Case Law Update: 25 Mar 2009

M.U. v. Superior Court (Unpub'd), No. B213166

R.P. was detained by CWS under 300(b) and 300(j) W&IC upon allegations of caretaker absence/incapacity and general neglect. M.U. (mother) had an open FM case in Arizona, but left the state with R.P. and CWS believed that R.P. was at substantial risk of harm because M.U. had lost custody of three older children due to drug use and untreated mental illness. The court ordered R.P. detained and set the matter for a contested juris/dispo hearing. CWS recommended a bypass of reunification under 361.5(b)(10) and 361.5(b)(11) and stated that M.U. and the child's father used drugs on a daily basis and that M.U. did not want to undergo substance abuse treatment. The trial court detained R.P., ordered reunification services not be provided to M.U., and set the matter for a 366.26 hearing. M.U., in pro per, filed a petition for extraordinary writ, alleging that the juvenile court's order was not supported by substantial evidence.

The appellate court noted that it was incontroverted that M.U. had failed to reunify with 5 of her other children, that parental rights were terminated, and that petitioner had not made a reasonable effort to address the homelessness, drug use, and other issues that led to the children's removal. The court further noted that M.U. had made no showing that reunification services were in the best interests of the child. Accordingly, the petition for extraordinary writ was denied and the juvenile court's ordered were affirmed.

Opinion: B213166.PDF, B213166.DOC

A.B.-E. v. Superior Court (Unpub'd), No. A123816

H.E. (then two years old) and S.E. (then 16 months old) were detained in October, 2007 under 300(b) and 300(c) W&IC. The court detained the children and ordered, inter alia, visitation and psychological evaluations of both parents. Prior to the six-month review hearing, the Agency issued a report recommending continued reunification services. The children's CASA's report disagreed, recommending that services be terminated and a 366.26 hearing be set, reporting disturbing behavior by the parents and severe anxiety by the children following visits. Counsel for the childen believed reunification for the mother should be terminated and her visitation curtailed, and that the father should be given six months of additional reunification services. The court ordered visitation limited, but extended services for both parents.

At a twelve-month hearing, the court ordered reunification services terminated upon a finding that the parents had made only minor progress toward their case plan goals, suspended mother's visitation, ordered supervised visitation for father, and set a 366.26 hearing. Mother and father separately filed petitions for extraordinary writ (which were consolidated). Mother alleged that the court's finding of reasonable services was unsupported, that she was denied reasonable visitation, that the finding of substantial risk of detriment was unsupported, that ICWA noticing provisions were not properly complied with, and that termination of all visits was error. Father contended that the court should have found extenuating circumstances to extend reunification services, that he did not receive reasonable services, that there was no reasonable basis to move from unsupervised to supervised visitation or to deny placing the children with him and that the court abused its discretion in terminating reunification services he made substantial progress and was in substantial compliance with his case plan. The appellate court found that substantial evidence supported the lower court's orders, affirmed those orders, and denied the petitions for extraordinary writ.

Opinion: A123816.PDF, A123816.DOC

In re A.T. (Unpub'd), No. B210908

G.T. (mother) appealed an order of the juvenile court granting sole legal and physical custody of her daughter A. to her father, terminating jurisdiction, and dismissing the dependency (pursuant to 362.4 W&IC) at a May, 2008 family maintenence review hearing. Mother contends that she did not receive due process because the DSS notice of the family review hearing did not warn her that legal custody of A. was at issue and that the asserted lack of notice denied her the opportunity to develop evidence and argue for joint legal custody.

The appellate court explained that it declined to dismiss mother's appeal as moot because she asserted a procedural defect that challenges the constitutionality of the juvenile court's order. However, the appellate court noted that the notice mailed to mother stated that the hearing concerned "[a] change in orders, services, placement, custody, or status" (and included a copy of the DSS report) and that mother fully participated in the hearing, including cross-examining witnesses. The appellate court also noted that father prepared the custody orders a month in advance of the hearing, the juvenile court signed the orders at the conclusion of the hearing, and mother did not object nor did she state that she was unaware of the custody orders when DSS stated that Father "prepared custody orders." Accordingly, the appellate court concluded that mother had received adequate notice, denied her appeal, and affirmed the juvenile court's order.

Opinion: B210908.PDF, B210908.DOC

In re Lucy B. (Unpub'd), No. D052788

Julie B. (mother) and Cole B. (stepfather) each appealed the denial of 388 petitions seeking to vacate an order naming a third party, Edgar G., as the presumed father of Lucy B. (minor). Edgar separately appealed the court's dispositional order placing Lucy with her grandparents, arguing that the court erred by failing to consider placing Lucy with him as a nonoffending, noncustodial parent pursuant to 361.2, and that there was no showing placement with him would be detrimental to Lucy.

With regard to Cole's appeal, in which he argued that he was denied notice and an opportunity to change his paternity status, resulting in prejudice to him because the paternity contest "was not tried on a level playing field", the appellate court found that Cole (a Marine who was, at the relevant time, preparing for a deployment) had received notice both in person and by mail, and that "[d]espite having actual notice of his rights, Cole did not request counsel or seek to establish his paternity before being deployed." Accordingly, his appeal was denied.

With regard to Julie's appeal, in which she asserted new evidence showed Edgar did not qualify as Lucy's presumed father under 7611(d) Family Code, the appellate court found that substantial evidence supports a finding Edgar qualified as a presumed father. Julie asserted in her appeal that Edgar abandoned Lucy and that should disqualify him, but the appellate court found that Julie had waived this claim by not raising it in the juvenile court.

With regard to Edgar's appeal, the court held that notwithstanding the provisions of 361.2, substantial evidence supports an implied finding it would be detrimental to Lucy's emotional well-being to place her with Edgar because of the strong bond between Lucy and her grandparents and the emotional impact being removed from her grandparents and being placed with a relative stranger.

Accordingly, the appellate court affirmed the juvenile court's orders and denied all three appeals.

Opinion: D052788.PDF, D052788.DOC

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