Case Law Update: 10 Mar 2009

In re M.R. #1 (Unpub'd), No. F056099

In this appeal (one of two involving the same children), M. and E. were detained from their mother following significant domestic violence. For example, on one occasion while Mother was pregnant with E., she held a knife to M.'s throat during an argument with the father. M. and E. were both detained in the summer of 2006, after E. was found with significant injuries, and the court ordered reunification services for both parents, which they successfully completed. However, neither was able to satisfactorily explain E.'s injuries, and Mother "exhibited traits of various personality disorders which had implications for her ability to parent". In May, 2008, the court terminated reunification services, reduced visitation to once a month, and set a 366.26 hearing, at which parental rights were terminated.

In this appeal, Mother contended that the court erred in rejecting her argument that termination would be detrimental to the children. In her view, the court's decision was not supported by substantial evidence and the court erroneously focused on the social worker's testimony about the children's bond with their foster caregivers and determined that bond would mitigate the detriment the children would experience. The court held that, although it was undisputed that she maintained regular visitation, she failed to produce any evidence that her relationship with the children was so beneficial as to invoke the beneficial relationship exception of 366.26(c)(1)(B)(1). Accordingly, the appellate court held that the juvenile court did not err in terminating parental rights, and the lower court's orders were affirmed.

Opinion: F056099.PDF, F056099.DOC

In re M.R. #2 (Unpub'd), No. F056135

In this second appeal involving M. and E., the Father appealed the termination of parental rights, claiming that the juvenile court erred in finding that termination would not be detrimental to the children, and further alleged a due process violation because he and the Mother shared a single interpreter at the 366.26 hearing.

The court, after noting that it had rejected a like argument on the interpreter issue in a prior appeal filed by the Father, concluded that there was no evidence that the presence of only a single interpreter was detrimental. The court further estated the reasoning given in the appeal involving Mother - namely, that no showing had been made that the relationship between M. and E. and their parents was of a sufficiently compelling nature to trigger the beneficial relationship exception of 366.26(c)(1). Noting that the parent's failure to provide convincing evidence of detriment means that the court's decision is reviewed only for abuse of discretion, the appellate court held that the court did not abuse its discretion in rejecting the Father's claims. Accordingly, the lower court's orders were affirmed.

Opinion: F056135.PDF, F056135.DOC

In re A.B. (Unpub'd), No. B208744

A.B., (16 years old) was detained from her mother and stepfather following allegations of physical abuse by Jim (stepfather) and allegations that both he and Lisa (mother) drank excessively. The court ordered Jim to move out of the family home, and ordered the Social Services Agency to make random visits to mother to confirm that Jim was no longer in the home and that Lisa was not using alcohol. The court further ordered alcohol testing, monitored visitation, and counseling. Mother reported difficulty giving urine samples for alcohol testing and objected to the court's decision to consider a diluted test as a dirty test. At a June, 2008 disposition hearing, the court identified A.B.'s permanent plan as a transition from foster care to emancipation. Mother appealed the dispositional order requiring her to test for alcohol use and enroll in an alcohol treatment program if she submits a diluted test, contending that the automatic nature of the order denied her due process rights to present evidence and confront witnesses.

The appellate court noted that the juvenile court has wide discretion to order reasonable services to address the conditions that led to the dependency proceeding, and that ordering alcohol testing was not an abuse of discretion. The court further found mother's due process claim unavailing, explaining that "[t]ests, such as alcohol and drug tests, are standardized scientific tests administered according to a chemically calibrated protocol. Mother, due to nervousness or modesty, claims she is unable to provide a sample unless she can essentially subvert the test protocol. Mother has no due process or confrontation clause right to do so." Accordingly, the lower court's orders were affirmed.

