Case Law Update: 21 April 2009

In re Valerie W. et al. (Unpub'd), No. D053604

Greg W. and S.W. (together, the parents) appealed judgments terminating their parental rights to their minor children Valerie W. and Gregory W. (together, the minors) under Welfare and Institutions Code section 366.26. In a prior appeal filed by the parents, this court reversed the judgments terminating parental rights on the ground the evidence was insufficient to support a finding the minors were adoptable because the assessment report was inadequate in several respects. (In re Valerie W. (2008) 162 Cal.App.4th 1)

The appellate court at that time remanded the matter to have the San Diego County Health and Human Services Agency (Agency) prepare an assessment report in compliance with statutory requirements and to have the juvenile court conduct a new section 366.26 hearingl. In accordance with that opinion, the Agency prepared a second assessment report, and the juvenile court held a new selection and implementation hearing. The court found the minors were likely to be adopted within a reasonable time and terminated parental rights.

The parents challenged the sufficiency of the evidence to support the court's finding of adoptability. They asserted that the assessment report was inadequate under 366.21 W&IC because it does not include necessary information about the minors or their caregiver, that substantial evidence does not support the court's finding the minors are adoptable; and that Agency intends to allow the caregiver and her mother to jointly adopt the minors even though there is no legal authority for such an adoption.

With regard to the sufficiency of the adoption assessment, the appellate court held that "[t]he assessment report substantially complied with the statutory requirement of providing an evaluation of the minors' medical, developmental, scholastic, mental and emotional status". With regard to the juvenile court's finding of adoptability, the appellate court held that "the evidence showed the minors were adoptable based on their general characteristics, their placement in a prospective adoptive home and the interest of other prospective adoptive families". With regard to the last issue, the appellate court noted that the agency modified its plan and was, at the time of the second adoption assessment, seeking to allow the current caregiver alone to adopt the children, and explained that "[w]e are presented with no opportunity here to decide the propriety of a joint adoption by a mother and her adult daughter."

Accordingly, the juvenile court's judgments were affirmed, and the appeals denied.

Opinion: D053604.PDF, D053604.DOC

In re Angelina G. et al. (Unpub'd), No. D054328

On August 8, 2008, Angelina and Tessa were taken into protective custody after police found the family home in disarray, with numerous cats, trash and cat feces all over the floor. One-year-old Tessa was naked on the floor; three-year-old Angelina was wearing only a dirty diaper. Tessa was severely malnourished and weighed only 10 pounds. The children's father, Mathew G., had just returned from military deployment. Crystal was arrested for child endangerment.

The San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of Angelina and Tessa under 300(b) W&IC. Both petitions alleged the family home was filthy and unsanitary and the floors were covered with feces, trash and fleas. The petition on Tessa's behalf also alleged she was discovered naked amidst trash and feces and suffered from severe health conditions, including failure to thrive, hypernatremia, dehydration, renal failure, hyperchloremia and hair loss.

The Agency subsequently filed amended petitions on Tessa's behalf under 300(e) W&IC ["[t]he child is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child"] and on Angelina's behalf under 300(j) W&IC ["[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."]. The court found those allegations true and ordered the children placed with paternal relatives in Kentucky. The court denied reunification to Crystal under 361.5(b)(5) W&IC, finding that offering services would not prevent continued abuse.

Crystal appealed, contending that there was insufficient evidence to support the jurisdictional findings under 300(e) and 300(j) because the evidence did not show her actions in depriving Tessa of food were "willful", and that the court erred by denying reunification services to her under 361.5(b)(5) because the evidence showed services were likely to prevent reabuse and the Agency did not meet its burden to investigate as required by 300(c) W&IC.

With regard to the jurisdictional findings, the appellate court held that "[t]he evidence before the court fully supports a finding Crystal willfully deprived Tessa of food for a prolonged period." With regard to the denial of reunification services, the appellate court held that "Crystal has not shown the court erred by finding there was no likelihood that reunification services would prevent reabuse in the future."

