Case Law Update: 11 Mar 2009

In re J.T. (Unpub'd), No. B209819

On February 25, 2004, the Los Angeles County Department of Children and Family Services (Department) filed a section 300, subdivision (b) petition on behalf of infant J. At the detention hearing, the court found a prima facie case and detained J. The court ordered the Department to provide family reunification services. Appellant was given weekly visits with her son, who was released to grandfather's care. In August, 2005, the court terminated reunification services and in December 2005 named the grandfather as J.'s guardian. J's mother visited only sporadically. In February, 2007, grandfather expressed interest in adopting J.; the court ordered the Agency to prepare an adoption home study and set another 366.26 hearing. While the adoption home study was being conducted, J.'s mother filed several 388 petitions seeking reinstatement of reunification services, all of which were denied. The contested 366.26 hearing took place in July, 2008, whereupon the court terminated appellant's parental rights and ordered adoption as J.'s permanent plan. J.'s mother appealed the denial of her 388 petitions and the termination of her parental rights.

The appellate court ruled that Mother had failed to show changed circumstances or new evidence to support her 388 petitions, and that the juvenile court had therefore not abused its discretion in denying them without a hearing. The appellate court also rejected her argument that the beneficial relationship exception of 366.26(c)(1)(B)(i) applied, noting that "because of her inconsistent presence in her son's life, appellant could not show her bond with J. outweighed the benefits of stability and permanency he would have from adoption" Accordingly, the lower court's orders were affirmed.

Opinion: B209819.PDF, B209819.DOC

In re Maria V. et al. (Unpub'd), No. D053423

Maria V. (now 11) and Alejandra H. (now 5) were detained from C.H. (Father) and M.V. (Mother), both Mexican nationals, following allegations of sexual abuse (with respect to Maria) and substantial risk of abuse (as to Alejandra). M.V. briefly took the children to Tijuana, and they were detained in protective custody by the Agency upon their return to San Diego. In June, 2007, the court deemed it did not have subject matter jurisdiction under the UCCJEA, dismissed the petitions, and ordered the children released to their parents. The Agency and the children appealed. On June 12 the Agency filed a petition for writ of supersedeas in the appellate court, which granted the writ petition, stayed enforcement of the court's order of June 11, ordered the continued detention of the children and authorized the trial court to exercise temporary emergency jurisdiction under section 3424, subdivision (a), pending resolution of the issues raised on appeal. The appellate court concluded the juvenile court erred in denying the Agency's request to consider whether the court had emergency jurisdiction, and remanded with directions to the court to hold an evidentiary hearing to determine whether the court had subject matter jurisdiction under emergency provisions of the UCCJEA.

On May 22, 2008, the lower court concluded that it had subject matter jurisdiction under the emergency provisions of the UCCJEA. C.H. appealed, arguing that the Agency improperly procured the children's presence in California and therefore the children were not "present" in the state within the meaning of section 3424, subdivision (a), because the Agency improperly caused the children to be brought across the international border against their parents' wishes. The appellate court, citing In re. Jorge G. (2008) 164 Cal.App.4th 125, 132, explained that emergency jurisdiction under the UCCJEA requires only exigent circumstances and the child's physical presence in the state. Accordingly, the lower court's orders were affirmed.

Opinion: D053423.PDF, D053423.DOC
The earlier referenced opinion is D051050.PDF (unpub'd).
This case is attached.

In re. V.S. (Unpub'd), No. B207335

V.S. was born in July 2007, and shortly thereafter his mother (Ana A.) was hospitalized for post-partum depression and symptoms of PTSD. The family agreed to FM and preservation services, including psychiatric counseling, psychotropic medication, parenting education for Mother, and parenting education for Father. On February 28, 2008, Mother disclosed during a group therapy session that she was inflicting cuts and burns on herself in response to memories of severe physical abuse by her father. Mother's group therapist contacted DCFS and reported Mother's statement. Although Mother recanted her statement about self-mutilation on the same day, DCFS detained V.S. and placed him in foster care. DCFS subsequently filed a dependency petition under section 300, subdivisions (a) (serious harm) and (b) (failure to protect). As amended, the petition alleged that Mother physically abused V.S., Mother's mental and emotional condition placed V.S. at risk of harm and danger, and Father's failure to protect V.S. endangered V.S.'s physical and emotional health. The juvenile court declared V.S. a dependent of the court and placed V.S. at home with Father on the condition that Mother not reside with them. The court permitted DCFS to liberalize Mother's visits into unmonitored overnight visits as it saw fit. In its dispositional order, the court ordered: (a) Mother to undergo individual counseling, group counseling, conjoint counseling with Father, parenting education, and compliance with medication, and (b) Father to attend individual counseling and conjoint counseling with Mother. Father timely appealed, challenging the jurisdictional findings against him and the dispositional order. V.S. timely appealed, challenging the jurisdictional findings against Father.

The appellate court, after noting that "Evidence in [the Agency] reports indicated that Father failed to appreciate the severity of Mother's mental condition and that V.S. was at a substantial risk of suffering physical harm", ruled that the record supported the juvenile court's jurisdictional finding. As to the dispositional findings, the appellate court held that the trial court did not abuse its discretion in ordering Father to undergo individual and conjoint counseling. V.S. also contends that it was error for the court not to order informal supervision pursuant to 360(b). The appellate court ruled that V.S. forfeited that issue by failing to request informal supervision in the juvenile court, and that in any event, 360(b)'s language is permissive and not mandatory. The lower court's orders were therefore affirmed.

