Case Law Update: 13 Mar 2009

In re Anna S. (Unpub'd), No. D053800

Anna, born in 2004, was detained following a significant history of domestic violence between her parents, Angelina S. and Tobias S., which included physical and sexual abuse of Angelina. Anna was placed in a foster home, and in September, 2007, after the case had been pending 22 months, the court terminated reunification and set a 366.26 hearing. Angelina filed her 388 petition in March, 2008, alleging that Angelina had made significant progress in therapy, demonstrating her ability to protect Anna, and that it would be in Anna's best interests to live with her mother. Anna began having visits with a prospective adoptive family in June 2008, and was living with them by the time the juvenile court granted her mother's 388 petition in September of 2008 and ordered Anna returned to her mother with the Agency to provide family maintenence services. Anna appealed the grant of the 388 petition.

The appellate court noted that, by the time of the hearing on Angelina's section 388 petition, Anna was almost four years old and had been in and out of the dependency system for nearly three years. The appellate court explained that "[h]er need for safety and stability was paramount," and that "[t]the court's own finding that terminating jurisdiction "would be likely to recreate the conditions that initially caused the assumption of jurisdiction" further bolsters" the conclusion that granting of the 388 petition would not be in Anna's best interests and that Angelina had not met her burden in proving either that changed circumstances existed or that granting her petition would be in Anna's best interests. Accordingly, the appellate court held that the juvenile court had abused its discretion in granting Angelina's 388 petition, and reversed.

Opinion: D053800.PDF, D053800.DOC

In re K.D. (Unpub'd), No. B212689

D.D. and E.U., parents of the child, K.D., appealed from a Welfare and Institutions Code section 366.26 parental rights termination order. The parents contend the parental rights termination order must be reversed because of noncompliance with the Indian Child Welfare Act and related California provisions. The parties stipulated to a limited reversal of the parental rights termination order to allow compliance with the Indian Child Welfare Act and for the remittitur to issue forthwith. The appellate court accepted the parties' stipulation, reversed the 366.26 order and remanded the case for compliance with ICWA.

Opinion: B212689.PDF, B212689.DOC

In re G.M. (Unpub'd), No. B212734

R.C. and J.M. (parents) appealed an order entered under 366.21(f) setting a hearing to terminate parental rights. The appellate court issued an order to show cause and set the appeal for oral argument, and concluded that "[t]he appeals must be dismissed because an order setting a parental termination rights hearing is not appealable" based on 366.26(l)(1) and the prior holding, in In re Julie S. (1996) 48 Cal.App.4th 988, 990, that "[a]s a matter of statutory law, an appeal from an order setting a section 366.26 hearing is only available if a petition for an extraordinary writ challenging the order was filed and was summarily denied or otherwise not decided on the merits. Accordingly, the appeal was denied.

Opinion: B212734.PDF, B212734.DOC

In re W.G. (Unpub'd), No. C059515

W.G. was detained from Y.F. (mother), who was herself a dependent child, shortly after she was born in December, 2006. At detention, the agency alleged that Y.F. had run away from a group home, left her baby with inadequate supervision, and was unprepared to raise her. The juvenile court sustained the allegations, name her counsel to also act as her guardian ad litem, and granted her reunification services. In May, 2007, the juvenile court appointed a guardian ad litem for appellant, separate from her counsel. (At this time, Y.F.'s whereabouts were unknown). In January, 2008, the juvenile court terminated reunification services and set the matter for a 366.26 hearing, which took place in June of 2008. Y.F. was absent from the June 25, 2008, section 366.26 hearing, but both her guardian ad litem and counsel were present. Her counsel opposed the recommendation by HSA to terminate appellant's parental rights. At the conclusion of the hearing, the juvenile court terminated parental rights and ordered appellant's baby placed for adoption. Y.F. appealed, contending the the juvenile court committed reversible error by failing to appoint a separate guardian ad litem for her earlier in the dependency proceedings.

The appellate court explained that, in their view, "it was important for appellant, a victim of abuse who had given birth at 16 and had mental health problems as well, to have the benefits afforded her by appointment of a separate guardian ad litem," and that Y.F. was prejudiced by this failure, since "a guardian ad litem appointed separately and timely for appellant likely would have contested both jurisdiction and disposition," which her counsel did not do. The appellate court further noted that "the record reflects appellant had resumed contact with her baby and was visiting her, which suggests a more favorable outcome for appellant remained possible." Accordingly, the court reasoned that the error in failing to appoint a separate guardian ad litem at the outset of the proceeding cannot be deemed harmless beyond a reasonable doubt. The juvenile court's order terminating parental rights, as well as all prior orders, were reversed, and the matter was remanded with instructions for the juvenile court to conduct a new jurisdiction hearing and appoint Y.F. a separate guardian ad litem.

Opinion: C059515.PDF, C059515.DOC

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