for first- degree residential burglary and vehicle theft. He was also on an INS hold. He was expected to be released from custody in January 2009.

On March 3, 2008, the juvenile court ordered I. and J. detained pursuant to a dependency petition, which identified petitioner as their alleged father. The court ordered a paternity inquiry as to J. The court set the jurisdictional hearing for March 19, 2008, and issued an order to authorities at Avenal to have petitioner transported for the hearing. The department placed the children together in foster care. Paternity testing subsequently confirmed that O.V. was the biological father of both children.

In November, 2008, O.V. filed a 388 petition, asking the court to elevate him to I. and J.'s presumed father and offer him reunification services. In his section 388 petition, petitioner stated he held I. out as his son to his family and the community and, prior to his incarceration, spent weekends with I. and provided support for him. Petitioner also stated he wanted to reunify with I. and begin a relationship with J. upon his release in January 2009. Petitioner believed it would be in his sons' best interest to be placed with him or a relative since no one willing to adopt them had been identified.

At a combined six-month review and 388 hearing, the juvenile court denied the section 388 petition, finding it would not be in the children's best interest to change its order based on the precedent in In re Eric E. (2006) 137 Cal.App.4th 252 [holding that presumed father status may be denied if, at the time it is requested, it cannot be shown that such status is in the child's best interests.] The court also terminated M.D.'s reunification services, denied petitioner visitation, and set a 366.26 hearing.

In an extraordinary writ petition filed on January 2, 2009, petitioner contended the department's delay in arranging paternity testing violated his right to due process. He also contends the juvenile court erred in applying the "best interest" standard in denying his request for presumed father status.

The appellate court held that there was no requirement that biological paternity be proven before O.V. sought presumed father status, and that therefore the delay in establishing paternity did not violate his due process rights. However, the appellate court held that the juvenile court, by failing to conduct a paternity hearing and by deciding his paternity based on the best interest of the children, denied him his due process right to a hearing on his paternity.

Accordingly, the appellate court lifted the stay on the 366.26 and issued an extraordinary writ vacating the juvenile court's orders denying a hearing on the 388 petition and setting the 366.26 hearing. The appellate court directed the juvenile court to conduct a paternity hearing, and instructed that "[i]f the court determines petitioner is the presumed father of either child, the court shall order that he receive reunification services as to that child unless the court determines that petitioner should be denied services under section 361.5, subdivision (b). If the court determines that petitioner is not the presumed father of either I. or J., the juvenile court may set a new section 366.26 hearing and advise petitioner of his right to file an extraordinary writ."

Opinion: F056532.PDF, F056532.DOC

In re E.G. et al. (Unpub'd), No. E047076

L.A. (Mother) is the mother of two boys, E.G., and I.G., (children) who were removed from her care at the ages of one and three, respectively. Mother appealed orders of the juvenile court at a 366.26 hearing terminating her parental rights and freeing the children for adoption by their foster mother. Mother argued that the beneficial relationship exception of 366.26(c)(1)(B)(i) should have applied, and that the juvenile court erred in finding that it did not.

The appellate court held that Mother's claim was waived for failure to raise it in the juvenile court, and that in any case it is without merit because of "the dearth of evidence that the children were attached to Mother as compared to the ample evidence that they were attached to the foster mother." Accordingly, the appeal was denied and the juvenile court's orders were affirmed.

Opinion: E047076.PDF, E047076.DOC

Adoption of R.V. (Unpub'd), No. B209956

Alex M. (father) appealed an order of the family court terminating his parental rights to his son R.V. The order arises from a petition brought by respondents, who want to adopt R.V. The family court found that the Indian Child Welfare Act (ICWA) does not apply, and that appellant (1) abandoned R.V. and (2) has a felony record that demonstrates unfitness to parent his child. Alex M. argued that the finding that ICWA does not apply was erroneous, and further that the conclusions that he abandoned his son and was unfit to parent him were not supported by substantial evidence.

As to the ICWA issue, the appellate court held that Alex waived it by failing to appeal the dispositional orders of the court on that basis, and that further, since the claim of Native American heritage was made by the children's mother and not by him, that no showing can be made that he was prejudiced by any purported error.

As regards the other findings, the appellate court held that Alex's failure to make arrangements for R.V.'s care during his incarceration and failure to seek custody of R.V. following his release or to provide financial support constituted presumtive evidence of abandonment, and that this finding was therefore supported by sunstantial evidence. Similarly, ample evidence supported the family court's findings that "appellant has repeatedly committed crimes and been incarcerated or on parole for the majority of his adult life" and that these facts "show a pattern of behavior related to the welfare of his child and his ability to exercise custody and control over his child." Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: B209956.PDF, B209956.DOC

In re Tiffany W. et al. (Unpub'd), No. B210409

This appeal, a follow-on to In re. Tiffany W. et al (Unpub'd) No. B207928, decided 2009/03/19, challenged an order of the juvenile court at a six-month review hearing continuing the dependency case and ordering Felix W. (father) to participate in additional reunification services. Felix argues that there is no evidence to support the juvenile court's finding that his progress in his case plan was minimal, and that therefore the children should have been returned to his care at the six-month hearing.

The appellate court explained that "[h]ere, as the Department demonstrated, father did not "participate regularly and make substantive progress in court-ordered treatment programs" and such failure is prima facie evidence that return of the children to his custody would be detrimental to them." (Emphasis original). Father made several additional claims, but the appellate court described them as "vituperative allegations against the Department, unsupported by any admissible evidence."

Accordingly, the juvenile court's order was affirmed, and this appeal was denied.

Opinion: B210409.PDF, B210409.DOC

In re D.L., et al. (Unpub'd), No. B212500

On May 24, 2006, the Los Angeles County Department of Children and Family Services (Department) filed a petition pursuant to section 300 alleging, among other things, that mother had a five year history of drug use including heroin and methadone that rendered her incapable of caring for newborn D.L, who had tested positive for methadone at the time of his birth. The petition also alleged that father had failed to take action to protect D.L. when he knew of mother's illicit drug use.

The juvenile court detained D.L. and ordered family reunification services for mother and father. The juvenile court also ordered monitored visits for mother and unmonitored visits for father. Subsequently, mother was arrested and gave birth to anohter child (F.L.) while in prison. The SSA filed a petition detaining F.L. On February 28, 2008, the juvenile court terminated reunification services as to D.L., sustained an amended petition as to F.L., and denied mother and father reunification services as to F.L. The juvenile court set both matters for a section 366.26 hearing on June 26, 2008.

In August 19, 2008, mother filed a 388 petition requesting reunification services with D.L. and F.L. and placement of the children with her at the Shields for Families (Shields) drug treatment program. In her request, mother stated that she was no longer incarcerated, that she had been sober for 14 months, and that she had been enrolled in the Shields drug treatment program since July 1. According to mother, Shields allows children to stay with their parents. This petition was considered along with a 366.26 hearing.

In its written decision on mother's section 388 petition and termination of parental rights under section 366.26, the juvenile court stated that after her release from prison, mother immediately entered a drug rehabilitation program and began to visit D.L. and F.L. regularly. The juvenile court noted that mother appeared to be more mature and serious than she did at the 12-month review hearing, and appeared to be sincere and committed to turning her life around.

However, "[t]he juvenile court foresaw a very long period to ensure that mother had rehabilitated before it would even consider returning D.L. and F.L. to mother if it were to extend reunification." Given the ages of the children and their special needs, the juvenile court found that delaying permanency was not in the children's best interest and denied the section 388 petition. The court further held that the Department had established by clear and convincing evidence that D.L. and F.L. were adoptable and that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply. Accordingly, parental rights were terminated.

Mother appealed, contending that the juvenile court abused its discretion in denying her 388 petition and in finding that the beneficial relationship exception did not apply. The appellate court held that substantial evidence supported both of these findings, affirmed the lower court's orders, and denied the appeal.

Opinion: B212500.PDF, B212500.DOC

Case Law Update: 17 April 2009

2009-04-17T20:01:00.000-07:00

No juvenile dependency opinions were filed today.

Case Law Update: 16 April 2009

2009-04-16T20:00:00.000-07:00

In re E.S. (Unpub'd), No. B210566

E.S. was detained in May, 2007, following allegations under 300(a) and 300(b) W&IC that S.S. (mother)'s boyfriend had inflicted serious injury upon her, that mother had failed to protect her and had a history of substance abuse and criminal activity, and that E. was at serious risk of harm as a result.

At a six-month review hearing in January, 2008, CWS recommended returning E. to her mother's care, based on a series of negative drug tests and mother's participation in services. On January 7, 2008, the court ordered that E. be returned to mother, and remain a dependent child of the court. It also ordered services for E. and mother. The SSA filed a 387 petition in February, 2008, based on allegations that mother was consorting with known criminals and had used drugs again.

A new detention hearing on the 387 petition was held in February, 2008, at which the court ordered E. detained in the custody of CWS for placement in a foster home or the home of a suitable relative. In March, 2008, E. was placed with her paternal grandmother. At a contested juris/dispo hearing in April, the juvenile court sustained the February 11, 2008, petition, declined to provide additional reunification services for mother, and set a section 366.26 permanency planning hearing for July 7, 2008. Mother filed a 388 petition seeking to regain custody of E. or additional reunification services, and a combined hearing was scheduled for August 28, 2008.

