Case Law Update: 20 April 2009

In re A.W (Unpub'd), No. B213417

T.W. (mother) appealed an order terminating parental rights to her child A.W. (born 2007) and establishing adoption as the permanent plan. Appointed counsel advised that there were no arguable issues in mother's appeal. The appellate court granted Mother leave to personally submit any contentions she wished considered, but received no response. Accordingly, the appeal was dismissed as abandoned.

Opinion: B213417.PDF, B213417.DOC

J.K. Sr. v. Superior Court (Unpub'd), No. F056946

J.K. (then two years old) and I.K. (then 14 months old) were detained in 2007 after police responded to a domestic disturbance at J.K. Sr. (father)'s home and found feces, urine and trash on the floors, and evidence of drug and alcohol abuse. The juvenile court sustained the dependency allegations and placed the children with their maternal aunt and her husband. Reunification services, including parenting classes, substance abuse, mental health and domestic violence evaluations, and random drug testing were ordered for J.K. Sr.

A contested 18-month review hearing in January, 2009, the court found the department provided reasonable services and it would be detrimental to return the children to parental custody. The court terminated reunification services and set a 366.26 hearing. Father petitioned for extraordinary writ relief, arguing the juvenile court erred in failing to allow him additional reunification services.

The appellate court held that, given it cannot reweigh the evidence, it could not say that the juvenile court abused its discretion in terminating services and setting a 366.26 hearing. Accordingly, the petition for extraordinary writ was denied.

Opinion: F056946.PDF, F056946.DOC

O.V. v. Superior Court (Unpub'd), No. F056532

In February 2008, the department of social services (department) took then three- year-old I. and 17-month-old J. into protective custody after their mother, M.D., 2 left them with their maternal aunt without making provisions for their care. At the time, petitioner was serving a three-year sentence at Avenal State Prison (Avenal) for first- degree residential burglary and vehicle theft. He was also on an INS hold. He was expected to be released from custody in January 2009.

On March 3, 2008, the juvenile court ordered I. and J. detained pursuant to a dependency petition, which identified petitioner as their alleged father. The court ordered a paternity inquiry as to J. The court set the jurisdictional hearing for March 19, 2008, and issued an order to authorities at Avenal to have petitioner transported for the hearing. The department placed the children together in foster care. Paternity testing subsequently confirmed that O.V. was the biological father of both children.

In November, 2008, O.V. filed a 388 petition, asking the court to elevate him to I. and J.'s presumed father and offer him reunification services. In his section 388 petition, petitioner stated he held I. out as his son to his family and the community and, prior to his incarceration, spent weekends with I. and provided support for him. Petitioner also stated he wanted to reunify with I. and begin a relationship with J. upon his release in January 2009. Petitioner believed it would be in his sons' best interest to be placed with him or a relative since no one willing to adopt them had been identified.

At a combined six-month review and 388 hearing, the juvenile court denied the section 388 petition, finding it would not be in the children's best interest to change its order based on the precedent in In re Eric E. (2006) 137 Cal.App.4th 252 [holding that presumed father status may be denied if, at the time it is requested, it cannot be shown that such status is in the child's best interests.] The court also terminated M.D.'s reunification services, denied petitioner visitation, and set a 366.26 hearing.

In an extraordinary writ petition filed on January 2, 2009, petitioner contended the department's delay in arranging paternity testing violated his right to due process. He also contends the juvenile court erred in applying the "best interest" standard in denying his request for presumed father status.

The appellate court held that there was no requirement that biological paternity be proven before O.V. sought presumed father status, and that therefore the delay in establishing paternity did not violate his due process rights. However, the appellate court held that the juvenile court, by failing to conduct a paternity hearing and by deciding his paternity based on the best interest of the children, denied him his due process right to a hearing on his paternity.

Accordingly, the appellate court lifted the stay on the 366.26 and issued an extraordinary writ vacating the juvenile court's orders denying a hearing on the 388 petition and setting the 366.26 hearing. The appellate court directed the juvenile court to conduct a paternity hearing, and instructed that "[i]f the court determines petitioner is the presumed father of either child, the court shall order that he receive reunification services as to that child unless the court determines that petitioner should be denied services under section 361.5, subdivision (b). If the court determines that petitioner is not the presumed father of either I. or J., the juvenile court may set a new section 366.26 hearing and advise petitioner of his right to file an extraordinary writ."

Opinion: F056532.PDF, F056532.DOC

In re E.G. et al. (Unpub'd), No. E047076

L.A. (Mother) is the mother of two boys, E.G., and I.G., (children) who were removed from her care at the ages of one and three, respectively. Mother appealed orders of the juvenile court at a 366.26 hearing terminating her parental rights and freeing the children for adoption by their foster mother. Mother argued that the beneficial relationship exception of 366.26(c)(1)(B)(i) should have applied, and that the juvenile court erred in finding that it did not.

