Case Law Update: 29 April 2009

In re T.B. (Unpub'd), No. G040648

T.B. was detained at birth, August 2006, for a positive toxicology screen. He was declared a dependent of the juvenile court and, at the request of the mother's family, he was placed with T.C., who was ultimately granted de facto parent status. The mother was provided reunification services.

On January 10, 2008, while the 6- and 12-month review hearing was going on, the maternal grandmother filed a petition under Welfare and Institutions Code section 388, seeking to remove the child from T.C.'s home and have him placed in her home or, alternatively, to increase her visits with the child. She claimed the child was "in imminent threat" of "both physical and emotional harm" in his current placement and should be placed with his biological family. The juvenile court stated it would consider the maternal grandmother's petition after the review hearing concluded. It did so on February 28, 2008 and found the petition failed to show a change of circumstances or that the requested order would be in the best interests of the child.

The maternal grandmother prepared a newsection 388 petition in late April, seeking to change the juvenile court's order allowing SSA to place the child in its discretion. She claimed there was new evidence "show[ing] that the minor is in imminent threat of danger of neglect, physical and emotional harm if he remains in the current foster placement." The maternal grandmother asked for the child's immediate removal from T.C.'s home and placement with her or another family member; alternatively, she asked for increased visitation and the removal of the visitation monitor. She claimed the new order would be in the best interests of the child because he was bonded to her and her husband and he was familiar with and comfortable in their home. Both maternal grandparents had completed SSA's foster parent program. This 388 petition was denied without a hearing.

Grandmother appealed the denial of her 388 petition without a hearing, alleging the juvenile court had abused its discretion. The appellate court noted that events subsequent to her petition had, however, rendered the petition moot, explaining that "[t]he relief sought by the maternal grandmother's petition was an order removing the child from T.C.'s home and placing him with her or a family member. She also sought liberalization of her visitation. Since that time, the child has been with the mother on an extended six-month trial release; we assume the maternal grandparents have as much visitation as the mother deems appropriate. The stay restricting the child's change of placement from T.C.'s home has been lifted, and both the court and SSA have indicated their intention to formally remove him from her home. The relief sought by the petition is no longer necessary."

Accordingly, the appeal was dismissed as moot.

Opinion: G040648.PDF, G040648.DOC

In re R.S. (Unpub'd), No. A122616

R. S. (Mother) and G. S. (Father) appeal an order filed by the Napa County Superior Court, Juvenile Division, on August 25, 2008, in which that court terminated their parental rights to the minor R. S. (born Apr. 2004), after finding the minor to be adoptable pursuant to 366.26(c)(1) W&IC.

Mother and Father challenge the finding of adoptability, arguing that the minor is not generally adoptable because he is a medically fragile child with developmental delays and other special needs, and that there was insufficient evidence to support the finding of specific adoptability by the foster parents, because "critical information" concerning the minor's medical status was "incomplete and still being gathered" at the time the juvenile court made the finding.

As to the first claim, the appellate court held that there was substantial evidence to support the finding of specific adoptability because "there was no evidence of any specific legal impediment to successful adoption by the foster parents, and the evidence otherwise showed that those parents had successfully completed the adoption process with another child whom they had successfully raised to adulthood, that they had successfully cared for the minor and his special needs for over four years, and that the Department had approved them as identified prospective adoptive parents through a preliminary assessment that satisfied the requirements of section 366.22, subdivision (c)(1)(D)".

As to the second claim, the appellate court found that "by July 2008 the minor's medical, developmental, mental and emotional status appeared, if anything, to be stabilizing and improving rather than worsening" and that therefore "the case worker's assessment of the minor's medical, developmental, mental and emotional status was in no way so egregiously insufficient as to impair the basis for the juvenile court's adoptability finding."