The SSA's addendum report for that hearing revealed that A. (a teenager and the daughter of a former friend of mother) admitted to providing urine for mother's drug tests for several months. At the hearing, mother's parental rights were terminated. She appealed, contending that the juvenile court erred in finding the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply.

The appellate court noted that "mother has shown frequent and loving contact with E. However, she has not shown that the existence of her relationship with E. is sufficient to outweigh her need for a stable, safe and permanent home." Accordingly, the appellate court held that "[s]ubstantial evidence supports the court's finding that mother failed to establish that the parental relationship exception barred the termination of her parental rights."

The juvenile court's orders were therefore affirmed, and the appeal was denied.

Opinion: B210566.PDF, B210566.DOC

In re Jayden C. (Unpub'd), No. B210445

Jayden C. (age 5) was detained in May, 2008, after his half-brother was admitted to the hospital with cerebral hemorrhaging, from which he subsequently died. At an adjudication and disposition hearing in August, at which Mother invoked her Fifth Amendment rights with regard to the half-brother's death, the court declared Jayden and I. dependents of the court and ordered Jayden be placed with Father under a home of father order.

The court ordered the Department to provide family maintenance services to Jayden. Father was ordered to attend a parenting class, keep all medical and therapy appointments for Jayden, and follow-up with all recommendations. The court continued the case for a section 364 hearing. Father appealed the jurisdictional and dispositional orders, arguing that the record does not show that he should have known of Mother's violent tendencies, and that the juvenile court abused its discretion in ordering him to attend a parenting class.

As to the first issue, the appellate court held that "even if Father did not have first-hand knowledge of all of the acts of violence by Mother, Father had personal knowledge of her propensity for violence, as he was the victim of many of the incidents and he had discussed Mother's violent behavior with a social worker...[y]et, knowing of Mother's predisposition to violence, violence that would be harmful to Jayden, Father left Jayden in Mother's care. These facts support the jurisdictional finding that Father knew or should have known that Mother had failed to resolve her violent tendencies."

As to the second issue, the appellate court held that substantial evidence, including Father's decision to leave Jayden in Mother's care despite knowing of her violent tendencies, his failure to seek medical attention for Jayden for a dog bite several days before the half-sibling's hospitalization, and a doctor's note that "Father appears relucant to follow medical advice", supported the juvenile court's conclusion that "parenting classes would assist Father in understanding his parental role and would protect Jayden."

Accordingly, the juvenile court's orders were affirmed, and Father's appeal was denied.

Opinion: B210445.PDF, B210445.DOC

Felix O. v. Superior Court (Unpub'd), No. B213779

S.O. and D.O. (minors) were detained in April of 2007 upon allegations that included, inter alia, that Felix O. (father) and the children's mother had engaged in physical altercations which endangered the children. The juvenile court ordered the children detained, and Felix O. was ordered to attend domestic violence and parenting programs, as well as counseling.

At both the six- and twelve-month review hearings, the court found that Felix O. was in partial compliance with his case plan. At the 18-month review hearing, the Department requested that services be terminated and a 366.26 hearing be set, primarily because Felix O. had not obtained suitable housing for himself and his children. Felix's counsel requested that services be continued to allow him to do so.

The juvenile court held that although Felix O. was in full compliance with his case plan, his lack of appropriate housing for the children continued to put them at risk if placed under his care and, because the case had reached the statutory limit for reunification, there was no alternative to termination of reunification and the setting of a hearing pursuant to section 366.26. The court encouraged Felix O. to obtain appropriate housing and suggested he may seek a change in the court's order setting the section 366.26 hearing, prior to the date of the hearing, by petition for modification under 388 W&IC.

Felix O. filed a petition for extraordinary relief from the juvenile court's order setting a 366.26 hearing, arguing that the juvenile court improperly terminated reunification services because there was not substantial evidence to support its finding the Department provided reasonable reunification services. Both S.O. and D.O., through their counsel, and the SSA opposed his petition.

The appellate court held that the record showed that reasonable services had been provided and, further, that the court's authority to terminate reunification services and set a section 366.26 hearing at the 18-month stage is not conditioned on a finding of reasonable services. Accordingly, the petition for extraordinary writ was denied on its merits.

Opinion: B213779.PDF, B213779.DOC

In re P.V. et al. (Unpub'd), No. C060003

On March 20, 2007, Sacramento County Department of Health and Human Services (DHHS) filed section 300 petitions on behalf of minors P.V., who was less than a month old, and A.V., nearly three years old. The petitions alleged mother had allowed unsupervised contact between the minors and father, and that father had sexually molested his biological child in 2005 and failed to rehabilitate or successfully reunify with that child. The petition further alleged that mother failed to acknowledge father's sexual molestation of his child.

The juvenile court sustained the petitions, adjudicated the minors dependents of the court, and ordered reunification services for mother and father. The minors were placed with the maternal grandparents. Reunification services were terminated in April 2008 and a 366.26 hearing was set for August of 2008. At that hearing, counsel for both parents requested a continuance because their clients were not present. The juvenile court denied counsels' oral request for a continuance for failure to state good cause. No additional evidence was presented. The juvenile court found the minors were likely to be adopted, terminated parental rights, and freed the minors for adoption.

The parents appealed the termination of parental rights, alleging that the adoption assessment prepared by DHHS was inadequate and that their counsel delivered inadequate representation by failing to object to its adequacy, and that the juvenile court abused its discretion in denying their request for a continuance of the hearing.

As to the adoption assessment, the appellate court held that parents' allegations about the insufficiency of the adoption assessment were waived for failure to object in the juvenile court proceeding. The appellate court further held that "[t]here are no facts suggested by the record that could have been produced to change this state of affairs. Thus, the record does not show there was good cause to object to the assessment or that preparation of a more thorough assessment would change the result of the hearing."

As to the juvenile court's denial of a continuance, the appellate court held that 352(a) W&IC requires that continuances "shall be granted only upon a showing of good cause" and that no such showing was made in this case. Accordingly, "[u]nder the circumstances, the juvenile court acted well within its discretion in denying appellants' counsel's oral request to continue the section 366.26 hearing."

The orders of the juvenile court were thus affirmed, and the appeal was denied.

Opinion: C060003.PDF, C060003.DOC

Case Law Update: 14 April 2009

2009-04-16T08:49:00.001-07:00

In re Jeremiah G., No. C058223

Jeremiah G. (minor) was born in October, 2007, and tested positive for cocaine at birth. He was Joann W.'s third child born with a positive toxicology screen for cocaine; she had lost parental rights to the two others several years previously. Mother was offered voluntary services for Jeremiah, but failed to utilize them, so a petition under 300 W&IC was filed.

At the detention hearing, A.G. (father) made statements that it was "a possibility" that he had Native American heritage through his great grandfather, a claim he subsequently recanted. At a February, 2008, juris/dispo hearing, the parties agreed that father does not have Native American heritage, and the court thus found that ICWA did not apply. The court denied reunification services to mother based on the previous terminations of rights to Jeremiah's siblings, and ordered services to father.

In the unpublished portion of the opinion, the court rejected mother's claim that the bypass of reunification under 361.5(b)(10) and 361.5(b)(11) W&IC, noting that substantial evidence of mother's 20 year history of substance abuse, failed reunification and unwillingness to utilize services meant that the juvenile court had not abused its discretion in concluding that reunification services would be futile.

In the published portion of the opinion, mother's claim that the dispositional orders were invalid because the notice provisions of ICWA were not met was likewise rejected. The appellate court explained in its introduction to the opinion that "[w]e publish this opinion to emphasize, again, what we thought that our court made clear in In re O.K. (2003) 106 Cal.App.4th 152. In a juvenile dependency proceeding, a claim that a parent, and thus the child, 'may' have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry." Here, the court held that father's ultimately retracted claim of possible Native ancestry was insufficient to trigger the requirements of ICWA, and thus that the juvenile court did not err in concluding that ICWA did not apply.

Mother's appeal was therefore denied, and the juvenile court's orders were affirmed.

Opinion: C058223.PDF, C058223.DOC

In re B.O. et al. (Unpub'd), No. C059076

Appellant, mother of B.O. and M.O. (the minors), appealed from juvenile court orders at a review hearing, continuing the minors as dependent children in appellant's custody pursuant to a family maintenance plan. She alleged that the court abused its discretion in denying a motion to continue the review hearing and in denying her request to have the minors testify at the hearing.

The appellate court held that, becaue no showing of good cause for a continuance existed, the juvenile court had not abused its discretion in denying the continuance. Furthermore, the appellate court held that in any case, the appellant was not prejudiced by the decision not to grant a continuance. Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: C059076.PDF, C059076.DOC

In re B.C. (Unpub'd), No. E046700

B.C. (minor) was detained in July, 2006 upon allegations under 300(b), 300(c) and 300(g) W&IC after M.C. (mother), a diagnosed schizophrenic who was at the time not being treated, was arrested for child endangerment, possession of a controlled substance, and being under the influence of a controlled subtstance. The court found the allegations true and ordered the SSA to provide reunification services. However, because of non-compliance and further drug-related arrests, reunification services were terminated.

