Case Law Update: 14 April 2009

In re Jeremiah G., No. C058223

Jeremiah G. (minor) was born in October, 2007, and tested positive for cocaine at birth. He was Joann W.'s third child born with a positive toxicology screen for cocaine; she had lost parental rights to the two others several years previously. Mother was offered voluntary services for Jeremiah, but failed to utilize them, so a petition under 300 W&IC was filed.

At the detention hearing, A.G. (father) made statements that it was "a possibility" that he had Native American heritage through his great grandfather, a claim he subsequently recanted. At a February, 2008, juris/dispo hearing, the parties agreed that father does not have Native American heritage, and the court thus found that ICWA did not apply. The court denied reunification services to mother based on the previous terminations of rights to Jeremiah's siblings, and ordered services to father.

In the unpublished portion of the opinion, the court rejected mother's claim that the bypass of reunification under 361.5(b)(10) and 361.5(b)(11) W&IC, noting that substantial evidence of mother's 20 year history of substance abuse, failed reunification and unwillingness to utilize services meant that the juvenile court had not abused its discretion in concluding that reunification services would be futile.

In the published portion of the opinion, mother's claim that the dispositional orders were invalid because the notice provisions of ICWA were not met was likewise rejected. The appellate court explained in its introduction to the opinion that "[w]e publish this opinion to emphasize, again, what we thought that our court made clear in In re O.K. (2003) 106 Cal.App.4th 152. In a juvenile dependency proceeding, a claim that a parent, and thus the child, 'may' have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry." Here, the court held that father's ultimately retracted claim of possible Native ancestry was insufficient to trigger the requirements of ICWA, and thus that the juvenile court did not err in concluding that ICWA did not apply.

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

Opinion: C058223.PDF, C058223.DOC

In re B.O. et al. (Unpub'd), No. C059076

Appellant, mother of B.O. and M.O. (the minors), appealed from juvenile court orders at a review hearing, continuing the minors as dependent children in appellant's custody pursuant to a family maintenance plan. She alleged that the court abused its discretion in denying a motion to continue the review hearing and in denying her request to have the minors testify at the hearing.

The appellate court held that, becaue no showing of good cause for a continuance existed, the juvenile court had not abused its discretion in denying the continuance. Furthermore, the appellate court held that in any case, the appellant was not prejudiced by the decision not to grant a continuance. Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: C059076.PDF, C059076.DOC

In re B.C. (Unpub'd), No. E046700

B.C. (minor) was detained in July, 2006 upon allegations under 300(b), 300(c) and 300(g) W&IC after M.C. (mother), a diagnosed schizophrenic who was at the time not being treated, was arrested for child endangerment, possession of a controlled substance, and being under the influence of a controlled subtstance. The court found the allegations true and ordered the SSA to provide reunification services. However, because of non-compliance and further drug-related arrests, reunification services were terminated.

In September, 2008, Mother (who was again incarcerated at the time) filed a 388 petition seeking additional reunification services, citing the substance abuse program in which she was enrolled while incarcerated as changed circumstances. At a hearing later that month, the juvenile court found a change of circumstances, but concluded a change in the court's order would not be in B.C.'s best interest, and denied the petition. The court also selected adoption as B.C.'s permanent plan and terminated parental rights.

Mother appealed, contending the juvenile court erred in denying her 388 petition without a full evidentiary hearing, and that it erred in not finding the beneficial relationship exception of 366.26(c)(1)(B)(i) to apply.

In regard to the 388 petition, the appellate court held that, since the court afforded an opportunity for all parties, including M.C.'s counsel, to express their positions about the 388 petition, that the juvenile court did not err in denying the request. Further, the appellate court noted that the juvenile court's analysis of the 388 petition was "thoughtful, reasonable, and based on the facts of the case" and therefore that no abuse of discretion occurred.

As regards the beneficial relationship exception, the appellate court held that substantial evidence supported the conclusion that the strength and quality of the relationship between Mother and B.C. did not outweigh the sense of security and stability provided to B.C. at her maternal grandparents' home.

