Case Law Update: 20 Mar 2009

In re A.G. (Unpub'd), No. D053797

Jane R.G. (mother) appealed a judgment declaring her minor son, A.G., a dependent of the juvenile court under 300(a) W&IC (following his admission to a hospital with multiple unexplained skull and rib fractures) and removing him from her custody. Jane contended the court erred by failing to consider less drastic alternatives to removal, and that it improperly delegated its authority to the Social Services Agency by refusing to order more than four hours of visitation per week (so that she could breastfeed him).

The appellate court held that substantial evidence supported the finding that there were no reasonable means by which A.G. could be protected without removing him from Jane's care. The appellate court, after explaining that the juvenile court holds broad discretion to make visitation orders, and that the state's interest in providing for the best interest of the child justifies any limited intrusion on a parent's right to visitation, further held that the court appropriately ordered a minimum of two visits per week and correctly left to the agency's discretion the specifics of orchestrating the visitation schedule. Accordingly, the appellate court found no improper delegation of authority in the juvenile court's visitation orders. The lower court's orders were thus affirmed, and mother's appeal was denied.

Opinion: D053797.PDF, D053797.DOC

In re Kelly M. (Unpub'd), No. D053968

Mother, T.D., and presumed father, James M., appeal the judgment terminating their parental rights to their daughter, Kelly M., contending the juvenile court erred by declining to apply the beneficial relationship exception of 366.26(c)(1)(B)(i) W&IC. The appellate court noted that while Kelly seemed to enjoy visits with T.D. and was comfortable with her, Kelly did not appear to have a strong connection to T.D., however, and did not display distress when they parted. The appellate court further noted that T.D. and James both had long histories of CPS involvement, criminal activity and violence, that they never achieved unsupervised visitation, and that they did not attend the 366.26 hearing. Accordingly, the appellate court held that the juvenile court did not err in concluding the beneficial relationship exception did not apply. The appeal was denied, and the orders from the 366.26 hearing were affirmed.

Opinion: D053968.PDF, D053968.DOC

P.O. v. Superior Court (Unpub'd), No. A123627

P.O., the father of six minor children, petitioned under California Rules of Court, rule 8.452 to vacate an order of the juvenile court setting a hearing under 366.26 W&IC that may result in termination of his parental rights. Father argued his rights to due process were violated when he did not receive notice of certain hearings or of the grounds relied upon by the San Mateo County Human Services Agency (County) to deny him reunification services. Father also contended he was entitled to services under section 361.5, because the County knew of Father's location within six months of the children's out-of-home placement, and because one mental health evaluator concluded Father could benefit from services.

The appellate court held that Father's claim that he was denied due process due to improper noticing was forfeited because he never raised it in the juvenile court, and that in any case, father did show that he suffered any prejudice from the failure to notice or that he was entitled to services under 361.5(d). The appellate court further held that substantial evidence supports the court's decision under section 361.5(b)(2) to deny reunification services to Father because he suffers from a qualifying mental disability (personality disorder with histrionic, paranoid and obsessive-compulsive traits). Accordingly, the petition for writ relief was denied on its merits.

Opinion: A123627.PDF, A123627.DOC

In re J.M. (Unpub'd), No. B210844

In December 2006, the Department of Children and Family Services (DCFS) received an emergency referral alleging general neglect regarding then four-month-old J.M. The maternal great grandmother and maternal aunt contacted DCFS claiming mother, then 18 years old, had been using methamphetamine since she was 13 years old, regularly disappeared for days at a time, and left without providing, or making arrangements, for J.M.'s care. J.M. was detained in January of 2007 under 300(b) and 300(g), placed him with his great-aunt, and ordered reunification services. The court terminated reunification at the 6-month review hearing, after finding that in the preceding 11 months mother had only attended one court hearing, had no contact with DCFS, had not participated in any recommended programs, and "essentially" had no visits with J.M., and set a 366.26 hearing. The 366.26 hearing was held in July, 2008; Mother did not appear, nor had she communicated with her counsel since the detention and jurisdiction hearing. The juvenile court found by clear and convincing evidence that J.M. was likely to be adopted, terminated mother's parental rights, and freed J.M. for adoption.

Mother, who was then incarcerated in state prison, appealed, contending that the maternal great grandmother and aunt lied to DCFS about her behavior, and that there was therefore insufficient evidence to support the court's findings. She further asserted that the juvenile court failed to take steps to ensure her appearance for all court dates when made aware of her incarceration. The appellate court noted that "Mother does not claim father's report of her behavior was untruthful. The father's statements fully corroborated, and were at least as damaging as, those of mother's relatives, and standing alone supported the court's findings that mother failed to protect and provide for J.M." and therefore found mother's first claim unavailing. The appellate court further noted that Mother was incarcerated for only one of the juvenile court's hearings (the 366.26 hearing) and that in that case she had three weeks to notify the court of her incarcerated status (so arrangements could be made to secure her attendance) but she failed to do so, and that other prior hearings were in fact continued to allow her to attend following periods of incarceration. Accordingly, mother's appeal was denied and the lower court's orders were affirmed.

Opinion: B210844.PDF, B210844.DOC

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