Case Law Update: 27 Feb 2009

  • In. re A.J., JR., et al (A121837) - Adoptability established by totality of evidence / Failure to notice under ICWA harmless error when previous notices negative
    A.J. Sr. (father) appealed an order terminating his parental rights to his three children. He argued that there was insufficient evidence to support a finding of adoptability because an adoptive home study had not yet been completed at the time of the 366.26 hearing, and that the court failed to comply with ICWA because the social worker failed to inquire of A.J. Sr. about possible Indian heritage. The court found that a finding of adoptability is properly based on the totality of evidence, and that the fact that the children's caretakers were willing to adopt and had been designated as prospective adoptive parents was sufficient to establish adoptability. The court further found that, because ICWA inquiries had been made with regard to two other of A.J. Sr.'s children (designated A.J. Jr. and A.J. 2) and both inquiries had returned negative results, the failure of the Department to inquire about Indian heritage in the present case (involving a third child, designated A.J.) constituted harmless error. Accordingly, the lower court's ordered were affirmed.

  • In re I.G. (A123604) - Assertion of therapist/client privilege by a minor pursuant to 317(f) W&IC
    During a contested 12-month review hearing for I.G., the court ordered the therapist who had been providing I.G. and his mother with family therapy to preserve her therapy notes and to provide them to the parties to the dependency proceeding, since the Department had raised a concern about mother's ability to reunify.At the conclusion of one part of that hearing, the court ordered that the therapist provide those notes to the social worker and other parties, after which the hearing was continued. Minor's counsel asserted psychotherapist-patient privilege on I.G.'s behalf but the court overruled her and compelled production of the notes. Eventually, the 12-month hearing concluded and reunification was terminated, and the court ordered the therapist's notes to be sealed I.G. sought a writ of mandate ordering that the notes be struck from the record and destroyed. The court denied the petition, ruling that since the notes had not been used at trial after their production, and they were subsequently sealed, any error with respect to the privilege was unquestionably harmless. However, the court suggested it is better practice for a minor's counsel to seek rulings regarding the issues referred to in 317(f) W&IC when asserting psychotherapist-client privilege on behalf of the minor.

  • In re E.M. et al (B205377) - Reasonable inference that mother should have known sexual abuse was occurring
    E., E. M., and B. (all minors) were detained following allegations that E. had been sexually abused by her stepfather. The sexual abuse allegations were sustained, and the court also found at a juris-dispo hearing that the mother knew or should have known about the ongoing abuse and thus failed to protect her child. The mother appeals, arguing there was no evidence she knew or should have known of the abuse, and she should have been identified as a non-offending parent. E. and B. also appeal, contending there was insufficient evidence to support the finding that the mother failed to protect the children, and therefore insufficient evidence of risk to the children to sustain dependency jurisdiction. As to the mother's claim, the court found that the evidence (including a history of vaginal rashes and burning which E reported to her mother) should have alerted her to a problem, and that she would have discovered the abuse had she investigated. Likewise, the court found that the minors' argument -- that because there was insufficient evidence to support the court’s finding that the mother failed to protect the children, there was not enough evidence of risk to the children to sustain dependency jurisdiction -- was likewise unavailing.

  • In re A.N. (B206726) - Distant past history of lewd acts (288 PC) insufficient to sustain a petition under 300(d) W&IC when present behavior does not establish a risk.
    A.N. was born in December, 1999, when her mother (T.T.) was only 14 years old and her father (H.N.) was 31. As a result of her birth, statutory rape charges were brought, and H.N. eventually pled guilty to four counts of committing lewd acts upon a child 14 or 15 years old (288(c)(1) PC). When A.N. was eight years old, an anonymous complaint triggered an investigation by the Los Angeles County Department of Children and Family Services. The allegation against T.T. (failure to protect, 300(b) W&IC) were sustained, and the allegations against A.A. (substantial risk of sexual abuse, 300(d) W&IC) were dismissed upon a finding that H.N.'s past criminal behavior was too remote in time to pose an ongoing threat. DCFS appealed the dismissal of the allegations against H.N. The court affirmed the dismissal of the allegations against H.N., holding the Department had failed to establish that there was a substantial risk that Father would sexually abuse A.N., and that H.N.'s behavior with A.N. subsequent to the start of dependency (including positive visitation contacts, no inappropriate contact, and H.N's enrollment in parenting classes) was sufficient to rebut the presumption that H.N.'s past criminal history constituted a substantial ongoing risk.

