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.