Case Law Update: 5 Mar 2009

In re C.G., No. B209750

In April 2008, the Los Angeles County Department of Children and Family Services (Department) received a referral alleging general neglect of the newborn minor by mother. The Department substantiated the allegations of general neglect and entered into a voluntary family maintenance agreement with the parents. Mother later contacted Father to tell him she was not returning home, and her whereabouts became unknown. In June, 2008, a second 300 petition was filed alleging risk to the infant from parental drug use and mother's prior criminal and CWS history. Further investigation revealed that Father had a significant criminal history, including arrests for drug-related crimes, and that Father tested positive for marijuana use in April 2008. Father asserted he used marijuana for medical purposes but never provided supporting documentation.

At a juris/dispo hearing in July 2008, Father admitted to his criminal history, but stated that was in the past and he felt certain he could meet C.G.'s needs. He admitted to using marijuana, claimed it was for medical purposes and that he was in the process of having surgery for the underlying medical condition which he hoped would alleviate the need for marijuana, and acknowledged that he understood continued use of the drug likely was detrimental to himself and his child. The Department conceded Father was attending services and was optimistic about C.G.'s future with father, but that they wished to keep the dependency case open for supervision in light of the past criminal history and recent drug use. The juvenile court sustained an amended petition under 300(b) W&IC, declared the minor a dependent, placed the child in father's custody under the Department's supervision and ordered father to submit to six random drug tests and to complete a drug rehabilitation program if father missed a test or tested positive. Father appealed these orders.

The appellate court explained that "[r]egardless of the legality or illegality of father's marijuana use, there was sufficient evidence for the court to conclude supervision was necessary in light of father's admitted current use, the lack of evidence of how much father was actually using and the fact the child is an infant who is entirely dependent upon a caretaker for his well-being." The appellate court further noted that 362(a) W&IC allows the juvenile court to "may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child", and found that under the specific facts of this case, the dispositional orders requiring Father to submit to random drug testing and to undergo drug treatment if he missed or failed a test were not clearly erroneous. The orders of the juvenile court were therefore affirmed.

Opinion: B209750.PDF, B209750.DOC

In re D.P. (Unpub'd) No. B208500

When D.P. was born in January 2006, D.P. Sr. (Father) and M.A. (mother)'s other children were court dependents and both parents were receiving reunification services. DCFS offered a voluntary reunification contract whereby D.P. would be placed with the maternal grandmother (with his siblings) while the parents completed reunification services. Father subsequently questioned his paternity and failed to enroll in any of the required services. A section 300 W&IC petition was subsequently filed because of parental substance abuse and domestic violence concerns. D.P. was detained wiht the maternal grandmother.

At an August 26, 2006 juris/dispo hearing, the case was set for mediation, which produced a sustained 300 petition and ordered reunification services for both parents. Reunification was continued at a six-month review hearing in March, 2007. In June, 2007, DCFS filed a report stating that Father's visits with D.P. were irregular and that he'd missed 10 scheduled drug tests. The court admonished Father to comply with the terms of his reunification services. At the 12-month review hearing, on September 24, 2007, DCFS recommended that the court terminate reunification services because both parents had fallen out of compliance with the reunification plan. In October, the court (at a hearing at which Father failed to appear) terminated reunification services and set a 366.26 hearing, which took place in February of 2008. DCFS recommended terminating parental rights, with an aim toward adoption by the grandmother. At the parents' request, the court set the matter for a contested hearing, which took place in March, 2008. At the hearing, the court continued the case to June 19, 2008, in order to allow DCFS to interview all the parties and address the best permanent plan for the child. The court also directed the parents' counsel to submit section 388 petitions.

Father submitted a 388 petition requesting that family reunification services be re-instated. He alleged that he had completed parenting, drug, and domestic violence programs, had been visiting the child regularly, was employed, ad had completed counseling. The court denied this petition without a hearing, finding that the petition did not state new evidence or changed circumstances, nor did it show how granting the petition would serve D.P.'s best interests. The court's primary concern was that father had not completed the drug treatment program in which he had re-enrolled in February 2008.

Father appealed the denial of his 388 petition, arguing that he adequately demonstrated that his situation had dramatically improved and that the court's denial without a hearing was an abuse of discretion. The appellate court noted that Father's petition would have delayed D.P.'s permanent placement on the speculative notion that he might, at some future point, complete the drug program and remain free of illicit drugs. Because delaying permanency on the basis of a speculative future outcome does not promote the child's best interests (In re Casey D. (1999) 70 Cal.App.4th 38, 47), the court did not abuse its discretion in denying the petition without a hearing. Additionally, the court noted that even assuming, arguendo, that father had shown changed circumstances, he had offered no evidence that his custodial interest in the child outweighed the child's need for stability.

Accordingly, the father's appeal was denied.

Opinion: B208500.PDF, B208500.DOC

In re E.V. (Unpub'd) No. F056458

E.V. was detained from his mother before age one because of severe physical abuse/failure to protect, under 300(e) W&IC. At a dispositional hearing, the court ordered the child removed, awarded custody to his father, and terminated the dependency proceedings pursuant to 361.2 W&IC. Mother appealed the termination, and her appointed appellate counsel submitted a letter saying no appellate brief would be filed by him because in his view no appealable issues existed. Mother filed a letter brief contending that her trial attorney was ineffective for failing to disclose "all the relevant facts"; the social worker was prejudiced against her; and she should have received reunification services.

