Case Law Update - 04 May 2009

Kim W. v. Superior Court (Unpub'd), No. A124209

Five-year-old J.J.is the sixth of seven children born to mother, who has a long history of drug abuse and criminal activity. J.J.'s five older half-brothers, ranging in age from 10 to 28 years old, were all removed from mother's custody due to neglect or abuse. J.J. was declared a dependent child in November 2005 after the court sustained a petition filed by real party in interest Contra Costa Bureau of Children and Family Services (Bureau) under 300(b) W&IC.

Mother was given reunification services, which were extended for a full 18 months. Among the requirements of her case plan were visitation, the successful completion of an inpatient substance abuse treatment program, sobriety, and the avoidance of illegal activities. In July 2007, at the 18-month review hearing, the court terminated reunification services and set the case for a permanency planning hearing under section 366.26. Mother filed a petition seeking additional services under section 388. At the combined section 366.26/388 hearing held on October 26, 2007, the court vacated the section 366.26 hearing and ordered additional services. In May 2008, the court authorized J.J. to have overnight visits with mother. On August 19, 2008, the court authorized a 30-day visit with mother. J.J. was returned to mother with family maintenance services on September 23, 2008.

In late 2008, felony charges were filed against mother for forgery and burglary, and one of mother's adult sons (who was not supposed to be living with her) was taken into custody from her house after an incident of domestic violence. On the basis of these events and others, a 387 petition was filed to remove J.J. from mother's home.

The court found by clear and convincing evidence that reasonable efforts had been made to eliminate the need for J.J.'s removal, but that J.J.'s physical and emotional well-being required that he not be returned to mother's custody. Noting that mother had received at least 36 months of services, the court terminated family maintenance services, declined to order reunification services, and set the case for a permanency planning hearing under section 366.26.

Mother filed a petition for extraordinary relief, arguing that the factual underpinnings of the 387 petition do not support the order removing J.J. from her custody. She contended that the trial court should have ordered J.J.'s return rather than setting the case for a permanency planning hearing under section 366.26.

The appellate court rejected this contention, noting that "[v]iewed as a whole, the evidence was more than sufficient to support the juvenile court's order removing J.J. from mother's custody based on the section 387 petition. Having already received at least 36 months of services, she was not entitled to more time to attempt reunification yet again."

Accordingly, the petition for extraordinary writ was denied on its merits, and the stay of the juvenile court's 366.26 hearing was lifted.

Opinion: A124209.PDF, A124209.DOC

In re E.R. et al. (Unpub'd), No. C060219

On June 5, 2007, the Yolo County Department of Employment and Social Services (the Department) filed petitions under 300(b) W&IC regarding the minor children J.R. (13 months old) and E.R. (two years old). Removed from the family home and placed in foster care, the minors were detained by the court on June 6, 2007. The original petition alleged that Mother was arrested as a parolee at large, with a history of methamphetamine abuse, and the family's home was filthy, unsafe, and unsanitary. The petition also alleged that Mother previously failed to reunify with the minors' five siblings, and each of those children had been adopted into new families.

Prior to a contested disposition hearing, the SSA recommended a bypass of reunification for both parents pursuant to 361.5(b)(10) and 361.5(b)(11) W&IC. The disposition hearing proceeded as scheduled and the court adopted the Department's recommendation, refusing services to either parent. The court scheduled the section 366.26 hearing for July 16, 2008, and ordered both parents to appear. Father's attorney, along with Mother, requested a contested section 366.26 hearing; Father's attorney also requested time to file a section 388 motion. The court agreed with the Department's position that the case already had taken too long to reach resolution, but gave Father until August 1, 2008, to file a section 388 motion. The court then set the contested section 366.26 hearing for August 21, 2008, scheduling a trial readiness conference for August 13, 2008.

Neither parent appeared at either the trial readiness conference or the 366.26 hearing itself. At the August 21st hearing, Mother's counsel noted that mother had left a phone message indicating that she and father had been ill with the flu and unable to appear. The court proceeded, over Father's counsel's objection, to conduct the hearing and ordered parental rights terminated. Mother appealed, asserting the denial of her attorney's request for a continuance was an abuse of the trial court's discretion and contending that it requires reversal of the order terminating her parental rights.

The appellate court noted as an initial matter that mother's claim was forfeited on appeal since neither she nor her counsel raised the objection in the trial court. Further, the appellate court held that, even assuming an objection can be inferred, no good cause was provided why the hearing should have been continued and, furthermore, there was no indication that a different result would have occurred had a continuance been granted.

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

Opinion: C060219.PDF, C060219.DOC

In re J.L. (Unpub'd), No. E046591

Appellant N.L. (mother) is the mother of J.L. (child), who was born in July 2007. Mother appealed from the juvenile court orders finding J.L. to be a dependent child and removing her from mother's care, based upon allegations that J.L was phsyically abused, causing fractured ribs, and that mother had a history of substance abuse that limited her ability to care for the child, and the whereabouts of the child's alleged father were unknown.

Mother appealed these findings, arguing that insufficient evidence supports the jurisdictional findings because mother's status as a drug abuser does not itself pose a substantial risk of harm to the child, and insufficient evidence supports removing J.L. from mother's care.

The appellate court held that the fact that J.L. had already sustained a serious injury (fractured ribs), the fact that the child was suffering methadone withdrawl at birth, and "Mother's difficulty in pulling it together for the short hour or 90-minute visits with the child" all "[illustrate] the substantial risk of harmful neglect the child would face if returned to mother custody for around the clock care." Accordingly, the appellate court held that substantial evidence supported the finding of substantial risk of harm.

As to the sufficiency of the evidence justifying removal, the appellate court noted that neither the SSA nor the minor's appellate counsel took a position on this issue, and that the agency had advocated at the jurisdiction and disposition hearing that the child be placed with mother on family maintenance. Nonetheless, the appellate court held that "[w]hile this is certainly a close call, we conclude that substantial evidence supports the trial court's disposition ruling."

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

Opinion: E046591.PDF, E046591.DOC

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