Case Law Update - 05 May 2009

In re R.M. and S.M., No. B210077

A 2004 Family Law order awarded custody of R.M. and his sister, S.M., to Mother and visitation rights to Father. In June 2008 the Department of Family and Children Services (DCFS) filed a petition in juvenile court only under 300(b) W&IC alleging that R.M. and S.M. had suffered and were at substantial risk of suffering serious physical harm as a result of their parents' inability to adequately supervise or protect them. The record does not disclose how the family came to the attention of the DCFS. Mother and Father waived their right to a trial on the allegations and the court sustained the petition on the basis of the reports submitted by the DCFS.

he court found that "periodic episodes of inadequate supervision of the children" caused by Mother's and Father's "divergent approaches to parenting" resulted in S.M.'s exposure to "inappropriate sexual conduct" by her brother, R.M. The court further found that Mother's "physical and emotional problems [and depression] . . . periodically render her unable to provide adequate care and supervision for the children" thereby placing the children "at risk of physical and emotional harm and damage."

Mother appealed, contending the evidence was insufficient to sustain the petition as to her.

The appellate court noted that the record contains evidence that R.M. and S.M. admitted engaging in inappropriate sexual contact with one another. However, it noted that "Nothing in the record, however, supports the conclusion that Mother inadequately supervised her children, for whatever reason, or that Mother should earlier have been aware of their inappropriate sexual conduct. For example, the record does not disclose when the conduct began, how frequently it occurred, or how long it continued. Nor is there any evidence that Mother condoned or facilitated the conduct. On the contrary, the evidence shows that once Mother became aware of the conduct she took steps to prevent it, including admonishing the children not to repeat the behavior, and going so far as locking the door to the bedroom where S.M. and she slept. Furthermore, there is no evidence that any inappropriate sexual conduct continued after Mother admonished the children and began locking the bedroom door."

The appellate court explained that, although past behavior may have some probative value, there must be "evidence that the circumstances existing at the time of the hearing make it likely the children will suffer the same type of 'serious physical harm or illness' in the future." (quoting from In re Janet T. (2001) 93 Cal.App.4th 377, 388). The appellate court further noted that "the record contains no evidence that this conduct occurred 'as a result of' Mother's or Father's 'divergent approach to parenting' or Mother's 'physical and emotional problems.'" Nor, in the appellate court's view was there any evidence to support the juvenile court's finding that Mother had any physical or emotional problems that interfered with her parenting.

The appellate court therefore concluded that no credible evidence supported the jurisdictional findings as to Mother. The court thus issued an order reversing those orders and directing the juvenile court "to dismiss the petition and return the children to the custody of their mother forthwith unless new circumstances would justify a new finding of jurisdiction."

Opinion: B210077.PDF, B210077.DOC

In re A.G. (Unpub'd), No. E046769

On September 20, 2007, Riverside County Department of Social Services (the Department) detained A.G., who was one month old. According to the section 300 petition filed by the Department on September 24, 2007, on behalf of A.G. against Mother and Father (who claimed to be the biological father), it was alleged pursuant to subdivisions (b)(1) and (b)(2) of section 300 that the parents were unable to supervise or protect the child adequately. It was also alleged under section 300, subdivision (j) that A.G.'s siblings all had suffered abuse or neglect and that A.G. was in danger of suffering similar harm. At a jurisdictional report, the juvenile court denied reunification pursuant to 361.5(b)(7), (10), (11) and 13 and calendared a 366.26 hearing.

Prior to the 366.26 hearing, both parents filed 388 petitions seeking additional reunification services. At the 366.26 hearing, the court denied the 388 petitions and terminated parental rights. Both parents appealed these judgments, contending that they should have been granted reunification services and that was insufficient evidence of current detriment to A.G. shown at the section 366.26 hearing to justify terminating their parental rights.

As to the 388 petitions, the appellate court noted that the juvenile court "stated that circumstances had changed, [but] it also stated that it was too late in the process." Accordingly, the appellate court concluded that "their circumstances were not sufficiently changed to warrant prolonging uncertainty for A.G. while they attempted to remain sober" and that the juvenile court had not abused its discretion in denying their petitions.

As to the order terminating parental rights, the appellate court explained that "both Mother and Father had been denied reunification services because they had failed to reunify with their son, H.G. By the time of the section 366.26 hearing, the court was not required to make a finding of current detriment as the denial of reunification services supported the termination of parental rights under section 366.26, subdivision (c)(1). As such, we reject their argument that the juvenile court erred in failing to make a finding of detriment at the time of the section 366.26 hearing. "

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

Opinion: E046769.PDF, E046769.DOC

In re Landon V. (Unpub'd), No. G040852

In January 2007, Stephanie V. (the mother) was 16 years old. She was residing in a group home under the jurisdiction of the Orange County Probation Department. She had a juvenile record that included assault and battery charges and probation violations. She also had a history of running away from home and taking drugs. The child, Landon, was three months old at the time, and the mother was breastfeeding him. A drug test at the group home showed that the mother tested positive for opiates, marijuana, and benzodiazepine. The mother ran away with Landon to a home where several people were using marijuana. As a result, she was arrested, and Landon was taken into protective custody.

In March 2007, the mother pleaded no contest and stipulated to the allegations in an amended petition under 300(b) and (g) W&IC. The court vested custody with the Orange County Social Services Agency (SSA) and ordered continued services for the mother. She was given a case plan that included counseling, parenting education, and drug testing. Monitored visitation was also authorized.

