Case Law Update: 17 Mar 2009

In re B.S. Jr., No. E045748

B.S., Sr. (the father) appeals from the juvenile court's issuance of a restraining order under 213.5 W&IC. The challenged order names his son, B.S., Jr. (B.S.) - the subject of this juvenile dependency proceeding - as a protected person, along with B.S.'s mother and maternal grandmother. The father contended that the juvenile court lacked jurisdiction to issue the order, because the criminal court had already issued a similar restraining order under Penal Code section 136.2. He further contended that there was insufficient evidence to support the issuance of the restraining order with respect to B.S.

The appellate court held that neither the statutes at issue nor the California Rules of Court (Rule 5.450) preclude the juvenile court from issuing its own restraining order and that, in the event the juvenile court issues a restraining order which conflicts with one issued by the criminal court, 136.2 PC specifies that the criminal court's order shall be entitled to precedence. Additionally, the court noted that B.S. has not shown any conflict between the two sets of restraining orders. The court further held that the juvenile court could reasonably find, given the evidence before it, that "failure to issue a protective order might jeopardize B.S.'s physical safety" and that the juvenile court did not err in reaching such a finding. Accordingly, the appeal was denied and the juvenile court's restraining order was affirmed.

Opinion: E045748.PDF, E045748.DOC

In re B.A. et al. (Unpub'd), No. F056083

B.A. (father) appealed from an order terminating his parental rights to his two young children. On appeal, he contended that the juvenile court had improperly denied his Marsden motion (P. v. Marsden (1972), 2 Cal.3d 118, holding that a trial judge's denial of a motion to replace court-appointed counsel without an opportunity to demonstrate incompetence constituted a denial of due process) to replace his second court-appointed counsel, because "I don't think he had enough time to even look into my case." The appellate court noted that "[t]he court in this case properly could have concluded - based on appellant's conclusory complaint that counsel did not have enough time and the attorney's response - that appellant had not stated facts sufficient to warrant a further inquiry" and that, in any case, even if B.A.'s complaint was justified, the proper solution would have been a request for a continuance (pursuant to 352 W&IC, not a Marsden motion. Accordingly, the appeal was denied and the termination of parental rights was affirmed.

Opinion: F056083.PDF, F056083.DOC

In re L.H. (Unpub'd), No. D054106

Jessica W. (mother) and Curtis H. (father) appealed the findings and orders entered at a termination of parental rights hearing held under Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, they asked the appellate court to exercise its discretion to review the record for error. The court held that review is unavailable of "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his [or her] custody of a child or his [or her] status as the child's parent", and hence denied the appeal.

Opinion: D054106.PDF, D054106.DOC

In re A.B. (Unpub'd), No. C059695

Martha L. (appellant), mother of A.B. (the minor), appealed from juvenile court orders denying a relative placement assessment and terminating parental rights. She argued the San Joaquin County Human Services Agency (HSA) failed to consider the maternal grandmother for relative placement, and the court thus erred in finding the current foster parents had preference for adoptive placement. The appellate court concluded that her only interest in the 366.26 hearing was avoiding the termination of parental rights, and that she had no interest in the placement of the minor once her parental rights were terminated. Accordingly, the appellate court held that she lacked standing to challenge the minor's placement, and dismissed the appeal.

Opinion: C059695.PDF, C059695.DOC

In re Celeste N. (Unpub'd), No. D053901

M.N. appealed a juvenile court judgment terminating her parental rights over Celeste N. and choosing adoption as the preferred permanent plan. M.N. contended that insufficient evidence supports the court's finding the beneficial parent-child relationship exception to adoption (366.26(c)(1)(B)(i) W&IC) does not apply. The appellate court noted that "[a]lthough visits were pleasant, M.N. made no showing that the relationship between mother and daughter outweighed the well-being Celeste would gain in a permanent home with adoptive parents. There was no hint the termination of parental rights would harm Celeste." Accordingly, the appellate court found that substantial evidence supported the juvenile court's conclusion that the beneficial relationship exception did not apply. M.N.'s appeal was denied, and the juvenile court's orders were affirmed.

