Case Law Update: 30 Mar 2009

In re Nolan W., No. S159524

Full summary moved to its own post here.

In re K.B. et al. (Unpub'd), No. B208002

Judith B. appealed from the juvenile court's denial of her motion under 388 W&IC in which she and her husband, Royce B., requested modification of the juvenile court's earlier orders denying them presumed parent and de facto parent status. The appellate court held that Judith B. did not make a prima facie showing of new evidence or changed circumstances that warranted revisiting the court's earlier decision. Accordingly, the appellate court held that the juvenile court did not err in denying the petition, and the lower court's order was affirmed.

Opinion: B208002.PDF, B208002.DOC

In re E.F. (Unpub'd), No. A122224

E.F. (born in 2007) was detained along with his two older half-sisters, following allegations of sexual abuse of V.J by Father and Mother's knowledge of the abuse and failure to protect, as well as physical abuse by Mother of V.J., who she bit on the breast, leaving a visible injury. V.J. was detained in out-of-home care, and A.J. and E.F. remained in mother's custody subject to supervision by the SSA. The allegations relative to E.F. (under 300(j) W&IC) were sustained at a juris/dispo hearing in July, 2008 and the court ordered V.J. and A.J. placed in family maintenence, including a no-contact order between Father and the half-sisters, and a requirement that father complete a sex-offender treatment program.

Father appealed, contending the court erred in sustaining the allegations (for substantial risk of sexual abuse and substantial risk of physical abuse) against E.F. The appellate court held that there was no evidence to suggest that E.F. was at risk for sexual abuse simply because his sisters had been sexually abused, absent any evidence that Father had a propensity to molest male as well as female minors, and reversed that allegation. However, the court found that there was sufficient evidence to support the finding that E.F. was at risk for physical abuse, and that this finding, standing alone, was sufficient to sustain jurisdiction over the minor. Accordingly, the lower court's orders were reversed in part and affirmed in part.

Opinion: A122224.PDF, A122224.DOC

In re K.B. et al. (Unpub'd), No. B205592

K.B., C.B., J.B. and T.B. (minors) were the children of Lori T., who apparently placed them with Judith and Royce B. (parents). The B.'s never obtained legal guardianship of the children. The family came to the attention of the SSA following a motor vehicle collision; the law enforcement investigation found that the B.'s were living in unsanitary conditions in their vehicle, and that the children were not being adequately cared for. Additional allegations of physical and sexual abuse surfaced after the children were detained, which Judith B. denied. The children were detained under 300(b) W&IC, reunification was bypassed under 361.5(b)(1), and 366.21(e) and 366.26 hearings were set.

Judith and Royce filed petitions seeking presumed parent status, reunification services, and de facto parent status. The SSA opposed these requests and argued that the B.'s should not be entitled to counsel or to be present at the hearings. The court denied these petitions. In March, 2008, the B.'s filed a 388 petition requesting that the court grant presumed parent and de facto status to them, vacate the order setting the section 366.26 hearing, and provide family reunification services. This petition was denied without a hearing. The B.s, joined by K.B. and C.B., appealed the orders denying presumed parent status, denying de facto parent status, and removing her court-appointed attorney.

With regard to presumed parent status, the appellate court held that the juvenile court could properly have found that Judith B. did not meet her burden of showing that she had openly held out the children as her natural children, and noted that "public policy does not compel us to recognize relationships of affinity where the facts presented do not merit a ruling that a caregiver is a presumed parent". As regards the de facto parent status, the appellate court found the juvenile court had not abused its discretion in denying the B.s de facto parent status based on the sustained dependency proceeding. With regard to the removal of court-appointed counsel, the appellate court noted that it "cannot identify any manner in which Judith B. was injured by the court's action" and therefore that "any error in relieving counsel in the manner selected by the court was harmless under any standard". Accordingly, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: B205592.PDF, B205592.DOC

In re J.W. (Unpub'd), No. D053516

The San Diego County Health and Human Services Agency (Agency) and J.W., the minor, appeal a court order of the Superior Court of San Diego County admitting paternity test results showing Johnny G. is J.W.'s biological father and continuing Johnny's participation in the juvenile court proceedings. The Agency and J.W. argue: (1) the court erred by receiving in evidence blood test results designating Johnny as the biological father; (2) Johnny had not achieved presumed father status under Family Code sections 7611 and 7612 and therefore, lacked standing to challenge D.W.'s conclusive presumption of parentage; (3) the court lacked authority for entering a judgment of parentage because a prior judgment establishing paternity already existed; and (4) the court erred by not issuing a judgment of non-paternity regarding Johnny.

