Case Law Update: 02 Apr 2009

In re B.B. (Unpub'd), No. B208018

In this consolidated appeal, undertaken after a termination of parental wights under 366.26 W&IC, father (an enlisted member of the U.S. Army) contended that the juvenile court erred in several times denying him stays under the Servicemembers Civil Relief Act. Mother joined in that appeal and also appealed a denial of her petition, under 388 W&IC. Additionally, both parents appealed the termination of their parental rights with respect to B.B., arguing that the beneficial relationship exception of 366.26(c)(1)(B)(i) should have applied.

As to father's appeal, the appellate court held that, because father had not submitted both documentation showing how current military duty requirements materially affected his ability to appear and a letter from his commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized at the time of the letter, the statutory provisions of the SCRA are not triggered and the granting or denial of a stay remains at the juvenile court's discretion. The appellate court further held that, given father's lack of participation in reunification services, his failure to show how his military service affected his ability to appear, and his lack of participation in the dependency proceeding, the juvenile court's denial of his stay was not an abuse of discretion.

As to mother's appeal of the denial of her 388 petition seeking to return B.B. to her custody, the appellate court held that substantial evidence supported the juvenile court's determination that granting the petition would not be in the minor's best interest, and that the juvenile court's ruling was thus not an abuse of discretion.

As to the termination of parental rights, the appellate court noted that the exception of 366.26(c)(1)(B)(i) only applies where the parent has maintained regular visitation with the child and that the parental relationship "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." Given that mother's visits were inconsistent and the minor expressed a strong preference for adoption by his current foster parents, the appellate court held that the juvenile court did not err in concluding the exception did not apply.

Accordingly, the juvenile court's orders were affirmed, and the parents' appeals were denied.

Opinion: B208018.PDF, B208018.DOC

In re S.G. (Unpub'd), No. C059206

M.G. (mother) appealed a juvenile court order terminating parental rights under 366.26 W&IC. On appeal, she alleged that the SSA failed to comply with the notice requirements of ICWA because notice to one potential tribe (the Fort Sill Apache Tribe of Oklahoma) was mis-addressed and another tribe (the Fort McDowell Yavapai Tribe of Arizona) was not noticed at all.

The appellate court held as to the first claim that a signed return receipt demonstrates that despite the minor mistake in addressing the notice to the Fort Sill tribe, they did in fact receive the notice. As regards the Fort McDowell tribe, the appellate court noted that the tribe is not listed in the Federal Register as a recognized Apache tribe (it appears instead as a Yavapai tribe, and M.G. did not claim Yavapai heritage), and that the only support M.G. produced for her contention that the tribe was an Apache tribe was a Wikipedia article. Accordingly, the appellate court also found this claim unavailing, and affirmed the juvenile court's orders.

Opinion: C059206.PDF, C059206.DOC

A.S. v. Superior Court (Unpub'd), No. F057071

A.S. (father), in pro per, filed a petition for extraordinary writ seeking to vacate an order of the juvenile court setting a 366.26 W&IC hearing for his sons (O.S. and A.S.) In his writ petition, he simply stated, "I am presently incarcerated. I am scheduled to be released on [April 3, 2009] and I want my [c]hildren." The appellate court held that, because he did not challenge the correctness of the juvenile court's findings and orders thereby fails to set forth a claim of error, his petition was procedurally invalid under Calif. Rules of Court rule 8.452. Accordingly, it was dismissed as facially invalid.

Opinion: F057071.PDF, F057071.DOC

In re N.A. (Unpub'd), No. D054275

P.G. (mother) appealed an order terminating parental rights with respect to N.A. (minor). Citing In re Sade C. (1996) 13 Cal.4th 952, she 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 [her] custody of a child or [her] status as the child's parent", denied her appeal.

Opinion: D054275.PDF, D054275.DOC

In re Emma C. (Unpub'd), No. G040905

James C. (father) appealed a dispositional order of the court placing Emma C. (minor) in foster care in California rather than with relatives of his in Michigan. He also argued that an order preventing visitation in Michigan until the juvenile court was assured appropriate monitoring was in place is vague and not supported by substantial evidence.

With regard the placement order at disposition, the appellate court ruled that the juvenile court's conclusion that mother had a better chance of successfully reunifying and its order placing her in California were not clearly an abuse of discretion, and that given that strong arguments existed on both sides, the trial court's decision is entitled to deference on appellate review.

With regard to the visitation order, the appellate court held that father's objection was raised in the juvenile court and that it should be resolved there before seeking appellate review.

Accordingly, the juvenile court's orders were affirmed.