In September, 2008, Mother (who was again incarcerated at the time) filed a 388 petition seeking additional reunification services, citing the substance abuse program in which she was enrolled while incarcerated as changed circumstances. At a hearing later that month, the juvenile court found a change of circumstances, but concluded a change in the court's order would not be in B.C.'s best interest, and denied the petition. The court also selected adoption as B.C.'s permanent plan and terminated parental rights.

Mother appealed, contending the juvenile court erred in denying her 388 petition without a full evidentiary hearing, and that it erred in not finding the beneficial relationship exception of 366.26(c)(1)(B)(i) to apply.

In regard to the 388 petition, the appellate court held that, since the court afforded an opportunity for all parties, including M.C.'s counsel, to express their positions about the 388 petition, that the juvenile court did not err in denying the request. Further, the appellate court noted that the juvenile court's analysis of the 388 petition was "thoughtful, reasonable, and based on the facts of the case" and therefore that no abuse of discretion occurred.

As regards the beneficial relationship exception, the appellate court held that substantial evidence supported the conclusion that the strength and quality of the relationship between Mother and B.C. did not outweigh the sense of security and stability provided to B.C. at her maternal grandparents' home.

Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: E046700.PDF, E046700.DOC

In re M.S. (Unpub'd), No. C059953

M.S. (then three) was detained in April 2007 following allegations of sexual abuse by M.S.'s mother's boyfriend. The petition named C.M. (appellant) as the alleged father. C.M., who was then incarcerated in state prison for possession of a controlled substance for sale, was found in September, 2007, to be the presumed father, and counsel was appointed for him.

At a December, 2007, review hearing, C.M.'s counsel informed the court that counsel had received a copy of a letter sent to the court from appellant, which referred to a lack of "proper aid of counsel". The court at that time declined to schedule a Marsden hearing, advising counsel it would require additional information to do so. The court also encouraged appellant, through its minute order, to communicate with his counsel.

C.M. was present at the July, 2008 366.26 hearing, where he stated that he opposed the recommended plan of adoption by C.M.'s grandparents (with whom she was placed). At the conclusion of the hearing, the juvenile court terminated C.M.'s parental rights upon a finding that it was likely M.S. would be adopted.

C.M. appealed, contending that the juvenile court committed reversible error in failing to conduct a Marsden hearing. He further claimed that his trial counsel provided inadequate representation for failing to object to the absence of a preliminary adoption assessment, as required by statute, for failing to seek a continuance of the 366.26 hearing on that basis, and for failure to raise the exception to adoption of 366.26(c)(1)(A) because of Grandparents' past criminal history.

The appellate court noted that an exhaustive Marsden inquiry is not required in a juvenile dependency proceeding; rather, the juvenile court must merely "make some inquiry into the nature and complaints against the attorney". This, the appellate court, held had been done. Further, the appellate court held that C.M.'s subsequent failure to raise the Marsden issue at future hearings could have been reasonably concluded by the juvenile court to constitute "an abandonment of his previous claim, if any."

With regard to the inadequate representation claims, the appellate court held that "the record suggests that, presented with a difficult case, appellant's counsel did the best that could be done for appellant under the circumstances presented to counsel."

Accordingly, the appeal was denied and the juvenile court's orders were affirmed.

Opinion: C059953.PDF, C059953.DOC

In re A.V. et al. (Unpub'd), No. C059396

R. V., the mother of J. R. (born July, 2005) and A. V. (born March, 2008), appealed from juvenile court findings and orders entered at a juris/dispo hearing. She contended the evidence was insufficient to support the jurisdictional finding that she caused the death of her son S. H. (under 300(f) W&IC), and the dispositional order that she not receive reunification services under 361.5(b)(4), 361.5(b)(10) and 361.5(b)(11) W&IC. Mother further alleged, and the SSA conceded, that the juvenile court failed to ensure compliance with ICWA because she alleged Cherokee heritage but no notices were sent to any Cherokee tribes.

The appellate court vacated the disposition order and remanded to the juvenile court for the purposes of providing proper ICWA notice to the three identified Cherokee tribes. The appellate court directed that if, after proper notice, the provisions of ICWA are found not to apply, the juvenile court shall reinstate the dispositional order.

Opinion: C059396.PDF, C059396.DOC

In re T.B. et al. (Unpub'd), No. D053992

T.B. (mother) appealed judgments terminating her parental rights to her children, T.B. and L.H. (the children). She contends no substantial evidence supports the court's finding the children were likely to be adopted if parental rights were terminated, and the court erred by not finding the beneficial parent-child relationship exception of 366.26(b)(1)(C)(i) applied.

The appellate court held that substantial evidence, including the fact that the children were placed with a caregiver who wanted to adopt them despite some special needs, supported the finding of adoptability. The appellate court further held that "[s]ubstantial evidence supports the court's finding the mother did not have a relationship with the children that was sufficiently beneficial to outweigh the benefits to them of being adopted into a stable home."

Accordingly, the judgments of the juvenile court were affirmed, and mother's appeal was denied.

Opinion: D053992.PDF, D053992.DOC

Case Law Update: 15 April 2009

2009-04-15T20:00:00.000-07:00

In re A.N. (Unpub'd), No. C058864

On May 10, 2006, the Department filed a juvenile dependency petition on behalf of the minor, then seven months old, alleging mother's failure to protect the minor and his half-siblings from domestic violence perpetrated by father, father's continuing substance abuse and his failure and refusal to rehabilitate or participate in voluntary services, and mother's failure to participate in voluntary services. The minor and his half- siblings were removed when it was discovered that mother had moved back into father's residence despite having been informed that the children would be placed into protective custody if she did so.

The juvenile court sustained the allegations in the petition, adjudged the minor and his half-siblings dependent children of the court under 300(b) W&IC, committed them to the care and custody of the Department for suitable confidential placement, and ordered regular visitation with the minor. The court further ordered reunification services for both parents.

Reunification services were extended several times upon recommendations of the Agency, but in June of 2007, the SSA, based on fialed drug tests, denial of substance abuse, and lack of appropriate housing, recommended that mother's reunification services be terminated and A.N. be placed with father. The court made those orders at a July, 2007 permanency hearing.

Subsequently, however, the Agency was informed that both parents were living together and abusing alcohol. The Agency filed a 387 petition alleging father was found to be under the influence of alcohol, had failed to participate in services, and was noncompliant with testing, placing the minor at risk of abuse and/or neglect. A.N. was detained and returned to foster care and reunification services were ordered for the father. Father failed to comply with his services, reunification was terminated, and a request by the mother to reinstate services was denied.

Shortly before a February 2008 366.26 hearing, both parents filed 388 petitions seeking return of the minor or additional reunification services. The 366.26 hearing was continued to March, and the court heard the 388 petitions at the same time.

The court denied these petitions, noting that the alleged changed circumstances were not sufficiently changed to grant the motions, and that further, "it would not be in the minor's best interests to reopen services given the amount of time the minor had been in the very stable [foster] home where he is being well cared for." Accordingly, the 388 petitions were denied and parental rights were terminated.

Both parents appealed, arguing that the court failed to provide adequate ICWA notice (based on mother's contention at the 2006 detention hearing that she had Apache ancestry and the Agency's failure to notice all 8 Federally-recognized Apache tribes) and that the court erred in finding that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply. The Agency conceded the ICWA issue but argued that such deficiency was harmless. The parents also appealed denial of their 388 petitions, arguing that the court had erred in concluding they had failed to show changed circumstances and that the best interests of the minor would not be furthered by granting them services.

With regard to the ICWA issue, the appellate court, citing In re Kahlen W. (1991) 233 Cal.App.3d 1414,1424 held that the Agency's failure to provide the necessary notice constituted prejudicial error. With regard to the denial of the 388 petitions by the parents, the appellate court held that sufficient evidence supported the juvenile court's conclusion that "circumstances were changing but not yet changed", and that therefore the question of the minor's best interests need not be considered.

Accordingly, the denial of the 388 petitions was affirmed. The termination of parental rights at the 366.26 hearing was vacated and the case was remanded for proper ICWA noticing. The appeals court directed that if, following notice, any noticed tribe determines that the minor is an Indian child, or if other information is presented showing the minor is an Indian child as defined by ICWA, the juvenile court shall conduct a new review hearing in conformity with all the provisions of ICWA.

Opinion: C058864.PDF, C058864.DOC

In re Valeria B. (Unpub'd), No. D054553

Juan B. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to his children. Citing In re Sade C. (1996) 13 Cal.4th 952, he asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [his] custody of a child or [his] status as the child's parent", denied his appeal.

