Case Law Update - 05 May 2009

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

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

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

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

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