Case Law Update: 31 Mar 2009

No juvenile dependency appellate opinions were posted today.

Case Law Update: 30 Mar 2009

In re Nolan W., No. S159524

Full summary moved to its own post here.

In re K.B. et al. (Unpub'd), No. B208002

Judith B. appealed from the juvenile court's denial of her motion under 388 W&IC in which she and her husband, Royce B., requested modification of the juvenile court's earlier orders denying them presumed parent and de facto parent status. The appellate court held that Judith B. did not make a prima facie showing of new evidence or changed circumstances that warranted revisiting the court's earlier decision. Accordingly, the appellate court held that the juvenile court did not err in denying the petition, and the lower court's order was affirmed.

Opinion: B208002.PDF, B208002.DOC

In re E.F. (Unpub'd), No. A122224

E.F. (born in 2007) was detained along with his two older half-sisters, following allegations of sexual abuse of V.J by Father and Mother's knowledge of the abuse and failure to protect, as well as physical abuse by Mother of V.J., who she bit on the breast, leaving a visible injury. V.J. was detained in out-of-home care, and A.J. and E.F. remained in mother's custody subject to supervision by the SSA. The allegations relative to E.F. (under 300(j) W&IC) were sustained at a juris/dispo hearing in July, 2008 and the court ordered V.J. and A.J. placed in family maintenence, including a no-contact order between Father and the half-sisters, and a requirement that father complete a sex-offender treatment program.

Father appealed, contending the court erred in sustaining the allegations (for substantial risk of sexual abuse and substantial risk of physical abuse) against E.F. The appellate court held that there was no evidence to suggest that E.F. was at risk for sexual abuse simply because his sisters had been sexually abused, absent any evidence that Father had a propensity to molest male as well as female minors, and reversed that allegation. However, the court found that there was sufficient evidence to support the finding that E.F. was at risk for physical abuse, and that this finding, standing alone, was sufficient to sustain jurisdiction over the minor. Accordingly, the lower court's orders were reversed in part and affirmed in part.

Opinion: A122224.PDF, A122224.DOC

In re K.B. et al. (Unpub'd), No. B205592

K.B., C.B., J.B. and T.B. (minors) were the children of Lori T., who apparently placed them with Judith and Royce B. (parents). The B.'s never obtained legal guardianship of the children. The family came to the attention of the SSA following a motor vehicle collision; the law enforcement investigation found that the B.'s were living in unsanitary conditions in their vehicle, and that the children were not being adequately cared for. Additional allegations of physical and sexual abuse surfaced after the children were detained, which Judith B. denied. The children were detained under 300(b) W&IC, reunification was bypassed under 361.5(b)(1), and 366.21(e) and 366.26 hearings were set.

Judith and Royce filed petitions seeking presumed parent status, reunification services, and de facto parent status. The SSA opposed these requests and argued that the B.'s should not be entitled to counsel or to be present at the hearings. The court denied these petitions. In March, 2008, the B.'s filed a 388 petition requesting that the court grant presumed parent and de facto status to them, vacate the order setting the section 366.26 hearing, and provide family reunification services. This petition was denied without a hearing. The B.s, joined by K.B. and C.B., appealed the orders denying presumed parent status, denying de facto parent status, and removing her court-appointed attorney.

With regard to presumed parent status, the appellate court held that the juvenile court could properly have found that Judith B. did not meet her burden of showing that she had openly held out the children as her natural children, and noted that "public policy does not compel us to recognize relationships of affinity where the facts presented do not merit a ruling that a caregiver is a presumed parent". As regards the de facto parent status, the appellate court found the juvenile court had not abused its discretion in denying the B.s de facto parent status based on the sustained dependency proceeding. With regard to the removal of court-appointed counsel, the appellate court noted that it "cannot identify any manner in which Judith B. was injured by the court's action" and therefore that "any error in relieving counsel in the manner selected by the court was harmless under any standard". Accordingly, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: B205592.PDF, B205592.DOC

In re J.W. (Unpub'd), No. D053516

The San Diego County Health and Human Services Agency (Agency) and J.W., the minor, appeal a court order of the Superior Court of San Diego County admitting paternity test results showing Johnny G. is J.W.'s biological father and continuing Johnny's participation in the juvenile court proceedings. The Agency and J.W. argue: (1) the court erred by receiving in evidence blood test results designating Johnny as the biological father; (2) Johnny had not achieved presumed father status under Family Code sections 7611 and 7612 and therefore, lacked standing to challenge D.W.'s conclusive presumption of parentage; (3) the court lacked authority for entering a judgment of parentage because a prior judgment establishing paternity already existed; and (4) the court erred by not issuing a judgment of non-paternity regarding Johnny.

The appellate court concluded that the blood tests were improperly admitted as hearsay, since they had not been properly authenticated, and accordingly, the order establishing Johnny as the biological father was reversed.

Opinion: D053516.PDF, D053516.DOC

In re Rebecca S. (Unpub'd), No. D054427

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

Opinion: D054427.PDF, D054427.DOC

In re H.M. (Unpub'd), No. A121065

C.M. (mother) challenged two orders issued in dependency proceedings initiated under Welfare and Institutions Code section 300: an order placing her daughter H.M. with H.M.'s father, and a subsequent order terminating the juvenile court dependency over H.M. The appellate court held that ample evidence supported the juvenile court's findings, and thus affirmed them and denied her appeal.

Opinion: A121065.PDF, A121065.DOC

In re J.P. (Unpub'd), No. G040725

R.P. (mother) appeals the juvenile court's orders denying reunification services and terminating the parental rights of her four-and-one-half-year-old daughter, J.P. R.P. focuses her arguments on the denial of reunification services, claiming she showed a "reasonable effort to treat" her ongoing drug addiction. The appellate court noted that "R.P. ignores the evidence that she missed multiple visits with the daughter, appeared under the influence of drugs during several visits, missed many of her twice-weekly drug tests, and failed to even show up at the dispositional hearing." Concluding that the evidence sufficiently supports the juvenile court's order denying reunification services, the appellate court affirmed those orders and denied the appeal.

Opinion: G040725.PDF, G040725.DOC

In re Daniel B. (Unpub'd), No. H033490

Raul H. is the father of Daniel B., a three-year-old boy. He appealed from the juvenile court's order under 366.26 W&IC ending his parental rights. He claims that the beneficial relationship exception of 366.26(c)(1)(B)(i) applies against the order. The appellate court noted that "[t]he juvenile court relied on evidence that Raul H.'s attention difficulties and limited ability to focus on tasks, which culminated in his leaving Daniel B. unattended in a parked car for almost an hour, and his lack of success in mastering child-raising skills showed that he was incapable of safely raising Daniel B., even though he loved his son and had struggled to raise him." Finding that it is the best interest of Daniel B. that govern, the appellate court held that Daniel's interest in safety and stability took priority over Raul's relationship with his son, and affirmed the lower court's orders.

Opinion: H033490.PDF, H033490.DOC

In re E.S. (Unpub'd), No. B209429

Maria G. (Mother) appealsed from the order terminating her parental rights to her son E.S., born November 1999. She contends that the order must be reversed, because the court did not inquire of her whether E.S. has American Indian heritage as defined by ICWA, and because the court failed to make a finding whether ICWA applied. The appellate court, noting that neither mother nor father responded affirmatively when asked whether they had Indian heritage, affirmed the lower court's orders and denied the appeal.

Opinion: B209429.PDF, B209429.DOC

In re A.D. (Unpub'd), No. B209346

Mother D.B. appealed from an order terminating parental rights as to her son, A.D. She argues that she was denied due process, because her son's out-of-state placement during the family reunification period prevented her from establishing the beneficial relationship exception to termination of parental rights (366.26(c)(1)(B)(i). The appellate court, finding no error, affirmed the termination of parental rights and denied the appeal.