  • In re S.R. (B208464) - Relative placement preference of 361.3 W&IC does not override best interests of the child in determining adoptive placement or permanent plan.
    S. was detained when he was found riding his bicycle on a busy highway and police who returned him home discovered a meth lab in the home. The Department interviewed S.'s grandfather, who stated that he was interested in visitation, but was retired with a degenerative disc in his back and would therefore be unable to care for the child. He stated, however, that if there were no other options for placement, he would make necessary arrangements to care for S. so that he would not have to remain in foster care. The grandfather repeatedly stated over the length of the dependency proceeding that he wished to have visitation but could not adopt S. Subsequently, the father filed a 388 petition asking that S. be placed with his grandfather, who eventually indicated that he wanted to adopt S. because he was concerned about losing visitation. The Department expressed concerns that that being placed with the grandfather was not in S.'s best interests, and on that basis the 388 petition was denied and the court ordered termination of parental rights and adoption by S.'s current caretakers be selected as the permanent plan. Father appealed, stating that the court failed to apply the relative placement preference of 361.3 W&IC, and that the court abused its discretion by failing to independently evaluate whether placement with the grandfather was in S's best interests. The court held that the relative placement preference should be evaluated in the context of the child's best interests, and that no abuse of discretion existed here because it had not been established that placement with the grandfather was in S's best interest.

  • In re Elizabeth P. et al (D053702) - Standard of review for ineffectiveness of counsel in dependency proceedings.
    Elizabeth P. was among three children placed with and eventually adopted by Carmen P. in San Diego County between 2001 and 2006. In August of 2006, the San Diego County Health and Human Services Agency detained the children, alleging that Elizabeth had been subjected to acts of cruelty and that the other children were at risk because of the abuse suffered by Elizabeth. Carmen's husband, who had made the report, subsequently recanted, causing the court to dismiss the allegations and find true amended allegations of neglect. Elizabeth then disclosed additional acts of cruelty and the agency filed additional petitions. At a protracted jurisdictional hearing, the allegations were sustained, reunification services were terminated, and a 366.26 hearing was set. Elizabeth filed several petitions for writ review, contending ineffective assistance of counsel, which was denied. Elizabeth was appointed a new attorney, and subsequently brought a new writ petition seeking that he be relieved and new counsel appointed, which was denied. After some conflict between them, the attorney asked the court to appoint a guardian ad litem to represent Carmen, because she was not able to participate in her representation in a rational manner. The court denied this request. Carmen then appealed, arguing the court had abused its discretion in failing to appoint her new counsel. She argues the fact that he was seeking a guardian ad litem for her demonstrates there was an irreconcilable conflict between attorney and client.

    The court, applying the rule set forth in 317.5(a) W&IC that "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel" explained that a showing of ineffective counsel requires showing "that the appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates" and that "this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted." The court held that Carmen had failed to prove either prong of the rule, and the decision was affirmed.

  • In re Gabriel L. (D053805) - When a child has been reunified with one parent, the decision to terminate services for the other parent should be made under the standard of 364 W&IC, not 366/366.21 W⁣ such termination of services reviewable for abuse of discretion.
    Gabriel L. was detained from his parents based on unsafe home environment (300(b) W&IC) and based on his parents' drug use and his father's drug-related incarcerations. Reunification services, including substance abuse treatment, parenting classes, counseling and in-home services were provided. Alejandro (father) failed to follow up on his service plan; Ashley complied with hers (including residential drug treatment). At the 12-month review hearing, Gabriel was placed with Ashley in family maintenance, and services for Alejandro were terminated. Alejandro appealed the termination of services, arguing that termination was not in Gabriel's best interests. The juvenile court agreed that the standards of 364 W&IC were the appropriate ones to use for this set of facts, and further determined that the court had not abused its discretion in terminating services for Alejandro at the 12-month review hearing.