Opinion: D054553.PDF, D054553.DOC

In re D.D. (Unpub'd), No. F056298

K.G. appealed from an order denying her reunification services with regard to her daughter, D.D. under 361.5(b)(5), 361.5(b)(6) and 361.5(c)(1) W&IC. When D.D. was three years old, she suffered a serious brain injury while in the care of appellant's boyfriend. It is undisputed appellant knew or reasonably should have known her boyfriend was physically abusing D.D. K.G. argued the juvenile court should have granted her reunification services because there was insufficient evidence to support a denial of services on the alternative grounds (361.5(b)(5) & 361.5(b)(6)) that the court found true.

The appellate court noted that K.G. conceded that 361.5(b)(5) [that the child was brought within the jurisdiction of the court under subdivision 300(e) W&IC, because of the conduct of that parent or guardian] apply to her, and that "[t]the evidence before the court compelled neither a finding that reunification services for appellant were likely to prevent D.D.'s reabuse or continued neglect nor one that the denial of services for appellant would be detrimental to D.D."

Accordingly, the order denying reunification services was affirmed, and K.G.'s appeal was denied.

Opinion: F056298.PDF, F056298.DOC

Case Law Update: 13 April 2009

2009-04-15T09:24:00.001-07:00

Juvenile Dependency Opinions - 13 Apr 2009

In re C.C. , No. B208675

C.C. (12 years old) was detained in July, 2007 on allegations under 300(a) and 300(b) W&IC pertaining to mother's physical and verbal abuse and unstable behavior. The court ordered reunification services for both parents, including facilitated visits between Lisa and C.C. On September 7, 2007, however, the Department filed an ex parte request seeking suspension of visitation between Lisa and C.C. The application was based on a letter from C.C.'s therapist indicating his level of distress had escalated after each of the three previous monitored visits. C.C. had stated he did not want to have contact with Lisa, a position the therapist viewed as justified, and had threatened to harm himself and Lisa if forced to visit her. The court suspended visitation pending an evidentiary hearing.

At the evidentiary hearing, the court suspended visitation pending further hearings, though monitored visitation and conjoint therapy were ultimately ordered. In April, 2008, the therapy was suspended after the therapist acknowledged that C.C. was not willing to participate and that this rendered the therapy not effective. In September, 2008, the court again suspended vistation and ordered Lisa to complete several programs, including parenting and anger management. Lisa appealed these orders, aguing that the trial court erred in finding continued visitation with her would be detrimental to C.C. and, in essence, improperly permitted C.C. himself to preclude or veto visitation.

While Lisa's appeal was pending, in March of 2009, the juvenile court entered a family-law exit order (under 362.4 W&IC) awarding sole legal custody of C.C. to his father, authorizing monitored visits and terminating jurisdiction. The appellate court nonetheless agreed to hear Lisa's appeal, even though the primary issues raised in it were rendered moot by the 362.4 order, to avoid "the possibility [Lisa] will be prejudiced by the court's finding of detriment and order terminating visitation in some collateral proceeding".

Having thus agreed to hear the appeal, the appellate court found that the juvenile court's orders denying visitation were not supported by by clear and convincing evidence that further visitation with Lisa would be detrimental to C.C. The appellate court noted that "[w]ithout visitation of some sort, it is virtually impossible for a parent to achieve reunification" and expressed that "we cannot tell from the record whether the court's reasoning was properly tethered to the statutory directive mandating parental visitation unless there exists substantial evidence of a threat to the child's safety". For those reasons, the orders suspending visitation were reversed. In light of the subsequent disposition of the case, which included an order restoring visitation, no remand was deemed necessary.

Opinion: B208675.PDF, B208675.DOC

In re R.C. (Unpub'd), No. C059179

R.C. (then six years old) and his sibling were detained in July 2006 upon allegations that mother's mental instability (chronic depression and anxiety) rendered her unable to care for them. The juvenile court sustained the allegations in the petition, and the matter was continued for a dispositional hearing with an order that appellant participate in a psychological evaluation as arranged by the social worker. A psychological evaluation was not completed by the time of the dispositional hearing. The juvenile court ordered services for appellant as recommended by the social worker and again ordered a psychological evaluation.

The SSA's report at the six-month review was fairly positive, showing that mother was attending therapy and a parenting class, and consistently attended visits. The court therefore ordered services be continued and again ordered a psychological evaluation "to identify how to best tailor [appellant's] services." However, the evaluation which was ultimately prepared made no such recommendations, but instead concluded that "it was 'very unlikely' she could benefit from services sufficiently within 12 months such that she would be able to parent her children." The 12-month review report, however, made some recommendations of services, including referral to a neurologist for evaluation.

At the 12-month review hearing in October 2007, the juvenile court found reasonable services had not been provided because the psychological evaluation initially did not address the tailoring of services. The court ordered the Department to utilize the plan of services developed by the psychological evaluation, and set the matter for an 18-month review hearing. However, none of those services were actually provided by the SSA between October, 2007 and the 18-month review hearing. Accordingly, the court terminated services.

Mother appealed, arguing that she was not provided reasonable services during the last six months of reunification efforts. The appellate court noted that Mother "was not provided most of the services in her updated case plan, including individual therapy, independent living skills training and a neurological examination" and that the only service provided following the 12-month review was hands-on parenting training with R.C.'s sibling. Accordingly, the appellate court held that the juvenile court's termination of services at the 18-month hearing was not based on a reasonable finding that appropriate services had been provided, and therefore that the termination of services was an abuse of discretion.

Accordingly, the order terminating reunificaiton services was reversed, and the case was remanded with direction to the juvenile court to order additional reunification services.

Opinion: C059179.PDF, C059179.DOC

D.M. et al. v. Superior Court (Unpub'd), No. G041370

C.M. (now 15 years old) was adopted by D.M. (father) and L.M. (mother) in 2003 at age 9. According to C.M., she never felt a sense of belonging with her adoptive parents. Her birth mother reappeared in her life when she was in seventh grade, showering her with affection. The birth mother contacted C.M. at school and attended her basketball practices. Meeting surreptitiously, C.M. enjoyed the attention. But her behavior deteriorated, marked by lying, stealing, a defiant attitude, and truancy. She stole money from her adoptive mother to give to her birth mother, and stole cell phones from friends to call her birth mother. Petitioners placed C.M. on restriction and further attempted to modify her behavior and safeguard her by moving her to a different school.

Petitioners grounded C.M. on May 17, 2008, after she received a poor report card and a classmate's father complained she harassed his daughter with hostile text messages. While the rest of the family attended a birthday party, C.M. remained home. Later claiming she only intended to cause the two family dogs to have diarrhea for her mother to clean up, C.M. fed the animals her adult sister's medication, Naproxen. The family returned home to find one dog already dead and the other, foaming at the mouth, about to die. Petitioners called the police, who arrested C.M. for animal cruelty, escorting her out of the house in handcuffs. The police transported C.M. to juvenile hall, where she spent two months awaiting a delinquency hearing on two counts of misdemeanor animal cruelty filed by the district attorney.

On June 11, 2008, the delinquency court sustained the district attorney's animal cruelty allegations against C.M. and ordered a probation report. Based on her interview with the parents, the probation officer concluded they "have no desire to reunify with the minor." According to the probation officer, the parents planned "to pursue reversal of the adoption." The officer "d[id] not recall that the parents ever referred to the child they have raised for the past seven years as their 'daughter.' It is clear they want no part of a future relationship with her." They proffered no relatives or suitable adults to assume responsibility for C.M.

On the basis of this decision, the SSA filed a dependency petition under 300(b) and 300(g), alleging, inter alia, that C.M. was left without any provision for support by her adoptive family. The parents declined reunification services, and after a conference and an SSA's report in November, 2008, the court determined that dependency jurisdiction was more appropriate for C.M. than wardship.

The parents filed a petition for extraordinary writ, contending that the SSA and probation department's report prepared under 241.1 W&IC was inadequate because no independent assessment was done by C.M. probation officer, that the court erred in declining to require C.M.'s probation officer to consider a new wardship petition under 601 W&IC, and that substantial evidence did not support the court's jurisdictional findings.

As to the first contention, the appellate court held that since, at the time the November report was prepared, C.M. was not a ward of the court and thus a 241.1 report was not required, and in any case, there was no evidence the probation department failed to participate in the preparation of the evaluation. The appellate court likewise rejected the second contention, noting that since a 241.1 report was not required, the trial court therefore did not err in refusing to order the probation department to consider filing a section 601 petition as part of preparing such a report.

As to the sufficiency of the jurisdictional findings, the appellate court noted that "petitioners' focus on how they believe the dependency proceedings reflect poorly on them misconstrues the purpose of juvenile court dependency jurisdiction" because "[f]undamentally...the focus of the system is on the child, not the parents." The appellate court noted that, whatever their motives for doing so, the parents' actions left C.M. with no home and nowhere to go, and that therefore jurisdiction under 300(g) was justified.

The orders of the juvenile court were thus affirmed, and writ relief was denied.

Opinion: G041370.PDF, G041370.DOC

In re Charles N. (Unpub'd), No. A121373

This case comprised three consolidated appeals by the parents and grandparents of Charles N., who was taken into the juvenile dependency system before he was a year old. The dependency concluded with the termination of both parents' rights as to the child. Through this entire period, the grandparents unflaggingly sought to have the child placed with them, even if the reunification efforts of the parents were not successful.

