Case Law Update: 10 April 2009

Juvenile Dependency Opinions - 10 Apr 2009

In re E.G. (Unpub'd), No. F056515

E.G. was detained in January 2008 (at age 10 months) after he suffered a significant burn on his lower back. Based on the fact that C.J. (mother) neither sought treatment nor could reasonably explain the injury, and the fact that C.J.'s other son M. had two years previously been removed (at the age of 9 months old) following a similar injury and that parental rights for M. were ultimately terminated, E.G. was detained upon allegations under 300(a), 300(b) and 300(j) W&IC.

The court granted E.G.'s father reunification services, but denied them to C.J. pursuant to 361.5(b)(7) and 361.5(b)(11) W&IC (prior denial of reunification services for a sibling, and parental rights terminated as to a sibling.) C.J., after completing a domestic violence class, a parenting course and substance abuse treatment, filed a petition under 388 W&IC seeking reunification services. That petition was denied after an evidentiary hearing, and though C.J. appealed the denial, she failed to file a timely writ petition, resulting in dismissal of the appeal.

C.J. then filed a second 388 petition, seeking reunification services or the return of E.G. to her care, and alleging that she continued to participate in services, that she had established an appropriate home for E.G., and that his best interests would be served because she consistently visited him and demonstrated an ability to care safely for him. This second petition was heard concurrently with a 366.26 hearing, at which the juvenile court denied the 388 petition for failure to show changed circumstances, determined E.G. was likely to be adopted, and terminated parental rights.

C.J. appealed the denial of the 388 petition, contending the court abused its discretion when it denied her modification petition because she satisfied both requirements of a section 388 petition, namely that there are changed circumstances and a modified order would promote the child's best interests.

The appellate court held that C.J. failed to introduce any evidence of changed circumstances other than that introduced at her first 388 hearing, and that further, the record showed other services were offered to her which she did not take advantage of. The appellate court also noted that she "minimized her need for mental health treatment and needed another mental health evaluation." Finally, the appellate court noted that C.J. overlooked "the evidence in the department's '366.26 WIC Report' that they no longer shared a strong parent-child relationship". Accordingly, the appellate court concluded the juvenile court had properly exercised its discretion in denying her second 388 petition, affirmed the order terminating parental rights, and denied the appeal.

Opinion: F056515.PDF, F056515.DOC

In re S.R. et al. (Unpub'd), No. E046194

Appellants W.R. (Father) and C.R. (Mother) are the parents of seven children, the youngest five of whom are the subjects of this appeal. The parents separately appealed from orders terminating their parental rights to their three youngest children, twins Child 1 and Child 2, now ages six, and Child 3, now age five, and placing those children for adoption. Mother also appealed from an order denying her 388 W&IC petition seeking to terminate a guardianship for Child 4, now age 11, liberalize Mother's visitation with Child 4, and Child 5, now age 12, and reinstate Mother's services for Child 1, Child 2, Child 3, Child 4, and Child 5. The parents' two oldest children, Child 6, now age 16, and Child 7, now age 18, were dependents of the court but were later returned to Mother's care and are not subjects of either parent's appeal.

The parents raised a wide variety of contentions, including inter alia that the juvenile court erroneously determined that ICWA did not apply because the SSA failed to give adequate notice to all federally-recognized Apache tribes. DCS conceded this contention. Accordingly, the appellate court remanded the case to the juvenile court so that the SSA could give adequate ICWA notice. The appellate court stated that, in the event no tribe intervenes, all affected orders shall continue to have full force and effect. In all other respects, the appeals were denied.

Opinion: E046194.PDF, E046194.DOC

In re B.W. (Unpub'd), No. G014490

B.W. (then age six) was detained in 2003 based on mother's inability to protect him. Father's whereabouts were then unknown, and the dependency terminated in 2006 with a guardianship placement with B.W.'s maternal aunt and uncle. A second dependency proceeding was initiated in late 2006 alleging general neglect and caretaker absence by his guardians. In response to the petition, the aunt and uncle stated they no longer wished to serve as guardians, and that they did not want him returned to their care because of fear of false allegations "coached" by his mother.

The court ordered the child detained and placed with foster parents. In July, 2007, father contacted the SSA from Ohio, claimed he had been unaware of the dependency proceeding, and asked for custody of the child. In October, 2007, the court held a 366.26 hearing at which it adopted long-term foster care as the permanent plan. In April, 2008, over the father's objection, the child's caretakers (who had several times expressed interest in guardianship) were given de facto parent status.

At a status review hearing in May, 2008, the court noted that "there is a more permanent plan available other than long-term foster care for this child" based upon the caregivers' interest in guardianship. The court further noted that the evidence "clearly shows that the father is not an appropriate person to return the child to at this time and it would clearly not be in the child's best interest to return the child to the father at this point." The court explained that the father had never met the child, has shown no real involvement in B.W.'s life, and has made no effort to work a case plan. Accordingly, the court set a new 266.26 hearing to terminate parental rights and adopt guardianship as the permanent plan, and denied father's requests for placement.

Shortly before the 366.26 hearing, father filed a 388 petition seeking placement of B.W. with him. The court rejected this petition without a hearing, finding that father had shown neither changed circumstances nor that placing B.W. with him would be in his best interest.

Father appealed the denial, arguing the court erred in denying his petition without a hearing. The appellate court held that the juvenile court was well within its discretion in denying father's petition, explaining that "[f]ather's petition did not establish a change in circumstances or other new evidence that would suggest a modification of the court's previous orders would promote the child's best interests." The court further explained that "[t]here were simply too many concerns with father to merit changing the child's successful placement with his foster parents, such as father's previous lack of interest or involvement in the child's life, father's mental health issues, father's prior illegal drug use and incarceration, father's residence in Ohio, and the lack of evidence suggesting father was capable of managing the child's behavioral problems." Accordingly, the juvenile court's order was affirmed, and father's appeal was denied.

Opinion: G014490.PDF, G014490.DOC

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