Case Law Update: 09 April 2009

In re Leah S. et al. (Unpub'd), No. C059580

Marsha S., mother of Leah S. (aged 9) and Melissa S. (aged 13), and Ronald V., father of Leah S., appeal from orders of the juvenile court terminating the parental rights of mother and father under 366.26 W&IC. Mother and father contended the juvenile court committed reversible error in finding that Melissa did not object to the proposed permanent plan of adoption, and in concluding that the beneficial parental relationship exception of 366.26(c)(1)(B)(i) W&IC did not apply.

As to the first issue, the appellate court noted that Melissa had testified at the 366.26 hearing, both in response to the court's questioning and that of her counsel, that she understood reunification was not under discussion and that she had clearly expressed a desire for the permanence of adoption. The appellate court concluded that, in light of that evidence, the juvenile court had properly discharged its duty under 366.26(h)(1) W&IC to "consider the wishes of the child" and that substantial evidence supports its conclusion that Melissa did not object to adoption.

As regards the beneficial relationship exception, the appellate court explained that the statute requires "both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship". On the facts before it, the court held that, although there was evidence of regular contact, "the record here does not support mother's suggestion that the minors would benefit substantially from continuing their relationship with her primarily because of the length of time the minors had lived with her and the attachment existing between them."

The juvenile court's orders were thus affirmed, and the appeal was denied.

Opinion: C059580.PDF, C059580.DOC

In re E.J. (Unpub'd), No. B209123

E. (then 10 years old) was detained in March 2008, following an allegation of molestation by E.J. (father) made by her 12-year-old sister. At the dependency proceeding, E. testified that she was not molested, and other witnesses controverted some of E.'s sister's testimony. Nevertherless, the court found that E.'s sister's testimony was credible, that E.'s testimony was not credible, and that E. wanted to protect her father. The court sustained a dependency proceeding under 300(d) W&IC. E.J. was at that time incarcerated, and based on the length of his incarceration, no reunification services were ordered. E. was placed with her mother.

After E.J.'s counsel (appointed by the appellate court) informed the court that she was unable to file an opening brief on the merits, E.J. himself filed a letter brief arguing that E.'s sister's unsubstantiated testimony is not substantial evidence for the trial court ruling denying him reunification services. He contended that E. was not at risk of harm, citing her testimony that she was never inappropriately touched.

The appellate court noted as a preliminary matter that the review of the juvenile court's finding is for substantial evidence, and that the appellate court may not and does not reweigh the evidence. Further, the appellate court noted that reunification was denied as to E. based on the length of E.J.'s incarceration and not under 361.5(b)(6) W&IC.

Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: B209123.PDF, B209123.DOC

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