Case Law Update: 24 Mar 2009

In re Gabriel L., No. D053805

Then-two-year-old Gabriel L. was detained in July 2007 under 300(b) W&IC following allegations of an unsanitary home with no electricity, running water or furniture. Alejandro (father) and Ashley (mother) both had criminal and substance abuse histories. The juvenile court sustained these allegations, placed Gabriel with his aunt and uncle, and ordered reunification services for both parents. After a rocky start, Ashley made significant progress toward reunification, whereas Alejandro failed to participate in any services or appear at court hearings. At the 12-month hearing on September 23, 2008, the court placed Gabriel with Ashley, terminated services for Alejandro, and ordered family maintenence services for Ashley.

Alejandro appealed the termination of his services, contending the court abused its discretion by terminating his services while ordering that Gabriel be placed with Ashley and ordering services for her. He argued terminating his services was not in Gabriel's best interests or in the interests of the permanent plan of reunification. The appellate court held that, because Alejandro had made no progress in the services that had been offered during the 14 months of Gabriel's dependency, and he made no progress in resolving the problems that led to Gabriel's removal, the juvenile court did not abuse its discretion in terminating reunification services.

The court further explained that "[i]f, after a period during which both parents were offered reunification services, the child is then placed with one parent...the court's discretion to decide whether to continue to offer services to the noncustodial parent...should be examined under 364 W&IC and is similar to the court's broad discretion as to whether to offer services under section 361.2 because in both situations the child is not in out-of-home placement, but in placement with a parent." The appellate court held that, in such a case, the juvenile court may, but is not required to, continue services for the non-custodial parent. On the basis of that holding, the court denied Alejandro's appeal and affirmed the lower court's orders.

Opinion: D053805.PDF, D053805.DOC

A.S. v. Superior Court (Unpub'd), No. F056575

In early July, 2008, A.S. (mother) was observed attempting to "teach" then-three-year-old M. to swim by throwing her into a pool and encouraging her to paddle. Instead, M. went under water, frantically grabbed at the sides of the pool and vomited water. Petitioner was overheard to say, "This bitch is gonna learn how to swim if it kills her." A witness intervened and took M. to the witness's apartment for a nap, from which she woke up shaking and vomiting. M. was hospitalized and diagnosed with cerebral edema, water intoxication and altered mental state. Additionally, hospital staff saw A.S. repeatedly slap and hit M., and reports from friends indicated that A.S. hit M. in the face, beat her with a belt, and picked her up by her hair. The Social Services Agency took M. into protective custody and filed a petition under 300(a), (b), (e) and (i) W&IC. At a contested juris/dispo hearing, the court sustained the allegations, denied reunification pursuant to 361.5(b)(5), and set a 366.26 hearing.

Mother, in pro per, filed a petition for extraordinary writ challenging the court's orders, asserting that her attorney did not present key evidence (which she does not identify) and did not prepare her for testifying. The appellate court held that, given the severity of M.'s abuse, "there is no reason to believe the juvenile court was inclined to rule differently than it did or that petitioner's attorney could have persuaded it to do so." Accordingly, mother's claim of ineffective assistance of counsel was found unavailing, and her petition for writ relief was denied.

Opinion: F056575.PDF, F056575.DOC

S.J. v. Superior Court (Unpub'd), No. F056700

In October 2007, the social services agency (agency) received a referral that S.J. (mother) was using methamphetamine and became psychotic when she used drugs. During these episodes, she reportedly would "rampage" and destroy the home in the presence of the children. Her older children also disclosed to social workers that she would beat them, and that she and M.J. (her husband) would engage in domestic violence in front of the children. The agency detained her children under 300(b) W&IC, placing them with relatives.

In December 2008, the juvenile court conducted a contested 12-month review hearing at which L.W. testified at length. Following her testimony and argument, the juvenile court terminated reunification services upon a finding that L.W. had "made progress but not significant progress in her services and had not demonstrated the ability to complete her reunification plan and ensure her children's safety and well-being", and set a 366.26 hearing. L.W. filed a petition for extraordinary writ challenging these findings, contending that they must be reversed because she was not provided reasonable visitation, which she alleged constituted an "impermissible delegation of the juvenile court's authority over visitation to the children and [their] therapist." The appellate court noted that the visitation issue was never appealed or objected to in the lower court and consequently was waived on appeal. Notwithstanding the waiver, however, the appellate court found that there was no merit to the mother's claim that the children (and their therapist) had the power to veto all visits or that the occurrence of visitation was preconditioned on the children's (or therapist's) approval. Accordingly, the petition for extraordinary writ was denied.

Opinion: F056700.PDF, F056700.DOC

In re A.N. et al. (Unpub'd), No. B207754

Father M.N. and mother M.M. appeal from an order of the juvenile court terminating their parental rights as to two of their minor children, A.N. and S.N. They argue the court erred in finding the beneficial and sibling relationship exceptions of 366.26(c)(1)(B)(i) and 366.26(c)(1)(B) W&IC inapplicable. The appellate court held that the juvenile court had not abused its discretion in finding that the exceptions did not apply, and affirmed the orders terminating parental rights.

Opinion: B207754.PDF, B207754.DOC