Opinion: B209346.PDF, B209346.DOC

L.T. v. Superior Court (Unpub'd), No. F056740

Petitioner (mother), in pro per, seeks an extraordinary writ to vacate the orders of the juvenile court terminating her reunification services and setting a 366.26 hearing as to her children E.G. and G.T. We conclude her petition fails to comport with the procedural requirements of Calif. Rules of Court rule 8.452 by failing to set forth a claim of error. Accordingly, L.T.'s petition was dismissed as facially inadequate.

Opinion: F056740.PDF, F056740.DOC

In re Nolan W., No. S159524

In re Nolan W., No. S159524

Nolan W. was detained immediately after birth under 300(b) W&IC after he and Kayla W. (mother) tested positive for amphetamines. When Kayla agreed to participate in a reunification plan, the court ordered her to enroll in SARMS, a mandatory program for drug-abusing parents in San Diego County dependency cases. Mother failed to comply with the terms of the SARMS program and ultimately reunification services were terminated and a 366.26 hearing set. In addition, the juvenile court found her, under a San Diego County local court rule (rule 6.1.19, PDF), in contempt of court for 60 counts of non-compliance with the terms of the SARMS program and sentenced her to a total of 300 days incarceration for contempt. Mother appealed the contempt order, and the appeals court deemed that a 300-day contempt sentence, imposed after reunification had been terminated, was a clear abuse of discretion. The California Supreme Court granted review to determine whether 213 W&IC authorizes the court to hold a parent in contempt and incarcerate her for failing to comply with a component of a voluntary reunification plan.

Writing for a six-justice majority, Supreme Court Justice Carol Corrigan explained that "[w]hile reunification is the preferred outcome when it serves the interests of both parent and child, no interest is well served by compelling inadequate parents to shoulder responsibilities they are unwilling to accept or unable to discharge." Additionally, Justice Corrigan stated that the punitive nature of the SARMS sanctions, insofar as they impose a punishment for past conduct and there is nothing a parent who has been thus incarcerated can do to purge the contempt, renders the nature of the sanction as criminal contempt rather than civil contempt. Having found nothing in the statute to justify injecting such a punitive measure into the dependency process (where the court exercises jurisdiction over the minor and not the parent, and thus the parent does not receive the normal due process rights that a criminal defendant would have), the Supreme Court deemed the use of contempt citation and imprisonment to enforce the terms of the SARMS program impermissible. The court did not foreclose the possibility that contempt sanctions could apply in other instances in a dependency proceeding, but ruled that contempt sanctions are inappropriate when used "solely for the purpose of punishing a parent's failure to comply with a condition of a reunification case plan."

In a partially concurring and partially dissenting opinion, Justice Marvin Baxter agreed with the majority's opinion to annul the contempt judgment against Kayla W. because, in his view, once reunification services were terminated, "the juvenile court had no discretion to use the sanction of contempt...purely as after-the-fact punishment for failing to follow orders whose sole purpose was the retention of parental rights." However, Justice Baxter partially dissented from the majority and concluded that once a parent voluntarily agrees to participate in reunification services, the court should have available to it other remedies for noncompliance short of terminating reunification. Accordingly, Justice Baxter concluded that, while a 300-day jail sentence is an abuse of discretion here, he did not feel that the use of contempt sanctions to enforce compliance with a reunification plan should necessarily be foreclosed entirely.

Opinion: S159524.PDF, S159524.DOC

Case Law Update: 27 Mar 2009

In re A.S. et al. (Unpub'd), No. H033234

Appellant R.S. (father) appealed an order of the juvenile court terminating his parental rights as to his daughters, Ad. S. and Al. S., and freeing them for adoption under366.26(c)(1) W&IC. He asserted the court erred in terminating parental rights as to Ad. S, because it lacked clear and convincing evidence of her adoptability, and it failed to apply the exception for residential treatment of 366.26(c)(1)(B)(iii) W&IC. In addition, he argued that if the appellate court found the juvenile court erred in terminating his parental rights as to Ad. S., it must also find the termination as to Al. S. was in error under the sibling exception of 366.26(c)(1)(B)(v) W&IC.

With response to the first set of claims, the appellate court held that substantial evidence supported the juvenile court's conclusion that Ad. S. was adoptable notwithstanding her special emotional and mental health needs. Additionally, the juvenile court noted that Ad. S. no longer lived in a residential treatment facility and thus the exception of 366.26(c)(1)(B)(iii) was unavailing. As regards to the termination of parental rights for Al. S., the appellate court held that since the termination of rights for Ad. S. was not in error, it need not consider R.S.'s alternative argument here. Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: H033234.PDF, H033234.DOC

In re Baby Boy B. (Unpub'd), No. G040104

Baby Boy B. was detained in August of 2006 after a positive toxicological screen for opiates. The identity of his father did not become known for several months after his detention. He was placed with foster parents and reunification services were ordered. Nearly 18 months after the time of detention, the juvenile court issued six- and 12-month review orders finding the parents did not receive reasonable services, extending services for six more months and refusing to remove the child from his foster placement. (His parents and both sets of grandparents sought placement with them.) Father appealed these orders, contending that he was denied due process because he was not given an earlier opportunity to participate in the proceedings and that there was no substantial risk of detriment to placement with him. The Social Services Agency and the child challenged the court's decision to extend reunification services. The maternal grandmother appealed the summary denial of a 388 petition she filed seeking placement of the child with her or increased visitation.

With regard to Father's claims, the appellate court held that the father had received notice of the proceedings and a chance to be heard within a reasonable time from when his identity became known to the Agency, and no due process violation occurred. Additionally, the appellate court held that substantial evidence of father's ongoing alcohol abuse was sufficient to suport the finding of detriment. With regards to the claims by the SSA and the child, the appellate court held that reasonable services were not provided to father because the court never ordered a reunification plan requiring alcohol treatment for the father, and that this failure constituted extraordinary circumstances warranting an extension of reunification services. With regard to grandmother's appeal, the appellate court held that the juvenile court reasonably concluded that grandmother had not stated a prima facie case sufficient to justify a hearing on her 388 petition. Accordingly, the juvenile court's orders were affirmed, the appeals were denied, the stay of the 18-month review hearing was lifted, and the juvenile court was directed to hold the 18-month hearing as soon as practicable.

Opinion: G040104.PDF, G040104.DOC

In re Nicholas Z. (Unpub'd), No. D053883

Gabriel Z. (father) and Candace H. (mother) appealed an order terminating parental rights to their child, Nicholas Z. Gabriel alleged that the juvenile court erred in finding that the beneficial parent-child relationship exception of 366.26(c)(1)(B)(i) W&IC did not apply. Candace implicitly concedes that the beneficial relationship exception does not apply to her, but argues that if the judgment terminating Gabriel's parental rights is reversed, hers must also be reinstated under Calif. Rules of Court rule 5.725(a)(2).

The appellate court observed that, while Nicholas did have a relationship with Gabriel, it was nevertheless true that "throughout the dependency proceedings, Gabriel continued to use drugs and alcohol, he did not comply with his case plan requirements, and he did not focus on Nicholas's well-being." The appellate court thus concluded that the juvenile court did not err in finding that Nicholas's interest in stability and permanency outweighed his interest in maintaining that relationship, and the juvenile court's rejection of the beneficial relationship exception was not in error. Having reached that conclusion, the appellate court declined to consider Candace's argument. The termination of parental rights was thus affirmed, and the appeal denied.

Opinion: D053883.PDF, D053883.DOC

In re T.B. (Unpub'd), No. G040594

T.B. (the child) filed a petition under Welfare and Institutions Code section 388 requesting that the juvenile court divest the Orange County Social Services Agency of its discretion to place him in the paternal grandparents' home in Washington State, where M.L. (the father) lives. T.C. (the de facto parent) filed a brief in support of the petition. The juvenile court denied the petition without a hearing. The child and the de facto parent appeal, claiming the summary denial was an abuse of discretion because the petition made a prima facie showing of changed circumstances and the child's best interests.

The appellate court noted, however, that subsequent to the SSA's decision to make this placement change, T.B. was placed on a trial basis with his mother, who had completed the requirements of her case plan. Given that, the SSA had asserted it was no longer interested in moving the child to Washington, given the likelihood that Mother could reunify. Accordingly, the appeal was dismissed as moot and the petition for a writ of supersedeas was denied as moot.

