Case Law Update: 18 Mar 2009

N.A. v. Superior Court (Unpub'd), No. F056538

In July 2007, the social services agency took then 10-year-old M.V., 8-year-old H.V., 2-year-old O.H. and 10-month-old N.H. into protective custody after they were found at night alone playing at a school. The juvenile court exercised its dependency jurisdiction over the children after sustaining allegations N.A. (mother) exposed them to ongoing domestic violence and left them alone while she worked. At the dispositional hearing in December 2007, the court ordered N.A. to participate in parenting classes, substance abuse, mental health and domestic violence evaluations, and recommended treatment and submit to random drug testing. The court also ordered the children to participate in mental health assessments and recommended treatment. At a contested 12-month review hearing in November, 2008, by which time Mother was telling M.V. and H.V. that she did not want to reunify with them, the court terminated reunification services and set a 366.26 hearing. N.A., in pro per, filed a petition for extraordinary writ seeking to overturn those orders, and alleged that she complied with court-ordered services and therefore that the court's orders were erroneous.

The appellate court noted, since N.A. did not challenge the reasonableness of the services provided by the agency, that it could only consider the issue of whether there was "a substantial probability the child will be returned to parental custody and safely maintained in the home within the extended period of time" 361.5(a) W&IC, 366.21(g)(1) W&IC. In this case, the appellate court explained that "[w]hile petitioner may have participated in her services, the court had ample cause to question her ability to safeguard her children's physical and emotional well-being". Accordingly, the appellate court held that "[s]ince there was not a substantial probability the children could be returned to petitioner's custody with continued services, the juvenile court was correct in terminating her reunification services and setting the section 366.26 hearing." Accordingly, the petition for extraordinary writ was denied.

Opinion: F056538.PDF, F056538.DOC

In re C.C. (Unpub'd), No. A121782

C.C. (minor) is the daughter of Brenda S. (mother). Kenneth T. (appellant) resides with Brenda S. and purportedly helped to raise C.C., but he is not her biological father. C.C. came under the juvenile court's jurisdiction as the result of two dependency proceedings. During the first, filed in July, 2006 and terminated in October, 2007, Kenneth was living with Brenda and C.C., but at no time during that proceeding did he seek presumed father status. During the second (which was brought in March of 2008 under 300(b) and 300(g) W&IC, Kenneth sought presumed father status several times, including through a motion filed under 7611(d) Fam. Code in April, 2008. This motion was opposed by C.C.'s counsel, who asserted that "Kenneth had not always been a positive influence in C.C.'s life".

Kenneth's motion for presumed father status was denied at a dispositional hearing in May, 2008, where the court "concluded the evidence was insufficient to establish that Kenneth qualified for presumed father status, but opined that Kenneth should receive services under the circumstances." Kenneth appealed, arguing that he qualified as the presumed father under 7611(d) Fam. Code, which states that a man may be a presumed father if he "receives the child into his home and openly holds out the child as his natural child".

The appellate court observed that, while "Kenneth lived with Brenda and claimed to be present at C.C.'s birth, [...] he did not claim paternity then or have his name put on the birth certificate. Nor is there evidence he paid pregnancy and birth expenses". The court noted that " while there may be evidence from which one could infer that Kenneth has taken laudable steps, at least recently, to develop a relationship with C.C., there was also evidence [...] from which the court could reasonably infer that Kenneth failed to meet the criteria for presumed father status". Since the appellate court reviews the denial of a request for presumed father status for substantial evidence, the court held that Kenneth had not affirmatively demonstrated error, and accordingly affirmed the juvenile court's error denying him presumed father status.

Opinion: A121782.PDF, A121782.DOC

In re D.B. (Unpub'd), No. B208677

On October 15, 2007, four-month-old D.B. was admitted to the hospital. S.M. (mother) claimed that D.B. had fallen from a bed. Doctors determined that D.B. had a brain hemorrhage and prior healed brain trauma. Doctors also found evidence of prior healed brain trauma, as well as scratches, bruises and fractures in both of D.B.'s femurs and his right arm. The hospital notified police and the Los Angeles Department of Children and Family Services (DCFS). On October 18, 2007, DCFS filed a dependency petition with allegations under 300(a), 300(b) and 300(e) W&IC. The allegations were sustained at a detention hearing in late October, 2007. At a May 21, 2008 dispositional hearing, the court denied reunification services, citing 361.5(b)(6) W&IC ("the child has been adjudicated a dependent...as a result of...the infliction of severe physical harm...by a parent or guardian...and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian."). Mother appealed, contending that there was insufficient evidence to support both jurisdiction under 300(a) and 300(e), and that substantial evidence did not support the denial of reunification services.