In June 2008, while a continued 12-month review hearing was on calendar, she filed a 388 petition requesting that all prior court orders be vacated and the case returned to the beginning of detention. She relied on In re M.F. (2008) 161 Cal.App.4th 673 (M.F.), which held that appointing a guardian ad litem was required when the parent is a juvenile herself. She argued that this case presented the required changed circumstances under section 388, and that it was in Landon's best interests because she needed a guardian ad litem to avoid a miscarriage of justice.

At a continued hearing, the court denied a hearing, stating that no prima facie case had been made and no best interest argument had been offered. Among other things, the court felt that M.F. was wrongly decided, and that a guardian ad litem should only be appointed if appropriate under the Welfare and Institutions Code. Further, the court felt that the facts were different and that any error was harmless. The court later terminated services and set a 366.26 hearing.

Mother appealed, contending the juvenile court abused its discretion in denying a hearing on her 388 petition. The appellate court noted that the instant case is easily distinguishable from M.F. because in the present case, the facts show that Mother was easily able to make her own arguments and that her attorney zealously argued for her interests. Thus, any potential error in failing to appoint a guardian ad litem was harmless. The appellate court also noted that M.F. has since been superseded by statute (326.7 W&IC, providing that "[a]ppointment of a guardian ad litem shall not be required for a minor who is a parent of the child who is the subject of the dependency petition, unless the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case.")

Further, the appellate court held that, at best, Mother's argument is a circular one: she argues, in effect that, the child's best interests would be served by protecting the mother's interests. However, the court noted, a 388 petition requires a showing "as to how the child's best interests would be served by a further one to two year delay in dependency proceedings." (Emphasis original.)

Accordingly, the juvenile court's order denying Mother's 388 petition was affirmed.

Opinion: G040852.PDF, G040852.DOC

In re J.F. (Unpub'd), No. B204204

A few days after J.F. was born with a positive toxicology for cocaine, the Los Angeles County Department of Children and Family Services detained him and placed him in the foster home of appellant R.P. A little over one year later, and after the juvenile court learned the Department was recommending that J.F. be placed for adoption with his maternal great aunt in Michigan, the juvenile court designated R.P. as J.F.'s prospective adoptive parent and scheduled a contested placement hearing. At the conclusion of the contested hearing, the juvenile court ruled J.F. should be placed with the great aunt. qAfter J.F.'s petition for writ of mandate challenging the placement order was denied, J.F., then 15 months old, was placed with the great aunt in Michigan, where he has resided for the past 20 months.

Several months after J.F. was placed with the great aunt, the juvenile court terminated the parental rights of J.F.'s parents and denied a petition by R.P. to vacate the placement order. R.P. appealed from the order denying her petition to vacate that order. The Department moves to dismiss the appeal on several grounds, including that R.P. lacks standing and she failed to challenge the order by a petition for extraordinary writ.

The appellate court held that the Department's arguments in support of dismissal (that R.P. was not aggrieved by the placement order and thereby lacked standing, and that the petition should be dismissed because R.P. failed to file a writ petition under 366.28) were unavailing. The appellate court noted that "in this case, R.P. purported to appeal from, and her opening brief purports to challenge, the order denying her section 388 petition to vacate the contested placement order. An order denying a section 388 petition is appealable even if a writ was not sought after the original placement order was made." Accordsingly, the motion to dismiss the appeal was denied.

However, the appellate court also held that the juvenile court did not abuse its discretion in denying her 388 petition to vacate the contested placement order, because she failed to present evidence of sufficient new information to support it, and because, "[w]hile the juvenile court would have been acting within its discretion if it had determined it was in J.F.'s best interests to remain with R.P., we cannot say that the court's decision to the contrary 'exceeded the bounds of reason.'"

Accordingly, the Department's motion to dismiss, and R.P.'s appeal were both denied, and the juvenile court's orders were affirmed.

Opinion: B204204.PDF, B204204.DOC

In re R.F. (Unpub'd), No. F056167

R.D. and A.V., de facto foster parents (collectively the foster parents), appeal from the juvenile court's orders (1) declaring their foster daughter R.F.'s maternal grandmother her de facto parent, and (2) granting the Madera County Department of Social Services' Welfare and Institutions Code section 388 petition, which removed R.F. from their home and placed her with her maternal grandmother. The foster parents contend there was insufficient evidence to support the court's order declaring the maternal grandmother a de facto parent, and the court erred in granting the section 388 petition because it incorrectly applied the relative placement preference (361.3(a) W&IC) and failed to apply the caretaker preference (366.26(k) W&IC).

The appellate court noted that sufficient changed circumstances, including that Father withdrew his request for reunification services and the grandmother requested placement), supported the petition. Further, the court noted that "[t]here was also evidence that placing the baby with grandmother would promote the baby's best interests, since such a placement would foster the baby's lifelong relationship with her grandmother and half-siblings." Accordingly, the appellate court held that the trial court did not abuse its discretion in granting the 388 petition.

The appellate court declined to address the contentions involving the relative placement and caretaker placement preferences, finding that "the juvenile court's decision to grant the section 388 petition is supported by evidence apart from the relative placement preference that placing the baby with grandmother was in the baby's best interest."

The appeal was therefore denied, and the juvenile court's order affirmed.

Opinion: F056167.PDF, F056167.DOC