Case Law Update - 01 May 2009

In re S.R. et al., No. C060404

In October 2006, the Department of Health and Human Services (DHHS) removed the three minors, all six years of age or younger, from parental custody due to domestic violence in the home and appellants' failure to protect the minors. Both parents speak Spanish and require interpreters. Visits were to be supervised by a Spanish-speaking observer. The juvenile court ordered reunification services for the parents but, after 18 months, the parents failed to reunify and services were terminated April 21, 2008. Both parents asked the court to order a bonding assessment. The minors' counsel took no position on the issue. Counsel for DHHS stated a bonding assessment would provide useful information and did not object to the request. The court agreed and ordered the assessment.

About two months later, DHHS filed an 388 petition seeking to vacate the order for the bonding study, on the basis that the Agency had not been able to find a Spanish-speaking evaluator to conduct it. Hearings on the 388 petition were continued twice to allow the Agency to find an evaluator (though they never contacted one specific Spanish-speaking expert suggested by the court and made only a token effort to find a suitable evaluator). Ultimately, the judge concluded that "the Court does not believe that it is at all fruitful or appropriate to continue the order that such assessment take place. It simply would be a futility at this point apparently", and granted the 388 petition. At a subsequent 366.26 hearing, the court held that the beneficial relationship exception did not apply and terminated parental rights.

The parents appealed, arguing that "the evidence that a Spanish-speaking psychologist qualified to perform the study was not available in Sacramento County did not constitute changed circumstances and there was no evidence the ruling was in the best interests of the minors.

In an unusually strongly worded opinion, the appellate court concluded that "[t]hough the task given DHHS by the court may have appeared to the agency difficult to complete, that perception and the scant effort given the task provided no basis to modify the original order. Despite expressing incredulity at the apparent unavailability of a qualified expert, the court 'accepted' the meager efforts by DHHS, effectively abdicating its factfinding function and compromising its exercise of discretion. The hollow evidence tendered by DHSS did not support a finding of changed circumstances, only a finding that a further continuance was required until DHSS located a satisfactory expert."

The appellate cour tadditionally noted that "if the minors would benefit from a continuing relationship with the parents, termination of parental rights is detrimental to the minors' interests. (366.26(c)(1)(B)(i) W&IC) The expert evidence of a bonding study goes directly to this interest. While a bonding study is not statutorily mandated in a dependency proceeding, once ordered, the court has necessarily found it is required by the court or a party. In such a circumstance, the court is without discretion to modify or, more correctly, vacate the order, without substantial evidence on the record that the bonding study is no longer necessary or appropriate for legitimate reasons other than apparent difficulty by DHSS in complying with the order. The only evidence adduced in this case establishes that inadequate effort by DHHS led to the failure to complete the court-ordered bonding study. Thus, there is no basis for the court to conclude that the minors' interests are served by vacating the court's order. The juvenile court erred in granting the petition to modify (or vacate) its order for a bonding study."

The appellate court thus reversed the juvenile court's order granting the Agency's 388 petition to vacate the order for the bonding study, and also reversed the juvenile court's orders finding that 366.26(c)(1)(B)(i) W&IC did not apply and terminating parental rights.

Opinion: C060404.PDF, C060404.DOC

J.Y. v. Superior Court (Unpub'd), No. E047690

K.Y. (aged 7) was adopted by J.Y. (mother) in 2007. She was detained in September, 2008, after school personnel reported that K.Y. arrived at school with visible burns on her feet and red marks on her buttocks and legs. K.Y. told the responding social worker that her "father," R.M., had "disciplined" her by forcing her into a bath of very hot water. The minor had reported an earlier similar incident to her therapist, but the allegations were not established at that time. The minor also told the social worker that R.M. had struck her in the face and that both he and Mother punished her with a belt.

In the initial SSA report, the social worker was critical of mother for entrusting treatment of K.Y.'s burns to R.M. rather than taking time off work to care for them herself. The social worker also expressed doubt that Mother could adequately care for the children and continue to work, suggesting that her work was her main concern. It was therefore recommended that an adoptive home be sought 9 and that services not be provided to Mother.

The trial court found that K.Y. came within the jurisdiction of the juvenile court pursuant to 300(a), (b), (c) and (i) W&IC. At the contested dispositional hearing, testimony was offered that Mother had made significant changes to her life, including seeking a new job, a restraining order against R.M., and individual counseling and parenting classes for herself, that she planned to testify against R.M. in the crminal case stemming from the abuse and had waived her own Fifth Amendment right in the dependency proceeding for the sake of regaining custody of K.Y. Testimony was also offered that K.Y. loved Mother and wanted to return home.

The social worker testified and agreed that Mother had "absolutely" not missed any visits and that they "always go well." She speculated that K.Y.'s failure to seek help from Mother immediately after R.M. injured her "it speaks to - maybe the situation in the home that was present prior to this incident". Despite conceding that "things probably have changed", she nonetheless recommended that no services be provided and a nonrelative home be found for K.Y.

The trial court found that Mother's progress "toward alleviating or mitigating the causes, which necessitated treatment, has been minimal", that reunification should be denied under 361.5(b)(6) W&IC, and that it would not benefit K.Y. to offer Mother reunification services.