Opinion: B207335.PDF, B207335.DOC

In re D.N. (Unpub'd), No. B209748

Then 18-month-old D.N. was detained in May, 2007, after her maternal grandparents reported that she'd been physically abused. The maternal grandmother saw bruises on D.N.'s face and arm and did not believe Mother's explanation. DCFS filed a petition under 300(a) and 300(b), alleging Daughter was at risk due to Mother's physical abuse and domestic violence between Mother and Boyfriend. At the detention hearing, Mother identified Father and said that he was in the Army. The juvenile court found a prima facie case for detention. It also ordered DCFS to attempt to locate Father. Thereafter, it ordered Daughter detained with her maternal cousins. At the June 18, 2007 jurisdictional/dispositional hearing, the juvenile court sustained the section 300 petition and declared Daughter a dependent child of the court. It ordered Mother to participate in parenting education, domestic violence and individual counseling, and anger management. It also granted Mother monitored visitation. By December, 2007, LAPD was pursuing criminal charges against mother based on a skeletal survey that revealed old fractures. DCFS had located the Father, who sought custody. At a July, 2008, hearing, the court gave Mother and Father joint legal and physical custody, with Daughter's primary residence to remain with Father.

Mother appealed, contending that the juvenile court erred in placing Daughter in Father's care, in that mother completed all aspects of her reunification and voluntary family maintenance plans, and it was in Daughter's best interests to be placed with Mother. The appellate court ruled that, while Mother made some valid arguments for why D.N. should have been placed with her, the appellate court may not substitute its judgment for that of the juvenile court absent an abuse of discretion. As such, the lower court's orders were affirmed.

Opinion: B209748.PDF, B209748.DOC

In re M.G., et al. (Unpub'd), No. B208090

J.P. Jr. and M.G. were detained in February 2008 following allegations under 300(a), 300(b), 300(g) and 300(j) alleging, inter alia, that J.P. (father) physically abused both children, that he had a history of illicit drug use, and that Ana G. (mother) failed to protect the children. The court detained the children and ordered reunification services. While in foster care, M.G. disclosed sexual abuse by J.P., which resulted in an amended petition by the Agency with allegations under 300(b), 300(d) and 300(j). The court accepted this petition and dismissed the original one in March, 2008. The court sustained the physical abuse allegation against J.P. and the failure to protect allegation against Ana. The court also sustained the sexual abuse allegation against J.P. under 300(d), and requested the Agency amend its petition to plead that allegation only under 300(d) instead of under 300(b), 300(d) and 300(j). The court then sustained the amended allegation, assumed jurisdiction over M.G. and J.P. Jr., and ordered continued reunification services. J.P. appealed, contending that the "court's finding under section 300, subdivision (d), must be reversed" because he "did not receive notice of the first amended petition, which was the only petition containing allegations of sexual abuse."

In evaluating his claim, the appellate court noted that the record contains a proof of service reflecting the fact that J.P. was served a "Notice of Hearing" for the "First Amended Petition" and indicating that a true copy of the petition is attached. The court rejected J.P.'s allegation that, because the proof of service does not show a copy of the petition was served along with the notice of hearing, that it therefore cannot be assumed he was provided with a copy of the petition. The court further noted that, even if J.P. had not received a copy of the petition, such error would be harmless beyond a reasonable doubt since the social worker first confronted J.P. about the sexual abuse allegations more than a month before the juris/dispo hearing and that J.P. and his counsel therefore had ample notice to present any evidence to rebut them. Accordingly, the juvenile court's orders were affirmed.

Opinion: B208090.PDF, B208090.DOC

In re M.K. (Unpub'd), No. A121833

M.K. was the subject of multiple dependency proceedings since his birth in 2002, the most recent of which began in January 2007 following Mother's hospitalization under 5150 W&IC. The petition filed by the agency alleged failure to protect and no provision for support, pursuant to section 300(b) and 300(g). The parties agreed to a jurisdiction/disposition order pursuant to which M.K. would remain in foster care and mother would be provided reunification services. After a succession of missed visits, suspected drug use and episodes of psychotic behavior on Mother's part, M.K.'s attorney filed an ex parte application asking the court to modify supervised visits and order mother to stay away from M.K.'s school, which was granted. At a contested 12-month review hearing in May, 2008, the court terminated reunification services, noting that mother failed to participate regularly in reunification services or to make substantial progress in her treatment programs, in particular she did not visit regularly or participate in mental health treatment. Mother appealed, arguing that reasonable reunification services were not offered or provided because the agency failed to require an appropriate mental health diagnosis and a workable plan for maintaining her mental health.

The appellate court noted that the issue in this case was simply that mother stopped visiting (in December 2007), stopped attending therapy and treatment (in January, 2008), and stopped complying with court-ordered drug tests (in October, 2007). Therefore, the appellate court reasoned, the issue was not that mother had not been offered appropriate services; rather, she had simply stopped participating in and complying with the case plan. The appellate courto also noted that "there is substantial evidence in the record that reasonable reunification services were provided or offered." Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: A121833.PDF, A121833.DOC

In re J.G. (Unpub'd), No. C059318

Appellants Scott G. (father) and Tamera G. (mother) appeal from an order of the juvenile court terminating parental rights over the minor, J. G. Appellants contend the juvenile court erred when it declined to apply the beneficial parent-child relationship exception of 266.26(c)(1)(B)(i). The appellate court found substantial evidence to support the juvenile court's conclusion that the beneficial relationship exception didn't apply, and affirmed the lower court's orders.

Opinion: C059318.PDF, C059318.DOC

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