Case Law Update: 07 April 2009

In re Andrew M. (Unpub'd), No. B208640

Andrew M. (born 1994) was detained in September, 2007, upon allegations under 300(a), 300(b), and 300(d) W&IC alleging that Robert M. (father) had physically and sexually abused Andrew, including beating him with a belt and coat hanger and by sodomizing him on at least two occasions. After a contested hearing which was continued several times, the court sustained the 300(a) and 300(d) allegations, and four out of five of the 300(b) allegations and removed Andrew from his father's custody. The father appealed, contending that the court had abused its discretion in denying a third continuance, and further that the court's refusal to allow father's counsel to present a closing argument was a violation of due process. He also alleged that there was not substantial evidence to support the jurisdictional and dispositional findings.

As to the issue of the continuance, the appellate court held that the juvenile court had not abused its discretion by denying the continuance because the minor's need for prompt resolution of the case was of primary importance, and because the requested continuance would have caused the hearing to be delayed past six months om the detention hearing. On the second issue, the appellate court held that no authority supports Father's contention that he has a due process right to present a closing argument, and that the court's determination of Andrew's credibility placed father's privilege to present a closing argument within the court's discretion. As to the sufficiency of the evidence, the appellate court held that "[i]n this case, the substantial evidence standard is easily met." Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: B208640.PDF, B208640.DOC

In re K.M. (Unpub'd), No. B207743

K.M. was detained shortly after her birth in May, 2007, due to information that mother was depressed, with possible suicidal ideation. At a 12-month hearing in May, 2008, the SSA reported that mother had stated many times to the CSW that she felt that K.M. was well taken care of and that the best place for her was with father, where she had been placed since disposition under Agency supervision. On May 8, 2008, the court terminated jurisdiction and entered a custody order pursuant to section 362.4. Father was awarded sole physical custody of K.M., while both parents were given joint legal custody.

Father appealed the custody order, contending that the grant of joint legal custody was an abuse of discretion and unsupported by substantial evidence because the evidence showed mother was a danger to K.M., because she had insufficient mental stability to warrant unsupervised visits with her, and because there was insufficient evidence of mental stability to justify allowing mother to participate in making significant decisions about K.M., or to interfere with father's choices.

The appellate court held that the evidence showed K.M. was able to participate in decisionmaking, and that father never suggested that mother had interfered with K.M.'s care. Having found no evidence that the court's decision was arbitrary, capricious or patently absurd, the appellate court affirmed the order and denied the appeal.

Opinion: B207743.PDF, B207743.DOC

In re A.A. et al. (Unpub'd), No. B201619

S.A. appealed from the order terminating her parental rights to her son A. and her daughter G. D.J. (who is G.'s father, but not A.'s) appealed from the order terminating his parental rights to G. Both contended that teh beneficial relationship exception of 366.26(c)(1)(B)(i) should have applied. The appellate court noted that S.A. had only cared for the children for a short period of time but was never their primary caretaker. The noted that D.J. visited when he was not incarcerated, but that "we can find nothing in those facts which mean that he occupied a parental role in her life." Accordingly, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: B201619.PDF, B201619.DOC

In re I.R. et al. (Unpub'd), No. D053861

Emma C. and Isidro V. (together, the parents) appealed judgments declaring their minor children I.R. and Carolina V. (together, the minors) dependents of the juvenile court under 300(b) W&IC (because of parental drug use and violation of the terms of a voluntary services agreement) and removing them from parental custody. The parents argued that at the time of the hearing, the minors were not subject to the defined risk of harm because Emma was cooperating with Agency, participating in drug treatment and testing negative for drugs.

The appellate court noted that both parents were drug abusers, and that they had failed to comport with the terms of their voluntary services agreement. The appellate court further noted that substantial evidence supported the juvenile court's finding that "returning the minors to Emma's custody was not a feasible alternative". Accordingly, the judgments were affirmed, and the appeals denied.

Opinion: D053861.PDF, D053861.DOC

In re L.M. (Unpub'd), No. B212023

J.W. (Mother) appealed from the order summarily denying her 388 W&IC petition seeking that reunification services be restored and the 366.26 hearing be taken off calendar, as well as the order terminating her parental rights over L.M. (Daughter). Mother contends the juvenile court's erroneous decision to deny her section 388 petition without a hearing requires reversal of the order terminating parental rights and remand for a hearing on her section 388 petition.

The appellate court held that mother failed to make a prima facie showing of a change of circumstances, because Mother has a history of drug abuse more than two decades long, she has been involved with the juvenile dependency system for 13 years, she has lost her six oldest children because of her drug abuse, and the record showed she was continuing to struggle with drug addiction. Accordingly, the appellate court concluded that the juvenile court acted well within its discretion in summarily denying the petition, and affirmed the lower court's orders.

Opinion: B212023.PDF, B212023.DOC

In re Sebastian L. (Unpub'd), No. D054096

Z.C. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to her child. 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: D054096.PDF, D054096.DOC

In re J.C. (Unpub'd), No. D054428

C.C. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to his children. Citing In re Sade C. (1996) 13 Cal.4th 952, he 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 [his] custody of a child or [his] status as the child's parent", denied his appeal.

