Case Law Update: 24 April 2009

In re Baby Boy E. (Unpub'd), No. B208312

Baby Boy E. (minor) was detained at birth in August 2007 based on a positive toxicology result for cocaine. He was placed by DCCFS with L.R. (petitioner). L.R. was bonded with Child and expressed a desire to adopt him as early as October 2007. L.R. filed an application requesting that she be appointed Child's de facto parent in November 2007; in December 2007, the attorney for Child's mother opposed L.R.'s application, and the juvenile court denied the application without prejudice. February 13, 2008 hearing, L.R. renewed her application for de facto parent status; all parties stipulated to the granting of the application, and the juvenile court granted it. The juvenile court ordered that "the child not be removed from placement with [L.R.] absent 5 days written notice to all parties and counsel."

In early April 2008, a social worker preparing the adoptive home study for L.R. discovered that L.R., as a licensed foster mother, had a history of child neglect referrals in 2000 that she had not disclosed during her adoption interview. On that basis, DCFS removed Child from L.R.'s custody on April 16, 2008, and placed him in a prospective adoptive home. Subsequently, an investigation by the state Community Care Licensing agency determined that the neglect referrals which served as the basis for the denial of her adoptive home study and the Agency's removal, were not substantiated. L.R. filed two 388 petitions seeking return of the minor to her care.

At a hearing on the 388 petitions, the juvenile court denied them, explaining that "in light of the outstanding evidence that there's been substantiated claims, [and that] the home study has been denied[,] I am not going to make an affirmative [order] ordering [DCFS] to place that child" and denied visitation. L.R. appealed these orders, arguing, inter alia, that the juvenile court abused its discretion in failing to consider evidence supporting her 388 petition because it did not allow her to submit a supplemental memorandum or to cross-examine the social worker.

The appellate court held that, because the juvenile court noted that it had made no specific placement order with respect to L.R., and L.R. did not identify any error or abuse of discretion. The appellate court further held that that, because L.R. did not request to cross-examine the social worker, the court's failure to afford her that opportunity sua sponte did not constitute error. Further, the appellate court held that L.R.'s appeal did not address the issue of the court's exclusion as untimely of her suppelemental memorandum, and thus she failed to show the ruling was erroneous.

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

Opinion: B208312.PDF, B208312.DOC

In re S.W. (Unpub'd), No. H033351

On June 27, 2008, the Santa Clara County Department of Family and Children's Service's (Department) filed a petition pursuant to 300(b) and 300(c) W&IC, in which it alleged that 16-year-old S.W. (minor) was at risk of suffering serious physical harm or illness as a result of her mother's failure or inability to protect her, and that minor was suffering or at risk of suffering serious emotional damage because she had no parent capable of providing appropriate care. The juvenile court sustained the allegations of the petition and adjudged minor a dependent child of the court.

M.N. (mother) appealed from the orders, arguing that there was insufficient evidence to support them. The appellate court held that substantial evidence, including mother's own statements that she "would not agree to taking minor back into the home, could not say when, if ever, she would be capable of providing appropriate parenting to minor, and insisted that she (mother) would not benefit from further services" supported the court's finding under 300(c) W&IC. The appellate court noted that "[s]ince there is substantial evidence to support the juvenile court's determination that the minor came within the provisions of subdivision (c), we need not address mother's claim that there was insufficient evidence to find jurisdiction under subdivision (b)."

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

Opinion: H033351.PDF, H033351.DOC

In re C.S. (Unpub'd), No. H033538

Appellant N.G., mother of C.S., a four year-old girl, appealed from a juvenile court jurisdictional and dispositional order pursuant to 300 W&IC based on allegations of domestic violence and criminal gang involvement by mother. On September 5, 2008, at the dispositional hearing, the juvenile court found the petition to be true, declared the child a dependent of the court, and adopted the Agency's recommendations to remove the child from parents' custody and place her in foster care. The court ordered reunification services be provided to both parents.

Mother appealed the jurisdictional and dispositional orders. Her appointed counsel filed an opening brief which raised no specific issues for appeal. In the opening brief, counsel acknowledged that this court has no duty to independently review the record pursuant to People v. Wende, but requested that appellant be given the opportunity to submit a brief in propria persona pursuant to Conservatorship of Ben C., (2007) 40 Cal.4th 529, 543, 544.

The appellate court, concluding that "the process of allowing the appellant to file a motion to vacate counsel's appointment and then file a supplemental brief . . . would likely take as long if not longer than directly notifying the appellant that he has the right to file a supplemental brief", granted N.G. the right to submit written argument in her own behalf within 30 days. She failed, however, to do so, and thus her appeal was dismissed as abandoned.

Opinion: H033538.PDF, H033538.DOC

In re B.G. et al. (Unpub'd), No. B210663

I.C. (mother) appealed from an order terminating her parental rights to four-year-old B.G. and two-year-old P.H. On appeal, mother argued that substantial evidence did not support the trial court's finding that the children are likely to be adopted and that the trial court should have applied the beneficial relationship exception to termination of parental rights of 366.26(c)(1)(B)(i).