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

Opinion: A122616.PDF, A122616.DOC

In re J.L. & L.L. (Unpub'd), No. A122401

On January 2, 2008, respondent Alameda County Social Services Agency (Agency) filed a petition (under 300(b), (f) and (j) W&IC with respect to J.L., alleging that his half sibling, two-month-old C.A., had died under suspicious circumstances on December 28, 2007. The petition reports that A.L. (mother)'s husband A.N.L. allegedly "dropped" C.A., after which the couple did not seek appropriate medical care for the baby, who subsequently died. The petition also alleges that mother and her husband had no stable housing or income, and that they had been known to use drugs and alcohol "to excess."

On January 3, 2008, the juvenile court ordered J.L. detained based on a prima facie showing that he was a child described by section 300. The court found there was a substantial danger to J.L.'s physical health, or that he was suffering severe emotional damage, and there was no reasonable means to protect the child's physical or emotional health without removing him from his parents' custody. J.L. was placed with his maternal grandparents.

On March 3, 2008, the Agency filed a petition alleging that newborn L.L. came within section 300, subdivisions (b), (g) and (j). The grounds stated in the petition were much the same as those that had been alleged in the earlier petition filed on behalf of J.L., focusing on the events that led to C.A.'s death. The agency's detention report states that appellant had tested negative for drugs at the time of birth. On March 4, 2008, the trial court ordered L.L. retained pursuant to a protective custody warrant. She was placed in the maternal grandmother's home.

A contested hearing on jurisdiction and disposition was held on June 10, 2008. The court found the allegations in the petitions to be true. The court sustained dependency jurisdiction on both J.L. and L.L., and ordered both minors removed from their parents' custody. Reunification services were granted to A.L. and denied to A.N.L. A.L. appealed, contending that the jurisdictional findings for J.L. and L.L. are not supported by substantial evidence.

The appellate court held that substantial evidence supported the juvenile court's findings, including "a history of drug use, and...compelling evidence that (Mother) consumed methamphetamine at a time when she knew she was pregnant with L.L." Accordingly, the appeal was denied and the juvenile court's orders were affirmed.

Opinion: A122401.PDF, A122401.DOC

In re Cody E. (Unpub'd), No. D054035

Cody was born in December 2006 to W.E. and Robert C. W.E. has another child, seven-year-old Ashley E., whose father is Michael H. Cody and Ashley are registered members of the Bad River Band of Lake Superior Tribe of Chippewa Indians (Tribe) through maternal lineage.

Ashley was the subject of two dependency proceedings, in 2002 and 2006, based upon allegations of maternal drug use and neglect. In both cases, Ashley was reunified with her parents after services were provided, and the court terminated jurisdiction. W.E. gave birth to Cody during the time period of the second dependency proceeding.

Just weeks after Ashley's second dependency case was closed, W.E. relapsed into drug and alcohol use. A dependency petition was filed for Ashley and Cody under 300(b) W&IC alleging Ashley and Cody were at substantial risk of harm due to W.E.'s psychiatric admission, Ashley's prior dependencies and W.E.'s history of substance abuse and relapse. The court detained Ashley and Cody in out-of-home care and found ICWA applied. Phillip Powers, an Indian expert witness for ICWA purposes, submitted a declaration stating it was his opinion that active efforts had been made to provide rehabilitative and remedial services to prevent the breakup of the Indian family, but these efforts were unsuccessful. Powers agreed with Agency's recommendation against offering reunification services to W.E.

The Tribe intervened on behalf of Cody and recommended services be provided for W.E. At a jurisdiction hearing, the court sustained the allegations of the petition and set the matter for disposition. After considering the evidence and hearing argument of counsel, the court declared Cody a dependent and removed him from W.E.'s care. At a contested disposition hearing, the court found active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of this Indian family, but these efforts were unsuccessful. The court noted that although W.E. successfully reunified with Ashley, she repeatedly relapsed. The court denied W.E. reunification services under 361.5(b)(13) based on her lengthy history of drug abuse and "exceptionally serious relapse."

