Case Law Update: 23 April 2009

W.R. v. Superior Court (Unpub'd), No. G041616

N.R. (minor, then seven years old) was taken into foster care in May, 2007, based on allegations of general neglect and substance abuse by mother. (W.R., Father, was at that time on parole in Texas and had no contact with N.R. since he was a baby.) N.R. and his half siblings were placed in the home of mother's godmother, N.H., where they had resided with mother for the previous three years. The juvenile court ordered family reunification services, and authorized visitation.

Father requested that N.R. be placed with him in Texas, but as of the date of a November 2008 status report, the social worker had not received necessary information to complete an evaluation of father's home in Texas. The social worker stated that the Agencycould not recommend placement of N.R. with father because (1) N.R. did not want to move away from N.H. or his half siblings, (2) N.R. and father had not spent enough time together to develop the trusting relationship and bond which would be vital to N.R.'s emotional well-being, and (3) father's status of being on active parole would place N.R. at risk of reentering the child welfare system. Father's parole officer further stated that Father "can not verify any income, he makes excuse after excuse and I am concerned how he is able to support himself without income that is verifiable".

At the 18-month review hearing, the juvenile court found that returning N.R. to father's custody would create a substantial risk of detriment. The court then terminated family reunification services, and set the matter for a permanency hearing. Father filed a petition for extraordinary writ, arguing that the SSA failed to meet its burden of proof in establishing substantial detriment.

The appellate court noted that participation in a case plan (which the SSA concedes Father did) is not prima facie evidence that return of the child to the parent's custody would not be detrimental, and that "the court must give consideration to the effect returning the child to the parent's custody might have on the child." The appellate court held that factors such as the minor's desire to remain with his siblings, Father's lack of understanding of or sensitivity to N.R.'s behavioral problems, and Father's arrest for domestic violence all supported the necessary finding of detriment.

Therefore, the petition for extraordinary writ was denied on its merits.

Opinion: G041616.PDF, G041616.DOC

In re J.C. (Unpub'd), No. D053742

J.C. (then five months old) was detained in October 2007 under 300(b) W&IC after police found Michael (father) "pushing J.C. in a stroller while he cursed and swore at imaginary people" and he told police that he was homeless. The SSA reported that Michael had an extensive criminal history, suffered from severe mental health problems and a history of violence, and frequently self-medicated with marijuana. In October 2007 the court held a detention hearing. The court declared J.C. a dependent and ordered he be placed in out-of-home care.

In March, 2008, Michael was found to be J.C.'s biological father. The court entered a judgment of paternity and ordered Michael to participate in reunification services and enroll in the Substance Abuse Recovery Management System (SARMS) program, therapy, a domestic violence program, a psychological evaluation, and psychotropic medication monitoring.

In May, 2008, the SSA prepared a six-month review report which recommended continuing services because Michael visited J.C. twice weekly, participated in the SARMS program (and had only one positive drug test) and had begun therapy. At that time, one positive drug test) and had begun therapy. At that time, Michael had not yet submitted to a psychological evaluation or participated in domestic violence courses. Michael admitted he was not yet in a position to take care of J.C. because he did not have a stable home or job. In July 2008, the SSA reported that Michael had been arrested and charged with assault with a deadly weapon, and the social worker believed there was no substantial probability the court would be able to place J.C. with Michael by the 12-month review hearing scheduled for November 2008. The Agency changed its recommendation as to Michael and reported services should be terminated.

A six-month hearing was held in August, 2008. The social worker testified that he "believed Michael would not be able to complete the evaluation, participate in SARMS or comply with the remaining components of his case plan by the 12-month review hearing. In addition, Michael's criminal case was still pending." The juvenile court found Michael had made substantive progress with the provisions of his case plan and ordered the Agency to provide Michael with an additional six months of services.

Counsel for J.C. appealed, arguing the juvenile court erred by continuing services because Michael had not made substantive progress with his case plan and there was no evidence showing the substantial probability that J.C. would be returned to Michael's care by the 12-month review hearing. The SSA joined in this appeal.

The appellate court concluded that the juvenile court had abused its discretion by continuing services because "the evidence in the record does not support the trial court's conclusion. Here, there was no showing Michael made substantive progress with his case plan or that there was a substantial probability J.C. would be returned to the custody of Michael by the 12-month review hearing." The appellate court further explained that "[t]here was no showing of any kind that Michael would be ready to properly care for J.C. in the foreseeable future. Under these circumstances, there was no substantial evidence on which it reasonably could be concluded J.C. would be returned to Michael by the review hearing."