The appellate court reviewed the record before it and found that substantial evidence supported the court's detention of E.V. (including mother's own statements), that there was no evidence on the record to support Mother's claim that the social worker was prejudiced, and that when a child is placed with a previously noncustodial parent under 361.2(b)(1) W&IC, reunification services are not mandated. The court explained that, under the holding of In re Erika W. (1994) 28 Cal.App.4th 470, 475-476, the court's consideration of reunification services is only mandatory when the child is placed with someone other than a parent. Accordingly, the lower court's rulings were affirmed.

Opinion: F056458.PDF, F056458.DOC

R.A. v. Superior Court (Unpub'd) No. E047330

R.A. (petitioner) is the father of a child who was detained at birth in June, 2008, following the mother's positive toxicological screen for methamphetamine and after investigation showed a long history of substance abuse and failure of the mother to reunify with other children. Father was incarcerated at the time of the detention hearing, and did not appear. The child was detained and placed with a maternal great-grandmother. The juris/dispo hearing was continued until December, 2008, while paternity testing was obtained (which confirmed that Father was indeed the minor's biological father. The court denied reunification services with respect to both parents. Father appealed, alleging that the court erred in finding that it would be detrimental to the child to offer him reunification services, and in not considering his family members for relative placement.

The appellate court held the fact that Father was not established as the biological father until shortly before the juris/dispo hearing, combined with the fact that Father made no effort to secure any contact with (and in fact, never met) his daughter prior to the juris/dispo hearing, demonstrated that there was no likelihood that father could assume custody and care of this child within the foreseeable future. The appellate court further held that Father's relatives were not entitled to preferential placement prior to establishment of his paternity, and that the child was by then placed in a concurrent planning home and the relative placement preference no longer applied because the possibility of reunification no longer existed. Accordingly, the juvenile court's orders were affirmed.

Opinion: E047330.PDF, E047330.DOC

In re M.F. (Unpub'd) No. B207657

In separate proceedings in July and August of 2002, M.F. and three of his siblings were detained by the Social Services Agency following reports of physically abusive discipline of the siblings by Mother. The agency filed allegations under subdivisions (a), (b), (g), and (j) of 300 W&IC with respect to M.F.'s siblings, and (shortly after his birth) under subdivisions (a) and (b) of 300 W&IC with respect to M.F. All four detentions were sustained, and the four children were placed in the same foster home. In June, 2003, DCFS issued a home of parent order for the children and terminated dependency.

On October 15, 2003, DCFS filed a 342 W&IC petition after M.F. suffered a fracture of his femur, which appeared non-accidental, while alone with Mother. Subsequently, the children were again detained, and M.F. and his siblings were placed in two separate foster homes. On October 6, 2004, following provision of family maintenence services, the children were again returned home and jurisdiction was terminated. One day later, on October 7, 2004, M.F. was hospitalized with severe brain trauma including subdural hematoma and retinal hemmorhaging. He was also comatose and reliant on a ventilator. DCFS again detained all four children. M.F. was ultimately discharged from the hospital in April, 2005 and placed with foster mother J.C, who subsequently expressed interest in legal guardianship.

In January of 2007, the court issued J.C. letters of guardianship for M.F. J.C. subsequently expressed willingness to adopt M.F. At an April 2008 366.26 hearing for the other siblings, the court held that the beneficial sibling relationship exception of 366.26(c)(1)(B)(v) did not apply to the relationship between M.F. and his siblings, who had only sporadic visitation after his hospitalization, terminated parental rights, adopted a plan of adoption for M.F., and named J.C. his prospective adoptive parent. The court "strongly suggested" visitation between M.F. and his siblings, but did not order it. At a subsequent post-permanency review hearing, J.C. expressed that she remained committed to M.F., but was unable to adopt him at that time because the reduced assistance payments following adoption would not be sufficient to meet M.F.'s expenses. The court ordered legal guardianship be adopted as the new permanent plan and ordered sibling visits be reinstated. Mother, Father, and M.F.'s siblings appealed.

Though several issues were raised on the various appeals, the key issues were the contention that M.F. is no longer adoptable and thus that the termination of parental rights should be reversed, that the juvenile court improperly concluded that the sibling exception of 366.26(c)(1)(B)(v) did not apply, and that the court's rulings were contrary to the legislative intent of preserving sibling groups.

As to the first issue, the court held that M.F. opposes reversal of the termination of parental rights, and that a petition remedy under 366.26(i)(2) exists to him should he wish to reverse the termination at a future date. As such, the post-judgment change in J.C.'s circumstances were not a proper bases for reversing the termination of parental rights. As to the second issue, the appellate court found that the amount of time M.F. lived with his siblings (from approximately birth through age 15 months, and again for a six month period of time in 2004), the lack of close sibling interaction during visits, and M.F.'s lack of emotion at the conclusion of visits all supported the juvenile court's conclusion that M.F.'s sibling relationships were not sufficiently significant to him to fall within the exception. The court further held that substantial evidence existed that the benefits of M.F.'s placement with, and possible future adoption by J.C., especially in light of his significant medical needs, outweighed the benefits of maintaining a relationship with his siblings. The juvenile court's rulings were thus affirmed.

Opinion: B207657.PDF, B207657.DOC