Opinion: G040594.PDF, G040594.DOC

In re Angelica A., et al. (Unpub'd), No. D053679

Randy J. and Mary Ann J. (together, the parents) appealed from orders of the juvenile court making jurisdictional and dispositional findings on a juvenile dependency petition filed by the San Diego Health and Human Services Agency (the Agency) on behalf of their minor child, Mark J. (born 2006). They contended the evidence was insufficient to support the order. Randy also claimed the juvenile court erred when it determined that the Indian Child Welfare Act (ICWA) did not apply. Mary Ann appealed from jurisdictional and dispositional findings on a juvenile dependency petition filed by the Agency on behalf of Mark's half-sibling, Angelica A. (born 2001). She also appealed the orders placing Angelica with Angelica's father, Jason, and terminating jurisdiction.

The appellate court rejected the challenges to the jurisdictional orders, finding that Randy's mental illness (voyeurism and paraphilia) constituted a sufficient basis to assume jurisdiction on the basis of serious future risk of harm. However, given Mary Ann's subsequent actions, including joining a sexual treatment group for non-protecting parents and obtaining a restraining order against Randy, the appellate court held that the juvenile court's implied finding that there was no reasonable way to protect the children in Mary Ann's home was unsupported by sufficient evidence. Additionally, the appellate court held that the juvenile court erred in finding that ICWA did not apply to Mark where Randy was unable to produce evidence of Indian ancestry but nontheless believed it existed.

Accordingly, the jurisdictional order declaring Angelica a dependent was affirmed, but the dispositional order removing Angelica from Mary Ann's custody was reversed and the juvenile court was directed to conduct another dispositional hearing "in accordance with the principles expressed in this opinion and with consideration of Angelica's current circumstances."

The jurisdictional and dispositional orders with respect to Mark were reversed and the appellate court remanded his case with instructions for the juvenile court to order the Agency to comply with ICWA. If, after proper notice, ICWA is found not to apply, the juvenile court was directed to reinstate the jurisdictional order for Mark and to conduct another dispositional hearing in like fashion to that ordered for Angelica.

Opinion: D053679.PDF, D053679.DOC

W.P.. v. Superior Court (Unpub'd), No. A123644

In dependency proceedings involving his children, W.P. (father) sought writ review of orders setting for April 6, 2009, a permanency planning hearing for daughter C.P. and son E.P. He asserted that the juvenile court needed to correct or clarify their findings regarding minimal progress and probability of return, alleging that they used the improper statutory language, that the juvenile court judge had committed misconduct in considering his knowledge of father's drug treatment program when such experience was outside the evidentiary record, and that there was insufficient evidence the support the juvenile court's findings that father failed to participate in reunification services and that reasonable services had been provided.

The appellate court held that there was no lack of clarity regarding the juvenile court's intent in the language used in its findings, that the court's impression about the drug treatment program was supported by father's own testimony and thus that no misconduct occurred, and that the juvenile court's findings were supported by substantial evidence. Accordingly, father's writ petition was denied on its merits.

Opinion: A123644.PDF, A123644.DOC

J.J. v. Superior Court (Unpub'd), No. A121041

On January 15, 2009, the Contra Costa County Superior Court, Juvenile Division, entered an order terminating reunification services for J. J. (Father) and setting a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minors, J. J. (born Nov. 2000) and A. J. (born Dec. 2004). Father challenged the order by petition for extraordinary writ, claiming the juvenile court erred in failing to find there was a substantial probability that the minors could safely be returned to his custody within the 18-month statutory period for extended reunification services, as required by 366.21(g)(1). The appellate court concluded that substantial evidence supported the juvenile court's conclusion, and denied the petition for extraordinary writ on its merits.

Opinion: A121041.PDF, A121041.DOC

In re S.A. et al. (Unpub'd), No. A121977

Sherry L. (mother) appealed a juvenile court order terminating parental rights under 366.26 W&IC for her children, S.A. and T.M. Sherry contended that the juvenile court failed to comply with the relative placement preference of 361.3 W&IC, and that the juvenile court failed to comply with the inquiry and notice requirements of ICWA.

The appellate court noted that the Department of Social Services had not, by the time of the 366.26 hearing, identified any suitable relatives, and further, Sherry had failed to identify for the Agency any relatives for possible investigation. Further, Sherry failed to challenge the dispositional order placing the children with foster parents via timely appeal or writ petition, and so the appellate court deemed that issue waived on appeal. However, the appellate court ruled that the juvenile court had not properly complied with the inquiry and notice requirements of ICWA at the juris/dispo hearing, and that the normal forfeiture rules for Mother's failure to raise this issue earlier in the dependency process do not apply to ICWA claims. Therefore, the appellate court reversed the termination of parental rights order and remanded with directions to comply with the inquiry and notice provisions of ICWA. The appellate court directed that if, after inquiry and notice, ICWA is found not to apply, the termination of parental rights order shall be reinstated.

Opinion: A121977.PDF, A121977.DOC

Case Law Update: 26 Mar 2009

In re M.P. et al. (Unpub'd), No. A122160

Mother P.P. and father G.R. appealed from an order terminating their parental rights to their now six-year-old daughter, M.P., and mother appeals from an order terminating her parental rights to another daughter, and M.P.'s half-sister, seven-year-old A.P. They contend the court erred in failing to recognize that a conflict of interest in the joint representation of the sisters and their five older siblings prevented the siblings from presenting their objections to the termination of parental rights.

The appellate court noted that, by the time of the permanency planning hearing, M.P. and A.P.'s attorney stated that she had "not heard from any of the [siblings] that they would want to object to a permanent plan of adoption", and that she did not believe any actual conflict existed. Further, the appellate court held that, even if an actual conflict had existed, nothing in the record supported the parents' surmise that "counsel's belief that adoption was in the sisters' best interests may have colored her conversations with the older siblings" and that, accordingly, any potential error in the failure to appoint separate counsel was undoubtedly harmless. Accordingly, the appeal was denied and the lower court's orders affirmed.

Opinion: A122160.PDF, A122160.DOC

In re Alissa L. (Unpub'd), No. D053881

Desiree L. appeals a judgment terminating her parental rights to her minor daughter, Alissa L., under 366.26 W&IC. Desiree argues the court lacked sufficient evidence to support its findings that the beneficial parent-child relationship exception of section 366.26(c)(1)(B)(i) did not apply because she regularly visited Alissa and that terminating parental rights would sever the parental relationship she shares with Alissa.

The appellate court found that substantial evidence existed to support the juvenile court's finding because, although the social worker acknowledged that Alissa loves Desiree and that the two share a bond, the fact that Alissa "regarded her current caregivers as her parents and relied on them for her daily emotional and physical needs" supported the juvenile court's conclusion that Alissa would benefit more form the pernanency and stability of adoption than from maintaining her relationship with Desiree. Accordingly, the appellate court held that substantial evidence supported the court's finding that 366.26(c)(1)(B)(i) is inapplicable, affirmed the juvenile court's orders, and denied the appeal.

Opinion: D053881.PDF, D053881.DOC

In re R.W. (Unpub'd), No. G040791

A.W. (Mother), the mother of R.W. (who was taken into protective custody at the age of nine in May 2001) appealed a juvenile court order made on July 17, 2008 limiting her right to make educational decisions for R.W. and the order consenting to the implementation of an individualized education plan (IEP) recommendation to place R.W. at the Cathedral Home in Laramie, Wyoming. Mother contended that the court abused its discretion in issuing the appealed orders because insufficient evidence established that the order was necessary to protect R.W.

The appellate court noted that ample evidence showed that significant effort had been expended searching for an appropriate placement in California, but that no suitable placement could be found and the window of time for providing meaningful intervention for R.W. was closing due to her age. The appellate court therefore held that Mother's opposition to the orders was not in R.W.'s best interests, and that the juvenile court did not abuse its discretion in moving to limit her authority to make educational decisions so that R.W.'s treatment team could be given the authority to act in her best interests. The juvenile court's orders were therefore affirmed, and mother's appeal was denied.