In re Alexis E., B207752

In re Alexis E., et al (B207752)

California Court of Appeals - Second Appellate District - 1/23/09 (Certified 2/23/09)

Facts and Procedural History

Alexis E. and her siblings (identified as Samantha E. and Elijah E.), who had been living with their father and his girlfriend, were detained by the Social Services Agency following a report of emotional abuse by the father. Following detention, the children were placed with their mother, who lived with their maternal grandmother.

When the social worker visited the children, they variously reported a high degree of concern about the father's use of marijuana. The father reported that he uses medicinal marijuana for pain control following knee surgery, and also to help him copy with "anxiety". He claimed that he does not use marijuana in the presence of his children, and that he suffers no ill effects from its use.

At an initial adjudication hearing, the social worker expressed concern about the father's drug use and made referrals to a drug treatment program and for random drug testing. The father also subsequently failed to comply with the monitored visitations set up by the Department, and made a number of unfounded referrals against the children's mother. The social worker subsequently expressed concern that "[f]ather’s use of marijuana means that the children would be in a dangerous environment if they were to be placed in his care for unmonitored visits or to live in his home, and that this danger would be intensified because he has anger management issues", and recommended that he be ordered to complete a drug rehabilitation program and on-demand drug testing.

At the adjudication/disposition hearing in May, 2008, the court sustained allegations under Welf. & Inst. Code section 300 alleging, inter alia, that Father's use of marijuana renders him incapable of providing regular care and supervision of the children. The court declared the children dependents, made a home of the parent order for Mother and the children, ordered Family Maintenance for Mother and the children, and ordered that family reunification services (including drug rehabilitation and random drug testing for father, as well as other services not relevant here) and set a review hearing for August, 2008.

Father appealed the disposition orders, alleging that there is insufficient evidence he abused durgs in the past as well as insufficient evidence that his current use of marijuana presents a risk to the children. He also alleged that alleged that the court's orders undermine the protections afforded by California's sanction of medical marijuana in that it forces him to choose between giving up medicinal use of the drug (which may be the most effective treatment choice) or to give up reunification with his children.


  1. Was the evidence on the record sufficient to sustain an allegation under Section 300 showing that Father's current use of marijuana presents a danger to the children?
  2. Does the court's order to require drug rehabilitation and testing as a condition of reunification conflict with the protections afforded by California's sanction of medical marijuana?


Section 300, subdivision (b), of the Welfare and Institutions code states in relevant part that a minor comes within the jurisdiction of the juvenile court if the child has suffered, or there is a substantial risk he or she will suffer, serious physical harm or illness because of the failure or inability of his or her parent to adequately supervise or protect the child, or the inability of the parent to provide regular care for the child due to the parent’s substance abuse.


In evaluating the claims of insufficiency of evidence, the court first noted that the other unrelated allegations made against Father (including domestic violence) would, by themselves, be sufficient to sustain a dependency proceeding. Notwithstanding that, however, the court opted to address the issues he raised on appeal in any case.

The court noted that Father's first claim, that the record was insufficient to show that he had a past history of drug abuse and that his current use of marijuana presents a danger to his children, is unavailing. The court explained that Father was self-medicating with marijuana prior to his obtaining a prescription, that he uses marijuana when his children are in the home, and that there is a non-speculative risk to the children from second-hand smoke. The court further stated that section 300.2 of the Welfare and Institutions code mandates that "“[t]he provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child."

The court commented that it was unfathomable that the Legislature should be concerned about the negative effects of marijuana use on children in all cases except when it was being smoked within the medical marijuana law, and that "even legal use of marijuana can be abuse if it presents a risk of harm to minors." The court noted that "use of medical marijuana, without more, cannot support a jurisdiction finding that such use brings the minors within the jurisdiction of the dependency court", but that the negative effects of marijuana when smoked in the presence of the children, combined with the Father's shifts in mood and behavior when he consumes the drug, satisfy the "and more".

