Case Law Update: 27 April 2009

In re A.G. et al. (Unpub'd), No. A123999

T.H. is the mother of two sons, A.G., who was born in January 2003, and J.A. who was born in October 2005. Both children were detained in November 2006 upon allegations of mother's substance abuse problem, an anger management problem, a criminal history, and mental health problems. At disposition, the court ordered the children removed from mother's custody and that mother be provided reunification services including substance abuse classes and psychological help.

Mother made significant progress in addressing the problems that led to the dependency. At the six-month review hearing held in August 2007, the court set a hearing to determine whether mother could regain custody of her children. Then in October 2007, the court ruled mother had made enough progress that the children could be returned to her custody, although it ordered that the dependency remain in place. In August 2008, a supplemental petition under section 387 was filed alleging that the prior disposition had been ineffective because mother failed to follow her case plan, one of the children had been exposed to a domestic violence incident, and mother did not have suitable housing.

At the conclusion of the hearing on the 387 petition, the court sustained the petition, ordered that the children be removed from mother's custody, terminated reunification services, and set the matter for a hearing on May 6, 2009, to determine whether mother's parental rights should be terminated. Mother filed a petition for extraordinary writ contending that the trial court applied an incorrect standard when making its decision, and that the court's ruling is not supported by substantial evidence.

As to the standard used by the juvenile court in evaluating the 387 petition, the appellate court explained that, absent evidence to the contrary, we must presume the court applied a clear and convincing standard when making its decision even though it did not expressly state it had done so. Accordingly, mother failed to show error in this regard.

As to the sufficiency of the evidence, the appellate court noted that "there was ample evidence that the children would be at risk if they were left in mother's custody. The record indicates and the trial court found that mother had a long-term drug problem that she was failing to address adequately. She failed to complete several aftercare treatment programs, and failed to submit to regular drug testing. In addition, the record indicates and the court found that one of the children had been exposed to an incident of serious domestic violence. The trial court reasonably could conclude that the children would be at substantial risk of physical or emotional harm if they were left in the custody of a parent who was struggling with ongoing drug addition and domestic violence issues. The court's ruling is supported by substantial evidence."

Accordingly, the petition for extraordinary writ was denied on the merits. Additionally, the appellate court ordered that Mother be barred in any subsequent appeal from making further challenges to orders terminating reunification services and setting a hearing under section 366.26.

Opinion: A123999.PDF, A123999.DOC

In re Raymond S. et al. (Unpub'd), No. C060208

In February 2005, mother gave birth to Raymond, tested positive for amphetamine, and admitted using methamphetamine. Dependency proceedings commenced relative to both Raymond and mother's older child, Eric O. Eric's father was given legal custody of him, and in March 2007, dependency jurisdiction was terminated as to Eric.

On March 18, 2007, mother tested positive for methamphetamine. A few days later mother gave birth to Alex, and both Alex and Raymond were taken into protective custody. On March 27, 2007, Welfare and Institutions Code section 3002 petitions were filed for both Alex and Raymond and they were placed in a foster home on March 28, 2007. Mother was ordered to participate in drug treatment programs and drug dependency court as part of her reunification plan. Mother did not actively engage in a drug treatment program until 11 months after the children had been declared dependents and removed from her custody.

Finding Mother's efforts "way too little and way too late", the juvenile court terminated reunification sevices in February 2008 and selected a permanent plan of adoption. On September 17, 2008, the court found by clear and convincing evidence that the children were likely to be adopted, and the parental rights of father and mother were terminated.

Mother appealed, contending there was insufficient evidence that the children were adoptable. The appellate court, explaining that "the children are young, part of a small sibling group, and are both physically healthy", and that "[t]he only potential obstruction to the children being adopted is that they may have developmental delays[; however], these delays are not so significant or severe that they are likely to dissuade individuals from adopting them", rejected mother's contention on factual grounds. The appellate court also noted that mother failed to object to the adoption assessment in the 366.26 proceeding and hence forfeited the right to raise it on appeal.

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

Opinion: C060208.PDF, C060208.DOC

In re S.C. et al. (Unpub'd), No. B210850

M.R. (mother) has an extensive dependency history dating back to 2001; the instant case involving S.T. (born 2005) and M.P. (born 2006) was brought in March 2006, based upon allegations of maternal drug use and the fact that their siblings were already court dependencts as a result of sexual abuse by mother's boyfriend. Mother submitted to the drug use allegation in April 2006, and was given monitored visitation and reunification services.

Over the next 18 months, Mother exhibited an ongoing pattern of failure to comply with the terms of her reunification plan, failure to be honest with the SSA about her progress, and interference with the SSA's attempt to find a permanent placement for the children. A contested 366.26 hearing was set for September 2008. One day before the hearing, Mother filed a 388 petition seeking return of the children to her or resumption of reunification services.

At the conclusion of a contested hearing, the juvenile court denied Mother's 388 petition, found that the children were adoptable and that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply, and terminated parental rights. Mother appealed, contending that the denial of her 388 petition was an abuse of discretion and that the juvenile court erred in finding that the beneficial relationship exception did not apply.

As to the 388 petition, the appellate court found Mother's attempt to show changed circumstances was not sufficiently credible and that, in any event, she failed to establish that the modification would be in the best interests of the children. As regards the beneficial relationship exception, the appellate court held that "[t]here is no evidence to support a conclusion the girls would be greatly harmed if their relationship with mother was severed, especially when any marginal benefit they may have received from that relationship are weighed against the stability and permanency adoption will provide."

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

Opinion: B210850.PDF, B210850.DOC

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