The appellate court concluded that the blood tests were improperly admitted as hearsay, since they had not been properly authenticated, and accordingly, the order establishing Johnny as the biological father was reversed.

Opinion: D053516.PDF, D053516.DOC

In re Rebecca S. (Unpub'd), No. D054427

Frankie S. appeals the findings and orders entered at the permanency planning selection and implementation hearing held pursuant to 366.26 W&IC. Citing In re Sade C.(1996) 13 Cal.4th 952, he asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "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", denied his appeal.

Opinion: D054427.PDF, D054427.DOC

In re H.M. (Unpub'd), No. A121065

C.M. (mother) challenged two orders issued in dependency proceedings initiated under Welfare and Institutions Code section 300: an order placing her daughter H.M. with H.M.'s father, and a subsequent order terminating the juvenile court dependency over H.M. The appellate court held that ample evidence supported the juvenile court's findings, and thus affirmed them and denied her appeal.

Opinion: A121065.PDF, A121065.DOC

In re J.P. (Unpub'd), No. G040725

R.P. (mother) appeals the juvenile court's orders denying reunification services and terminating the parental rights of her four-and-one-half-year-old daughter, J.P. R.P. focuses her arguments on the denial of reunification services, claiming she showed a "reasonable effort to treat" her ongoing drug addiction. The appellate court noted that "R.P. ignores the evidence that she missed multiple visits with the daughter, appeared under the influence of drugs during several visits, missed many of her twice-weekly drug tests, and failed to even show up at the dispositional hearing." Concluding that the evidence sufficiently supports the juvenile court's order denying reunification services, the appellate court affirmed those orders and denied the appeal.

Opinion: G040725.PDF, G040725.DOC

In re Daniel B. (Unpub'd), No. H033490

Raul H. is the father of Daniel B., a three-year-old boy. He appealed from the juvenile court's order under 366.26 W&IC ending his parental rights. He claims that the beneficial relationship exception of 366.26(c)(1)(B)(i) applies against the order. The appellate court noted that "[t]he juvenile court relied on evidence that Raul H.'s attention difficulties and limited ability to focus on tasks, which culminated in his leaving Daniel B. unattended in a parked car for almost an hour, and his lack of success in mastering child-raising skills showed that he was incapable of safely raising Daniel B., even though he loved his son and had struggled to raise him." Finding that it is the best interest of Daniel B. that govern, the appellate court held that Daniel's interest in safety and stability took priority over Raul's relationship with his son, and affirmed the lower court's orders.

Opinion: H033490.PDF, H033490.DOC

In re E.S. (Unpub'd), No. B209429

Maria G. (Mother) appealsed from the order terminating her parental rights to her son E.S., born November 1999. She contends that the order must be reversed, because the court did not inquire of her whether E.S. has American Indian heritage as defined by ICWA, and because the court failed to make a finding whether ICWA applied. The appellate court, noting that neither mother nor father responded affirmatively when asked whether they had Indian heritage, affirmed the lower court's orders and denied the appeal.

Opinion: B209429.PDF, B209429.DOC

In re A.D. (Unpub'd), No. B209346

Mother D.B. appealed from an order terminating parental rights as to her son, A.D. She argues that she was denied due process, because her son's out-of-state placement during the family reunification period prevented her from establishing the beneficial relationship exception to termination of parental rights (366.26(c)(1)(B)(i). The appellate court, finding no error, affirmed the termination of parental rights and denied the appeal.

Opinion: B209346.PDF, B209346.DOC

L.T. v. Superior Court (Unpub'd), No. F056740

Petitioner (mother), in pro per, seeks an extraordinary writ to vacate the orders of the juvenile court terminating her reunification services and setting a 366.26 hearing as to her children E.G. and G.T. We conclude her petition fails to comport with the procedural requirements of Calif. Rules of Court rule 8.452 by failing to set forth a claim of error. Accordingly, L.T.'s petition was dismissed as facially inadequate.

Opinion: F056740.PDF, F056740.DOC

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