The court next turned its attention to the Father's claim that requiring him to engage in drug counseling and testing presents him with a choice between his legal right to use medical
marijuana and his ability to reunite with his children. The court likewise found this claim unpersuasive. First of all, the court noted that "“[t]he paramount purpose underlying dependency proceedings is the protection of the child. The parents do not represent a competing interest in this respect." The court further explained that juvenile court has broad discretion to fashion a dispositional order that will best serve the interests of the children, and that dispositional orders may not be reversed absent a clear abuse of discretion.

In this case, the court found that the juvenile court did not abuse its discretion in ordering drug rehabilitation and testing to mitigate the risks to the children from their father's drug use. Nor did the court hold that this is an "either/or" issue. The court said that it is not necessarily the case that the Father must forgo entirely the use of medical marijuana entirely to address the juvenile court's concerns; drug counseling might help father to set limits on his consumption of medical marijuana that would address the court's concerns and level of use could be monitored by drug testing.


  1. YES, the evidence on the record was sufficient to sustain an allegation under Section 300 showing that Father's current use of marijuana presents a danger to the children.
  2. NO, the court's order to require drug rehabilitation and testing as a condition of reunification does not conflict with the protections afforded by California's sanction of medical marijuana because the court need not require that the Father forgo the use of medical marijuana entirely to address its concerns, and room exists to craft a plan whereby Father's use of the drug is monitored and subject to constraints for the welfare of the children.


The judgment of the lower court was affirmed.

The full text of the opinion can be downloaded here: PDF, Word.


D.B. v. Superior Court, A123439

D.B. v. Superior Court (A123439).

Court of Appeal for the First Appellate District - Decided 02/18/2009

Facts and Procedural History

The child in this case, A.H., was delivered by R.H. in July, 2008, after she was rushed to the hospital following an automobile accident. R.H. died several days later from her injuries in the accident. At birth, A.H. was two months premature and tested positive on a toxicology screen. A.H. was detained under subdivision (g) of section 300 of the Welfare and Institutions Code, because R.H. had died leaving no provision for his support, the man to whom R.H. was married denied being the child's father and was unable and unwilling to provide support, and D.B. (the presumed father) was at that time incarcerated and unable to provide care and support.

The social services agency documented that D.B. had a long history of drug abuse, including several failures to complete drug treatment as required by the terms of his parole. Nonetheless, D.B. wanted to obtain custody of A.H., even though the week after R.H. died, D.B. was again incarcerated for violating the terms of probation by possessing marijuana and using methamphetamine.

During discussions with the agency, D.B. provided notice to the agency that he had Indian blood. The agency completed ICWA notifications to the Bureau of Indian Affairs, who responded that D.B. had provided insufficient information to establish a biological link to an original ancestral tribe member. D.B. testified at the dispositional hearing that he subsequently provided to the agency the name and address of an uncle who would know more about the family's tribal connections. The social worker neither confirmed nor denied this allegation, and the agency never followed up on it.

Based upon the information before it, the juvenile court determined that reunification services for D.B. could be bypassed under Welf. & Inst. Code section 361.5(b)(13). The court further determined that, because neither R.H. nor D.B. were enrolled members of an Indian tribe, ICWA did not apply to the case. The court issued an order setting the case for a 366.26 hearing, and D.B. appealed.


  1. May a court bypass reunification pursuant to section 361.5(b)(13) for failure to comply with court ordered drug treatment, when that treatment is a condition of parole or probation rather than a condition of sentencing?

  2. Did the juvenile court err in its determination that ICWA did not apply to a case where neither parent was an enrolled tribal member and where additional information about the parents' Indian status was never pursued by the agency?


In considering the father's claim that the juvenile court erred in treating drug treatment provided as a condition of parole or probation as "court-ordered treatment" for the purposes of 361.5(b)(13), the appellate court considered the question solely one of correct statutory interpretation, and accordingly subjected it to de novo review. The court found that the purpose of 361.5(b)(13) was to determine whether a parent's failure to comply "signifies a substance abuse problem so intractable that the provision of reunification services would be a waste of time."