The parents, who filed separate and lengthy briefs, presented numerous arguments looking to overturn the order terminating their parental rights. Many of these arguments are joined by the grandparents.

The primary goal of the grandparents' appeal — which was joined by the parents — was to overturn the placement order made at the same time as the termination order. They insisted that the juvenile court abused its discretion in maintaining placement with the foster parents who were prepared to adopt, arguing that what the court should have done was shift placement to a member of the family, most obviously the grandparents themselves.

The appellate court, after considering all the arguments in a 49-page opinion, expressed that "although we sympathize with the family's frustration at not getting custody, we are unable to conclude that the juvenile court exceeded the bounds of reason by leaving the minor with the extraordinarily-qualified foster parents who had cared for him since he was detained." Accordingly, the juvenile court's orders were affirmed, and the appeals were denied.

Opinion: A121373.PDF, A121373.DOC

Case Law Update: 10 April 2009

2009-04-11T12:56:00.000-07:00

Juvenile Dependency Opinions - 10 Apr 2009

In re E.G. (Unpub'd), No. F056515

E.G. was detained in January 2008 (at age 10 months) after he suffered a significant burn on his lower back. Based on the fact that C.J. (mother) neither sought treatment nor could reasonably explain the injury, and the fact that C.J.'s other son M. had two years previously been removed (at the age of 9 months old) following a similar injury and that parental rights for M. were ultimately terminated, E.G. was detained upon allegations under 300(a), 300(b) and 300(j) W&IC.

The court granted E.G.'s father reunification services, but denied them to C.J. pursuant to 361.5(b)(7) and 361.5(b)(11) W&IC (prior denial of reunification services for a sibling, and parental rights terminated as to a sibling.) C.J., after completing a domestic violence class, a parenting course and substance abuse treatment, filed a petition under 388 W&IC seeking reunification services. That petition was denied after an evidentiary hearing, and though C.J. appealed the denial, she failed to file a timely writ petition, resulting in dismissal of the appeal.

C.J. then filed a second 388 petition, seeking reunification services or the return of E.G. to her care, and alleging that she continued to participate in services, that she had established an appropriate home for E.G., and that his best interests would be served because she consistently visited him and demonstrated an ability to care safely for him. This second petition was heard concurrently with a 366.26 hearing, at which the juvenile court denied the 388 petition for failure to show changed circumstances, determined E.G. was likely to be adopted, and terminated parental rights.

C.J. appealed the denial of the 388 petition, contending the court abused its discretion when it denied her modification petition because she satisfied both requirements of a section 388 petition, namely that there are changed circumstances and a modified order would promote the child's best interests.

The appellate court held that C.J. failed to introduce any evidence of changed circumstances other than that introduced at her first 388 hearing, and that further, the record showed other services were offered to her which she did not take advantage of. The appellate court also noted that she "minimized her need for mental health treatment and needed another mental health evaluation." Finally, the appellate court noted that C.J. overlooked "the evidence in the department's '366.26 WIC Report' that they no longer shared a strong parent-child relationship". Accordingly, the appellate court concluded the juvenile court had properly exercised its discretion in denying her second 388 petition, affirmed the order terminating parental rights, and denied the appeal.

Opinion: F056515.PDF, F056515.DOC

In re S.R. et al. (Unpub'd), No. E046194

Appellants W.R. (Father) and C.R. (Mother) are the parents of seven children, the youngest five of whom are the subjects of this appeal. The parents separately appealed from orders terminating their parental rights to their three youngest children, twins Child 1 and Child 2, now ages six, and Child 3, now age five, and placing those children for adoption. Mother also appealed from an order denying her 388 W&IC petition seeking to terminate a guardianship for Child 4, now age 11, liberalize Mother's visitation with Child 4, and Child 5, now age 12, and reinstate Mother's services for Child 1, Child 2, Child 3, Child 4, and Child 5. The parents' two oldest children, Child 6, now age 16, and Child 7, now age 18, were dependents of the court but were later returned to Mother's care and are not subjects of either parent's appeal.

The parents raised a wide variety of contentions, including inter alia that the juvenile court erroneously determined that ICWA did not apply because the SSA failed to give adequate notice to all federally-recognized Apache tribes. DCS conceded this contention. Accordingly, the appellate court remanded the case to the juvenile court so that the SSA could give adequate ICWA notice. The appellate court stated that, in the event no tribe intervenes, all affected orders shall continue to have full force and effect. In all other respects, the appeals were denied.

Opinion: E046194.PDF, E046194.DOC

In re B.W. (Unpub'd), No. G014490

B.W. (then age six) was detained in 2003 based on mother's inability to protect him. Father's whereabouts were then unknown, and the dependency terminated in 2006 with a guardianship placement with B.W.'s maternal aunt and uncle. A second dependency proceeding was initiated in late 2006 alleging general neglect and caretaker absence by his guardians. In response to the petition, the aunt and uncle stated they no longer wished to serve as guardians, and that they did not want him returned to their care because of fear of false allegations "coached" by his mother.

The court ordered the child detained and placed with foster parents. In July, 2007, father contacted the SSA from Ohio, claimed he had been unaware of the dependency proceeding, and asked for custody of the child. In October, 2007, the court held a 366.26 hearing at which it adopted long-term foster care as the permanent plan. In April, 2008, over the father's objection, the child's caretakers (who had several times expressed interest in guardianship) were given de facto parent status.

At a status review hearing in May, 2008, the court noted that "there is a more permanent plan available other than long-term foster care for this child" based upon the caregivers' interest in guardianship. The court further noted that the evidence "clearly shows that the father is not an appropriate person to return the child to at this time and it would clearly not be in the child's best interest to return the child to the father at this point." The court explained that the father had never met the child, has shown no real involvement in B.W.'s life, and has made no effort to work a case plan. Accordingly, the court set a new 266.26 hearing to terminate parental rights and adopt guardianship as the permanent plan, and denied father's requests for placement.

Shortly before the 366.26 hearing, father filed a 388 petition seeking placement of B.W. with him. The court rejected this petition without a hearing, finding that father had shown neither changed circumstances nor that placing B.W. with him would be in his best interest.

Father appealed the denial, arguing the court erred in denying his petition without a hearing. The appellate court held that the juvenile court was well within its discretion in denying father's petition, explaining that "[f]ather's petition did not establish a change in circumstances or other new evidence that would suggest a modification of the court's previous orders would promote the child's best interests." The court further explained that "[t]here were simply too many concerns with father to merit changing the child's successful placement with his foster parents, such as father's previous lack of interest or involvement in the child's life, father's mental health issues, father's prior illegal drug use and incarceration, father's residence in Ohio, and the lack of evidence suggesting father was capable of managing the child's behavioral problems." Accordingly, the juvenile court's order was affirmed, and father's appeal was denied.

Opinion: G014490.PDF, G014490.DOC

Case Law Update: 09 April 2009

2009-04-10T09:20:00.000-07:00

In re Leah S. et al. (Unpub'd), No. C059580

Marsha S., mother of Leah S. (aged 9) and Melissa S. (aged 13), and Ronald V., father of Leah S., appeal from orders of the juvenile court terminating the parental rights of mother and father under 366.26 W&IC. Mother and father contended the juvenile court committed reversible error in finding that Melissa did not object to the proposed permanent plan of adoption, and in concluding that the beneficial parental relationship exception of 366.26(c)(1)(B)(i) W&IC did not apply.

As to the first issue, the appellate court noted that Melissa had testified at the 366.26 hearing, both in response to the court's questioning and that of her counsel, that she understood reunification was not under discussion and that she had clearly expressed a desire for the permanence of adoption. The appellate court concluded that, in light of that evidence, the juvenile court had properly discharged its duty under 366.26(h)(1) W&IC to "consider the wishes of the child" and that substantial evidence supports its conclusion that Melissa did not object to adoption.

As regards the beneficial relationship exception, the appellate court explained that the statute requires "both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship". On the facts before it, the court held that, although there was evidence of regular contact, "the record here does not support mother's suggestion that the minors would benefit substantially from continuing their relationship with her primarily because of the length of time the minors had lived with her and the attachment existing between them."

The juvenile court's orders were thus affirmed, and the appeal was denied.

Opinion: C059580.PDF, C059580.DOC

In re E.J. (Unpub'd), No. B209123

E. (then 10 years old) was detained in March 2008, following an allegation of molestation by E.J. (father) made by her 12-year-old sister. At the dependency proceeding, E. testified that she was not molested, and other witnesses controverted some of E.'s sister's testimony. Nevertherless, the court found that E.'s sister's testimony was credible, that E.'s testimony was not credible, and that E. wanted to protect her father. The court sustained a dependency proceeding under 300(d) W&IC. E.J. was at that time incarcerated, and based on the length of his incarceration, no reunification services were ordered. E. was placed with her mother.

After E.J.'s counsel (appointed by the appellate court) informed the court that she was unable to file an opening brief on the merits, E.J. himself filed a letter brief arguing that E.'s sister's unsubstantiated testimony is not substantial evidence for the trial court ruling denying him reunification services. He contended that E. was not at risk of harm, citing her testimony that she was never inappropriately touched.

