Case Law Update: 20 April 2009

In re A.W (Unpub'd), No. B213417

T.W. (mother) appealed an order terminating parental rights to her child A.W. (born 2007) and establishing adoption as the permanent plan. Appointed counsel advised that there were no arguable issues in mother's appeal. The appellate court granted Mother leave to personally submit any contentions she wished considered, but received no response. Accordingly, the appeal was dismissed as abandoned.

Opinion: B213417.PDF, B213417.DOC

J.K. Sr. v. Superior Court (Unpub'd), No. F056946

J.K. (then two years old) and I.K. (then 14 months old) were detained in 2007 after police responded to a domestic disturbance at J.K. Sr. (father)'s home and found feces, urine and trash on the floors, and evidence of drug and alcohol abuse. The juvenile court sustained the dependency allegations and placed the children with their maternal aunt and her husband. Reunification services, including parenting classes, substance abuse, mental health and domestic violence evaluations, and random drug testing were ordered for J.K. Sr.

A contested 18-month review hearing in January, 2009, the court found the department provided reasonable services and it would be detrimental to return the children to parental custody. The court terminated reunification services and set a 366.26 hearing. Father petitioned for extraordinary writ relief, arguing the juvenile court erred in failing to allow him additional reunification services.

The appellate court held that, given it cannot reweigh the evidence, it could not say that the juvenile court abused its discretion in terminating services and setting a 366.26 hearing. Accordingly, the petition for extraordinary writ was denied.

Opinion: F056946.PDF, F056946.DOC

O.V. v. Superior Court (Unpub'd), No. F056532

In February 2008, the department of social services (department) took then three- year-old I. and 17-month-old J. into protective custody after their mother, M.D., 2 left them with their maternal aunt without making provisions for their care. At the time, petitioner was serving a three-year sentence at Avenal State Prison (Avenal) for first- degree residential burglary and vehicle theft. He was also on an INS hold. He was expected to be released from custody in January 2009.

On March 3, 2008, the juvenile court ordered I. and J. detained pursuant to a dependency petition, which identified petitioner as their alleged father. The court ordered a paternity inquiry as to J. The court set the jurisdictional hearing for March 19, 2008, and issued an order to authorities at Avenal to have petitioner transported for the hearing. The department placed the children together in foster care. Paternity testing subsequently confirmed that O.V. was the biological father of both children.

In November, 2008, O.V. filed a 388 petition, asking the court to elevate him to I. and J.'s presumed father and offer him reunification services. In his section 388 petition, petitioner stated he held I. out as his son to his family and the community and, prior to his incarceration, spent weekends with I. and provided support for him. Petitioner also stated he wanted to reunify with I. and begin a relationship with J. upon his release in January 2009. Petitioner believed it would be in his sons' best interest to be placed with him or a relative since no one willing to adopt them had been identified.

At a combined six-month review and 388 hearing, the juvenile court denied the section 388 petition, finding it would not be in the children's best interest to change its order based on the precedent in In re Eric E. (2006) 137 Cal.App.4th 252 [holding that presumed father status may be denied if, at the time it is requested, it cannot be shown that such status is in the child's best interests.] The court also terminated M.D.'s reunification services, denied petitioner visitation, and set a 366.26 hearing.

In an extraordinary writ petition filed on January 2, 2009, petitioner contended the department's delay in arranging paternity testing violated his right to due process. He also contends the juvenile court erred in applying the "best interest" standard in denying his request for presumed father status.

The appellate court held that there was no requirement that biological paternity be proven before O.V. sought presumed father status, and that therefore the delay in establishing paternity did not violate his due process rights. However, the appellate court held that the juvenile court, by failing to conduct a paternity hearing and by deciding his paternity based on the best interest of the children, denied him his due process right to a hearing on his paternity.

Accordingly, the appellate court lifted the stay on the 366.26 and issued an extraordinary writ vacating the juvenile court's orders denying a hearing on the 388 petition and setting the 366.26 hearing. The appellate court directed the juvenile court to conduct a paternity hearing, and instructed that "[i]f the court determines petitioner is the presumed father of either child, the court shall order that he receive reunification services as to that child unless the court determines that petitioner should be denied services under section 361.5, subdivision (b). If the court determines that petitioner is not the presumed father of either I. or J., the juvenile court may set a new section 366.26 hearing and advise petitioner of his right to file an extraordinary writ."