W.E. appealed the dispositional order, contending the court erred by denying her reunification services because ICWA requires "active efforts" to prevent the breakup of the Indian family through the provision of services. She asserted that ICWA's "active efforts" requirement means reunification services must be provided for each child placed in foster care, and no such efforts were made as to Cody.

The appellate court noted that an analogous issue — whether "active efforts" as defined in ICWA require that services be provided for each child, or whether the state is free to consider what it defines as recent but unsuccessful reunification efforts with the same parent but a different child sufficient to satisfy the mandate of 25 U.S.C. 1912(d) — was recently considered by the appellate court in Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016. The appellate court explained that "Recognizing that the law does not require idle acts, the [Letitia V.] court held 'where substantial but unsuccessful efforts have just been made to address a parent's thoroughly entrenched drug problem in a juvenile dependency case involving one child, and the parent has shown no desire to change, duplicating those efforts in a second case involving another child—but the same parent—would be nothing but an idle act."

The appellate court in the instant case agreed with the holding and reasoning of Letitia V., noting that "Congress could not have intended that agencies provide remedial services and rehabilitative programs again and again to parents, despite their lack of progress or inability to benefit from them." Accordingly, the order denying reunification services was affirmed, and the appeal was denied.

Opinion: D054035.PDF, D054035.DOC

In re R.R. et al. (Unpub'd), No. C060422

The Department of Social Services (DSS) placed the five minors, J., age 15; O., age 13; B., age 9; P., age 4 and R., age 2, in protective custody in April 2007 as a result of appellant's ongoing substance abuse, failure to complete substance abuse treatment and arrest for possession of drug paraphernalia. After removal, the two youngest minors tested positive for exposure to methamphetamine. DSS initially recommended the court deny services to appellant due to her history of substance abuse, relapses and failure to participate in court-ordered treatment. However, at the court's request, DSS developed a reunification plan, which the court adopted in July 2007.

Appellant participated in some of the plan services but had ongoing violations of visitation rules, talking about the case and her health problems and thereby upsetting the older minors, particularly J. who felt he needed to go home and take care of her. Appellant also had several positive tests during the reunification period. At the contested 12-month review hearing in May 2008, the court terminated services and set a selection and implementation hearing.

In September 2008, appellant filed a petition for modification under 388 W&IC seeking to reinstate services based upon her ongoing participation in services and negative drug tests. An addendum report conceded that appellant had made a concerted effort in the last four months to complete services and remain clean and sober but questioned the soundness of her judgment and whether she had benefitted from the services.

At the combined hearing on the petition for modification and to select and implement a permanent plan for the minors, the court, relying in part on factors for assessing a petition for modification discussed in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, found appellant's substance abuse problem had not been resolved and the minors would not be safe in her care, and denied the 388 petition. It then found P. and R. were likely to be adopted and terminated parental rights as to them. The court further found J., O. and B. were not likely to be adopted and selected a permanent plan of long-term foster care for them.

Mother appealed both orders. As to the 388 petition, she argued the court abused its discretion in failing to grant her petition for modification as to the three older children because their permanent plan was long-term foster care and continuing services for her would not delay their permanency. As to the order terminating parental rights, she argued that the beneficial sibling relationship exception of 366.26(c)(1)(B)(v) should have been found to apply.

With regard to the 388 petition, the appellate court noted that "[i]n this case, appellant's unresolved substance abuse was an extremely serious problem. She had been addicted to methamphetamine for many years and was provided extensive services to address her substance abuse in both California and Nevada. She was even successful in reunifying with the minors for a time. Despite this, she returned to substance abuse and illegal drug-related activity." Accordingly, the appellate court held that she had failed to show changed circumstances or that the proposed change would be in the minors' best interest.