The appellate court noted as a preliminary matter that the review of the juvenile court's finding is for substantial evidence, and that the appellate court may not and does not reweigh the evidence. Further, the appellate court noted that reunification was denied as to E. based on the length of E.J.'s incarceration and not under 361.5(b)(6) W&IC.

Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: B209123.PDF, B209123.DOC

Case Law Update: 08 April 2009

2009-04-08T15:06:00.000-07:00

In re R.W., No. G040791

The opinion in this matter (appealing orders limiting A.W. (mother)'s right to make educational decisions on behalf of the minor and ordering the minor placed in a residential treatment program in Laramie, Wyoming) filed on March 26, 2009 was certified for publication under Calif. Rules of Court rule 8.1105(c) upon a request by the SSA.

Opinion: G040791.PDF, G040791.DOC

In re J.W. (Unpub'd), No. D054099

R.W. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to her children. Citing In re Sade C. (1996) 13 Cal.4th 952, she asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent", denied her appeal.

Opinion: D054099.PDF, D054099.DOC

In re. L.M. (Unpub'd), No. D054363

Rebecca G. appeals the findings and orders entered at a dispositional hearing held under 360(d) and 361(c) W&IC. Citing In re Sade C. (1996) 13 Cal.4th 952, she asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent", denied her appeal.

Opinion: D054363.PDF, D054363.DOC

In re J.J. (Unpub'd), No. A122599

J.J. (minor) was detained in October, 2006, following allegations under 300(b) and 300(g) W&IC, and was subsequently returned to P.L. (mother) under family maintenence. A subsequent petition under 387 W&IC was filed in 2007, alleging that mother had left J.J. with his godmother and that mother's whereabouts were unknown, and that J.J. had a fracture to his right femur which had been left untreated. J.J. was detained in P.'s care, and reunification and visitation were ordered for mother. At six- and twelve-month review hearings, the SSA reported problems with mother's compliance with both reunification services and visitation.

In July, 2008, mother filed a 388 petition seeking return of the minor and dismissal of jurisdiction, which was summarily denied, with the court finding that mother's efforts were "much too little, much too late" and that the evidence of changed circumstances submitted by mother was unverified. At the 366.26 hearing in August, 2008, the court terminated parental rights. Mother appealed, arguing that the juvenile court abused its discretion in denying her 388 petition without a hearing, and that the juvenile court erred in finding that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply.

As to the denial of mother's 388 petition, the appellate court agreed that section 388 imposes no requirement that an attachment to the petition be separately verified, but held that, given the case's procedural posture and J.J.'s interest in permanency, there was no showing that additional testimony would have produced a different result and therefore no abuse of discretion in the denial.

As to the termination of parental rights, the appellate court explained that the juvenile court had terminated mother's parental rights after finding clear and convincing evidence that minor was likely to be adopted and that the permanence and stability offered by his continued placement with P. was in his best interests. In so ruling, the appellate court found, the juvenile court had properly determined that J.J.'s need for permanency and stability outweighed his relationship with his mother, and the juvenile court did not err in determining that the beneficial relationship exception did not apply.

The juvenile court's orders were thus affirmed, and the appeal was denied.

Opinion: A122599.PDF, A122599.DOC

In re Holly B. (Unpub'd), No. C058116

Cluster B. (father) appealed from an order filed by the SSA rescinding a prior order for a psychological examination of Holly B. (minor), and from findings and orders at a status review hearing continuing the minor in foster care.

He alleged that the juvenile court abused its discretion in granting the SSA's order and thereby erred in finding that the Department provided adequate services to the minor. He also argued that the findings and orders were invalid because the court failed to comply with the notice provisions of ICWA

As to the recission of the order for the pyschological evaluation, the appellate court held that, because the purpose of the psychological evaluation was to aid the SSA in selecting determining an appropriate level of placement, Cluster lacked standing to challenge its recission.

As to the ICWA issue, the appellate court held that, because the orders issued at the status hearing did not affect the minor's placement in foster care or the termination of her parents' rights, the notice requirements of ICWA were not implicated in those orders. Therefore, the appellate court held this issue not to be cognizable on appeal.

The lower court's orders were thus affirmed, and Cluster's appeal was denied.

Opinion: C058116.PDF, C058116.DOC

D.S. v. Superior Court (Unpub'd), No. G041451

D.S. (mother) petitioned for extraordinary writ relief from the orders of the juvenile court referring the dependency proceedings regarding her three younger children, V.S., A.S. and S.S., to a permanent plan selection hearing.

She challenged the jurisdictional finding as to S.S., arguing that there was no substantial evidence of harm to support jurisdictional findings under 300(b) and 300(j) W&IC. Additionally, she challenged the order denying her reunification services as to all three of the children under 361.5(b)(10) W&IC, arguing that she made reasonable efforts to treat the substance abuse issues that led to removal of her four older children.

As to the first issue, the appellate court held that substantial evidence, including ongoing drug use and incarcerations, supported the court's finding of substantial evidence of harm. As to the denial of reunification, the appellate court noted that "[d]espite years of services, she repeated the same neglectful behavior with V.S. and A.S. that she had exhibited with the older children. She left her children with an unsafe caretaker, she engaged in criminal activity resulting in her incarceration, and she continued to associate with the father, who was a long-term drug addict and a negative influence in her life." The appellate court held that these facts supported the denial of reunification services.

Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: G041451.PDF, G041451.DOC

E.M. et al. v. Superior Court (Unpub'd), No. G041223

Petitioners W.L., a prospective adoptive mother, and now four-and-a-half- year-old E.M. and almost three-year-old C.M. (the children), filed petitions for extraordinary writ challenging an order removing the children from W.L.'s home under 366.26(n) W&IC based on issues with the children not receiving proper nutrition and the prospective adoptive parent's failure to address those issues or to complete the requirements of the adoptive home study. Petitioners contended it was not in the children's best interests to be removed from W.L.'s care or separated from their sibling whom W.L. had previously adopted.

The appellate court, after noting that the decision in this matter was a difficult one, held that the juvenile court had properly weighed the factors mitigating both in favor of and against the removal. The appellate court concluded that the juvenile court's decision, after weighing all of the evidence, constituted "a reasonable exercise of discretion" and declined to disturb it.

The writ petitions were therefore denied.

Opinion: G041223.PDF, G041223.DOC

In re J.B. (Unpub'd), No. G040774

C.B. (mother) appealed an order denying her 388 W&IC petition seeking requesting placement of the minor with her or, alternatively, extended reunification services.

Mother's request was based on evidence that since December 2007 (about six months prior to the filing of the petition), she had been in a sober living program, had drug tested, and had completed a parenting class. The juvenile court had noted that mother's sobriety appeared "to be a work in progress[,] so that it is really more a showing of changing circumstances as opposed to an actual change in circumstances." The juvenile court therefore held that Mother's changes in her life did not yet "prove her situation had really changed" and denied her petition.

On appeal, Mother argued that her petition had in fact been supported by evidence of changed circumstances, including declarations in her favor. The appellate court, however, noted that Mother had to show not only changed circumstances, but also that her petition would be in the minor's best interests, and held that Mother had not met the second prong of the test.

As the appellate court explained, "Mother is in the beginning stages of resolving a 20-year drug problem. At the time of the hearing, she had only lived one month outside the sober living home and had a history of relapses. Mother's brief and recent sobriety does not support a finding the requested modification would be in J.B.'s best interests."

Accordingly, the juvenile court's denial of the 388 petition was affirmed, and Mother's appeal was denied.

Opinion: G040774.PDF, G040774.DOC

In re Wyatt N. (Unpub'd), No. D054091

Jay N. (father) filed a petition under 388 W&IC seeking to set aside the order at a six month review hearing terminating reunification for failure to comply with his case plan and setting a 366.26 hearing, and impliedly seeking to set aside the subsequent order at the 366.26 hearing (held the same day the 388 petition was heard) terminating his parental rights.

He contended that his circumstances had changed in that he had been clean and sober since for about ten months and had completed a parenting class. He asserted that it was in Wyatt's best interests to be with his biological father. Jay submitted a certificate showing that he had completed a 12-session parenting education program.

The appellate court observed that "Jay's modification petition did not contain facts showing that Jay could attend to Wyatt's needs without support or intervention during visitation, or that a mental health professional or social worker had concluded that Jay was now able to safely and appropriately parent Wyatt, or that Jay had continued to participate in a substance abuse treatment or a 12-step program." Accordingly, it held that the juvenile court had not abused its discretion in determining that Jay's petition failed to show a prima facie case for changed circumstances and best interests of the child.

The juvenile court's orders were thus affirmed, and the appeal was denied.

Opinion: D054091.PDF, D054091.DOC

In re J.M. et al. (Unpub'd), No. C058919

L.M. (appellant), the mother of eight minors, appealed from an order of the juvenile court denying her motion for substitution of appointed counsel. Claiming an irreconcilable conflict with trial counsel existed, such that ineffective representation by counsel was a likely outcome, appellant contended the juvenile court's denial of her motion was an abuse of its discretion, from which she suffered prejudice.