The appellate court held that Mother's claim was waived for failure to raise it in the juvenile court, and that in any case it is without merit because of "the dearth of evidence that the children were attached to Mother as compared to the ample evidence that they were attached to the foster mother." Accordingly, the appeal was denied and the juvenile court's orders were affirmed.

Opinion: E047076.PDF, E047076.DOC

Adoption of R.V. (Unpub'd), No. B209956

Alex M. (father) appealed an order of the family court terminating his parental rights to his son R.V. The order arises from a petition brought by respondents, who want to adopt R.V. The family court found that the Indian Child Welfare Act (ICWA) does not apply, and that appellant (1) abandoned R.V. and (2) has a felony record that demonstrates unfitness to parent his child. Alex M. argued that the finding that ICWA does not apply was erroneous, and further that the conclusions that he abandoned his son and was unfit to parent him were not supported by substantial evidence.

As to the ICWA issue, the appellate court held that Alex waived it by failing to appeal the dispositional orders of the court on that basis, and that further, since the claim of Native American heritage was made by the children's mother and not by him, that no showing can be made that he was prejudiced by any purported error.

As regards the other findings, the appellate court held that Alex's failure to make arrangements for R.V.'s care during his incarceration and failure to seek custody of R.V. following his release or to provide financial support constituted presumtive evidence of abandonment, and that this finding was therefore supported by sunstantial evidence. Similarly, ample evidence supported the family court's findings that "appellant has repeatedly committed crimes and been incarcerated or on parole for the majority of his adult life" and that these facts "show a pattern of behavior related to the welfare of his child and his ability to exercise custody and control over his child." Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: B209956.PDF, B209956.DOC

In re Tiffany W. et al. (Unpub'd), No. B210409

This appeal, a follow-on to In re. Tiffany W. et al (Unpub'd) No. B207928, decided 2009/03/19, challenged an order of the juvenile court at a six-month review hearing continuing the dependency case and ordering Felix W. (father) to participate in additional reunification services. Felix argues that there is no evidence to support the juvenile court's finding that his progress in his case plan was minimal, and that therefore the children should have been returned to his care at the six-month hearing.

The appellate court explained that "[h]ere, as the Department demonstrated, father did not "participate regularly and make substantive progress in court-ordered treatment programs" and such failure is prima facie evidence that return of the children to his custody would be detrimental to them." (Emphasis original). Father made several additional claims, but the appellate court described them as "vituperative allegations against the Department, unsupported by any admissible evidence."

Accordingly, the juvenile court's order was affirmed, and this appeal was denied.

Opinion: B210409.PDF, B210409.DOC

In re D.L., et al. (Unpub'd), No. B212500

On May 24, 2006, the Los Angeles County Department of Children and Family Services (Department) filed a petition pursuant to section 300 alleging, among other things, that mother had a five year history of drug use including heroin and methadone that rendered her incapable of caring for newborn D.L, who had tested positive for methadone at the time of his birth. The petition also alleged that father had failed to take action to protect D.L. when he knew of mother's illicit drug use.

The juvenile court detained D.L. and ordered family reunification services for mother and father. The juvenile court also ordered monitored visits for mother and unmonitored visits for father. Subsequently, mother was arrested and gave birth to anohter child (F.L.) while in prison. The SSA filed a petition detaining F.L. On February 28, 2008, the juvenile court terminated reunification services as to D.L., sustained an amended petition as to F.L., and denied mother and father reunification services as to F.L. The juvenile court set both matters for a section 366.26 hearing on June 26, 2008.

In August 19, 2008, mother filed a 388 petition requesting reunification services with D.L. and F.L. and placement of the children with her at the Shields for Families (Shields) drug treatment program. In her request, mother stated that she was no longer incarcerated, that she had been sober for 14 months, and that she had been enrolled in the Shields drug treatment program since July 1. According to mother, Shields allows children to stay with their parents. This petition was considered along with a 366.26 hearing.

In its written decision on mother's section 388 petition and termination of parental rights under section 366.26, the juvenile court stated that after her release from prison, mother immediately entered a drug rehabilitation program and began to visit D.L. and F.L. regularly. The juvenile court noted that mother appeared to be more mature and serious than she did at the 12-month review hearing, and appeared to be sincere and committed to turning her life around.

However, "[t]he juvenile court foresaw a very long period to ensure that mother had rehabilitated before it would even consider returning D.L. and F.L. to mother if it were to extend reunification." Given the ages of the children and their special needs, the juvenile court found that delaying permanency was not in the children's best interest and denied the section 388 petition. The court further held that the Department had established by clear and convincing evidence that D.L. and F.L. were adoptable and that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply. Accordingly, parental rights were terminated.

Mother appealed, contending that the juvenile court abused its discretion in denying her 388 petition and in finding that the beneficial relationship exception did not apply. The appellate court held that substantial evidence supported both of these findings, affirmed the lower court's orders, and denied the appeal.

Opinion: B212500.PDF, B212500.DOC