Opinion: G040791.PDF, G040791.DOC

In re Skyla M., et al. (Unpub'd), No. B205231

Joshua S., father of Gabriel S. and Danielle R., mother of Gabriel and Skyla M., separately appealed from the order of the juvenile court terminating their parental rights. Previously, the appellate court granted a petition for writ review of a juvenile court order terminating reunification services, and ordered the court to extend father's reunification period an additional six months. In their appeals, father and mother argue there is no evidence that the Department provided adequate reunification services or visitation and so the juvenile court could not terminate parental rights. The Social Services Agency did not oppose reversal, impliedly conceding it did not provide adequate services; however, the attorney for the children did support the court's order, aruging that the parents

The appellate court concluded that the record contains no evidence to support the trial court's finding that adequate reunification services were provided. Accordingly, the orders terminating reunification and parental rights were reversed, and the case remanded with instructions for the juvenile court to evaluate, under 352 W&IC "the failure to offer or provide reasonable reunification services; the likelihood of success of further reunification services; whether [children's] need for a prompt resolution of [their] dependency status outweighs any benefit from further reunification services; and any other relevant factors the parties may bring to the court's attention" and on that basis to determine whether to hold a permanency planning hearing under 366.22 W&IC.

Opinion: B205231.PDF, B205231.DOC

In re Rachael L. (Unpub'd), No. D054059

In August, 2006, then-18-month-old Rachael was taken into protective custody and then detained pursuant to 300(b) W&IC after police found Christine (mother) "in an intoxicated and incoherent state, walking with Rachael." The juvenile court found true the allegations, declared Rachael a dependent, and ordered reunification services. In May, 2008, C. (father) was arrested. The pending 366.26 hearing was continued until September 17. C.'s counsel requested a further continuance because C. was still in custody, to which the agency objected on the grounds that the social worker's last day of employment was September 18. The juvenile court denied the continuance. C. was not present at the hearing, but was represented by counsel. At the 366.26 hearing, the court found Rachael was likely to be adopted if parental rights were terminated and none of the statutory exceptions to termination of parental rights and adoption applied. It terminated parental rights and referred the case for adoption.

C. appealed the termination of parental rights, contending that the court abused its discretion and violated his rights under 2625 PC by not continuing the section 366.26 hearing so he could be present. The Social Services Agency argued that these claims are waived because C. did not raise them in the juvenile court. The appellate court exercised its discretion to treat his arguments on their merits. Having so done, it concluded that C. was provided proper notice of the hearing and that there was no reasonable probability the result of the hearing would have been any different had C. been present at the hearing. The appellate court further noted that 352(a) W&IC states that, in evaluating whether to grant a continuance, "the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status." Accordingly, the appellate court concluded that C.'s counsel had not shown good cause to continue the hearing and the decision to deny the continuance was well within the court's discretion. The juvenile court's judgment was thus affirmed, and C.'s appeal was denied.

Opinion: D054059.PDF, D054059.DOC

Case Law Update: 25 Mar 2009

M.U. v. Superior Court (Unpub'd), No. B213166

R.P. was detained by CWS under 300(b) and 300(j) W&IC upon allegations of caretaker absence/incapacity and general neglect. M.U. (mother) had an open FM case in Arizona, but left the state with R.P. and CWS believed that R.P. was at substantial risk of harm because M.U. had lost custody of three older children due to drug use and untreated mental illness. The court ordered R.P. detained and set the matter for a contested juris/dispo hearing. CWS recommended a bypass of reunification under 361.5(b)(10) and 361.5(b)(11) and stated that M.U. and the child's father used drugs on a daily basis and that M.U. did not want to undergo substance abuse treatment. The trial court detained R.P., ordered reunification services not be provided to M.U., and set the matter for a 366.26 hearing. M.U., in pro per, filed a petition for extraordinary writ, alleging that the juvenile court's order was not supported by substantial evidence.

The appellate court noted that it was incontroverted that M.U. had failed to reunify with 5 of her other children, that parental rights were terminated, and that petitioner had not made a reasonable effort to address the homelessness, drug use, and other issues that led to the children's removal. The court further noted that M.U. had made no showing that reunification services were in the best interests of the child. Accordingly, the petition for extraordinary writ was denied and the juvenile court's ordered were affirmed.

Opinion: B213166.PDF, B213166.DOC

A.B.-E. v. Superior Court (Unpub'd), No. A123816

H.E. (then two years old) and S.E. (then 16 months old) were detained in October, 2007 under 300(b) and 300(c) W&IC. The court detained the children and ordered, inter alia, visitation and psychological evaluations of both parents. Prior to the six-month review hearing, the Agency issued a report recommending continued reunification services. The children's CASA's report disagreed, recommending that services be terminated and a 366.26 hearing be set, reporting disturbing behavior by the parents and severe anxiety by the children following visits. Counsel for the childen believed reunification for the mother should be terminated and her visitation curtailed, and that the father should be given six months of additional reunification services. The court ordered visitation limited, but extended services for both parents.

At a twelve-month hearing, the court ordered reunification services terminated upon a finding that the parents had made only minor progress toward their case plan goals, suspended mother's visitation, ordered supervised visitation for father, and set a 366.26 hearing. Mother and father separately filed petitions for extraordinary writ (which were consolidated). Mother alleged that the court's finding of reasonable services was unsupported, that she was denied reasonable visitation, that the finding of substantial risk of detriment was unsupported, that ICWA noticing provisions were not properly complied with, and that termination of all visits was error. Father contended that the court should have found extenuating circumstances to extend reunification services, that he did not receive reasonable services, that there was no reasonable basis to move from unsupervised to supervised visitation or to deny placing the children with him and that the court abused its discretion in terminating reunification services he made substantial progress and was in substantial compliance with his case plan. The appellate court found that substantial evidence supported the lower court's orders, affirmed those orders, and denied the petitions for extraordinary writ.

Opinion: A123816.PDF, A123816.DOC

In re A.T. (Unpub'd), No. B210908

G.T. (mother) appealed an order of the juvenile court granting sole legal and physical custody of her daughter A. to her father, terminating jurisdiction, and dismissing the dependency (pursuant to 362.4 W&IC) at a May, 2008 family maintenence review hearing. Mother contends that she did not receive due process because the DSS notice of the family review hearing did not warn her that legal custody of A. was at issue and that the asserted lack of notice denied her the opportunity to develop evidence and argue for joint legal custody.

The appellate court explained that it declined to dismiss mother's appeal as moot because she asserted a procedural defect that challenges the constitutionality of the juvenile court's order. However, the appellate court noted that the notice mailed to mother stated that the hearing concerned "[a] change in orders, services, placement, custody, or status" (and included a copy of the DSS report) and that mother fully participated in the hearing, including cross-examining witnesses. The appellate court also noted that father prepared the custody orders a month in advance of the hearing, the juvenile court signed the orders at the conclusion of the hearing, and mother did not object nor did she state that she was unaware of the custody orders when DSS stated that Father "prepared custody orders." Accordingly, the appellate court concluded that mother had received adequate notice, denied her appeal, and affirmed the juvenile court's order.

Opinion: B210908.PDF, B210908.DOC

In re Lucy B. (Unpub'd), No. D052788

Julie B. (mother) and Cole B. (stepfather) each appealed the denial of 388 petitions seeking to vacate an order naming a third party, Edgar G., as the presumed father of Lucy B. (minor). Edgar separately appealed the court's dispositional order placing Lucy with her grandparents, arguing that the court erred by failing to consider placing Lucy with him as a nonoffending, noncustodial parent pursuant to 361.2, and that there was no showing placement with him would be detrimental to Lucy.

With regard to Cole's appeal, in which he argued that he was denied notice and an opportunity to change his paternity status, resulting in prejudice to him because the paternity contest "was not tried on a level playing field", the appellate court found that Cole (a Marine who was, at the relevant time, preparing for a deployment) had received notice both in person and by mail, and that "[d]espite having actual notice of his rights, Cole did not request counsel or seek to establish his paternity before being deployed." Accordingly, his appeal was denied.