The appellate court noted that the record contained substantial evidence of severe, non-accidental injury to D.B., and additionally, that mother submitted on the petition at the jurisdiction hearing, and in so doing waived her right to introduce other evidence to refute the allegations. Likewise, the appellate court found substantial evidence of severe, non-accidental injury, and deemed that evidence sufficient for the juvenile court to have reasonably found that 361.5(b)(6) applied. Accordingly, the mother's appeal was denied and the jurisdictional orders of the lower court were affirmed.

Opinion: B208677.PDF, B208677.DOC

In re A.D. (Unpub'd), No. G040982

D.D. (father) appealed the juvenile court's order terminating his parental rights to his eight-year-old daughter, A.D. Father contended, and Orange County Social Services Agency (SSA) conceded, SSA failed to comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA) when, despite multiple opportunities, it failed to ask the paternal grandmother about A.D.'s potential Native American ancestry after D.D. stated at the detention hearing that he had Cherokee heritage on his grandmother's side. The appellate court reversed the order terminating father's parental rights and remanded for the limited purpose of requiring SSA to comply with its inquiry duty concerning grandmother and, if necessary, to renotice the BIA and any appropriate tribes.

Opinion: G040982.PDF, G040982.DOC

In re G.F. (Unpub'd), No. E046142

J.F. (father) and J.R. (mother) appeal from an order terminating their parental rights to their then four-year-old son, G.F., contending that the beneficial parental relationship exception of366.26(c)(1)(B)(i) W&IC applied. In addition, the father appealed from an order denying his "changed circumstances" petition pursuant to 388 W&IC (seeking that the juvenile court return G.F. to his custody or reinstate reunification services) because he visited G.F. and completed a series of parenting, anger management and other programs.

As regards the 388 petition, the appellate court agreed with the juvenile court's contention that the only arguably changed circumstance (a single clean drug test) did not rise to the level of changed circumstances required by section 388. As regards the appeal of the termination of parental rights, the appellate court held that substantial evidence supported the juvenile court's conclusion that "the well-being that G.F. would gain from a permanent home with the prospective adoptive parents outweighed any well-being he would gain from a continued relationship with his natural parents". Accordingly, the appeals were denied and the lower court's orders were affirmed.

Opinion: E046142.PDF, E046142.DOC

In re F.T. (Unpub'd), No. D054352

I.T. appeals the findings and orders entered at the dispositional hearing held pursuant to Welfare and Institutions Code section 361, subdivision (c). Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error. Citing its holding in In re Sade C. that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable for "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent", the appellate court dismissed the appeal.

Opinion: D054352.PDF, D054352.DOC

In re J.H. et al. (Unpub'd), No. F056492

L.C. appealed from November 2008 juvenile court orders continuing her teenage daughter's permanent plan of long-term foster care and her teenage son's legal guardianship. At the post-permanency review hearing, the court also denied appellant's petitions (under 388 W&IC to regain custody of her children. After review of the record, appellant's appointed appellate counsel submitted a letter advising the appellate court that no brief would be forthcoming for lack of an arguable issue (In re Sade C. (1996) 13 Cal.4th 952). At counsel's request, the appellate court extended time for appellant to personally file a letter brief which she since has done. Appellant challenged both the court's orders continuing the children's permanent plans and its denial of her section 388 petitions, contending that there was no evidence of detriment or sufficient risk of harm to warrant the court's continuation of her daughter's long-term foster care and her son's legal guardianship. She further complained that "the court did not request a response to her modification petitions which in her opinion justified the changes she sought".

The appellate court rejected the first contention, explaining that "[a]t a post-permanency review, the court is not required to make a detriment finding. (In re Dakota H. (2005) 132 Cal.App.4th 212, 225.) It is instead presumed that continued out of home care is in the best interests of the child, unless the parent prove further efforts at reunification are the best alternative for the child." The appellate court found that mother neither requested further reunification services nor showed that they would be the best alternative for the children. Her contention that the court should have granted her 388 petitions, which was predicated on the same reasoning, was likewise held to be unavailing. Accordingly, her appeal was denied and the lower court's orders were affirmed.

Opinion: F056492.PDF, F056492.DOC