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

Opinion: E046700.PDF, E046700.DOC

In re M.S. (Unpub'd), No. C059953

M.S. (then three) was detained in April 2007 following allegations of sexual abuse by M.S.'s mother's boyfriend. The petition named C.M. (appellant) as the alleged father. C.M., who was then incarcerated in state prison for possession of a controlled substance for sale, was found in September, 2007, to be the presumed father, and counsel was appointed for him.

At a December, 2007, review hearing, C.M.'s counsel informed the court that counsel had received a copy of a letter sent to the court from appellant, which referred to a lack of "proper aid of counsel". The court at that time declined to schedule a Marsden hearing, advising counsel it would require additional information to do so. The court also encouraged appellant, through its minute order, to communicate with his counsel.

C.M. was present at the July, 2008 366.26 hearing, where he stated that he opposed the recommended plan of adoption by C.M.'s grandparents (with whom she was placed). At the conclusion of the hearing, the juvenile court terminated C.M.'s parental rights upon a finding that it was likely M.S. would be adopted.

C.M. appealed, contending that the juvenile court committed reversible error in failing to conduct a Marsden hearing. He further claimed that his trial counsel provided inadequate representation for failing to object to the absence of a preliminary adoption assessment, as required by statute, for failing to seek a continuance of the 366.26 hearing on that basis, and for failure to raise the exception to adoption of 366.26(c)(1)(A) because of Grandparents' past criminal history.

The appellate court noted that an exhaustive Marsden inquiry is not required in a juvenile dependency proceeding; rather, the juvenile court must merely "make some inquiry into the nature and complaints against the attorney". This, the appellate court, held had been done. Further, the appellate court held that C.M.'s subsequent failure to raise the Marsden issue at future hearings could have been reasonably concluded by the juvenile court to constitute "an abandonment of his previous claim, if any."

With regard to the inadequate representation claims, the appellate court held that "the record suggests that, presented with a difficult case, appellant's counsel did the best that could be done for appellant under the circumstances presented to counsel."

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

Opinion: C059953.PDF, C059953.DOC

In re A.V. et al. (Unpub'd), No. C059396

R. V., the mother of J. R. (born July, 2005) and A. V. (born March, 2008), appealed from juvenile court findings and orders entered at a juris/dispo hearing. She contended the evidence was insufficient to support the jurisdictional finding that she caused the death of her son S. H. (under 300(f) W&IC), and the dispositional order that she not receive reunification services under 361.5(b)(4), 361.5(b)(10) and 361.5(b)(11) W&IC. Mother further alleged, and the SSA conceded, that the juvenile court failed to ensure compliance with ICWA because she alleged Cherokee heritage but no notices were sent to any Cherokee tribes.

The appellate court vacated the disposition order and remanded to the juvenile court for the purposes of providing proper ICWA notice to the three identified Cherokee tribes. The appellate court directed that if, after proper notice, the provisions of ICWA are found not to apply, the juvenile court shall reinstate the dispositional order.

Opinion: C059396.PDF, C059396.DOC

In re T.B. et al. (Unpub'd), No. D053992

T.B. (mother) appealed judgments terminating her parental rights to her children, T.B. and L.H. (the children). She contends no substantial evidence supports the court's finding the children were likely to be adopted if parental rights were terminated, and the court erred by not finding the beneficial parent-child relationship exception of 366.26(b)(1)(C)(i) applied.

The appellate court held that substantial evidence, including the fact that the children were placed with a caregiver who wanted to adopt them despite some special needs, supported the finding of adoptability. The appellate court further held that "[s]ubstantial evidence supports the court's finding the mother did not have a relationship with the children that was sufficiently beneficial to outweigh the benefits to them of being adopted into a stable home."

Accordingly, the judgments of the juvenile court were affirmed, and mother's appeal was denied.

Opinion: D053992.PDF, D053992.DOC