With regard to Julie's appeal, in which she asserted new evidence showed Edgar did not qualify as Lucy's presumed father under 7611(d) Family Code, the appellate court found that substantial evidence supports a finding Edgar qualified as a presumed father. Julie asserted in her appeal that Edgar abandoned Lucy and that should disqualify him, but the appellate court found that Julie had waived this claim by not raising it in the juvenile court.

With regard to Edgar's appeal, the court held that notwithstanding the provisions of 361.2, substantial evidence supports an implied finding it would be detrimental to Lucy's emotional well-being to place her with Edgar because of the strong bond between Lucy and her grandparents and the emotional impact being removed from her grandparents and being placed with a relative stranger.

Accordingly, the appellate court affirmed the juvenile court's orders and denied all three appeals.

Opinion: D052788.PDF, D052788.DOC

Case Law Update: 24 Mar 2009

In re Gabriel L., No. D053805

Then-two-year-old Gabriel L. was detained in July 2007 under 300(b) W&IC following allegations of an unsanitary home with no electricity, running water or furniture. Alejandro (father) and Ashley (mother) both had criminal and substance abuse histories. The juvenile court sustained these allegations, placed Gabriel with his aunt and uncle, and ordered reunification services for both parents. After a rocky start, Ashley made significant progress toward reunification, whereas Alejandro failed to participate in any services or appear at court hearings. At the 12-month hearing on September 23, 2008, the court placed Gabriel with Ashley, terminated services for Alejandro, and ordered family maintenence services for Ashley.

Alejandro appealed the termination of his services, contending the court abused its discretion by terminating his services while ordering that Gabriel be placed with Ashley and ordering services for her. He argued terminating his services was not in Gabriel's best interests or in the interests of the permanent plan of reunification. The appellate court held that, because Alejandro had made no progress in the services that had been offered during the 14 months of Gabriel's dependency, and he made no progress in resolving the problems that led to Gabriel's removal, the juvenile court did not abuse its discretion in terminating reunification services.

The court further explained that "[i]f, after a period during which both parents were offered reunification services, the child is then placed with one parent...the court's discretion to decide whether to continue to offer services to the noncustodial parent...should be examined under 364 W&IC and is similar to the court's broad discretion as to whether to offer services under section 361.2 because in both situations the child is not in out-of-home placement, but in placement with a parent." The appellate court held that, in such a case, the juvenile court may, but is not required to, continue services for the non-custodial parent. On the basis of that holding, the court denied Alejandro's appeal and affirmed the lower court's orders.

Opinion: D053805.PDF, D053805.DOC

A.S. v. Superior Court (Unpub'd), No. F056575

In early July, 2008, A.S. (mother) was observed attempting to "teach" then-three-year-old M. to swim by throwing her into a pool and encouraging her to paddle. Instead, M. went under water, frantically grabbed at the sides of the pool and vomited water. Petitioner was overheard to say, "This bitch is gonna learn how to swim if it kills her." A witness intervened and took M. to the witness's apartment for a nap, from which she woke up shaking and vomiting. M. was hospitalized and diagnosed with cerebral edema, water intoxication and altered mental state. Additionally, hospital staff saw A.S. repeatedly slap and hit M., and reports from friends indicated that A.S. hit M. in the face, beat her with a belt, and picked her up by her hair. The Social Services Agency took M. into protective custody and filed a petition under 300(a), (b), (e) and (i) W&IC. At a contested juris/dispo hearing, the court sustained the allegations, denied reunification pursuant to 361.5(b)(5), and set a 366.26 hearing.

Mother, in pro per, filed a petition for extraordinary writ challenging the court's orders, asserting that her attorney did not present key evidence (which she does not identify) and did not prepare her for testifying. The appellate court held that, given the severity of M.'s abuse, "there is no reason to believe the juvenile court was inclined to rule differently than it did or that petitioner's attorney could have persuaded it to do so." Accordingly, mother's claim of ineffective assistance of counsel was found unavailing, and her petition for writ relief was denied.

Opinion: F056575.PDF, F056575.DOC

S.J. v. Superior Court (Unpub'd), No. F056700

In October 2007, the social services agency (agency) received a referral that S.J. (mother) was using methamphetamine and became psychotic when she used drugs. During these episodes, she reportedly would "rampage" and destroy the home in the presence of the children. Her older children also disclosed to social workers that she would beat them, and that she and M.J. (her husband) would engage in domestic violence in front of the children. The agency detained her children under 300(b) W&IC, placing them with relatives.

In December 2008, the juvenile court conducted a contested 12-month review hearing at which L.W. testified at length. Following her testimony and argument, the juvenile court terminated reunification services upon a finding that L.W. had "made progress but not significant progress in her services and had not demonstrated the ability to complete her reunification plan and ensure her children's safety and well-being", and set a 366.26 hearing. L.W. filed a petition for extraordinary writ challenging these findings, contending that they must be reversed because she was not provided reasonable visitation, which she alleged constituted an "impermissible delegation of the juvenile court's authority over visitation to the children and [their] therapist." The appellate court noted that the visitation issue was never appealed or objected to in the lower court and consequently was waived on appeal. Notwithstanding the waiver, however, the appellate court found that there was no merit to the mother's claim that the children (and their therapist) had the power to veto all visits or that the occurrence of visitation was preconditioned on the children's (or therapist's) approval. Accordingly, the petition for extraordinary writ was denied.

Opinion: F056700.PDF, F056700.DOC

In re A.N. et al. (Unpub'd), No. B207754

Father M.N. and mother M.M. appeal from an order of the juvenile court terminating their parental rights as to two of their minor children, A.N. and S.N. They argue the court erred in finding the beneficial and sibling relationship exceptions of 366.26(c)(1)(B)(i) and 366.26(c)(1)(B) W&IC inapplicable. The appellate court held that the juvenile court had not abused its discretion in finding that the exceptions did not apply, and affirmed the orders terminating parental rights.

Opinion: B207754.PDF, B207754.DOC

Case Law Update: 23 Mar 2009

In re D.F., No. C057250

Appellant, the father of the minor, appealed from orders made at a dispositional hearing followed by a rehearing at which he was denied reunification services. He claimed the juvenile court erred by denying him services under 365(b)(3) W&IC, and that the social services agency failed to adequately apprise the court of information concerning his deafness because his mannerisms may have been misperceived as aggressive and nonresponsive by someone unfamiliar with deaf culture.

The appellate court found that the juvenile court did not err in determining that the requirements of 365(b)(3) were met in this case, and that the court did not abuse its discretion in denying reunification services. The appellate court, noting that the juvenile court had specifically noted on one occasion that the social worker's perceptions of the father as aggressive were "very likely a misunderstanding on his gesturing to speak with sign language", held the claim that the court was unaware of his deafness was unavailing. Accordingly, the appeal was denied and the lower court's orders affirmed.

Opinion: C057250.PDF, C057250.DOC

M.L. v. Superior Court, No. B212274

M.L. (mother) made plans in early September, 2008, to surrender her (not yet born) baby for adoption. When the baby was born, however, the mother and her attorney contacted the hospital, revoked consent to release the baby to the adoption agency (who were prepared to place the infant with "Adoptive Parents B"), and attempted to provide adoption papers designating a different adoptive family. Hospital staff had concern that mother might be under the influence of drugs, so they declined to accept the adoption papers and contacted the Social Services Agency. The social worker, noting that mother had rescinded the adoption plan and not yet executed a successor plan, detained the child. Mother subsequently executed adoption paperwork, and "Adoptive Parents C" filed an adoption petition and provided copies of their paperwork to the Agency. The hospital discharged the infant to the Agency, who placed her with "Adoptive Parents B" because "Adoptive Parents C" were not then a licensed foster home. At a series of contested hearings, from which the court excluded "Adoptive Parents C" because of lack of standing, the court sustained the allegations of the dependency petition, continued the newborn in foster care, bypassed reunification services, and set the matter for a permanent plan hearing pursuant to section 366.26.