Opinion: B208744.PDF, B208744.DOC

In re D.H. (Unpub'd), No. B210526

D.H., 22 months old, was detained by the Department of Children and Family Services (DCFS) in November 2007 due to his parents' use of drugs and their maintenance of an unsanitary home with drug paraphernalia and drugs left within his reach. At a contested adjudication hearing, the court sustained the petition and ordered no reunification services for C.H. (mother) based on prior termination of parental rights for C.H.'s other children. The court ordered no reunification services for Ryan B. (father) because he was incarcerated and because "there's no probability under those circumstances that even if he were able to be clean and sober, he would be in a position to show that there was a substantial probability for him to have the child returned to him." In January, 2008, D.H. was placed with his great-aunt and great-uncle, who had previously adopted other of his siblings. A 366.26 hearing was set for August 14, 2008. On July 28, Ryan B. filed a 388 petition seeking reunification services based on parenting classes he'd completed while incarcerated. The court set the petition for a hearing, but Ryan registered a dirty drug test for amphetamines while the petition was pending, after which the court denied it. At a 366.26 hearing in September, 2008, parental rights were terminated and D.H. was freed for adoption. C.H. appealed the termination of parental rights, arguing that the beneficial relationship exception of 366.26(c)(1)(B)(i) applied; Ryan B. appealed the denial of his 38 petition, arguing that the original denial of reunification services was erroneous.

The appellate court found that, while Ryan B. had made a promising start in improving his circumstances by attending classes while incarcerated, the juvenile court was well within its discretion to conclude, based on the subsequent dirty drug test, that it would not be in D.H.'s best interests to delay his likely adoption while Ryan B. was given time to see if he could make meaningful progress. As regard to C.H.'s claim, the appellate court held that "the evidence did not establish the kind of parental relationship that section 366.26, subdivision (c)(1)(B)(i) was designed to preserve". Accordingly, the juvenile court's orders were affirmed in all respects, and both appeals were denied.

Opinion: B210526.PDF, B210526.DOC

In re M.R. et al. (Unpub'd), No. C058496

On September 30, 2004, appellant's children M. R., 12 years old; K. C., 14 years old; K. K., four years old; and W. P., one year old, were placed into protective custody after the one year old was found walking outside appellant's house naked and alone. The home did not meet basic health and safety standards. K. C. was not enrolled in school and had been left in charge of her siblings while appellant was gone. After a lengthy period of monitoring and provision of services, and several 387 petitions, the court terminated reunification services in February of 2008 and ordered a permanent plan of placement with the maternal grandmother and the goal of emancipation for K. C. and guardianship for M. R. The mother appealed, arguing that there is insufficient evidence to support the juvenile court's finding that it provided reasonable reunification services, and that there was a reasonable probability that the minors could safely be returned to her within six months and so reunification services should have been extended.

Noting Mother's "persistent failure to take advantage of the opportunities afforded to her by DHHS", the appellate court held that the lower court's finding that services were adequate was supported by "overwhelming evidence". After concluding that "[i]t is inconceivable that further services would have been fruitful," the appellate court rejected this argument as well. Accordingly, the order terminating reunification services was affirmed.

Opinion: C058496.PDF, C058496.DOC

In re Raymond R., et al. (Unpub'd), No C059053

Following mother's arrest for domestic violence in November, 2007, a section 300 petition was filed alleging mother had been arrested for domestic violence, mother had mental health problems which had previously affected her ability to care for her children, and that mother and father had a history of domestic violence, substance abuse problems and a history of dependency cases dating back to 2000. At a contested dispositional hearing in December, 2007, the court denied reunification services under 361.5(b)(13) and set the case for a 366.26 hearing. After that hearing, the court terminated parental rights, and found that the children's bond to their sister (A., who had been involved in a separate dependency proceeding and with whom they had some visitation), while strong, was not beneficial enough given the infrequency of contact to trigger the beneficial sibling relationship exception of 366.26(c)(1)(E). Mother appealed the termination order, contending that the trial court abused its discretion in failing to investigate whether she required a guardian ad litem and that the finding that the children were adoptable is not supported by substantial evidence.

