Case Law Update: 4 Mar 2009

In re H.R., No. F055902

Extensive past history of drug abuse and child neglect sufficient to justify detention under 300(j) W&IC even when current history is positive.

In March of 2008, the day after H.R. was born, the Social Services Agency received a referral generally alleging neglect, possibly based on Mother's prior CWS history related to her other children. A social worker visited the home and, according to the information upon the record, Mother had been appropriate with H.R., had been attending Narcotics Anonymous, and had been free of drug use for nearly five years. Nevertheless, a petition was filed against H.R. under 300(j) W&IC because his siblings had been abused or neglected and there is a substantial risk that H.R. will be abused or neglected, based upon the fact that petitions were filed on behalf of H.R.'s siblings in 1997 (under 300(b) and 300(g)) and in 2002 on behalf of other siblings A.R. and C.N. (under 300(b) and 300(j)). An initial hearing was set, and H.R. remained in Mother's custody.

At a contested jurisdictional hearing in June, 2008, the court took judicial notice, as requested by the department, of the materials from the files of J.R., T.N., A.R. and C.N. Mother asked that the petition be dismissed because all of the current reports of her behavior and care of H.R. have been positive, she has completed all services asked of her, she has not used drugs for five years and has tested clean each time since the current case began, and that therefore the evidence does not demonstrate that H.R. is currently at risk because her past behaviors occurred a long time ago and have been ameliorated. The court held that, although Mother has taken significant positive steps in the right direction, there still nevertheless exists a legitimate risk to H.R., and denied Mother's petition to dismiss. This appeal followed.

The appellate court, drawing all reasonable inferences in support of the juvenile court's findings, held that the juvenile court could reasonably have found sufficient evidence to support the jurisdictional finding. While the court noted thta Mother has taken many positive steps, her lengthy history with Social Services, and her ongoing drug use were sufficient to justify the concern that a legitimate risk still exists. The juvenile court's orders were therefore affirmed.

Opinion: F055902.PDF, F055902.DOC

In re B.M., No. H033084

Relative placement preference is not a guarantee of placement, and the juvenile court may properly exercise discretion in determining whether relative placement is in the child's best interests.

B.M. and Amy G., the parents of the minor at issue, appealed orders terminating parental rights with respect to their child. The child was detained in March 2007, shortly after birth, because of parents' history of substance abuse, criminal conduct, and a prior dependency proceeding involving the child's half-sibling. The Social Services Agency planned to place the child, under an ICPC, with a great-aunt in Idaho, and placed him with a concurrent planning home in the meantime.

In December, 2007, the court approved the ICPC and the social worker gave the foster parents a 7-day notice. The foster parents filed for de facto parent status and lodged a grievance hearing, after which the agency decided to leave the child with the foster parents, rather than allow the ICPC to proceed. On February 13, 2008, the date set for the section 366.26 hearing, counsel for the Department informed the court that its recommendation was that parental rights be terminated and that the child remain in his foster-adoptive home. Counsel for the child concurred, and Father filed a 388 petition seeking placement with the great-aunt.

The court requested a hearing on whether the grievance proceeding could override the court's prior ICPC order. At that hearing, Counsel for the child filed points and authorities arguing against a move of the child to Idaho. She also filed a section 388 request that the December 13, 2007 order for removal of the child from the foster-adoptive parents and for placement of the child with the great-aunt be set aside as not in the child's best interests. Counsel for the foster-adoptive parents filed a memorandum arguing for placement of the child with them. Counsel for the Department filed a memorandum arguing that the court's December 13, 2007 order was voidable because the foster-adoptive parents were not served with a copy of the application for the order, and thus were not given an opportunity to object. Additional 388 petitions were filed by the birth parents and the foster-adoptive parents.

On March 14, 2008, the court scheduled a contested hearing on the various 388 petitions, and continued the 366.26 hearing until after that. After a contested series of hearings, which included testimony that the child was acting out following visits from the great-aunt, the court concluded that removal of the minor from the foster-adoptive parents would be contrary to his best interests, denied the parents' 388 petitions, and terminated parental rights. Both parents appealed, contending that the Department erred in changing its recommendation without filing a 387 petition, that the court erred in not granting sufficient deference to the relative placement preference of , and that they were denied due process in that they were not noticed for or allowed to attend the grievance hearing. Father separately contends that in filing a 388 petition rather than insisting the court enforce the requirement that the Department file a 387 petition, his counsel rendered ineffective assistance.

The appellate court ruled that the Department's actions in staying the implementation of the ICPC rather than filing a 387 petition constituted harmless error, and thus the court did not err or abuse its discretion in considering the child's and father's section 388 petitions without requiring the Department to file a section 387 petition. On the issue of the relative placement preference, the appellate court noted that "[t]he relative placement preference, however, is not a relative placement guarantee" and that the court may properly exercise its discretion in finding, as it did here, that relative placement is not in the child's best interests. Accordingly, the juvenile court's orders were affirmed in all respects.

Opinion: H033084.PDF, H033084.DOC

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