Mother appealed both the jurisdictional findings under 300(a) and 300(i), and further argued that the juvenile court erred in denying her reunification services.

The appellate court held that a finding under 300(a) was not supported, because the statute requires the injury to have been inflicted by the parent or guardian who is the subject of the finding and it was uncontroverted that R.M., not Mother, inflicted the injury. The appellate court rejected the SSA's claim that this issue was waived on appeal because "if the evidence shows that the statutory conditions for a dependency finding do not exist, a parent may not be barred from challenging the order whether the challenge is viewed as one of pleading or the sufficiency of the evidence." The court affirmed the finding under 300(i), however, on the basis that the trial court could have reasonably found that Mother, in fact, chose not to seek immediate medical care for the minor for selfish reasons despite the fact that she must have known the burns were painful.

As to the denial of reunification services, the appellate court held that the denial constituted a clear abuse of discretion by the trial court because "there is no substantial evidence that to do so would not benefit the minor, and there was overwhelming evidence that it was in the minor's best interests to attempt reunification." The appellate court noted that "[i]t is true that the image of K.Y. quietly attempting to alleviate her pain with wet towels is heartrending, but to leap from the natural sympathy to the conclusion that she did so because she knew she could not expect help from Mother is not logical."

Further, the appellate court noted that "[t]urning to Mother, unusually for dependency matters, there is little question she is capable of providing for K.Y.'s physical and material needs. She is not a drug addict and has no mental health issues. She has demonstrated her commitment to K.Y. not only by independently enrolling in educational and counseling modules, but by making drastic changes in her life with respect to distancing herself from R.M. and changing jobs to the benefit of her relationship with K.Y." Given this, the appellate court concluded, "here is simply no substantial evidence that it would not benefit the minor to at least attempt reunification. Looking at the reverse, there is clear and convincing evidence that the minor's best interests require that the attempt be made."

In a footnote, the appellate court also noted that "There may be a temptation to say, 'Well, Mother can find her own "services," so she has not been harmed by the court's failure to provide them.' However, if services are denied, the burden would be on Mother in the future to prove that changed circumstances justified the modification of the current orders. If services are authorized, however, then at each review hearing the presumption is for the return of the minor, and the burden would be on the Department to show detriment."

For these reasons, the appellate court directed that a peremptory writ of mandate be issued directing the Superior Court of San Bernardino County to vacate the jurisdictional finding under section 300, subdivision (a), and the order denying reunification services to Mother, and to enter a new order directing that such services be provided.

Opinion: E047690.PDF, E047690.DOC

In re A.M. (Unpub'd), No. E047006

D.A. (alleged father)'s child was detained by the SSA under 300(b) and 300(g) W&IC upon allegations that mother suffered from a mental disease that interfered with her ability to parent and that father had been imprisoned for inflicting great bodily harm on mother while she was pregnant with the child, thus placing the child at risk of injury or death, and that because of his incarceration, father provided no care or emotional support for the child. The child was detained, and counsel was appointed for father.

At a contested disposition hearing, D.A. sought DNA testing to prove his paternity so that he could obtain Presumed Father status. The court denied this request as untimely (because D.A. had been appointed counsel since detention and failed to request paternity testing earlier) and denied D.A. reunification services pursuant to 361.5(b)(12) (because of father's prior conviction for felony kidnapping).

D.A. appealed the dispositional orders, contending that nobody sent him a JV-505 form (to establish paternity) and that the agency failed to inquire of him about possible Indian heritage and thereby failed to comport with the notice and inquiry provisions of ICWA.

As to the issue of the JV-505 form, the appellate court held that any purported error in failing to supply the form was harmless because D.A. failed to come to court (where the form was available) for the juris/dispo hearing and because he was represented by counsel throughout the proceeding. The appellate court also noted that, since D.A. met the requirements for bypass of reunification under 361.5(b)(12), a different outcome would not have been obtained had he been able to assert (and even establish) his paternity.

As regards the ICWA notification issue, the appellate court noted that, even on his appeal, D.A. made no offer of proof or affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. Echoing its language in In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, the appellate court explained that "[t]he burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. In the absence of such a representation, there can be no prejudice and no miscarriage of justice requiring reversal."

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

Opinion: E047006.PDF, E047006.DOC

R.G. v. Superior Court (Unpub'd), No. F057022

R.G. (father) in propria persona seeks an extraordinary writ to vacate the order of the juvenile court setting a 366.26 hearing for his daughter D., who was detained after R.G. and W. (mother) engaged in severe domestic violence which left W. dead from stab wounds and R. facing first-degree murder charges. Reunification services were denied and a 366.26 hearing was set, whereupon R.G. filed a petition to vacate the hearing.

The appellate court explained that "Petitioner does not challenge the correctness of the juvenile court's order setting the section 366.26 hearing. Rather, he states he expects to be exonerated and released soon. Meanwhile, he would like to participate in reunification services. Since petitioner fails to set forth a claim of error, his petition fails to comport with rule 8.452 and is therefore inadequate on its face."

Accordingly, the petition for extraordinary writ was dismissed as facially invalid.

Opinion: F057022.PDF, F057022.DOC

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