The appellate court explained that, while there was significant evidence that Mother had experienced various kinds of mental illness, that "[m]ental health problems are not, however, the same as incompetence." There was no evidence, in the appellate court's view, that Mother did not understand the nature of the proceedings or that she was unable to participate and to cooperate with her counsel. Accordingly, the appellate court held that the juvenile court did not abuse its discretion in failing to appoint a guardian ad litem for Mother. The appellate court further held that, in light of the fact that a prospective adoptive home had been identified for the children and the fact that they were "healthy, developmentally and intellectually on track and had no significant behavior problems", that substantial evidence supports the juvenile court's determination that the children were adoptable. Accordingly, mother's appeal was denied.

Opinion: C059053.PDF, C059053.DOC

In re M.H. (Unpub'd), No. B210138

M.H. (then fourteen) was detained in April, 2006, following allegations that her father had repeatedly molested her over a period of 7 or 8 years. M.H.'s sister (J.H., then 11) also disclosed molestation when questioned by police. Under questioning, R.H. (Father) admitted some of the molestation, and said that Mother had walked in on him twice while he was molesting M.H. Since Father was in jail, the Department offered family maintenence and left the children with Mother. In March, 2006, the Department learned that Mother had left California with the children; the children were ordered detained and DCFS was instructed to begin a search for them. Mother was granted monitored visits once she made contact with DCFS, but father was ordered not to have any contact with the children. Mother and the children were located in Illinois in May, 2008, and were returned to Los Angeles; a disposition hearing was set for August 13, 2008. Prior to the August 13 hearing, mother filed a motion under section 385 for reconsideration in which M.H. joined. The motion sought reconsideration of the juvenile court's true finding as to the allegation that mother had "abducted" the children when she fled to Illinois with them. Citing mother's long absence from the jurisdiction, the juvenile court denied the 385 motion as untimely, declared the minors dependents of the court, denied reunification services for Father, and granted Mother monitored visits. M.H. appealed the denial of the 385 petition.

The appellate court found that "the juvenile court's ruling denying that noticed motion for reconsideration was correct as a matter of law based on the admitted noncompliance with section 388, regardless of whether the court's timeliness rationale was correct". Accordingly, the appellate court held that the lower court did not abuse its discretion in denying the petition for reconsideration.

I've attached a copy of this case, because I'm not sure I entirely understood the nuances of the appellate court's rationale. If you have time to read it, I'd welcome a few minutes to walk through it with you once I've had a chance to more thoroughly read it with reference to 385 W&IC.

Opinion: B210138.PDF, B210138.DOC

In re. I.C. (Unpub'd), No. B211386

When I.C. was two years old, Mother was involved in a car accident which killed his 7-year-old brother and seriously injured his 5-year-old sister. I. was detained based on factual allegations concerning the accident and Mother's use of drugs. The petition was sustained in June, 2006, and reunification services were provided. In February, 2007, however, Mother was arrested for burglary, and by March, 2007, evidence of renewed drug use and physical abuse emerged. Services were terminated on May 10, 2007, and a 366.26 hearing was set, and then continued multiple times until September, 2008. In August, 2008, Mother filed a 388 petition asking that I. be released to her or that reunification services be reinstated, and provided evidence that she had resumed drug treatment in May, 2008. The court denied the petition without a hearing, finding that the fact that Mother had recently re-entered treatment and was in the first phase of her treatment did not constitute changed circumstances, and noting that although the case was almost three years old, Mother was still struggling with the problem which caused the dependency. The court proceeded with termination of parental rights, and Mother subsequently appealed the denial of her 388 petition.

The appellate court found that Mother had not met the burden of making a prima facie showing of new evidence or changed cirucmstances that would require a hearing on her petition, and had not shown that delaying permanency for I.C. was in his best interests. Accordingly, mother's petition was denied.

Mother also raised an ancillary issue on appeal concerning the sufficiency of ICWA notifications, but the appellate court found no prejudice on that issue and denied it.

