3.12.2009

Case Law Update: 12 Mar 2009

In re S.C. et al. (Unpub'd), No. C058826

Renee C. (mother) and William C. (father) appealed the juvenile court's orders terminating their parental rights as to their children and freeing them for adoption. They content that there was insufficient evidence the children were adoptable, that the beneficial parent-child relationship exception of 366.26(c)(1)(B)(i) should have been found to apply, the sibling relationship exception of 366.26(c)(B)(v) should have been found to apply, and that separate counsel should have been appointed for the minors. Renee C. also contends that the juvenile court erred in denying a 388 petition seeking placement with her or, alternatively, reassessment of the children's placement with their maternal grandmother.

As regards the appointment of separate counsel, the appellate court noted that nobody — including counsel for the children — raised this issue before the juvenile court, and ruled that "[i]n the absence of further facts, nothing in this record rises to the level of an actual conflict of interest requiring appointment of separate counsel" and denied the request. The appellate court affirmed the other orders of the juvenile court [for the predictable reasons] and denied the appeals.

This case is attached, because I thought the issue of conflict of interest was somewhat interesting.

Opinion: C058826.PDF, C058826.DOC

In re L.L. (Unpub'd), No. E046667

C.R. (mother) and M.L. (father) (collectively, parents) appeal from the juvenile court's September 15, 2008, order terminating their parental rights to their daughter, L.L. (child) and selecting adoption with her current caretakers as her permanent plan. Specifically, the parents each argue: 1) the Department of Public Social Services (Department) did not provide proper notice under the Indian Child Welfare Act (ICWA) and the juvenile court made improper ICWA findings; and 2) the court erred in declining to apply the beneficial parental relationship exception to the preference for adoption. Mother further argues that the court erred in declining to apply the beneficial sibling relationship exception to the preference for adoption.

The Department conceded on appeal that the ICWA notices were deficient, and so the appellate court ordered a conditional reversal with a limited remand to correct the deficiencies. In explaining this order, the court cited In re Francisco W. (2008) 139 Cal.App.4th 695, 708, which held that "[i]f the only error requiring reversal of the judgment terminating parental rights is defective ICWA notice and it is ultimately determined on remand that the child is not an Indian child, the matter ordinarily should end at that point, allowing the child to achieve stability and permanency in the least protracted fashion the law permits." In all other respects, the appeal was denied and the lower court's orders were affirmed.

Opinion: E046667.PDF, E046667.DOC

B.M., Jr. v. Superior Court (Unpub'd), No. F056546

Petitioner (father) sought an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his infant son B.T.M. On appeal, petitioner alleged that the juvenile court erred in denying him reunification under 361.5(b)(11) because he made reasonable efforts to resolve his drug abuse. The appellate court held that substantial evidence existed to show father's drug use and to satisfy a bypass of reunification, including the prior removal of another of his children. The court also held that, because B.T.M. was not strongly bonded to him, the juvenile court did not err in finding that provision of reunification services was not sufficiently in B.T.M.'s best interest to override 361.5(b)(11). Accordingly, the petition for extraordinary writ was denied.

Opinion: F056546.PDF, F056546.DOC

K.M. v Superior Court (Unpub'd), No. F056558

Petitioner (mother) sought an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing 2 1 as to her infant son B.T.M. Mother alleged that the juvenile court erred in denying her reunification services under section 361.5(b)(10) and 361.5(b)(11) because she made reasonable efforts to resolve her drug abuse. The court held that substantial evidence existed to show that petitioner continued to use drugs while pregnant with B.T.M., even after losing parental rights for two other of her children because of drug use. Accordingly, the appellate court held that the juvenile court correctly applied 361.5(b)(10) and 361.5(b)(11), and denied the petition for extraordinary writ.

Opinion: F056558.PDF, F056558.DOC

In re I.C. (Unpub'd), No. B207655

A.T. (mother, 16 at the time of I.C.'s birth) appeals from the jurisdictional and dispositional orders of the juvenile court removing mother's daughter from her custody after finding true allegations that mother's conduct and limited ability to care for her daughter placed the child at risk of neglect. Mother alleged, inter alia, that the juvenile court lacks jurisdiction over I.C. because the allegations of the petition fail to demonstrate a prima facie case that I.C. was at substantial risk of suffering "serious" physical harm or illness as a result of Mother's conduct. The appellate court found that substantial evidence, including mother's history of running away from placements, failure to secure proper housing for herself and her child, and A.T.'s fiance's extensive criminal and gang history, were adequate to support the lower court's findings. Accordingly, the appellate court affirmed those findings and rejected A.T.'s appeal.

Opinion: B207655.PDF, B207655.DOC

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