Case Law Update: 9 Mar 2009

In re Peter C. et al (Unpub'd), No. D053567

In April, 2008, minors Peter, Jennifer and Melissa C. were detained following allegations of physical abuse and excessive alcohol use by their father (William C.) According to the agency, the family had extensive refrerrals between 1999 and 2008, including physical abuse that resulted in hospitalization. At detention, the court detained the minors and ordered supervised visitation. At a contested juris/dispo hearing, following allegations of continued alcohol abuse and fears of repeated physical abuse, the court removed the minors from William's custody. William appealed, contending the juvenile court had erred in not entering separate visitation orders for each child, particularly with regard to Jennifer (who refused to participate in visits).

The appellate court noted that visitation rights of the parents in a dependency proceeding are balanced against the best interests of the child, and that parents do not have an absolute right to visit. Having concluded that substantial evidence supported ongoing detriment to the minors from visitation, the appellate court found that the juvenile court did not abuse its discretion in the visitation orders it entered. Accordingly, the lower court's orders were affirmed.

Opinion: D053567.PDF, D053567.DOC

In re M.D. (Unpub'd), No. D053638

In May, 2007, then 11-month-old M.D. was detained from T.H. (mother) and Joshua D. (presumed father) following an allegation of physical abuse. He was placed with NREFMs who became his de facto parents and wish to adopt him. At an August 2008 366.26 hearing, parental rights were terminated. Mother and presumed father appealed, contending that the adoptability finding is unsupported by substantial evidence, and that the juvenile court erred in declining to apply the beneficial relationship exception of 366.26(c)(1)(B)(i).

In addressing the first issue, the appellate court noted that a specific family's willingness to adopt generally indicates adoptability, and further noted that there were 20 other families who had been given specific information about M.D.'s special medical needs and were nonetheless willing to adopt him. Accordingly, the appellate court ruled that sufficient evidence existed to support a finding of adoptability.

As regards the second issue, the court noted that M.D. had been out of his parents' custody for more than half his life, had been with his current caretakers nearly as long as he'd been with his parents, and was much more strongly bonded to his NREFM caretakers than to his parents, with whom he failed to show significant bonding. Accordingly, the appellate court held that the juvenile court had properly determined that the beneficial relationship exception did not apply, and affirmed the lower court's orders.

Opinion: D053638.PDF, D053638.DOC

In re S.S. et al. (Unpub'd), No. B208477

Denise N. (mother) was the subject of a referral in February, 2006 alleging general neglect, as well as specific medical neglect of daughter S.N. (who suffered from a lung condition which required medical care). In a May, 2006 detention report, DCFS indicated that Mother's mental health issues prevented her from providing for the children's basic needs. The children were adjudged to be dependents of the juvenile court, and 18 months of reunification services were provided. At the 18-month review hearing, the children were returned to Mother (conditioned upon her living with the children's maternal grandmother or in DCFS-approved housing) and the court ordered family maintenence services.

In April, 2008, Mother filed a 388 petition seeking to modify the order requiring her to reside with the maternal grnadmother or in DCFS-approved housing, and requesting that her social worker be removed from the case because of claimed bias. She withdrew this petition without prejudice when DCFS assigned a new worker to the case. Shortly thereafter, DCFS filed a 387 petition, stating that Mother had failed to comply with court-ordered services. The children were detained, and additional services were ordered. Eventually, two of her children (S.N. and S.S.), who had been placed with the maternal grandmother, were ordered placed for guardianship and monitored visits with Mother were ordered. Mother appealed, contending there was no substantial evidence to support the 387 petition because DCFS had failed to provide adequate reunification services.

The appellate court described Mother's argument as "erroneously formulated and wholly unpersuasive" and notes that the provision or failure to provide adequate reunification services is not part of the analysis of a section 387 petition. The court further noted that such a claim essentially concedes that the parent has failed to meet the court's requirements, and went on to say, "Arguing inadequacy of services therefore does not refute the assertion that placing the children in Mother's custody was ineffective in protecting them; indeed, it virtually confirms it." Accordingly, the appeal was denied and the previous orders of the juvenile court were affirmed.

Opinion: B208477.PDF, B208477.DOC

D.G. et al. v. Superior Court (Unpub'd), No. B212232

D.G. (mother of minors J.G. and C.H.) and S.G. (father of J.G.) sought extraordinary writ review of a juvenile court order setting a 366.26 hearing for the children, who were detained in 2004 following "extreme domestic violence", drug and alcohol abuse, Mother's severe depression, and a filthy and cockroach infested home environment. The parents allege that reunification services should have been provided beyond the 18-month time limit, and S.G. contends he was denied reasonable reunification services.