Opinion: B211386.PDF, B211386.DOC

S.M. v. Superior Court (Unpub'd), No. A123596

M.M. (then 5) and A.M. (then 3) were detained in September, 2008, because severe mental illness rendered Mother unable to care for them. The children were placed with their grandmother. In November, 2008, following information that Mother made surprise visits to Grandmother's home and these disturbed the minors, the court held that it was necessary to remove the minors under 361(c)(1), denied reunification services for mother under 361.5(b)(2), and set the matter for a 366.26 hearing. Mother appealed via a petition for extraordinary writ, arguing there was insufficient evidence to support the finding that "the minor is at risk of substantial danger to his or her physical health, safety, protection, or physical or emotional well-being if left in the parent's custody, and there are no reasonable alternatives to removal by which the minor's physical health can be protected."

The appellate court noted that Mother's claims are reviewed under the clear and convincing evidence standard of proof, and noted that two psychological evaluations, one of which declared that Mother was "unable to function in a minimally adequate manner, and...unable to responsibly care for the emotional, educational, medical needs of her children", supported the juvenile court's findings. Accordingly, the petition for extraordinary writ was denied on the merits.

Opinion: A123596.PDF, A123596.DOC

In re J.P. et al. (Unpub'd), No. B208288

Children J.P., P.N., and N.N., respectively three years old, one year old, and four months old, along with their five-year-old half-sibling.2 were found home alone by police on May 23, 2006. The apartment had no furniture. A filthy, wet carpet was on the floor. The eldest child said that mother and father abused the children. Mother and father were arrested when they returned home two hours after the police arrived. The children were detained by the Department of Children and Family Services (DCFS) and placed in foster care. Mother's reunification services were terminated on March 7, 2007, and a permanency planning hearing was set under section 366.26 for September 6, 2007. The hearing was continued repeatedly until May 21, 2008. The court found that parents had failed to prove the applicability of any exception to termination of their rights, and found by clear and convincing evidence that the children were adoptable. It also found that it would be detrimental to return the children to their parents. Parental rights were terminated, and the children were declared free from the care, custody, and control of their parents. Mother and father appealed the termination of parental rights on the grounds that substantial evidence did not support the determination the children were adoptable. Father also appealed a denial of his request to continue the 366.26 hearing and a denial of a request to file a 388 petition.

The appellate court held that father had failed to show how a continuance would be in the children's best interest, nor had he shown that his 388 petition (seeking placement of the children with his relatives) was not an abuse of discretion. The appellate court also found that there was substantial evidence to support the court's determination the children are likely to be adopted. Accordingly, the appeals were denied and the lower court's orders upheld.

Opinion: B208288.PDF, B208288.DOC

G.M. and E.B. v. Superior Court (Unpub'd), No. A123500

E.B., a minor who has been freed for adoption, and G.M., her current caretaker (collectively, petitioners), filed petitions for extraordinary writ relief, challenging orders the juvenile court entered after respondent Alameda County Social Services Agency (Agency) denied G.M.'s application to adopt E.B. Petitioners contend that the juvenile court erred by denying their requests for reversal of Agency's decision on the adoption application; denying their request that G.M. be designated E.B.'s prospective adoptive parent, and following improper procedures in denying Agency's request to remove E.B. from G.M.'s home. E.B. and G.M.'s appeals were consolidated and denied.

Opinion: A123500.PDF, A123500.DOC

T.B. v. Superior Court (Unpub'd), No. A123645

Petitioner T.B., mother of U.B. and U.S. (who were detained following allegations of mother's substance abuse issues, history of relationships characterized by domestic violence, mental health and anger management issues, failure to comply with previous reunification services, and prior removal of six other children from her custody) sought extraordinary writ review of a juvenile court order denying family reunification services and setting the matter for a Welfare and Institutions Code section 366.26 hearing on April 8, 2009, to consider termination of parental rights. She contended that the court's findings misinterpreted and misapplied section 361.5, subdivision (b)(10), which authorizes the juvenile court to deny reunification services where the parent has failed to reunify with another child and has not made a reasonable effort to treat the problems that led to the failure to reunify with the other child.

The appellate court noted that, because mother has six other children who are dependents and have been placed out of her care, the juvenile court properly applied the standard of 361.5(b)(10), and denied her appeal.

Opinion: A123645.PDF, A123645.DOC

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