The appellate court found that mother had waived the issue of the sufficiency of the adoption assessment by failing to raise it in the juvenile court and that, in any case, substantial evidence, including the foster parents' willingness to adopt the children, supported the finding of adoptability. The appellate court further found that, given mother's sporadic visits, non-compliance with her case plan, frequent complaints about the children's behavior, and her admission that she did not feel a strong bond with P.H., the juvenile court did not err in finding that the substantial relationship exception did not apply.

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

Opinion: B210663.PDF, B210663.DOC

In re Genesis C. (Unpub'd), No. B210141

Genesis C. (Genesis, born January 2007), is the minor child in this case. Her parents are F.C. (Mother) and Jose L. (Father). The case came to the attention of the Los Angeles Department of Children and Family Services (the Department) when it received notice from a clinic where Mother received mental health care services that Mother was not taking prescribed psychotropic medication for her diagnosed condition of paranoid schizophrenia. In January 2007 the parents agreed to Department oversight of the minor's welfare through a Voluntary Family Maintenance Program (VFM), which included weekly in-home counseling.

Based on severe incidents of paranoia, Genesis was removed from her parents' care on June 13, 2007, and placed in a foster home, and a 300 petition was filed on her behalf based on Mother's diagnosed paranoid schizophrenia condition, Mother's inconsistent medication and participation in mental health services, Father's not demonstrating that he understands Mother's condition and medication needs, and his being away from the home for hours at a time because of his employment. The allegations were found true, Genesis was placed in a foster home, and ordered reunification services.

At a 12-month review hearing, the court terminated services for mother based upon her failure to make substantive progress in court-ordered treatment. Services were extended for Father, and stated the suitable placement order must remain in full force and effect, rather than returning the minor to him under a home of parent order, because the issue continued to be that Father resides with Mother and Mother continued to be as much of a risk to the child as she was at the time of the disposition hearing when the suitable placement order was made.

Both parents appealed these orders. Mother argued that it was an abuse of the trial court's discretion to terminate her reunification services. Father asserted that there was insufficient evidence to support the trial court's finding that returning the minor to his care under a home of parent order would create a substantial risk of harm to the child.

With regard to mother's contention, the appellate court held that the record, including evidence that mother had been placed on a 5150 hold during the period between the six-month and 12-month review hearings, supported the juvenile court's conclusion that she had not demonstrated an ability to complete her case plan. With regard to father's contention, the appellate court held that "[r]easonable inferences can be drawn that if Mother was not compliant with her medication regimen or the medication was not working sufficiently well such that she was not able to control her delusions, a likely result is that the delusions will occupy her attention and perhaps prevent her from devoting necessary attention to Genesis when Father is not available to look after the minor, or cause her to devote inappropriate attention, thus placing the minor at risk."

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

Opinion: B210141.PDF, B210141.DOC

In re D.B. (Unpub'd), No. G041243

D.B. was detained in May 2007 following mother's arrest on charges of willful cruelty to a child. The petition alleged father, who was not living with mother, had a history of domestic violence, anger management issues, and a criminal background. Dependent received various placements following his detention, but never with mother or father.

At a 12-month review hearing in July, 2008, the court declined to return dependent to either parent. On the other hand, the court found parents had not received reasonable services in a timely fashion. The court ordere continued services for parents and ordered the Orange County Social Services Agency (SSA) to investigate further father's psychiatric treatment needs. The court set an 18-month review hearing for October 30, 2008.

At the 18-month hearing, the SSA submitted a status review report, describing father's case plan progress as "moderate" and expressing concern about father's "impulse control issues". Reviewing the evidence presented at the 18-month review and the entire dependency file, the court found both parents had now received reasonable services. The court returned dependent to the custody of mother, and ordered family maintenance services to be provided to dependent, mother, and grandmother. The court terminated father's services, but provided for monitored visitation between father and dependent. Finally, the court identified the need for a restraining order against father to allow mother "to protect herself and the child."

Father appealed these orders, alleging the court abused its discretion in providing only monitored visitation, and that the court improperly issued a restraining order against him because there was insufficient evidence to support the order.

The appellate court explained that "[t]he record is replete with evidence supporting the court's exercise of discretion in setting the terms of father's visitation rights and in protecting dependent and mother against unmonitored contact by father by means of a restraining order." Accordingly, it affirmed the juvenile court's orders and denied Father's appeal.

Opinion: G041243.PDF, G041243.DOC

In re S.R. (Unpub'd), No. H033202

On May 18, 2006, the Department filed a juvenile dependency petition under 300(b), (g) and (j) W&IC. The petition stated that three of Ms. L.'s four other children were dependents of the juvenile court due to her extensive criminal and substance abuse history. The whereabouts of S.R.'s father Julius R. were unknown. Mr. R. had a criminal and substance abuse history dating back to 1981. While Ms. L. was incarcerated in state prison in May 2006, S.R. was born. Upon S.R.'s release from the hospital, she was placed in protective custody. Shortly thereafter, the juvenile court ordered that S.R. be detained.

