Case Law Update: 28 April 2009

In re C.S. (Unpub'd), No. G041263

A.S. (mother) appealed from orders terminating her parental rights to her son C.S. (now 14) at a 366.26 hearing, after the trial court found C.S. was likely to be adopted. Mother argued that C.S. was ineffectively assisted by counsel because counsel allegedly failed to tell him that he could object to being adopted. The appellate court, confining itself to that single issue, ruled that "[a] review of the record makes it clear C.S. wanted to be adopted and that, even if the absolutely correct words advising him of his rights are not in the record, the result would have been the same if the proper formula had been used." Accordingly, Mother's appeal was denied, and the juvenile court's orders were affirmed.

Opinion: G041263.PDF, G041263.DOC

In re L.C. et al. (Unpub'd), No. E046593

L., born in May 2007 only 29 weeks' gestation and weighing only three pounds one ounce at birth, came to the attention of the SSA after positive toxicology tests for amphetamines and Mother's lack of prenatal care. L. was born with severe disabilities, which Mother appeared not to understand. Initially, the SSA (which also raised concerns about her other children), recommended maintaining the five older children in Mother's care pursuant to a family maintenance plan while detaining L., but later opted to remove all six children. During the six-month reunification period, Mother barely attempted to participate in her case plan and failed to stay in contact with the social worker.

On April 3, 2008, the court terminated Mother's services and set a section 366.26 hearing for the children. In August, 2008, Mother filed a 388 petition seeking the restoration of reunification services and liberalized visitation, which was denied at a hearing on September 2. At the section 366.26 hearings on September 8 and October 29, 2008, the court terminated parental rights and placed all six children for adoption. Mother appealed both the termination of parental rights and the denial of her 388 petition, arguing violations of her due process rights, insufficient evidence to show L. was adoptable, and that the juvenile court erroneously concluded that the parental benefit exception to the adoption preference did not apply to any of the six children. L.C. (Father) also appealed the 366.26 orders, claiming L.C. claims there was insufficient evidence L. was either "generally" or "specifically" adoptable. Father and Mother joined each other's claims.

Turning its attention first to the 388 petition, the appellate court held that the juvenile court did not err in refusing to allow Mother to present live testimony from herself and her substance abuse counselor at the hearing because Calif. Rules of Court rule 5.570(h) gives the juvenile court discretion to decide what evidence to allow at hearings on 388 petitions, and because the juvenile court could reasonably have concluded, given the severity of L.'s medical needs, that even were the evidence Mother claimed to want to present true, it would nonetheless be insufficient to support a finding that granting Mother's petition would be in L.'s best interests.

As regards L.'s adoptability, the appellate court held, despite L.'s severe medical needs (including hydrocephalus, spastic cerebral palsy, developmental delays and seizures), that the willingness of an identified prospective adoptive family to adopt him notwithstanding these difficulties was sufficient to support a finding of adoptability.

The appellate court further held that substantial evidence showed that none of the children were bonded to Mother "as a parental figure" and that "the court reasonably determined that the benefits to the children of being adopted into a permanent stable home would outweigh any benefit they would realize in maintaining a relationship with Mother", and that therefore the juvenile court did not abuse its discretion in determining the beneficial relationship exception of 366.26(c)(1)(B)(1) did not apply.

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

Opinion: E046593.PDF, E046593.DOC

In re J.M. (Unpub'd), No. B210845

J.M. (aged six) first came to the attention of respondent Los Angeles County Department of Children and Family Services (the department) on August 18, 2008, after her 12-year-old half sister, E.A., was raped by their mother's boyfriend in the same room where the mother was sleeping. The mother blamed E.A. for the incident and hit her with a broom. The boyfriend was arrested and the minors were removed from their mother and placed in foster care. During E.A.'s medical examination and in her interview with the department's social worker, E.A. reported that she had also been sexually abused by B.P. (Father) from the age of nine to 11, while he resided in the same home. She reported that at first B.P. fondled her and then had full intercourse with her on almost a daily basis while her mother was at work. E.A. did not tell her mother because she did not want to be blamed and did not want J.M. to suffer the same abuse.