Opinion: D054428.PDF, D054428.DOC

In re S.C. et al. (Unpub'd), No. E046590

Both parents together appealed the termination of parental rights as to their children, S.C. (age four) and J.C. (age 3). They argue the juvenile court applied the wrong legal test in determining that the beneficial parent-child relationship exception to termination of parental rights (366.26(c)(1)(B)(i) did not apply because the mother did not establish day-to-day contact.

The appellate court explained that "[c]ontrary to mother's assertion, the trial court did not find that the exception was inapplicable based on the lack of day-to-day contact, although the court did mention that as one of several criteria to consider in determining whether there was a significant bond. The court properly evaluated the existence of a significant relationship, needed to establish the exception; the isolated reference to day-to-day contact was simply the court's attempt to describe a significant relationship as one based on frequent contact in a parental role, rather than just having a visit and playing with your children." Accordingly, the court held that the juvenile court had properly determined the exception did not apply. The juvenile court's orders were affirmed, and the appeal was denied.

Opinion: E046590.PDF, E046590.DOC

In re B.C. (Unpub'd), No. E045996

Father appealed from the termination of his parental rights under Welfare and Institutions Code section 366.261 as to his daughter B.C. (minor), who was born in 1995. Father challenged the sufficiency of the evidence to support the order terminating his parental rights. He also argued the termination order should be reversed because he has a continuing and beneficial bond with minor and an exception to the termination of parental rights of 366.26(c)(1)(B)(i) applies.

The appellate court held that because, at the 18-month review hearing, "father had not demonstrated an ability to complete the objectives of the case plan or to provide for minor's physical and emotional well-being and special need for close supervision and guidance", substantial evidence supported the termination of parental rights and reunification services. The appellate court further held that although it was undisputed that father had a continuing bond with the minor and frequent and consistent visitation, father was unable to establish himself in a positive parental role for any significant period of time despite continuing contact and reunification services on two separate occasions. Accordingly, the juvenile court's judgment was affirmed, and the appeals were denied.

Opinion: E045996.PDF, E045996.DOC

In re J.R. (Unpub'd), No. A121721

N.R. (mother) appealed from the termination of her parental rights to her son, J.R. She argued the juvenile court erred by failing to apply the beneficial parental relationship exception of 366.26(c)(1)(B)(i) W&IC because she had a warm relationship with J.R. and because the juvenile court failed to order a bonding study.

The appellate court held preliminarily that mother's argument regarding a bonding study was forfeited because she failed to raise it in the juvenile court following the initial 366.26 hearing, and rejected her argument that the court should have ordered it sua sponte. The appellate court further held that the fact that mother had (and the juvenile court recognized) a warm relationship with J.R. and that the court had commented that it would would be in J.R.'s best interest to maintain contact with her and other maternal family members did not conflicts with the court's ultimate decision that the beneficial parental relationship exception did not apply. Accordingly, the lower court's order was affirmed, and the appeal was denied.

Opinion: A121721.PDF, A121721.DOC

In re L.T. et al. (Unpub'd), No. A122050

At an 18-month status review hearing, the juvenile court declined to set a hearing under 366.26 W&IC and instead ordered minors H.T. and L.T. placed in long-term foster care. The minors appeal, arguing that because there was not clear and convincing evidence they were not proper subjects for adoption, the court was required to order a section 366.26 hearing. The minor's mother filed a respondent's brief in support of the juvenile court's order. Respondent Contra Costa County Bureau of Children and Family Services (CFS) then filed a motion to dismiss this appeal as moot because the juvenile court, at another review hearing, scheduled a section 366.26 hearing to be held on June 4, 2009.

The appellate court noted that "[t]he relief sought in the appeal is an order requiring the juvenile court to set a section 366.26 hearing. The juvenile court has already done so. Even if the trial court was wrong in failing to order the section 366.26 hearing before, it has now given the minors the only relief this court could have afforded them." The appellate court further rejected mother's opposition of the motion to dismiss, arguing that the juvenile court did not give minors the relief they seek in their appeal because what they are seeking is a permanent plan of adoption, holding that the ultimate disposition of the case was not an issue under appeal. The appeal was therefore dismissed as moot.

Opinion: A122050.PDF, A122050.DOC

In re P.L. et al. (Unpub'd), No. E046549

S.W. (mother) appealed from the termination of her parental rights under 366.26 W&IC as to her daughter E. (born 2005); son K. (born 2006); and daughter P. (born 2007). Mother challenged the sufficiency of the evidence to support the juvenile court's finding of adoptability, as well as the order terminating her parental rights. She also argued the termination order should be reversed, because she has a continuing and beneficial bond with all three children, so an exception to the termination of parental rights applies as set forth in section 366.26(c)(1)(B)(i). C.L. (father) joined mother's appeal pursuant to rule 8.200(a)(5) of the California Rules of Court, and also sought reversal of the order terminating his parental rights.

The appellate court held that, notwithstanding the children's special needs, substantial evidence including the social worker's testimony supported the finding that they were adoptable. The appellate court further held that mother's good relationship with the children did not outweigh the benefits the children would gain from adoption. Accordingly, the juvenile court's orders were affirmed and the appeals were denied.

Opinion: E046549.PDF, E046549.DOC