In the report prepared for the jurisdictional and dispositional hearing, the social worker recommended that the juvenile court sustain the petition under section 300, subdivisions (b) and (g), adjudge S.R. a dependent of the court, remove her from Ms. L.'s custody, deny reunification services for Ms. L., and offer reunification services for Mr. R. The report also stated that S.R. was bonding well with her foster parents. After Ms. L. suggested her mother Lucy L. as a possible placement, the social worker interviewed her. Lucy L., however, was seeking approval to become a foster parent for A. G. and V. R., and felt that she could not care for an infant. Mr. R. provided no information about potential relative placements.

Following a contested jurisdictional hearing in August 2006, the juvenile court adjudged S.R. a dependent child, placed S.R. in foster care, denied reunification services to Ms. L., extended reunification services to Mr. R., and ordered visitation between S.R. and her siblings. The juvenile court also ordered that there be no visitation with Ms. L. until the Department determined that it would be safe for S.R. or until further court order.

While the Department was conducting an adoption homestudy of S.R.'s caregivers in the summer of 2007, concerns arose regarding the foster parents' frequent changes of address and cell phone numbers and their failure to provide the documentation required for completion of the adoption home study. On September 10, 2007, the Department received an anonymous report that a "suspicious individual" was visiting the foster parents' home. Following an investigation, the Department learned that this individual was the foster mother's ex-husband, who had been convicted of molesting her daughter. The foster parents had also allowed him to be with their children when they were not home.

On September 21, 2007, the 12-month permanency hearing was held. The SSA did not inform the parties or the court that the placement was under investigation. Following the hearing, the juvenile court terminated reunification services to Mr. R., continued prior orders, and set the matter for a section 366.26 hearing.

On October 5, 2007, the Department gave notice to the foster parents that S.R. would be moved. The foster parents objected to S.R.'s removal and requested a grievance hearing, which was held on October 15 and 18, 2007. The Department notified S.R.'s attorney, who was unable to attend. Neither the parents nor the parents' attorneys were notified. On October 29, 2007, the hearing officer upheld the Department's decision. On November 2, 2007, the Department moved S.R. from the foster parents' home.

On March 7, 2008, Ms. L. filed a modification petition under section 388 in which she sought return of S.R. to her. Ms. L. alleged that she would have had "the opportunity to lobby and seek related relative placement of" S.R. if she had been notified of the change in S.R.'s placement in November 2007. The juvenile ccourt oncluded that it would not be in S.R.'s best interest to reunify with Ms. L., because she was over two years old and had bonded with her current foster parents. Mother appealed, contending that the Department's failure to provide advance notice of S.R.'s change of placement violated her due process rights, that the Department erred in failing to consider relative placement when the decision was made to move S.R., that the juvenile court abused its discretion in denying her section 388 petition in which she sought placement of S.R. with her, and that the juvenile court had failed to properly comply with the notice provisions of ICWA.

As to the failure to provide advance notice of the change in placement, the juvenile court held that, unless the new placement is out-of-county, no statutory right exists to notice. Further, the appellate court noted that, although Ms. L. had a dignity interest in receiving notice regarding the change of placement, her liberty interest in the decision was minimal, her contribution to this decision was not likely to be significant, and the governmental interest in determining the best placement for S.R. with as few impediments as possible was substantial. Thus, the appellate court held that due process did not require advance notice. However, the court noted that "if Ms. L. had been receiving reunification services or her visits with S.R. had been affected by the placement change, our conclusion might very well have been different" and recommended that the SSA provide notice in the future in similar circumstances.

As to the failure to consider relative placement, the appellate court held that "Ms. L. has presented no legal authority that either she or S.R. had a substantive due process right that was violated by the Department."

As to the denial of her 388 petition, the appellate court held that Ms. L. had demonstrated a change of circumstances by making progress in substance-abuse treatment and other services. However, the appellate court held that she had failed to show that a change in placement would be in S. R.'s best interest given her 17 years of substance abuse and her failure to maintain sobriety outside of an institutional setting, and given S.R.'s attachment to the foster parents who sought to adopt her.

As to the ICWA noticing issue, the Department conceded that the matter must be remanded for compliance with the ICWA, and that their attempt to incorporate and rely on the ICWA notices that were sent in the case involving one of Ms. L.'s other children did not comport with the noticing requirements of ICWA.

Accordingly, the order terminating parental rights was reversed and the case was remanded to the juvenile court with instructions to complete ICWA notices. The appellate court directed that if, after proper notice, the court finds that S. R. is not an Indian child, the order shall be reinstated.

Opinion: H033202.PDF, H033202.DOC