Accordingly, the appellate court ordered that the juvenile court's order extending reunification services be reversed.

Opinion: D053742.PDF, D053742.DOC

In re M.M. (Unpub'd), No. A122925

M.M (then eight months old) was detained under 300(b) W&IC in March 2007 because of "[Mother] habitually leaving her child with other people without their permission, [Mother's] admitted drug use[,] and prior contacts and referrals regarding [Mother]." The court sustained the allegations, and ordered supervised visitation and the provision of reunification services to Mother. M.M. was placed in the home of Amanda W., who was a friend of M.M.'s maternal grandfather.

In January 2008, the court designated Amanda W. to be M.M.'s de facto parent. Following a contested six-month review hearing, the court found Mother had failed to participate in court-ordered treatment and services, and that M.M. would be at substantial risk of detriment if she were returned to Mother. The court terminated reunification services, and set a 366.26 hearing to terminate Mother's parental rights.

In August 2008, Mother sought to modify the order terminating her reunification services and filed a 388 petition asking that they be restored. Mother's petition alleged that "[t]he minor and mother have visited more consistently and the parental bond is growing. The minor is excited to see the mother and disappointed when the visits end. The mother has engaged in services which ameliorate the conditions which brought the minor before the court." At a combined hearing in September, 2008, the juvenile court denied Mother's 388 petition, ound by clear and convincing evidence that it was likely M.M. would be adopted, terminated Mother's parental rights, and issued an order permitting post-adoption visitationthrough a post-adoption contact agreement.

Mother appealed the orders, arguing that all of the parties except for M.M.'s counsel preferred guardianship as the permanent plan, and that the juvenile court entered an unenforceable visitation order as part of the termination proceedings and therefore the termination must be reversed, and that there was no substantial evidence to find that M.M. was adoptable.

As to the appropriateness of adoption as the permanent plan, the appellate court held that the record of the parties' preferences was more equivocal than Mother states, and that the preference of the parties is not the controlling criteria that is to guide the juvenile court's determination. Rather' it was Mother's burden to show that termination would be detrimental to M.M. and guardianship would be the better plan than adoption. The appellate court held that Mother had not met this burden.

As to the visitation issue, the appellate court held that "[t]he possible unenforceability of the visitation provisions in the juvenile court's termination order provides no basis to overturn the otherwise proper termination of Mother's parental rights. Mother cites no authority that holds a termination order is void simply because it contains provisions regarding post- termination visits. Moreover, it is clear from the record that the juvenile court did not improperly condition the termination of Mother's rights on her ability to have continuing contact with M.M."

As to the issue of the minor's adoptability, the appellate court explained that "specific questions about M.M.'s prospective adoptive placement were not relevant to the determination of adoptability" because "[t]his is not a case where the child was 'not otherwise adoptable if placement with the [prospective adoptive parent] were to fall through.'" The appellate court held that substantial evidence supports the juvenile court's finding of adoptability.

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

Opinion: A122925.PDF, A122925.DOC

In re Daniel C. (Unpub'd), No. D054001

On August 7, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Daniel under 300(b) W&IC, alleging Jessica (mother) used marijuana during her pregnancy with him, and she had lost custody of her other children because of her substance abuse. The paternal grandmother (the grandmother) had adopted Jessica and D.C. (father)'s other two children. The court ordered Daniel detained. D.C. said he and Jessica were no longer in a relationship. Both parents wanted Daniel placed with the grandmother.

At the six-month hearing on April 18, 2008, neither parent was present and Jessica's whereabouts were unknown. The court found the parents had not made progress with their case plans, and there was no substantial probability Daniel could be returned to parental custody by the next review hearing. It terminated services and referred the case for a section 366.26 hearing. The social worker said if Daniel's grandparents did not adopt him, there were 11 other families in San Diego interested in adopting a child with his characteristics. At the 366.26 hearing, the court found Daniel was generally adoptable and none of the statutory exceptions to termination of parental rights and adoption were present. It terminated parental rights and referred Daniel for adoption.

The parents appealed, contending that the adoption assessment was inadequate, that insufficient evidence supported the finding that Daniel was generally adoptable, and that the beneficial relationship exceptions of 366.26 W&IC should have been found to apply. The appellate court rejected all these claims as unavailing, and affirmed the juvenile court's judgment.

Opinion: D054001.PDF, D054001.DOC

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