Viewed in that light, the court held that D.B.'s claim that drug treatment ordered as a condition of probation was not meaningfully different from drug treatment provided as a condition of sentencing. To treat them as different, the court held, would produce "an absurd consequence". The court further noted in support of its conclusion that D.B. did not offer any reason why the Legislature would consider resistance to treatment while on probation less probative of a person's ability to reunify than resistance to treatment while on parole.

As regards the question of ICWA notification, the court held that the juvenile court used the wrong standard in evaluating whether ICWA applied. Under the ICWA (25 USC 1903(4)), an Indian child is defined as "any unmarried person who is under the age of 18 and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." Though D.B. was not enrolled in any Indian tribe, the Court noted that lack of enrollment is not necessarily dispositive of tribal membership as formal membership criteria differ from tribe to tribe, and enrollment is not necessarily a requirement for membership. Although the BIA was unable, based on the information provided to it in the agency's initial inquiry, to substantiate A.H.'s Indian status, the additional information provided by D.B. provided the Social Services agency with additional information that should have triggered a new round of ICWA notifications.


  1. YES, a court may bypass reunification pursuant to section 361.5(b)(13) for failure to comply with court ordered drug treatment when that treatment is a condition of parole, probation, or sentencing, since failure to comply with any kind of drug treatment is equally probative as to the question of whether such failure "signifies a substance abuse problem so intractable that the provision of reunification services would be a waste of time."

  2. YES, the juvenile court erred in allowing a 366.26 hearing to be calendared without additional ICWA notifications reflecting the new information provided by D.B. at the dispositional hearing.


The Social Services Agency conceded that the case must be remanded so that ICWA notices containing the additional information can be sent out, so the court remanded for that limited purpose. The order denying reunification services was affirmed and D.B.'s petition was denied as to that order.

The full text of the opinion can be downloaded here: PDF, Word.


In re E.G., C059277

In re E.G. (C059277)

California Court of Appeals, Third Appellate District - 02/10/2009

Facts and Procedural History

Newborn minor E.G. was detained in March 2007 due to her mother's substance abuse. The detention report identified two alleged fathers (A.J. and C.H.) for the minor. At detention, E.G.'s mother claimed possible Indian heritage; at a subsequent hearing, A.J. appeared and claimed Indian heritage as well. DHSS was ordered to notice all named Indian tribes, and ordered both alleged fathers to participate in paternity testing. DHSS noticed the Indian tribes identified by the mother, but not those identified by A.J. Negative responses were returned from the Indian tribes who were noticed.

At the juris/dispo hearing, paternity test results were submitted which excluded A.J. as the biological father. Subsequently, following the mother's failure to comply with the reunification plan, parental rights were terminated. The birth mother appealed the termination, arguing that the juvenile court erred in failing to notice the tribes identified by A.J., and thus that the termination of parental rights was improper under ICWA.


Was the juvenile court required to notice the Indian tribes identified by A.J. whose status in the case was only that of alleged father?


ICWA defines an Indian child as "any unmarried person who is under the age of 18 and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." [25 USC 1903(4)]


A minor's eligibility for ICWA treatment is dependent on a biological connection to the tribe through one of his or her parents. Absent a biological connection, a child cannot claim Indian heritage, and the requirements of ICWA are not triggered. At the time A.J. made his claim of Indian heritage, his paternity in E.G. had not yet been established, and therefore no requirement existed to notice any Indian tribes in which he might claim membership. Since A.J. was ultimately excluded as the biological father, no ICWA eligibility could possibly have attached to E.G. through him, and the juvenile court did not err, under the facts in this case, in failing to notice the tribes he claimed.

The appellate court remained silent on the issue of whether the failure to notice the tribes A.J. claimed would have constituted error had paternity testing subsequently shown him to be the biological father. The court's reasoning, however, suggests it would have been prudent (given that A.J.'s paternity was not yet settled at the time ICWA notices were made), for DHSS to have made ICWA notices pre-emptively against the possibility that paternity testing would have revealed A.J. to be the biological father.


NO, DHSS's was not required to make ICWA notices on behalf of an alleged father whose paternity was ultimately disproven, and their failure to do so did not constitute error on this set of facts.


A.J.'s appeal was denied.

The full text of the opinion can be downloaded here: PDF, Word.