Both children were detained upon allegations under 300(b), (d) and (j) W&IC. t the detention hearing, the court found B.P. to be the presumed father of J.M., returned the minors to their mother over the department's objection and ordered that B.P.'s visits with J.M. be monitored at the department's office. Neither B.P. nor the boyfriend were to have any contact with E.A. At a juris/dispo hearing, E.A. testified regarding the abuse. The court found E.A.'s testimony credible and sustained the petition as to B.P. The court ordered reunification services for B.P. to include participation in a perpetrator's sexual abuse program and individual counseling, monitored visits with J.M. and no contact with E.A.

B.P. appealed the juvenile court's jurisdictional order, arguing that there was insufficient evidence to support the finding that his abuse of E.A. placed J.M. at substantial risk of sexual abuse. The appellate court rejected this claim, noting that the nature and duration of the abuse supported the finding of risk of harm to J.M. Accordingly, the orders were affirmed and the appeal was denied.

Opinion: B210845.PDF, B210845.DOC

In re J.C. et al. (Unpub'd), No. E046910

J.C., born in 2004, and H.C., born in 2007, were first detained after H.C. was born and tested positive for drugs. Father had been in prison since January 2007. Both parents had criminal and drug histories. The court terminated reunification services in May 2008 and parental rights in October 2008. Prior to the October hearing, Father filed a 388 petition seeking additional reunification services. The court denied his petition, finding it did not state new evidence or a change of circumstances and was not in the best interests of the children.

Father appealed the denial of the 388 petition, asserting that the juvenile court relied on the timeliness of the petition as an improper factor, that there are no disputed facts, and that the petition was based wholly on documentary evidence. He also objected to the termination of parental rights on the grounds that the notice provisions of ICWA had not been properly complied with, asserting that he has a paternal history of Cheyenne and Choctaw heritage.

The appellate court found that, because the record does not demonstrate the Department made any inquiry of father about his Indian heritage and now he is asserting he does have Indian ancestry, the order terminating parental rights must be conditionally reversed and the matter remanded for ICWA noticing. The appellate court directed that, if the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights.

As regads the denial of Father's 388 petition, the appellate court held that father had not made a showing either of changed circumstances or that granting his petition would be in the children's best interests, and rejected his appeal of that denial.

Opinion: E046910.PDF, E046910.DOC

In re Grace P. (Unpub'd), No. D053605

Taylor P. appealed a judgment of the superior court rejecting his status as a presumed father of his biological daughter, Grace P., terminating his parental rights as to her and transferring the matter to the Alameda County Superior Court for completion of proceedings on a petition by T.B. and G.I. to adopt her. Taylor contended that the trial court erred in finding that he was not entitled to rights as a presumed father in accordance with Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).

The appellate court held that substantial evidence, including Taylor's failure to provide emotional and financial support during the pregnancy and his decision to wait "until very late in the pregnancy to file a petition to establish that he was Grace's biological father", supported the trial court's finding. Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: D053605.PDF, D053605.DOC

In re Candace O. (Unpub'd), No. B210136

Candace O., age 15, was the daughter of T.H. (Mother). Candace's father was deceased. On February 22, 2008, the Department of Children and Family Services (DCFS) received a referral that Candace was a victim of Mother's physical and emotional abuse. Candace was afraid of Mother, who verbally abused her and hit her at least twice weekly. Mother drank daily and could not control her anger. Candace reported that when Mother did not take her psychotropic medications, she lost control, was easily irritated, and became angry. The juvenile court ordered Candace detained on February 29, 2008.

On May 13, 2008, the juvenile court adjudicated the matter and sustained a section 300 petition as to three counts: Mother's threats to inappropriately discipline Candace; Mother's past and current alcohol abuse, and numerous occasions being under the influence of alcohol while Candace was in her care; and Mother's mental and emotional problems, including bipolar disorder and depression, rendering her periodically unable to provide care for Candace.