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

Opinion: D054328.PDF, D054328.DOC

In re R.B. (Unpub'd), No. H032978

R.B. (born in July 2002) was placed in protective custody after being severely abused by his maternal aunt and uncle, in whose care the mother had left him. The juvenile court detained the child and placed him with non-relative caretakers, with whom he had stayed for long periods in 2006 and 2007. At the time of the child's detention, the father (R.B.) was a federal prisoner facing deportation upon his anticipated 2008 release from prison.

The Department filed several amended petitions beginning in November 2007. In late February 2008, the father's attorney advised the court that he was seeking an order placing the child in his care as the noncustodial parent, with the paternal aunt as a possible placement.

At the conclusion of a contested juris/dispo hearing held in March, 2008, the court took jurisdiction over the child. In its oral comments, the court addressed each allegation of the third amended petition. The court sustained most of the allegations without change, but it did amend or reject others. The court found that the maternal relatives had subjected the child to physical and sexual abuse and that the mother had not protected the child from the abuse. The court also found that the father had committed domestic violence against the mother prior to the child's birth.

Concerning disposition, the court denied a motion made by the child's attorney for a bypass of reunification services for the mother. The court also denied the father's request for placement of the child with him. However, the court did make provisions for the father to send cards and letters to the child through the social worker; the court also asked the Department to "do an assessment of the paternal aunt" with authorization for monthly supervised visitation between her and the child. Without comment, the court adopted the Department's written recommendation that reunification services be provided only to the mother. The court's dispositional order also included this provision, submitted by the Department: "The previously noncustodial parent...shall not receive Family Reunification Services because he or she has not requested placement of the child."

The father appealed, contesting the jurisdictional finding of domestic violence, challenging the dispositional order to the extent that it denied him reunification services, and asserting that his counsel was ineffective in failing to pursue reunification.

As regards the jurisdictional finding, the appellate court held that, since the jurisdictional order concededly can be sustained on other grounds, the specific finding challenged by the father is not adverse, and therefore he lacks standing under 395 W&IC to challenge it.

As regards the denial of reunification services, the appellate court noted that, although Father failed to raise the issue in the juvenile court, it nevertheless was exercising its discretion to address Father's claims on the merits because "it is incumbent upon the juvenile court... to ensure a parent has a reasonable opportunity to pursue reunification" (quoting In re Luke L. (1996) 44 Cal.App.4th 670, 681) and because "to the extent that the father asserts the application of the wrong legal standard, the case for automatic forfeiture carries less weight".

Having thus decided, the appellate court noted that the original factual reason for the Department's recommendation for denial of reunification (that the father had not sought custody) no longer existed by the time of the juris/dispo hearing since Father had by then declared his desire for custody. The appellate court noted that the Department argued that "while it is always preferable for the juvenile court to specify its reasons for denying services to an incarcerated parent on the record, the required detriment can nevertheless be implied and supported by substantial evidence in the record."

The appellate court explained that, although it agreed that the evidence could support an implied finding of detriment, it nevertheless declined to reach such an inference here because the juvenile court did not make factual findings on the record explaining its reasons for the denial, and, as the appellate court explained, "the court's failure to do so is particularly troubling here, given the admittedly erroneous factual predicate for the denial of services." The court noted that factual evidence of detriment had been adduced on the record, but "that evidence apparently was adduced in connection with the court's placement decision, made under section 361.2, not in connection with its decision to deny reunification services, which must be made under section 361.5, subdivision (e)(1)."

Accordingly, the jurisdictional orders were affirmed. The dispositional order was reversed, and the matter was remanded to the juvenile court for a determination of detriment from the provision of reunification services to the father under the appropriate statute.