Opinion: D053901.PDF, D053901.DOC

In re W.W. (Unpub'd), No. A121180

W.W. lived with Mother from his birth in 2004, until his second birthday, when he was removed from Mother's home, which was dirty and unsafe. Mother submitted on the initial petition and the juvenile court assumed jurisdiction. On August 24, 2006, after a contested dispositional hearing, the court found W.W. a dependent, removed him from Mother's care and placed him with a foster family. Mother participated in services, and regularly visited W.W., but failed to make sufficient progress in her case plan. On February 15, 2007, when W.W. was three years old, the court terminated services to Mother and set the matter for a section 366.26 hearing. At the conclusion of the hearing, the juvenile court found that Mother had met her burden under section 366.26(c)(1), and declined to terminate Mother's parental rights. W.W., joined by the Alameda County Social Services Agency, appealed, alleging that the trial court abused its discretion in finding the beneficial relationship exception applied.

The appellate court noted that substantial evidence, including the testimony of a therapist who had seen W.W. and his mother together for some 50 sessions over the period of a year, supported the finding that a beneficial relationship applied. The appellate court, citing In re Autumn H. (27 Cal.App.4th 567), explained that "[i]f severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated", expressed that the record before it supported such a finding in this case. Accordingly, the appeal was denied and the juvenile court's order finding the beneficial relationship exception applied was affirmed.

Opinion: A121180.PDF, A121180.DOC

In re Kayla V. (Unpub'd), No. B208595

Kayla V. (an infant, then less than 2 months old) was home alone with Omar V. (father) when she sustained "blunt head and facial trauma" and multiple contusions. After making multiple false statements about the origin of Kayla's injuries, Omar confessed during a polygraph
examination that he struck Kayla because he was frustrated that she would not stop crying. The juvenile court exercised jurisdiction over Kayla V., an infant, after finding that she was a person within the meaning of 300(a) and 300(e) W&IC, which provides the court with jurisdiction over children who suffer "severe physical abuse", and granted Omar reunification services (over the Department's objection). Omar appealed, contending that here was not substantial evidence to support the juvenile court's jurisdictional findings under 300(e). Omar argues that because he slapped Kayla twice during the same incident, his actions do not constitute multiple "acts" within the meaning of 300(e).

The appellate court, relying on In re Joshua H. (1993) 13 Cal.App.4th 1718, found that substantial evidence supported the inference that each distinct blow caused Kayla "'deep bruising' and 'significant external...swelling'", and thus that each blow constituted a separate "act" of severe physical abuse within the meaning of 300(e). Therefore, Omar's appeal was denied and the juvenile court's jurisdictional order was affirmed.

Opinion: B208595.PDF, B208595.DOC

In re A.C. et al (Unpub'd), No. B207901

On October 10, 2007, the Department of Children and Family Services (Department) filed two petitions pursuant to Welfare and Institutions Code section 300, alleging domestic violence between the father and mother and further alleging the father had physically abused the
mother and his ten-year-old daughter. One petition relates to the father's and mother's three biological children (then, ages 4, 3, and six months). The other relates to the father's ten-year-old daughter; the father obtained custody of this child shortly after her birth, and she lived with her father and stepmother (the mother of the three younger children). After a protracted adjudication hearing, the court removed the children from the father's custody, permitting them to remain with the mother, and ordered reunification services for the father (with family maintenance services for the mother). The court also ordered conjoint counseling for the mother and father. Father appealed, contending that he was denied due process at the adjudication hearing because the trial court relied on evidence outside the record which rendered the proceedings fundamentally unfair and requires reversal.

The appellate court noted that substantial evidence on the record supported the dependency court's orders, and that the father had failed to demonstrate prejudicial error. The court explained that, to the extent the dependency court commented on matters outside the record, it did so merely to provide context for the specific behaviors and conduct which the court found to be inappropriate, and as such, those comments were made to explain the court's decision not to detain the children from the mother. Because no evidence supported father's contention that the decision to remove his children from his care was predicated on inappropriate conclusions regarding the father drawn from information outside the record, the dependency court's orders were affirmed, and father's appeal was denied.

Opinion: B207901.PDF, B207901.DOC

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