Mother filed a petition for extraordinary writ seeking to reverse the juvenile court's orders and dismiss the dependency. She argued that the court erred in not investigating the safety of a placement with "Adoptive Parents C" prior to detention, that the court erred in detaining the child when mother had executed adoption papers for Adoptive Parents C (and that the child was thus not in continuing danger), and that the court abused its discretion in allowing the infant to be placed in a foster home.

The appellate court noted that, at the time of the detention, the agency was unaware of the documents mother had executed relative to Adoptive Parents C, and that in any case, the juvenile court retains the authority to determine whether that plan, or another, is in the child's best interests. Accordingly, the appellate court held that no abuse of discretion had occurred, and denied the petition for extraordinary writ.

Opinion: B212274.PDF, B212274.DOC

In re I.C. (Unpub'd), No. B208452

I.C., then four years old, was detained in April 2008 under 300(b) and 300(g) W&IC following A.W. (mother)'s arrest for possession of narcotics paraphenalia 3 days earlier. A.W. challenged jurisdictional and dispositional findings under 300(b), arguing that there was insufficient evidence showing that the drug paraphenalia with which she was arrested belonged to her and that she was a current drug user, and hence that there was insufficient evidence to support the jurisdictional finding. The appellate court held that the juvenile court's finding was supported by substantial evidence, and affirmed the jurisdictional and dispositional orders.

Opinion: B208452.PDF, B208452.DOC

In re A.G. (Unpub'd), No. B209266

A.G. (born in 2002) was detained in February, 2008 on a number of allegations under 300(a), (b), (g) and (j). Allegations b-1 and j-1 concerned Mother's failure to supervise and care for the children, and allegations a-1 and b-2 concerned Father's violent past. The jurisdictional report stated that father had been acquitted of all murder charges related to the 2006 stabbing, and that Father had received 3 years probation) after an altercation in which he grabbed and pushed Mother and caused her a "busted lip"; the record shows that Father completed the requirements of his probation including domestic violence counseling. The jurisdiction/disposition report further indicated Father had established a significant relationship with his son; Father told DCFS that he would remain in the home of his mother for added support until he was able to find a job and that his first priority was caring for the Minor. At a March, 2008 juris/dispo hearing, the court placed A.G. with Father (who was then living at Grandmother's house) and ordered family reunification services, and issued, inter alia, an order stating requiring that no corporal punishment be used in the home.

In June, 2008, after Father and Grandmother got into an altercation, Grandmother made a report to DCFS, who took the child into protective custody. When he was interviewed by DCFS, he stated that "he did not want to be with his Father because Father is mean and that he hits and yells at the child. When questioned further about being hit, the child told the social worker: 'He hits me with his hand on the butt and told [sic] me to go to bed.'" On June 18, 2008, DCFS filed a petition under 342(a) and (b) alleging that "[f]ather physically abused the child by striking the child's face and buttocks with the father's hands. Such physical abuse was excessive and caused the child unreasonable pain and suffering" and that the 2004 domestic violence incident "endangered the child's physical and emotional health, safety and well-being and placed the child at risk of future harm." The court ordered the child detained, noting that DCFS should have filed a 387 rather than a 342 petition. At disposition, father alleged that the incident of slapping the child occurred prior to the original 300 petition and did not result in either criminal charges or a DCFS investigation. At that hearing the court sustained the physical abuse charges, struck the domestic violence issue as being "old news", and ordered the child detained and placed in in a foster home.

Father appealed the order, alleging that neither the 342(a) allegations nor the dispositional orders that flowed from it were supported by substantial evidence. The appellate court found that DCFS's own description of the allegations — namely that Father had spanked the minor on one occasion ahd that one one other occasion he slapped the minor on the face for saying a bad word — are insufficient to support a finding of "serious physical harm". Additionally, the appellate court held there was no evidence of a pattern of abuse or repeated infliction of injuries, and that there was thus no evidence to support the finding that the minor was "at risk of severe physical abuse in the future." Accordingly, the jurisdictional order issued from the 342 petition, and the dispsitional order, were reversed and the case was remanded to the juvenile court.

Opinion: B209266.PDF, B209266.DOC

In re Bentley G. et al. (Unpub'd), No. B209430

Bentley G. (born in 2003) and J.K. (born in 2005) were detained from Jennifer L. (mother) because of mother's drug use and incarceration. They were removed from mother's custody and she was granted monitored visitation and reunification services. Mother had regular visits with the children and attended court-ordered services from the time of her release from custody until September 2007, when she violated the terms of her probation and moved to Missouri. That month, the court held a contested six-month review hearing at which it found that Mother was not in compliance with the case plan and Bentley and J. could not be returned safely to Mother's custody. The court terminated services and set the case for a section 366.26 hearing. Mother returned to California in early 2008, and the 366.26 hearing was continued.

On June 26, 2008, Mother filed a Section 388 petition. She requested Bentley and J. be placed with her in her residential treatment program. The Section 366.26 hearing and Mother's Section 388 petition were called on July 15, 2008. The Section 366.26 hearing was continued and the court considered the Section 388 petition. The court, noting that Mother was just beginning to address her long history of substance abuse, summarily denied her 388 petition. Mother appealed, contending that the court had abused its discretion in denying her petition. The appellate court held that Mother had not made a prima facie showing of changed circumstances or that the proposed modification would be in the children's best interests, and on that finding affirmed the lower court's orders and denied mother's appeal.

Opinion: B209430.PDF, B209430.DOC

In re R.S. (Unpub'd), No. C059355

S.F., the mother of R.S. (born October 27, 2007), appealed from a juvenile court order terminating her parental rights under 366.26 W&IC. Mother contended (1) the court committed reversible error by failing to appoint a guardian ad litem for her because she was incompetent, (2) her trial counsel's failure to request a guardian ad litem constitutes ineffective assistance, and (3) her failures to object in the juvenile court and to file a writ petition did not forfeit her right to raise these issues on appeal.

The appellate court held that Mother's contention that her failure to request a guardian ad litem in the juvenile court did not forfeit her right to raise the issue on appeal has merit, because a person entitled to a guardian ad litem under 372 and 373 Civ. Pro. is not necessarily in a position to recognize the error and to protest a dependency court's failure to appoint one. However, it found no evidence to support the claim that "Mother lacked the capacity to assist counsel in preparing her case", and that any error in failing to appoint a guardian ad litem was harmless. Likewise, the appellate court found no evidence that "but for trial counsel's failings, the result would have been more favorable to" mother. ( In re Nada R. (2001) 89 Cal.App.4th 1166, 1180) Accordingly, the appeal was denied and the lower court's judgment affirmed.

Opinion: C059355.PDF, C059355.DOC

In re K.G. (Unpub'd), No. D054144

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

Opinion: D054144.PDF, D054144.DOC

In re D.G. et al. (Unpub'd), No. D054333

Darnell G. appeals the findings and orders entered at a post permanency planning review hearing, including the denial of his 388 W&IC petition. Citing In re Sade C. (1996) 13 Cal.4th 952, he asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [his] custody of a child or [his] status as the child's parent", denied his appeal.

Opinion: D054333.PDF, D054333.DOC

Angela G. v. Superior Court (Unpub'd), No. D054397

Angela G. (mother) sought writ review of orders terminating her reunification services and setting a 366.26 W&IC hearing regarding her daughter, Jazmin A. She contended the court erred by finding she was provided reasonable services. The appellate court held that Angela forfeited her arguments by failing to raise them in the juvenile court, and moreover that she did not sustain her burden to show a lack of substantial evidence to support the court's findings. Accordingly, her petition for writ relief was denied.