Opinion: F056532.PDF, F056532.DOC

In re E.G. et al. (Unpub'd), No. E047076

L.A. (Mother) is the mother of two boys, E.G., and I.G., (children) who were removed from her care at the ages of one and three, respectively. Mother appealed orders of the juvenile court at a 366.26 hearing terminating her parental rights and freeing the children for adoption by their foster mother. Mother argued that the beneficial relationship exception of 366.26(c)(1)(B)(i) should have applied, and that the juvenile court erred in finding that it did not.

The appellate court held that Mother's claim was waived for failure to raise it in the juvenile court, and that in any case it is without merit because of "the dearth of evidence that the children were attached to Mother as compared to the ample evidence that they were attached to the foster mother." Accordingly, the appeal was denied and the juvenile court's orders were affirmed.

Opinion: E047076.PDF, E047076.DOC

Adoption of R.V. (Unpub'd), No. B209956

Alex M. (father) appealed an order of the family court terminating his parental rights to his son R.V. The order arises from a petition brought by respondents, who want to adopt R.V. The family court found that the Indian Child Welfare Act (ICWA) does not apply, and that appellant (1) abandoned R.V. and (2) has a felony record that demonstrates unfitness to parent his child. Alex M. argued that the finding that ICWA does not apply was erroneous, and further that the conclusions that he abandoned his son and was unfit to parent him were not supported by substantial evidence.

As to the ICWA issue, the appellate court held that Alex waived it by failing to appeal the dispositional orders of the court on that basis, and that further, since the claim of Native American heritage was made by the children's mother and not by him, that no showing can be made that he was prejudiced by any purported error.

As regards the other findings, the appellate court held that Alex's failure to make arrangements for R.V.'s care during his incarceration and failure to seek custody of R.V. following his release or to provide financial support constituted presumtive evidence of abandonment, and that this finding was therefore supported by sunstantial evidence. Similarly, ample evidence supported the family court's findings that "appellant has repeatedly committed crimes and been incarcerated or on parole for the majority of his adult life" and that these facts "show a pattern of behavior related to the welfare of his child and his ability to exercise custody and control over his child." Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: B209956.PDF, B209956.DOC

In re Tiffany W. et al. (Unpub'd), No. B210409

This appeal, a follow-on to In re. Tiffany W. et al (Unpub'd) No. B207928, decided 2009/03/19, challenged an order of the juvenile court at a six-month review hearing continuing the dependency case and ordering Felix W. (father) to participate in additional reunification services. Felix argues that there is no evidence to support the juvenile court's finding that his progress in his case plan was minimal, and that therefore the children should have been returned to his care at the six-month hearing.

The appellate court explained that "[h]ere, as the Department demonstrated, father did not "participate regularly and make substantive progress in court-ordered treatment programs" and such failure is prima facie evidence that return of the children to his custody would be detrimental to them." (Emphasis original). Father made several additional claims, but the appellate court described them as "vituperative allegations against the Department, unsupported by any admissible evidence."

Accordingly, the juvenile court's order was affirmed, and this appeal was denied.

Opinion: B210409.PDF, B210409.DOC

In re D.L., et al. (Unpub'd), No. B212500

On May 24, 2006, the Los Angeles County Department of Children and Family Services (Department) filed a petition pursuant to section 300 alleging, among other things, that mother had a five year history of drug use including heroin and methadone that rendered her incapable of caring for newborn D.L, who had tested positive for methadone at the time of his birth. The petition also alleged that father had failed to take action to protect D.L. when he knew of mother's illicit drug use.

The juvenile court detained D.L. and ordered family reunification services for mother and father. The juvenile court also ordered monitored visits for mother and unmonitored visits for father. Subsequently, mother was arrested and gave birth to anohter child (F.L.) while in prison. The SSA filed a petition detaining F.L. On February 28, 2008, the juvenile court terminated reunification services as to D.L., sustained an amended petition as to F.L., and denied mother and father reunification services as to F.L. The juvenile court set both matters for a section 366.26 hearing on June 26, 2008.

In August 19, 2008, mother filed a 388 petition requesting reunification services with D.L. and F.L. and placement of the children with her at the Shields for Families (Shields) drug treatment program. In her request, mother stated that she was no longer incarcerated, that she had been sober for 14 months, and that she had been enrolled in the Shields drug treatment program since July 1. According to mother, Shields allows children to stay with their parents. This petition was considered along with a 366.26 hearing.

In its written decision on mother's section 388 petition and termination of parental rights under section 366.26, the juvenile court stated that after her release from prison, mother immediately entered a drug rehabilitation program and began to visit D.L. and F.L. regularly. The juvenile court noted that mother appeared to be more mature and serious than she did at the 12-month review hearing, and appeared to be sincere and committed to turning her life around.