Opinion: G040905.PDF, G040905.DOC

In re Baby Girl T. (Unpub'd), No. F055571

Baby Girl T. was detained in February 2008 after her birth. The mother gave birth to the baby while on the toilet. As a result, the baby suffered fluid in her lungs and had a body temperature of 88 degrees when she arrived at the hospital an hour after her birth. The mother tested positive for methamphetamine at the time of the baby's birth. The mother no longer had custody of her three other children, and she suffered from untreated bipolar disorder. Mother identified both R.S. (appellant) and R.V. as alleged fathers. R.S. appeared at the jurisdiction hearing with counsel and stated that he wished to be the baby's father, "regardless of paternity." At the dispo hearing in May, 2008, DNA results were introduced which showed that R.S. was not the baby's father; he stated through counsel that he nonetheless wished to be elevated to presumed father status and requested placement and services for the child. This request was denied, and R.S. appealed.

The appellate court noted that R.S. had not shown he offered emotional or prenatal support to mother, did nothing during pregnancy to protect the minor from mother's drug use even though he said he suspected it, did not sign a declaration of paternity at the hospital, and requested DNA testing at the detention hearing. Accordingly, the appellate court held that "[a]lthough appellant did more than some fathers and appeared to care for the baby, he failed to show by a preponderance of the evidence he had received the baby into his home and 'openly and publicly' held her out as his natural child." The appellate court therefore affirmed the juvenile court's orders and denied his appeal.

Opinion: F055571.PDF, F055571.DOC

In re K.T. (Unpub'd), No. F055574

K.T. (minor) was detained following suspected physical abuse and parents' removal of her from the hospital against medical advice. At the detention hearing, father stated through counsel that he believed K.T.'s great-grandmother was "full-blooded Cherokee". At a juris/dispo hearing, the court found that proper notice had been given to the Indian tribes identified by father, that those tribes had responded that K.T. was ineligible for membership, and that ICWA did not apply. Father appealed, arguing that substantial evidence did not support the court's finding under 300(b) W&IC that "an ongoing substantial risk of harm" existed, and that the court did not adequately comply with the notice provisions of ICWA because the notices incorrectly listed his paternal grandmother as his mother.

As regards the sufficiency of the jurisdictional finding, the appellate court held that substantial risk of harm existed because father removed K.T. from the hospital against medical advice and without taking her medications with her, he did not seek medical attention for her for several weeks after removing her from the hospital, and that doctors had not ruled out Shaken Baby Syndrome. As regards the ICWA claims, the appellate court found the error in omitting his mother's name from the ICWA notices to be harmless because there was no claim that she had any Indian heritage. Accordingly, the juvenile court denied the appeals and affirmed the lower court's orders.

Opinion: F055574.PDF, F055574.DOC

In re A.D. (Unpub'd), No. B209770

L.D. (mother) appealed an order terminating her parental rights to A.D. (born September 2007), who was detained after testing positive for cocaine at birth. L.D. was found to endanger the child's physical and emotional health and unable to adequately provide for the child's ongoing care and supervision because of mother's history of cocaine and methamphetamine use, bipolar and paranoid mental state, and noncompliance with her psychotropic medications. The juvenile court bypassed reunification under361.5(b)(10) (mother's failure to reunify in a prior case in Santa Barbara county) and 361.5(b)(13) (mother's history of chronic drug use and resistance to prior court-ordered treatment), and set a 366.26 hearing at which parental rights were terminated. Mother argued that the holding at the juris/dispo hearing was error because mother (who was then incarcerated) was not present, and that the notice provisions of ICWA were not complied with.

As regards the first issue, the appellate court held that mother's absence at the juris/dispo hearing was contrary to 2625 PC, but that any error was harmless because mother offered no evidence to suggest her presence at the hearing would have led to a different outcome. As regards the ICWA issue, the appellate court held the juvenile court had properly reviewed the Indian blood quantum requirements for the tribes in which mother alleged possible membership, and that the juvenile court did not err in finding that ICWA did not apply. Accordingly, the lower court's judgment was affirmed, and mother's appeal was denied.

Opinion: B209770.PDF, B209770.DOC

In re A.M. et al (Unpub'd), No. B211553

C.M. (mother), mother of A.M., born in March 1998, and J.E., born in October 2005, appealed from an order of the juvenile court terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. Mother argued that the juvenile court erred in failing to apply the beneficial contact exception to termination of parental rights of 366.26(c)(1)(B)(i) because she had visited and attempted to maintain a relationship with her children. The appellate court held that the juvenile court had properly concluded the benefit to the minors from permanency and stability outweighed the benefit to maintaining their parental relationship with C.M., affirmed the lower court's orders, and denied the appeal.