The appellate court noted that S.G.'s contention fails because he was not seeking custody and thus was not entitled to reunification services. Further, both parents' contention that they were entitled to further reunification services fails because substantial evidence supports the fact that the Department provided reasonable reunification services in that, because of concerns raised by the juvenile court about some aspects of the services provided, reunification services had already been extended for 49 months, at the end of which Mother was only in partial compliance with the case plan and Father declared he would no longer comply with the case plan. The petitions for extraordinary writs were therefore denied.

Opinion: B212232.PDF, B212232.DOC

In re S.W. (Unpub'd), No. E045347

S.W. (age 12) was detained following a referral at Father's trailer found piles of trash, an open septic tank with raw sewage, no electricity, gas or hot water, and a non-working toilet. At detention, S.W. was removed from her parents' custody. Father indicated he had Indian heritage and the court determined that ICWA may apply.

A juris/dispo hearing was conducted in March, 2008. Father did not appear, and mother submitted on the social worker's reports for jurisdiction. The court made a true finding on the allegations, find ICWA did not apply, approved the case plan and ordered the parents to participate in services. Father appealed, contending that the court exceeded its authority in ordering multiple psychological evaluations, that the court improperly denied his motion to continue the juris/dispo hearing, and that the court incorrectly found ICWA not to apply.

On Father's claim that his right to privacy was violated by the order requiring him to submit to two psychological evaluations, the appellate court noted that while the juvenile court exceeded its authority by ordered the evaluation prior to establishing jurisdiction over S.W., father was not prejudiced by the order because he refused to comply with it and because the court did not deny reunification services. Further, the appellate court found that Father's due process rights were not implicated by the denial of his request for a continuance, since no evidence showed that the denial — when Father failed to appear and his attorney indicated neither contact with his client nor knowledge of the reasons for his absence — was not an abuse of discretion. The juvenile court did agree with Father's contention that, because ICWA notices were sent with incomplete and incorrect information, the finding that ICWA did not apply constituted reversible error. The judgment was therefore remanded for the limited purpose of complying with ICWA noticing requirements, and Father was ordered to provided the Agency with all information available to him regarding his Indian ancestry, so that the ICWA noticing requirements may be completed.

Opinion: E045347.PDF, E045347.DOC

In re. J.H. (Unpub'd), No. E046397

J.H. (then four) was detained in July 2006 on allegations that Mother was engaging in drug abuse, prostitution and other criminal activity, left J.H. unsupervised, and was involved in domestic violence incidents. Father had been incarcerated for much of J.H.'s life and did not provide the child with any support. At detention, Mother denied Indian ancestry and stated she was not aware that Father had any Indian ancestry. At the detention hearing, Mother indicated that her sister had told her "we have Indian in us" and agreed to seek further information on the issue.

At the juris/dispo hearing, the court found true the allegations of the petition, declared J.H. a dependent of the court, and ordered reunification services to be provided to Mother. Reunification was denied as to fother because he had been convicted of a violent felony. [The appellate decision does not elaborate, but an earlier footnote indicates J.H.'s father had been incarcerated, among other things, for raping J.H.'s mother.] A later report indicated that the social worker talked to Mother's sister, who had no information to support the claim that ICWA applied. In January, 2008, reunification services were terminated and the matter was set for a 366.26 hearing with a plan of adoption. Parental rights were terminated in July, 2008, and J.H.'s parents appealed, challenging the determinations that J.H. was adoptable and that ICWA did not apply.

The appellate court found that ample evidence supported the assessment of J.H. as adoptable, including the fact that an adoptive family stood ready to move forward with adopting him. The appellate court further held that there was substantial evidence that the Agency had made sincere and thorough attempts to inquire about Indian heritage, and that the court and the social worker satisfied their duties of inquiry as to J.H.'s possible Indian heritage, and that the vague and speculative information provided by Mother does not trigger ICWA's notice provisions. The juvenile court's orders were therefore affirmed.

Opinion: E046397.PDF, E046397.DOC

In re T.M. (Unpub'd), No. B206227

Appellant, C.M., appealed from an order of the juvenile dependency court finding respondent, D.S., to be the presumed father of appellant's son T.M. (T.), born May 15, 2003. The order was rendered under Family Code section 7611, subdivision (d), which provides that a man is presumed to be a child's natural father if "[h]e receives the child into his home and openly holds out the child as his natural child." Appellant contended that substantial evidence does not support the finding as to either element. Respondent defended the ruling, and also argued that appellant lacks standing to challenge it.

The appellate court noted that DCFS's reports stated that D.S. "understood, from a DNA test, that he was not the natural father of T., but stated he still held himself out as such." The court furhter noted that C.M. stated that he always held T. out to be his son, that he was bonded with T. as his father, and that his family was willing and able to help provide care and support for him. Though the appellate court disagreed with D.S.'s contention that C.M. lacked standing to appeal the ruling, the court ruled that sufficient evidence existed to support D.S.'s claim to presumed father status, and upheld the lower court's orders.

Opinion: B206227.PDF, B206227.DOC

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