With regard to the order terminating parental rights, the appellate court noted that mother had forfeited this issue by failing to raise it during the 366.26 hearing. Further, the appellate court explained that "[i]n applying the sibling exception, the juvenile court must consider the interests of the adoptive child, not the siblings in determining whether termination would be detrimental to the adoptive child" and that "[n]othing in the record indicates that either of the two adoptive children had any significant bond to the older siblings..."

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

Opinion: C060422.PDF, C060422.DOC

In re D.F. et al. (Unpub'd), No. C058782

In March 2007 dependency petitions were filed by respondent Sacramento County Department of Health and Human Services (Department) concerning two-year-old D.F. and six-week-old M.F. based on the discovery of physical injuries to their half- siblings. Based on Mother's assertion of Indian heritage, ICWA notices were sent to the Oneida tribe. After mother reviewed the ICWA notice at the court's request, a letter was sent to the Oneida Tribe providing the correct spelling of M.F.'s first name. The Oneida Tribe responded that the minors were not enrolled or eligible for enrollment.

Following a contested jurisdictional hearing, the juvenile court sustained the allegations in the petitions. At a subsequent hearing, the court denied appellants reunification services and set the matters for a hearing pursuant to 366.26 W&IC to select and implement a permanent plan for the minors. At a hearing prior to the 36.26 hearing, mother's attorney disclosed that mother was enrolled in the Oneida Tribe but did not have her enrollment card with her. The court set the matter for an ICWA compliance hearing.

At the ICWA compliance hearing, the juvenile court, noting that "we have done all we can as to noticing in this case" and that mother had been given nine months to provide an enrollment number so that an updated notice could be provided to the tribe, concluded the minors were not Indian children. The court noted that if mother came forward with further information such as her enrollment number, it might again be necessary to notice the tribe. At a subsequent 366.26 hearing, the juvenile court found the minors likely to be adopted and terminated parental rights.

The parents appealed the termination of parental rights, claiming the ICWA notice was deficient because the maternal grandmother's maiden name and enrollment number were not properly designated on the notice; mother's middle name was not provided; the Department's inquiry into the minors' Indian heritage was inadequate because they did not attempt to obtain further information from the maternal grandmother and they put the burden on mother to gather information without informing her which information was required; and notice of corrected information was sent to the tribe by letter.

The appellate court held that, to the extent any of these complaints constitute error, such error is harmless because "there is no reason to suspect that further inquiry or inclusion on the ICWA notice of any of the allegedly omitted or misidentified information would have led to a different determination by the tribe." Accordingly, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: C058782.PDF, C058782.DOC

In re B.R. et al. (Unpub'd), No. B212029

B.T. (mother) appealed from a jurisdictional order affecting her children. Noting that such orders may not be appealable, the appellate court issued an order to show cause regarding the dismissal and permitted the parties to argue the matter. The appellate court, citing In re Dolly D. (1995) 41 Cal.App.4th 440, 444, held that jurisdictional orders are not appealable, and thereby dismissed the appeal.

Opinion: B212029.PDF, B212029.DOC

In re E.G. (Unpub'd), No. A122814

B.F. is the mother of E.G., who was declared to be a dependent child by the Contra Costa Juvenile Court in January 2008. B.F. appealed from the order of that court made on August 14, 2008 dismissing the dependencies of E.G. and his two brothers. B.F. contended that it was error for the court to dismiss the dependencies without vacating the jurisdictional findings because "there never was justification for the assumption of juvenile court jurisdiction from the beginning."

The appellate court noted that "[t]he record of the August 14 hearing shows that B.F. never objected or raised the point she now identifies as prejudicial error" and, further, that "by appealing from the dismissal order itself, B.F. is attempting to obtain what in plain effect is an impermissible rehearing of the merits of [the appellate court's] decision to dismiss the prior appeal as moot." Accordingly, the court held that it "will not undertake an examination of the validity of the jurisdictional findings" and denied the appeal.

Opinion: A122814.PDF, A122814.DOC

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