The appellate court held that "[b]ased on the record before it, the court's implicit determination that the conflict between appellant and her trial counsel was not irreconcilable was well within its discretion." It further held that, finding no abuse of discretion, it need not consider the claim of prejudice.

Therefore, the juvenile court's order denying the motion for substitute counsel was affirmed, and the appeal was denied.

Opinion: C058919.PDF, C058919.DOC

Case Law Update: 07 April 2009

2009-04-07T15:06:00.000-07:00

In re Andrew M. (Unpub'd), No. B208640

Andrew M. (born 1994) was detained in September, 2007, upon allegations under 300(a), 300(b), and 300(d) W&IC alleging that Robert M. (father) had physically and sexually abused Andrew, including beating him with a belt and coat hanger and by sodomizing him on at least two occasions. After a contested hearing which was continued several times, the court sustained the 300(a) and 300(d) allegations, and four out of five of the 300(b) allegations and removed Andrew from his father's custody. The father appealed, contending that the court had abused its discretion in denying a third continuance, and further that the court's refusal to allow father's counsel to present a closing argument was a violation of due process. He also alleged that there was not substantial evidence to support the jurisdictional and dispositional findings.

As to the issue of the continuance, the appellate court held that the juvenile court had not abused its discretion by denying the continuance because the minor's need for prompt resolution of the case was of primary importance, and because the requested continuance would have caused the hearing to be delayed past six months om the detention hearing. On the second issue, the appellate court held that no authority supports Father's contention that he has a due process right to present a closing argument, and that the court's determination of Andrew's credibility placed father's privilege to present a closing argument within the court's discretion. As to the sufficiency of the evidence, the appellate court held that "[i]n this case, the substantial evidence standard is easily met." Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: B208640.PDF, B208640.DOC

In re K.M. (Unpub'd), No. B207743

K.M. was detained shortly after her birth in May, 2007, due to information that mother was depressed, with possible suicidal ideation. At a 12-month hearing in May, 2008, the SSA reported that mother had stated many times to the CSW that she felt that K.M. was well taken care of and that the best place for her was with father, where she had been placed since disposition under Agency supervision. On May 8, 2008, the court terminated jurisdiction and entered a custody order pursuant to section 362.4. Father was awarded sole physical custody of K.M., while both parents were given joint legal custody.

Father appealed the custody order, contending that the grant of joint legal custody was an abuse of discretion and unsupported by substantial evidence because the evidence showed mother was a danger to K.M., because she had insufficient mental stability to warrant unsupervised visits with her, and because there was insufficient evidence of mental stability to justify allowing mother to participate in making significant decisions about K.M., or to interfere with father's choices.

The appellate court held that the evidence showed K.M. was able to participate in decisionmaking, and that father never suggested that mother had interfered with K.M.'s care. Having found no evidence that the court's decision was arbitrary, capricious or patently absurd, the appellate court affirmed the order and denied the appeal.

Opinion: B207743.PDF, B207743.DOC

In re A.A. et al. (Unpub'd), No. B201619

S.A. appealed from the order terminating her parental rights to her son A. and her daughter G. D.J. (who is G.'s father, but not A.'s) appealed from the order terminating his parental rights to G. Both contended that teh beneficial relationship exception of 366.26(c)(1)(B)(i) should have applied. The appellate court noted that S.A. had only cared for the children for a short period of time but was never their primary caretaker. The noted that D.J. visited when he was not incarcerated, but that "we can find nothing in those facts which mean that he occupied a parental role in her life." Accordingly, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: B201619.PDF, B201619.DOC

In re I.R. et al. (Unpub'd), No. D053861

Emma C. and Isidro V. (together, the parents) appealed judgments declaring their minor children I.R. and Carolina V. (together, the minors) dependents of the juvenile court under 300(b) W&IC (because of parental drug use and violation of the terms of a voluntary services agreement) and removing them from parental custody. The parents argued that at the time of the hearing, the minors were not subject to the defined risk of harm because Emma was cooperating with Agency, participating in drug treatment and testing negative for drugs.

The appellate court noted that both parents were drug abusers, and that they had failed to comport with the terms of their voluntary services agreement. The appellate court further noted that substantial evidence supported the juvenile court's finding that "returning the minors to Emma's custody was not a feasible alternative". Accordingly, the judgments were affirmed, and the appeals denied.

Opinion: D053861.PDF, D053861.DOC

In re L.M. (Unpub'd), No. B212023

J.W. (Mother) appealed from the order summarily denying her 388 W&IC petition seeking that reunification services be restored and the 366.26 hearing be taken off calendar, as well as the order terminating her parental rights over L.M. (Daughter). Mother contends the juvenile court's erroneous decision to deny her section 388 petition without a hearing requires reversal of the order terminating parental rights and remand for a hearing on her section 388 petition.

The appellate court held that mother failed to make a prima facie showing of a change of circumstances, because Mother has a history of drug abuse more than two decades long, she has been involved with the juvenile dependency system for 13 years, she has lost her six oldest children because of her drug abuse, and the record showed she was continuing to struggle with drug addiction. Accordingly, the appellate court concluded that the juvenile court acted well within its discretion in summarily denying the petition, and affirmed the lower court's orders.

Opinion: B212023.PDF, B212023.DOC

In re Sebastian L. (Unpub'd), No. D054096

Z.C. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to her child. Citing In re Sade C. (1996) 13 Cal.4th 952, she asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent", denied her appeal.

Opinion: D054096.PDF, D054096.DOC

In re J.C. (Unpub'd), No. D054428

C.C. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to his children. Citing In re Sade C. (1996) 13 Cal.4th 952, he asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [his] custody of a child or [his] status as the child's parent", denied his appeal.

Opinion: D054428.PDF, D054428.DOC

In re S.C. et al. (Unpub'd), No. E046590

Both parents together appealed the termination of parental rights as to their children, S.C. (age four) and J.C. (age 3). They argue the juvenile court applied the wrong legal test in determining that the beneficial parent-child relationship exception to termination of parental rights (366.26(c)(1)(B)(i) did not apply because the mother did not establish day-to-day contact.

The appellate court explained that "[c]ontrary to mother's assertion, the trial court did not find that the exception was inapplicable based on the lack of day-to-day contact, although the court did mention that as one of several criteria to consider in determining whether there was a significant bond. The court properly evaluated the existence of a significant relationship, needed to establish the exception; the isolated reference to day-to-day contact was simply the court's attempt to describe a significant relationship as one based on frequent contact in a parental role, rather than just having a visit and playing with your children." Accordingly, the court held that the juvenile court had properly determined the exception did not apply. The juvenile court's orders were affirmed, and the appeal was denied.

Opinion: E046590.PDF, E046590.DOC

In re B.C. (Unpub'd), No. E045996

Father appealed from the termination of his parental rights under Welfare and Institutions Code section 366.261 as to his daughter B.C. (minor), who was born in 1995. Father challenged the sufficiency of the evidence to support the order terminating his parental rights. He also argued the termination order should be reversed because he has a continuing and beneficial bond with minor and an exception to the termination of parental rights of 366.26(c)(1)(B)(i) applies.

The appellate court held that because, at the 18-month review hearing, "father had not demonstrated an ability to complete the objectives of the case plan or to provide for minor's physical and emotional well-being and special need for close supervision and guidance", substantial evidence supported the termination of parental rights and reunification services. The appellate court further held that although it was undisputed that father had a continuing bond with the minor and frequent and consistent visitation, father was unable to establish himself in a positive parental role for any significant period of time despite continuing contact and reunification services on two separate occasions. Accordingly, the juvenile court's judgment was affirmed, and the appeals were denied.

Opinion: E045996.PDF, E045996.DOC

In re J.R. (Unpub'd), No. A121721

N.R. (mother) appealed from the termination of her parental rights to her son, J.R. She argued the juvenile court erred by failing to apply the beneficial parental relationship exception of 366.26(c)(1)(B)(i) W&IC because she had a warm relationship with J.R. and because the juvenile court failed to order a bonding study.

The appellate court held preliminarily that mother's argument regarding a bonding study was forfeited because she failed to raise it in the juvenile court following the initial 366.26 hearing, and rejected her argument that the court should have ordered it sua sponte. The appellate court further held that the fact that mother had (and the juvenile court recognized) a warm relationship with J.R. and that the court had commented that it would would be in J.R.'s best interest to maintain contact with her and other maternal family members did not conflicts with the court's ultimate decision that the beneficial parental relationship exception did not apply. Accordingly, the lower court's order was affirmed, and the appeal was denied.

Opinion: A121721.PDF, A121721.DOC

In re L.T. et al. (Unpub'd), No. A122050

At an 18-month status review hearing, the juvenile court declined to set a hearing under 366.26 W&IC and instead ordered minors H.T. and L.T. placed in long-term foster care. The minors appeal, arguing that because there was not clear and convincing evidence they were not proper subjects for adoption, the court was required to order a section 366.26 hearing. The minor's mother filed a respondent's brief in support of the juvenile court's order. Respondent Contra Costa County Bureau of Children and Family Services (CFS) then filed a motion to dismiss this appeal as moot because the juvenile court, at another review hearing, scheduled a section 366.26 hearing to be held on June 4, 2009.