After detention, Candace exhibited severe behavioral challenges, including self-mutilation, AWOL patterns, and acting out. At a contested dispositional hearing on June 5, 2008, the juvenile court declared Candace a dependent child of the juvenile court pursuant to 300(b) W⁣ found by clear and convincing evidence that substantial danger existed to Candace's physical health and/or Candace suffered from severe emotional damage, and there was no reasonable means to protect Candace without removal from Mother's physical custody; removed custody from Mother and placed custody of Candace with the DCFS for suitable placement; and ordered the DCFS to provide family reunification services for Candace and Mother.

The juvenile court ordered Candace to have individual counseling, to participate in conjoint counseling with Mother when appropriate, to have a psychiatric evaluation, and to take prescribed medication. The juvenile court ordered Mother to participate in parenting education and individual counseling to address case issues including anger management, to complete an alcohol rehabilitation program with random weekly alcohol testing, testing on demand, and an aftercare program, to have a sponsor, to participate in conjoint counseling with Candace, and to see a psychiatrist and to take prescribed medication. The juvenile court ordered Mother to have unmonitored visits with Candace in placement, monitored visits outside of placement, three times weekly for three hours each visit.

Mother appealed, contending that substantial evidence did not support the finding that there were no reasonable means to protect Candace without removing her from Mother's care. The appellate court held, since Mother conceded to the placement of Candace outside Mother's home (by stating at the dispositional hearing that "I would like to see her in appropriate placement", for example), that it was not necessary for the DCFS to produce evidence that there were no reasonable means to protect Candace's physical health without removing her from Mother's physical custody. Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: B210136.PDF, B210136.DOC

In re L.B. (Unpub'd), No. B210574

L. (born 2005) and A. (born 2007), and their half-sister J., were detained in November 2007 based upon Mother's history of substance abuse which rendered her incapable of providing regular care for her three children. However, at the time of the detention hearing, L. and A.'s whereabouts were unknown. Neither Mother nor Father appeared at the November 8 hearing, and arrest warrants were ordered for each parent. Additionally, the court ordered protective custody warrants to be issued and held for the two boys. The court found a prima facie case for detaining the children, the existence of a substantial danger to the physical or emotional health of the children, and that there were no means of protecting the children short of removal from the parents.

In a subsequent hearing, the juvenile court stated that it could not do anything regarding L. and A. as they had still not been located. The court declared J. a dependent of the court. DCFS was ordered to provide family reunification services (although the parents' whereabouts were unknown), and set the six-month review hearing for May 7, 2008. Mother was arrested on April 19, 2008. At that time, the police apparently turned the boys over to the children's maternal grandfather, who in turn delivered A. to his paternal grandparents and L. to his cousin, to care for them.

At a continued hearing on July 11, DCFS filed a first amended petition, alleging that Mother had a history of substance abuse which rendered her incapable of caring for the children, while Father had a history of domestic violence, having been convicted of violating Penal Code section 273.5, subdivision (a), infliction of corporal injury on a spouse or cohabitant. The court sustained the amended petition and ordered family reunification services. The children were ordered to be suitably placed, and the parents were allowed monitored visits (Mother's to commence upon release from custody). The court set the next hearing for December 17, 2008 as a 12-month review pursuant to section 366.21, subdivision (f), and DCFS was ordered to prepare and submit a section 366.21, subdivision (f) report for that hearing. The court explained that the reason it denominated the hearing a 12-month, rather than a six-month, review hearing, was that the time frame for ordering reunification services ran from the time the court found a prima facie case at the detention hearing held in November 2007.

Father appealed these orders, contending that the juvenile court erred in finding that "that the allotted time for the parents to receive reunification services [commenced to run] at the detention hearing, rather than when the children were placed in foster care." The appellate court held, since the court did not order fewer or different reunification services as a consequence of its conclusion that the hearing would proceed under subdivision (f), rather than subdivision (e), of section 366.21, that any purported error was prospective only and not yet ripe for appeal. Accordingly, the appeal was dismissed.

Opinion: B210574.PDF, B210574.DOC

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