Opinion: D054397.PDF, D054397.DOC

In re T.G. et al. (Unpub'd), No. A123052

M.G. (father) is the father of two young girls, T.G. and A.G.. He appealed the juvenile court's order terminating his parental rights regarding those two children pursuant to 366.26 W&IC. He claimed that insufficient evidence supported the court's finding that his two children were adoptable. He also challenged the lower court's summary denial of his section 388 petition to reinstate reunification services. The appellate court held that father had failed to meet his burden for showing changed circumstances in his 388 petition, and that substantial evidence supported the lower court's finding that department established by clear and convincing evidence that the children were adoptable. Accordingly, the father's appeal was denied and the lower court's orders were affirmed.

Opinion: A123052.PDF, A123052.DOC

In re C.G. et al. (Unpub'd), No. B210023

C.G. (father) and C.M. (mother)'s children were detained following severe domestic violence by E.M. (mother's present boyfriend). E.M. had previously assaulted C.G., resulting in his hospitalization; on the occasion which resulted in the emergency DCFS referral, E.M. severely beat mother to the point that she stopped breathing several times while officers were providing emergency medical assistance. DCFS filed a petition under 300(a) and 300(b) W&IC based on mother's history of domestic violence with E.M.. C.G. was named in the petition as a nonoffending party. On May 28, 2008, DCFS filed an ex parte 385 petition seeking to vacate the earlier order placing G.M. (child) with Father, because Father allegedly permitted Mother to have unsupervised overnight visits with G.M., G.M.'s babysitter released G.M. to Mother and E.M. on at least one occasion; and Father's live-in girlfriend was hitting E.G. with her hands and/or a belt. At a June 30, 2008 dispositional hearing, the court sustained the 300 petition, removed all the children from mother's custody, placed C.G., E.G., and J.G. (children) in the care of Father and placed G.M. in foster care. The court entered orders for a variety of reunification services, including individual counseling by Father "to address child protection and the case history". Father appealed the portion of the court's order pertaining to counseling, alleging it is unsupported by sufficient evidence.

The appellate court noted that the juvenile court has broad discretion "to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly." The court further noted that "[i]ndividual counseling would assist Father in recognizing the severity of the abuse suffered by the children and understanding the impact of the abuse on the emotional well-being of the children" and that there was " ample evidence to support the trial court's order directing Father to attending individual counseling." The appeal was therefore denied and the lower court's order was affirmed.

Opinion: B210023.PDF, B210023.DOC

In re Emily O. (Unpub'd), No. H033036

Jose P. (father) and Karen O. (mother) filed two appeals, which were consolidated, seeking review of the juvenile court's denial of their 388 W&IC petitions which sought the child's return to them or reinstatement of reunification services, and review of an order terminating parental rights pursuant to 366.26 W&IC. As to the 388 petitions, father alleged that the court abused its discretion in denying his petition, and mother alleged that the court violated her due process in failing to consider new evidence related to the treatment of her psychological diagnosis and her ability to parent Emily. As to the termination of parental rights, the parents argued that the beneficial relationship exception of 366.26(c)(1)(B)(i) should have applied, and that juvenile court erred in determining it did not. The appellate court held that substantial evidence supported the juvenile court's orders, affirmed those orders and denied the appeals.

Opinion: H033036.PDF, H033036.DOC

Case Law Update: 20 Mar 2009

In re A.G. (Unpub'd), No. D053797

Jane R.G. (mother) appealed a judgment declaring her minor son, A.G., a dependent of the juvenile court under 300(a) W&IC (following his admission to a hospital with multiple unexplained skull and rib fractures) and removing him from her custody. Jane contended the court erred by failing to consider less drastic alternatives to removal, and that it improperly delegated its authority to the Social Services Agency by refusing to order more than four hours of visitation per week (so that she could breastfeed him).

The appellate court held that substantial evidence supported the finding that there were no reasonable means by which A.G. could be protected without removing him from Jane's care. The appellate court, after explaining that the juvenile court holds broad discretion to make visitation orders, and that the state's interest in providing for the best interest of the child justifies any limited intrusion on a parent's right to visitation, further held that the court appropriately ordered a minimum of two visits per week and correctly left to the agency's discretion the specifics of orchestrating the visitation schedule. Accordingly, the appellate court found no improper delegation of authority in the juvenile court's visitation orders. The lower court's orders were thus affirmed, and mother's appeal was denied.

Opinion: D053797.PDF, D053797.DOC

In re Kelly M. (Unpub'd), No. D053968

Mother, T.D., and presumed father, James M., appeal the judgment terminating their parental rights to their daughter, Kelly M., contending the juvenile court erred by declining to apply the beneficial relationship exception of 366.26(c)(1)(B)(i) W&IC. The appellate court noted that while Kelly seemed to enjoy visits with T.D. and was comfortable with her, Kelly did not appear to have a strong connection to T.D., however, and did not display distress when they parted. The appellate court further noted that T.D. and James both had long histories of CPS involvement, criminal activity and violence, that they never achieved unsupervised visitation, and that they did not attend the 366.26 hearing. Accordingly, the appellate court held that the juvenile court did not err in concluding the beneficial relationship exception did not apply. The appeal was denied, and the orders from the 366.26 hearing were affirmed.

Opinion: D053968.PDF, D053968.DOC

P.O. v. Superior Court (Unpub'd), No. A123627

P.O., the father of six minor children, petitioned under California Rules of Court, rule 8.452 to vacate an order of the juvenile court setting a hearing under 366.26 W&IC that may result in termination of his parental rights. Father argued his rights to due process were violated when he did not receive notice of certain hearings or of the grounds relied upon by the San Mateo County Human Services Agency (County) to deny him reunification services. Father also contended he was entitled to services under section 361.5, because the County knew of Father's location within six months of the children's out-of-home placement, and because one mental health evaluator concluded Father could benefit from services.

The appellate court held that Father's claim that he was denied due process due to improper noticing was forfeited because he never raised it in the juvenile court, and that in any case, father did show that he suffered any prejudice from the failure to notice or that he was entitled to services under 361.5(d). The appellate court further held that substantial evidence supports the court's decision under section 361.5(b)(2) to deny reunification services to Father because he suffers from a qualifying mental disability (personality disorder with histrionic, paranoid and obsessive-compulsive traits). Accordingly, the petition for writ relief was denied on its merits.

Opinion: A123627.PDF, A123627.DOC

In re J.M. (Unpub'd), No. B210844

In December 2006, the Department of Children and Family Services (DCFS) received an emergency referral alleging general neglect regarding then four-month-old J.M. The maternal great grandmother and maternal aunt contacted DCFS claiming mother, then 18 years old, had been using methamphetamine since she was 13 years old, regularly disappeared for days at a time, and left without providing, or making arrangements, for J.M.'s care. J.M. was detained in January of 2007 under 300(b) and 300(g), placed him with his great-aunt, and ordered reunification services. The court terminated reunification at the 6-month review hearing, after finding that in the preceding 11 months mother had only attended one court hearing, had no contact with DCFS, had not participated in any recommended programs, and "essentially" had no visits with J.M., and set a 366.26 hearing. The 366.26 hearing was held in July, 2008; Mother did not appear, nor had she communicated with her counsel since the detention and jurisdiction hearing. The juvenile court found by clear and convincing evidence that J.M. was likely to be adopted, terminated mother's parental rights, and freed J.M. for adoption.

Mother, who was then incarcerated in state prison, appealed, contending that the maternal great grandmother and aunt lied to DCFS about her behavior, and that there was therefore insufficient evidence to support the court's findings. She further asserted that the juvenile court failed to take steps to ensure her appearance for all court dates when made aware of her incarceration. The appellate court noted that "Mother does not claim father's report of her behavior was untruthful. The father's statements fully corroborated, and were at least as damaging as, those of mother's relatives, and standing alone supported the court's findings that mother failed to protect and provide for J.M." and therefore found mother's first claim unavailing. The appellate court further noted that Mother was incarcerated for only one of the juvenile court's hearings (the 366.26 hearing) and that in that case she had three weeks to notify the court of her incarcerated status (so arrangements could be made to secure her attendance) but she failed to do so, and that other prior hearings were in fact continued to allow her to attend following periods of incarceration. Accordingly, mother's appeal was denied and the lower court's orders were affirmed.

