Case Law Update: 6 Mar 2009

In re I.C. (Unpub'd), No. F055898

I.C. was placed into protective custody in November 2006 at the age of three months after his 15-year-old mother, D.C., also a ward of the court, ran away from her placement, leaving I.C. in the care of the group home staff. The Social Services Agency filed a pair of petitions under 300(b) W&IC alleging that D.C. was unable to supervise him because she left him behind when she ran away, he was at risk from her substance abuse and aggressive behavior, and that she was negligent in providing medical care after he was diagnosed with RSV. These allegations were found true, and reunification services were ordered. I.C. was placed in a foster home, where D.C. failed to visit him regularly. D.C. appeared at a 6-month review, but did not appear at the 12-month review; she had been on the run since October 2007.

A continued 12-month review was held in March, 2008, where the court found that D.C.'s location was unknown, and that the Department had made reasonable efforts to locate her. The court terminated reunification services, set the matter for a 366.26 hearing, and granted the Department's request to notice D.C. by publication since her whereabouts were unknown.

A 366.26 hearing was held on July 1. Mother did not appear; her counsel told the court she was unaware of D.C.'s whereabouts but that she objected to the recommended permanent plan of adoption. The court found proper notice had been given and that there was clear and convincing evidence the child would be adopted, and ordered parental rights terminated. On July 11, 2008, D.C. filed a section 388 petition seeking to set aside the orders of the 366.26 hearing. According to D.C., she had been in custody in the county juvenile facility since late May, had tried "between 15 and 20 times" to contact her attorney, but she did not recall her attorney's name and probation was unable to locate the attorney for her. D.C. eventually contacted the Department on June 30, but the message was not received by the social worker until after the 366.26 hearing. The court denied D.C.'s 388 petition, finding it had lost jurisdiction to consider the matter.

Mother appealed, arguing that notice by publication was improper, that the Department should be estopped from claiming the notice was sufficient because it concealed the mother's June 30 call from the court, and that her attorney's assistance was ineffective because the attorney failed to tell her on May 20th (when the attorney apparently represented her in a delinquency proceeding) that a 366.26 hearing had been set. The appellate court held that any defect in the notice by publication was harmless, that the Department social worker who received her phone call was not the worker assigned to her case and was unaware of the impending hearing, and the Department's representatives in court had no reason to know she had called a different worker. The court rejected the ineffective assistance of counsel claim on the ground that it was not reasonably probable that a more favorable result would have been obtained had her attorney acted differently, and thus the attorney's alleged failure was harmless. Accordingly, the juvenile court's orders were affirmed, and the 388 petition was denied.

Opinion: F055898.PDF, F055898.DOC

In re T.H. (Unpub'd), No. B205380

The minor, T.H., is the youngest of four children by the same mother (M.T.H.) and different fathers. She was detained in July of 2000, shortly after her birth, and the juvenile court found true allegations that M.T.H. had sexually abused T.H.'s nine-year-old sister, and that father had a history of domestic violence and a chronic mental condition which prevented him from caring for her. Mother received no reunification or visitation, and father was ordered to attend domestic violence and parenting classes and counseling. Reunification services were terminated in February 2001; in August 2001, the minor's case was terminated and she was placed for guardianship with a maternal grandmother. In January, 2005, the grandmother gave T.H. and her siblings to mother and father, and the Department detained T.H. again and ordered reunification and monitored visits. T.H. was returned home. In December 2006, a 300 petition was filed for T.H. after she was sexually abused by her brother. In March 2007, father was hospitalized for psychiatric treatment; an amended 342 petition was filed, T.H. was removed from the home, and reunification services were denied. In January 2008, the court terminated parental rights and set a plan of adoption by her current caretakers for T.H. Both parents appealed, arguing that the court's determination of adoptability was improper and the parental relationship exception applied to the case.

The appellate court ruled that substantial evidence on the record, including T.H.'s age, good physical and emotional health, postivie relationships with the caregivers, and intellectual growth all supported the court's finding that she was adoptable. The court also found substantial evidence that, although T.H. loved her biological parents, they did not act (and were not capable of acting) in a parental role, in that they failed to attend to her needs for "physical care, nourishment, comfort, affection and stimulation." Accordingly, the appellate court held the juvenile court had properly concluded that "the well-being the child would gain in a permanent home with new, adoptive parents outweighed any benefits obtained from continuing the parental relationship." Accordingly, the lower court's orders were affirmed.

Opinion: B205380.PDF, B205380.DOC

In re S. H. (Unpub'd), No. C058565

Then two-year-old S.H. was removed from her parents' custody in January of 2006 following allegations that her parents failed to secure necessary medical treatment for congenital benign lymph gland tumors. Prior to the juris/dispo hearing, L.H. (mother) relocated to Wisconsin; J.H. (father) stated to a social worker that he intended to move there as well. At a juris/dispo hearing, the court sustained the dependency petition and ordered reunification for the parents, including therapy, parenting classes and substane abuse testing. In June, 2006, the parents acknowledged they could not take care of S.H., and DHHS recommended a permanent plan of guardianship. At the six month review, after finding that parents had not completed their reuinification services, the court terminated services and set a 366.26 hearing. At the 366.26 hearing, the juvenile court ordered a permanent plan of long-term foster care with guardianship as a goal. (The caretaker was not yet ready to assume guardianship, but DHHS continued to pursue that goal.)

Subsequently, both parents filed 388 petitions seeking placement of the minor with them in Wisconsin. After a hearing on this petition, where it was noted that parents had made substantial changes to address the Department's concerns, the court ordered an ICPC report to be prepared but denied without prejudice the placement change pending that report. The ICPC homestudy concluded appellants' residence was safe and appropriate for the minor, but the social worker was unable to make a recommendation on the appellants' ability to care for the child's medical needs. At a December 2007 review hearing, the foster mother expressed willingness to commit to either guardianship or adoption; the birth parents filed additional 388 petitions seeking placement of S.H. with them. The court held that while the parents had stabilized and completed services, they continued to deny responsibility for the minor's removal and had not completed the case plan. The court also held that the minor's need for stability outweighed the parents' desire for custody, and ruled that it was not in S.H.'s best interests to be moved. The court determined S.H. to be adoptable given her current caretaker's interest in adoption, and terminated parental rights. The parents appealed.

The appellate court ruled that, while the appellants may have successfully shown changed circumstances, they failed to show how a change of placement would be in S.H.'s best interests. The court based this finding on the parents' continued denials of responsibility for the circumstances which led to detention, and on the fact that S.H. had spent two years (half of her life) with a devoted caretaker in whose care she thrived, and to whom she was strongly bonded. The court found that no abuse of discretion existed in the juvenile court's holding that S.H.'s best interests would not be promoted by disrupting those bonds and placing her with her parents. Additionally, the juvenile court's finding that S.H. was adoptable despite her medical needs was supported by the caretaker's expression of willingness to adopt and the steps she'd taken toward adoption, and the court did not err in concluding that S.H. was adoptable. The parents' appeal was this denied, and the juvenile court's orders were affirmed.

Opinion: C058565.PDF, C058565.DOC

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