Opinion: H032978.PDF, H032978.DOC

In re Kendall R. (Unpub'd), No. A122322

L.R. appealed from an order of the juvenile court terminating her status as de facto parent to dependent child Kendall R. (Kendall). The order issued on the motion of T.R., who was also a de facto parent, as well as Kendall's maternal aunt and guardian. L.R. contended that: (1) T.R. lacked standing to bring the motion; (2) no change of circumstances supported the order; (3) the order did not serve the child's best interests; and (4) her own "outspoken concern" below about T.R.'s ability to care for him did not support the order. Having taken judicial notice of a subsequent order dismissing the dependency and terminating the court's jurisdiction, the appellate court dismissed the appeal as moot.

Opinion: A122322.PDF, A122322.DOC

In re F.R. et al. (Unpub'd), No. D054155

Julie R. (mother), who has CPS histories in Colorado and Maryland, was charged with first degree murder in July, 2008, after admitting that she gave birth to a baby and subsequently "put [her]hand over his mouth and let him die." She also admitted that the death was intentional.

On the basis of those admissions, the SSA filed dependency petitions for F.R. (then 15), Dominique (then 11), Jeremiah (then 9), Daniel (then 5) and E.S. (then 18 months) under 300(f) W&IC. At a juris/dispo hearing in October, the court entered true findings on the petitions, removed the children from Julie's custody, and denied her reunification services pursuant to section 361.5(b)(4) ["[r]eunification services need not be provided to a parent...when the court finds, by clear and convincing evidence...[t]he parent...has caused the death of another child through abuse or neglect."].

Julie appealed this determination, contending that reunification was in the children's best interests because of her bond with them, their continued contact with each other, and her acknowledgment of wrongdoing. The appellate court held that there was no evidence on the record to suggest that Julie will be able to provide the children with permanency and stability, and therefore concluded that substantial evidence supported the denial of reunification. The appeal was therefore denied, and the juvenile court's order was affirmed.

Opinion: D054155.PDF, D054155.DOC

A.K. v. Superior Court (Unpub'd), No. F056949

This case is a petition for writ relief by A.K. (Mother), in pro per, which accompanies a petition for writ relief by J.K. Sr. (No. F056946), decided on April 20. In this petition, Mother contends principally that the juvenile court erred in denying her request for additional time to reunify with her children, given her full compliance with her court-ordered services and the unique demands of her special needs children.

The appellate court explained that "[i]n this case, while there is evidence favoring an order continuing services (i.e. petitioner's progress, the strong parent/child bond, the children's desire to return home and the prospect of long-term foster care), we cannot say the juvenile court abused its discretion in denying petitioner's request for a continuance." The court noted that "[t]his court was impressed with the sincerity with which petitioner argued her case and her commitment to reunify with her children. Nevertheless, we conclude the juvenile court did not abuse its discretion by denying petitioner's motion for a continuance. Nor do we find error in the court's order setting a section 366.26 hearing to implement a permanent plan."

Accordingly, the petition for extraordinary writ was denied.

Opinion: F056949.PDF, F056949.DOC

S.L. v. Superior Court (Unpub'd), No. F056960

S.L. (father)'s children, then 13- year-old S., 8-year-old J., and 7-year-old K., were adjudged dependents of the court in March, 2004 because of their mother's substance abuse and petitioner's imprisonment. amily reunification efforts failed and, in October 2005, at a section 366.26 hearing, the juvenile court ordered the children placed in long-term foster care with a goal of legal guardianship. Over the ensuing years, the children remained in foster care as ordered by the juvenile court at periodic post-permanency plan review hearings (review hearing). During that time, petitioner remained incarcerated with a projected release date of December 2010.

At a January 2009 review hearing, the SSA reported that K.'s foster parents wanted to assume guardianship of her. Consequently, the juvenile court set a 366.26 hearing as to K. and set review hearings as to S. and J. The court also ordered monthly visitation for petitioner and K.

S.L., in pro per, filed a petition for extraordinary writ to vacate those orders. However, he failed to challenge the correctness of the juvenile court's order issued at the setting hearing. Since he failed, to set forth a claim of error, the appellate court deemed his petition facially inadequate under Calif. Rules of Court rule 8.452 and consequently dismissed it.

Opinion: F056960.PDF, F056960.DOC

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