Opinion: B210844.PDF, B210844.DOC

Case Law Update: 19 Mar 2009

In re Tiffany W. et al. (Unpub'd), No. B207928

The Department of Children and Family Services (the Department) received a referral on November 20, 2007, from seventeen-year-old Tiffany and sixteen-year-old Chelsea's school of physical and emotional child abuse perpetrated by father. The Department filed a detention petition under 300(a) and 300(b) W&IC, which was later ammended to add an additional allegation under 300(c). An adjudication and disposition hearing was held, at which 11 days of testimony was offered to support the Department's allegations. The court sustained the 300(b) and 300(c) allegations, removed the girls from father, placed them under the supervision of the Department, ordered family reunification services and awarded father monitored visitation with the possibility for liberalization. Father appealed in pro per, contending a wide assortment of errors including judicial bias, due process violations, and insufficient evidence to support the allegations. The appeals court denied the appeal in all respects, and affirmed the juvenile court's orders.

Opinion: B207928.PDF, B207928.DOC

In re H.H. et al. (Unpub'd), No. D053455

Russell H. and L.S. (the parents) appealed judgments terminating their parental rights to two of their daughters, H.H. and T.H. (the children), and denials of their 388 W&IC petitions requesting placement of the children with them and further reunification services. They contended the court erred by denying their section 388 petitions and by finding the children to be adoptable. They also asserted the court erred by not finding the sibling relationship exception to termination of parental rights and adoption applied in the case. Additionally, L.S. asserted the court erred by not finding the beneficial parent-child relationship exception to termination of her parental rights applied in this case, and by designating the children's caretakers as their prospective adoptive parents. The appellate court affirmed the judgments in all respects, and denied the appeals.

Opinion: D053455.PDF, D053455.DOC

In re O.M. (Unpub'd), No. B210849

On July 2, 2008, the Los Angeles County Department of Children and Family Services (Department) received an immediate response hospital referral from concerning newborn O.M. Though both Y.A. (mother) and infant produced negative toxicological screens, mother acknowledged substance abuse issues and having lost custody of her other seven children in dependency proceedings in Arizona. At an emergency TDM the following day, the parents agreed to family preservation services and individual counseling, and the Department agreed to file a non-detained petition under 300 W&IC. At a juris/dispo hearing in late July, the Department indicated its belief that family maintenence services would be appropriate given mother's prior history with child protective services in Arizona. The juvenile court declared O.M. a dependent (under 300(j)), placed O.M. in mother's and father's home, and ordered the Department to provide family maintenance services. Mother appealed, contending primarily that, because none of her prior dependency cases occurred in California, "no child [of hers] was declared to be a dependent under section 300" and therefore the court's finding of jurisdiction under 300(j) was erroneous. The appellate court found that 300(j) does not impose a requirement for a prior sustained petition in California under 300(a),(b),(d),(e), or (i); rather, the requirement of 300(j) is only that the parents' conduct falls within the provisions of one of those sections. The appellate court found substantial evidence on the record to support the juvenile court's conclusion that 300(j) applied, and consequently denied the appeal and sustained the lower court's orders.

Opinion: B210849.PDF, B210849.DOC

In re Z.T. (Unpub'd), No. B210753

After the juvenile court had set a Welfare and Institutions Code section 366.26 hearing on selection and implementation of a permanent plan for dependent Z.T., his mother, A.N. (mother), filed a request for change in order under section 388 arguing that the juvenile court should have ordered an assessment of Z.T.'s maternal grandmother for possible placement with the grandmother as guardian. The juvenile court denied the section 388 request, terminated parental rights, and freed Z.T. for adoption. On appeal, mother argued that the juvenile court abused its discretion when it denied her section 388 request. According to mother, the juvenile court had a legal duty under section 361.3 to order an assessment of the maternal grandmother for placement — both prior to disposition and prior to the placement of Z.T. with his prospective adoptive family — but failed to comply with that duty. Mother argues that it was therefore an abuse of discretion not to rectify those failures by granting her section 388 request.

The appellate court held that mother's challenge on appeal was waived because she failed to raise those issues in the juvenile court and failed to pursue timely writ relief. Additionally, the appellate court held that the juvenile court did not err in concluding that mother's 388 petition failed to raise new facts or new circumstances and failed to demonstrate that the requested order would be in Z.T.'s best interests. Accordingly, the appeal was denied and the juvenile court's orders were affirmed.

Opinion: B210753.PDF, B210753.DOC

In re H.A. (Unpub'd), No. B210311

W.A. (Father) appealed from a June 25, 2008 order terminating parental rights to his daughter, H.A., born in December 2003, and referring her for adoption by a paternal cousin. On appeal, he alleged that the juvenile court erred in finding that the beneficial relationship exception to termination of parental rights under 366.26(c)(1)(B)(i) did not apply. The appellate court held that, because father failed to raise his objections to the adequacy of the adoption assessment in the juvenile court, his claims were waived on appeal. Additionally, the appellate court held that there is sufficient evidence to support the juvenile court's finding that Father failed to show that H.A.'s well-being would be promoted more by a continuation of the parent-child relationship in a tenuous placement than by adoption. Accordingly, the appeal was denied and the juvenile court's orders were affirmed.

Opinion: B210311.PDF, B210311.DOC

In re E.B. Jr. (Unpub'd), No. B209001

E.B. Jr., born in July of 2006, was detained in September of 2006, finding that Father had an unresolved history of drug abuse that rendered him incapable of providing his son with regular care and supervision. Father agreed to a court-ordered case plan in which E.B., Jr. would remain in the care and custody of this aunt and Father would have monitored visits. The court also ordered the DCFS to provide reunification services to Father and that Father complete a drug rehabilitation program, including random drug testing, and program of parent education. Reunification services were terminated for father at a 6-month review hearing, and for mother after the 18-month review. At a June 2008 permanency planning hearing, the juvenile court entered a sua sponte order denying father visitation. The court noted at that time that E.B. Jr. "will be two years old in a few weeks and he hasn't had any contact with his father for at least a year and a half." Father appealed the order denying visitation, contending that the juvenile court was required to permit continued visitation pending the section 366.26 hearing absent a finding visitation would be detrimental to the minors.

The appeals court held that, although the juvenile court erred in terminating father's visitation, the fact that "the time for establishing consistent visitation and contact with E.B., Jr. [had] long since passed" meant the error was harmless since reunification services had been terminated and father had shown no effort to address his drug addiction and homelessness issues. Accordingly, the juvenile court's order was affirmed and father's appeal was denied.

Opinion: B209001.PDF, B209001.DOC

In re D.P. et al. (Unpub'd), No. B208462

I.C., mother of the minor children D.P. and S.P. (Mother, D.P. and S.P., respectively), appealed from a disposition order. She challenged the sufficiency of the evidence to support an adjudication finding that she "knew that the father of the minor children was sexually abusing them and she failed to protect the children". The reporter's transcript from the adjudication/disposition hearing showed that the trial court's spoken finding was that "Mother knew or should have known of the father's abuse and failed to protect the minors." (Emphasis added by the appellate court).

The appellate court held that mother's contention was technically correct, though not of much help to her in relieving her of responsibility for "Father's having been free to continue his ongoing sexual abuse of the minors". The appellate court therefore remanded the case to the juvenile court with instructions to amend, by interlineation, the additional language shown in the reporter's transcript.

Opinion: B208462.PDF, B208462.DOC

In re S.M. (Unpub'd), No. B207767

M.M. (Mother) appealed from a May 27, 2008 post permanent plan review order with respect to her daughter, S.M. (born in Aug. 1990), who was placed in a permanent plan of foster care with her maternal aunt in 2007. Mother challenged a purported factual finding that "reasonable services have been provided to meet the needs of the minor(s)". However, because the minute order from that hearing stated that "[t]he court finds that the Department has not provided the necessary services to assist the child in making the transition from foster care to independent living" (emphasis added), the court granted DCFS's motion to dismiss on the ground that Mother's brief raised no cognizable appellate issue.

Opinion: B207767.PDF, B207767.DOC