Opinion: B211553.PDF, B211553.DOC

In re S.L. et al. (Unpub'd), No. F056137

J.L. (mother) and her three sons (four-year-old twins S.L. and De.L. and three-year-old D.L) were referred for voluntary services following mother's seeking of services from the Children's Crisis Center. Ultimately, J.L entered a sober living facility, D.L. was placed with her there, and De.L. and S.L. were placed in foster homes. In June, 2008, she was discharged from the program for failure to comply with its terms and failure to discipline D.L. (who had significant acting out behaviors.) The same dat, a petition was filed against her under 300(b) and 300(g) W&IC, alleging that mother was depressed and unable to control her boys even though she had received six months of voluntary services, including home placement, and that the whereabouts of their father was unknown. The court sustained the allegations under 300(b) and dismissed the 300(g) allegation. It ordered the twins removed from her custody upon a finding that D.L. posed a danger to them, and ordered services be provided.

Mother appealed the jurisdictional finding under 300(b) W&IC, alleging that the evidence did not establish an ongoing substantial risk of harm and that poverty and homelessness alone are not sufficient to sustain the petition. She also challenged the dispositional order, contending that the evidence did not support the dependency court's finding that D.L. posed a danger to the twins.

As regards the jurisdictional orders, the appellate court held that substantial evidence supported the finding that "mother was unwilling or unable to keep the boys from serious physical harm" because "the boys were totally out of control with mother's knowledge and apparent assent or inability to control them." As regards the dispositional order, the court appellate court noted that "there is ample evidence of the boys' aggressive behavior towards each other and mother's inability to control it" and that, therefore, the dependency court did not abuse its discretion in concluding that placing the twins with mother was not a reasonable alternative. The lower court's orders were affirmed, and mother's appeal was denied.

Opinion: F056137.PDF, F056137.DOC

In re S.D. et al. (Unpub'd), No. F056214

T.D. (mother) appealed orders entered at a 366.26 W&IC hearing at which the court denied her request to regain custody, selected legal guardianship as the children's permanent plan, issued a detailed visitation order, and terminated the children's dependency. She contended that the court's reliance upon the children's "purported emotional distress" in denying her custody request, improperly delegated its authority over visitation to the legal guardians, and wrongfully terminated the dependency. She also contended that the juvenile court erred in 2006 when it determined ICWA did not apply.

The appellate court noted that it had observed in an earlier writ proceeding brought by T.D., that "[a]t the heart of this case are two children so damaged by their mother's behavior that they do not want to return to her custody and a mother who, despite technical compliance with a plan for reunification, cannot provide her children the safety and stability they require." It then held that the juvenile court had properly determined that the limited changes mother had made to her living situation warranted a finding that being returned to mother would be in their best interests, and that mother's claims that continued dependency was necessary to oversee visitation and was unavailing. With regard to the ICWA issue, it held that, while "there appears to be nothing in the law which would foreclose appellant from petitioning the trial court to reopen the ICWA issue based on this additional evidence", the issue was nevertheless forfeited on appeal because mother failed to raise it at the dispositional hearing. Accordingly, the juvenile court's orders were affirmed in all respects, and the appeal was denied.

Opinion: F056214.PDF, F056214.DOC

In re K.F. et al. (Unpub'd), No. C058198

L.F., the adoptive mother and biological maternal grandmother (hereafter Mother) of 12-year-old twins (hereafter Son and Daughter), appeals from an order entered at anAryanna C. hearing (following repeated suicidal gestures by mother and a lack of compliance with her case plan) terminating her reunification services under 395 W&IC. Mother, who is 70 years old, argued the court's finding that reasonable services had been provided is not supported by sufficient evidence. She contended that the court failed to specify the standard of proof it was applying, and that the finding is not supported by substantial evidence. She further contended that "this is not the 'very infrequent' case in which services should be terminated."

As regards the first claim, the appellate court held that she forfeited them by failure to register an objection in the lower court proceeding, and that in any event, 366.21(g) makes clear that the appropriate standard of proof is clear and convincing evidence. As regards the second claim, the court found that substantial evidence supported the juvenile court's finding that reasonable services had been provided, which L.F. failed to comply with. On the final issue the appellate court, noting that "Mother twice acknowledged that, due to her frail health, she is unable to care for the children and successfully participate in reunification services" and that, therefore, the juvenile court did not err in terminating reunification services at the Aryanna C. hearing. Accordingly, the appeal was denied and the juvenile court's orders affirmed.

Opinion: C058198.PDF, C058198.DOC