The appellate court noted that "[t]he relief sought in the appeal is an order requiring the juvenile court to set a section 366.26 hearing. The juvenile court has already done so. Even if the trial court was wrong in failing to order the section 366.26 hearing before, it has now given the minors the only relief this court could have afforded them." The appellate court further rejected mother's opposition of the motion to dismiss, arguing that the juvenile court did not give minors the relief they seek in their appeal because what they are seeking is a permanent plan of adoption, holding that the ultimate disposition of the case was not an issue under appeal. The appeal was therefore dismissed as moot.

Opinion: A122050.PDF, A122050.DOC

In re P.L. et al. (Unpub'd), No. E046549

S.W. (mother) appealed from the termination of her parental rights under 366.26 W&IC as to her daughter E. (born 2005); son K. (born 2006); and daughter P. (born 2007). Mother challenged the sufficiency of the evidence to support the juvenile court's finding of adoptability, as well as the order terminating her parental rights. She also argued the termination order should be reversed, because she has a continuing and beneficial bond with all three children, so an exception to the termination of parental rights applies as set forth in section 366.26(c)(1)(B)(i). C.L. (father) joined mother's appeal pursuant to rule 8.200(a)(5) of the California Rules of Court, and also sought reversal of the order terminating his parental rights.

The appellate court held that, notwithstanding the children's special needs, substantial evidence including the social worker's testimony supported the finding that they were adoptable. The appellate court further held that mother's good relationship with the children did not outweigh the benefits the children would gain from adoption. Accordingly, the juvenile court's orders were affirmed and the appeals were denied.

Opinion: E046549.PDF, E046549.DOC

Case Law Update: 06 April 2009

2009-04-06T23:10:00.000-07:00

In re A.R. (Unpub'd), No. B207622

A.R. (minor, born March 2005) was detained from R.R. (father) and M.L. (mother) following allegations under 300 W&IC that parents' history of drug abuse and domestic violence rendered them incapable of providing A.R. with care and supervision. These allegations were sustained and a case plan, including drug treatment and random testing, domestic violence counseling, and parent education for R.R. was ordered. Notwithstanding reports in late 2005 that R.R. was failing to comply with these services, the dependency court ordered in January 2006 that reunification services be extended. At the conclusion of a 12-month review hearing in August, 2006, at which R.R. did not appear, his services were terminated. At a review hearing in December, 2006, at which neither parent appeared, the court terminated M.L.'s services, set a 366.26 hearing and ordered that an adoptive homestudy for A.R.'s caretakers be initiated. Notices were sent to counsel for both parents in late 2006.

In October, 2007, R.R., in pro per, filed a 388 petition alleging that he had not "received adequate notices of any...past hearings" and requesting that "any and all of the dependency court's 'orders of adoption be quashed'." This was set for a contested hearing in January 2007, which was continued several times. In May, 2008, the juvenile court denied R.R.'s 388 petition and terminated his parental rights. R.R. appealed the termination, contending that reasonable reunification services were not provided and that the juvenile court abused its discretion in failing to extend his reunification services beyond the 12-month hearing.

As a preliminary matter, the appellate court noted that the usual rule waiving appeals of termination of parental rights when a petition for extraordinary writ has not been filed did not apply in this case because the fact that R.R.'s parental rights were terminated at a different time than M.L.'s did not trigger the advisement of his right to file a writ petition required by 366.26(l)(3)(A) W&IC. Nonetheless, the appellate court found that substantial evidence supported the juvenile court's conclusions that reasonable services were provided and that R.R. failed multiple times to comply with the terms of those services, including missing more than a dozen scheduled drug tests. Accordingly, the juvenile court's orders were affirmed, and R.R.'s appeal was denied.

Opinion: B207622.PDF, B207622.DOC

Case Law Update: 03 Apr 2009

2009-04-06T10:38:00.001-07:00

In re W.J. Jr. (Unpub'd), No. E046533

W.J. Jr. (then 7) was detained in 2008 following W.J. (father)'s arrest for domestic violence which left both C.P. (father's girlfriend) and the minor with visible injuries. (The minor was struck by a telephone thrown by C.P. during the altercation). Father admitted to drinking daily and refused to stop; however, he alleged that he did not get drunk or abuse alcohol. Father stated that some people reportedly believed that he had a drinking problem, although he denied it. Father also denied any current drug use. Father subsequently pled guilty to a charge of willful cruelty to a child. The SSA filed a petition under 300 W&IC alleging failure to protect by father in that he engaged in acts of domestic violence in minor's presence, failed to protect minor from violence inflicted by C.P., and had substance abuse issues exposing minor to the risk of serious harm or neglect. The court ordered minor detained. At a juris/dispo hearing, the juvenile count found all allegations in the petition true and found minor came under the court's jurisdiction. The court further found that continuance in father's home was contrary to minor's welfare and that clear and convincing evidence supported removal from father's custody in that there was a substantial danger to the minor's physical health, safety, protection, and physical and emotional well-being if returned home.

Father appealed, contending that there was insufficient causal link between the father's behavior and any risk of harm posed to the minor, and that the remoteness in time between the triggering incident and the dispositional order adversely affects the sufficiency of the evidence supporting the court's determination. The appellate court noted that the evidence showed a pattern of domestic violence, as well as father's refusal to participate in services (including drug testing), and that thus "the juvenile court could not order custody with father under strict supervision because it had no evidence father would comply with its orders to ensure minor's safety." Accordingly, the appeal was denied and the juvenile court's orders affirmed.

Opinion: E046533.PDF, E046533.DOC

In re K.M. et al. (Unpub'd), No. C058307

L.M.-H., the mother of K.M., T.M., L.M., and B.M. (the minors), appealed following juvenile court orders sustaining allegations with respect to the children (aged 14, 15, 15, and 17, respectively), who were detained following allegations of physical abuse toward L.M., including repeated stabbings, striking L.M. with various objects including a hammer, a broomstick, and a stick, and keeping L.M. locked in a closet, and evidence of past physical abuse of the other children. At the juris/dispo hearing, the juvenile court sustained the allegations in the amended petitions and denied reunification services, ordering emancipation as the permanent plan goal for the minors. The court also issued an order allowing her only letter contact with K.M. and T.M.

Mother appealed, contending that the juvenile court abused its discretion by allowing her only letter contact with K.M. and T.M. When the appeal was filed, the appellate court requested supplemental briefing to address whether the court made any oral order regarding visitation with respect to K.M. and T.M. and, if not, whether the court's written visitation order accurately reflects the court's intent regarding visitation. The appellate court then found that there was "no actual articulation" of visitation orders with regards to K.M. and T.M., and that the Department's recommended orders (which were adopted by the court), which included an order for regular visitation with K.M., T.M., and B.M., were thus in conflict with the court's oral order regarding B.M. Accordingly, the appellate court remanded to the juvenile court to clarify its visitation orders relative to K.M. and T.M., and to modify its visitation order relative to B.M. to "conform to the visitation order pronounced by the court at the dispositional hearing." In all other aspects, the lower court's orders were affirmed.

Opinion: C058307.PDF, C058307.DOC

California Juvenile Law Blog

IN RE KARLA C. (07/21/2010, No. A126685, 1st Dist.) __ Cal.App.4th __

GARCIA v. W&W COMMUNITY DEVELOPMENT, INC.

Case Law Update - 05 May 2009

In re R.M. and S.M., No. B210077

In re A.G. (Unpub'd), No. E046769

In re Landon V. (Unpub'd), No. G040852

In re J.F. (Unpub'd), No. B204204

In re R.F. (Unpub'd), No. F056167

Case Law Update - 04 May 2009

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In re J.L. (Unpub'd), No. E046591

Case Law Update: 30 April 2009

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In re J.D. #2 (Unpub'd), No. F056616

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In re D.E. (Unpub'd), No. B209038

In re D.S. (Unpub'd), No. A122419

In re C.P. (Unpub'd), No. A122677

In re A.O. (Unpub'd), No. A122663

S.V. v. Superior Court (Unpub'd), No. F057041

Case Law Update - 01 May 2009

In re S.R. et al., No. C060404

J.Y. v. Superior Court (Unpub'd), No. E047690

In re A.M. (Unpub'd), No. E047006

R.G. v. Superior Court (Unpub'd), No. F057022

Case Law Update: 29 April 2009

In re T.B. (Unpub'd), No. G040648

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In re J.L. & L.L. (Unpub'd), No. A122401

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Case Law Update: 28 April 2009

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In re Grace P. (Unpub'd), No. D053605

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Case Law Update: 27 April 2009

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Case Law Update: 24 April 2009

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Case Law Update: 23 April 2009

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Case Law Update: 22 April 2009

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In re William O. (Unpub'd), No. B209426

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Case Law Update: 20 April 2009

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IN RE KARLA C. (07/21/2010, No. A126685, 1st Dist.) Cal.App.4th