Case Law Update: 15 April 2009

In re A.N. (Unpub'd), No. C058864

On May 10, 2006, the Department filed a juvenile dependency petition on behalf of the minor, then seven months old, alleging mother's failure to protect the minor and his half-siblings from domestic violence perpetrated by father, father's continuing substance abuse and his failure and refusal to rehabilitate or participate in voluntary services, and mother's failure to participate in voluntary services. The minor and his half- siblings were removed when it was discovered that mother had moved back into father's residence despite having been informed that the children would be placed into protective custody if she did so.

The juvenile court sustained the allegations in the petition, adjudged the minor and his half-siblings dependent children of the court under 300(b) W&IC, committed them to the care and custody of the Department for suitable confidential placement, and ordered regular visitation with the minor. The court further ordered reunification services for both parents.

Reunification services were extended several times upon recommendations of the Agency, but in June of 2007, the SSA, based on fialed drug tests, denial of substance abuse, and lack of appropriate housing, recommended that mother's reunification services be terminated and A.N. be placed with father. The court made those orders at a July, 2007 permanency hearing.

Subsequently, however, the Agency was informed that both parents were living together and abusing alcohol. The Agency filed a 387 petition alleging father was found to be under the influence of alcohol, had failed to participate in services, and was noncompliant with testing, placing the minor at risk of abuse and/or neglect. A.N. was detained and returned to foster care and reunification services were ordered for the father. Father failed to comply with his services, reunification was terminated, and a request by the mother to reinstate services was denied.

Shortly before a February 2008 366.26 hearing, both parents filed 388 petitions seeking return of the minor or additional reunification services. The 366.26 hearing was continued to March, and the court heard the 388 petitions at the same time.

The court denied these petitions, noting that the alleged changed circumstances were not sufficiently changed to grant the motions, and that further, "it would not be in the minor's best interests to reopen services given the amount of time the minor had been in the very stable [foster] home where he is being well cared for." Accordingly, the 388 petitions were denied and parental rights were terminated.

Both parents appealed, arguing that the court failed to provide adequate ICWA notice (based on mother's contention at the 2006 detention hearing that she had Apache ancestry and the Agency's failure to notice all 8 Federally-recognized Apache tribes) and that the court erred in finding that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply. The Agency conceded the ICWA issue but argued that such deficiency was harmless. The parents also appealed denial of their 388 petitions, arguing that the court had erred in concluding they had failed to show changed circumstances and that the best interests of the minor would not be furthered by granting them services.

With regard to the ICWA issue, the appellate court, citing In re Kahlen W. (1991) 233 Cal.App.3d 1414,1424 held that the Agency's failure to provide the necessary notice constituted prejudicial error. With regard to the denial of the 388 petitions by the parents, the appellate court held that sufficient evidence supported the juvenile court's conclusion that "circumstances were changing but not yet changed", and that therefore the question of the minor's best interests need not be considered.

Accordingly, the denial of the 388 petitions was affirmed. The termination of parental rights at the 366.26 hearing was vacated and the case was remanded for proper ICWA noticing. The appeals court directed that if, following notice, any noticed tribe determines that the minor is an Indian child, or if other information is presented showing the minor is an Indian child as defined by ICWA, the juvenile court shall conduct a new review hearing in conformity with all the provisions of ICWA.

Opinion: C058864.PDF, C058864.DOC

In re Valeria B. (Unpub'd), No. D054553

Juan B. 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: D054553.PDF, D054553.DOC

In re D.D. (Unpub'd), No. F056298

K.G. appealed from an order denying her reunification services with regard to her daughter, D.D. under 361.5(b)(5), 361.5(b)(6) and 361.5(c)(1) W&IC. When D.D. was three years old, she suffered a serious brain injury while in the care of appellant's boyfriend. It is undisputed appellant knew or reasonably should have known her boyfriend was physically abusing D.D. K.G. argued the juvenile court should have granted her reunification services because there was insufficient evidence to support a denial of services on the alternative grounds (361.5(b)(5) & 361.5(b)(6)) that the court found true.

The appellate court noted that K.G. conceded that 361.5(b)(5) [that the child was brought within the jurisdiction of the court under subdivision 300(e) W&IC, because of the conduct of that parent or guardian] apply to her, and that "[t]the evidence before the court compelled neither a finding that reunification services for appellant were likely to prevent D.D.'s reabuse or continued neglect nor one that the denial of services for appellant would be detrimental to D.D."

Accordingly, the order denying reunification services was affirmed, and K.G.'s appeal was denied.

Opinion: F056298.PDF, F056298.DOC