However, "[t]he juvenile court foresaw a very long period to ensure that mother had rehabilitated before it would even consider returning D.L. and F.L. to mother if it were to extend reunification." Given the ages of the children and their special needs, the juvenile court found that delaying permanency was not in the children's best interest and denied the section 388 petition. The court further held that the Department had established by clear and convincing evidence that D.L. and F.L. were adoptable and that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply. Accordingly, parental rights were terminated.

Mother appealed, contending that the juvenile court abused its discretion in denying her 388 petition and in finding that the beneficial relationship exception did not apply. The appellate court held that substantial evidence supported both of these findings, affirmed the lower court's orders, and denied the appeal.

Opinion: B212500.PDF, B212500.DOC

Case Law Update: 17 April 2009

No juvenile dependency opinions were filed today.

Case Law Update: 16 April 2009

In re E.S. (Unpub'd), No. B210566

E.S. was detained in May, 2007, following allegations under 300(a) and 300(b) W&IC that S.S. (mother)'s boyfriend had inflicted serious injury upon her, that mother had failed to protect her and had a history of substance abuse and criminal activity, and that E. was at serious risk of harm as a result.

At a six-month review hearing in January, 2008, CWS recommended returning E. to her mother's care, based on a series of negative drug tests and mother's participation in services. On January 7, 2008, the court ordered that E. be returned to mother, and remain a dependent child of the court. It also ordered services for E. and mother. The SSA filed a 387 petition in February, 2008, based on allegations that mother was consorting with known criminals and had used drugs again.

A new detention hearing on the 387 petition was held in February, 2008, at which the court ordered E. detained in the custody of CWS for placement in a foster home or the home of a suitable relative. In March, 2008, E. was placed with her paternal grandmother. At a contested juris/dispo hearing in April, the juvenile court sustained the February 11, 2008, petition, declined to provide additional reunification services for mother, and set a section 366.26 permanency planning hearing for July 7, 2008. Mother filed a 388 petition seeking to regain custody of E. or additional reunification services, and a combined hearing was scheduled for August 28, 2008.

The SSA's addendum report for that hearing revealed that A. (a teenager and the daughter of a former friend of mother) admitted to providing urine for mother's drug tests for several months. At the hearing, mother's parental rights were terminated. She appealed, contending that the juvenile court erred in finding the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply.

The appellate court noted that "mother has shown frequent and loving contact with E. However, she has not shown that the existence of her relationship with E. is sufficient to outweigh her need for a stable, safe and permanent home." Accordingly, the appellate court held that "[s]ubstantial evidence supports the court's finding that mother failed to establish that the parental relationship exception barred the termination of her parental rights."

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

Opinion: B210566.PDF, B210566.DOC

In re Jayden C. (Unpub'd), No. B210445

Jayden C. (age 5) was detained in May, 2008, after his half-brother was admitted to the hospital with cerebral hemorrhaging, from which he subsequently died. At an adjudication and disposition hearing in August, at which Mother invoked her Fifth Amendment rights with regard to the half-brother's death, the court declared Jayden and I. dependents of the court and ordered Jayden be placed with Father under a home of father order.

The court ordered the Department to provide family maintenance services to Jayden. Father was ordered to attend a parenting class, keep all medical and therapy appointments for Jayden, and follow-up with all recommendations. The court continued the case for a section 364 hearing. Father appealed the jurisdictional and dispositional orders, arguing that the record does not show that he should have known of Mother's violent tendencies, and that the juvenile court abused its discretion in ordering him to attend a parenting class.

As to the first issue, the appellate court held that "even if Father did not have first-hand knowledge of all of the acts of violence by Mother, Father had personal knowledge of her propensity for violence, as he was the victim of many of the incidents and he had discussed Mother's violent behavior with a social worker...[y]et, knowing of Mother's predisposition to violence, violence that would be harmful to Jayden, Father left Jayden in Mother's care. These facts support the jurisdictional finding that Father knew or should have known that Mother had failed to resolve her violent tendencies."

As to the second issue, the appellate court held that substantial evidence, including Father's decision to leave Jayden in Mother's care despite knowing of her violent tendencies, his failure to seek medical attention for Jayden for a dog bite several days before the half-sibling's hospitalization, and a doctor's note that "Father appears relucant to follow medical advice", supported the juvenile court's conclusion that "parenting classes would assist Father in understanding his parental role and would protect Jayden."

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

Opinion: B210445.PDF, B210445.DOC

Felix O. v. Superior Court (Unpub'd), No. B213779

S.O. and D.O. (minors) were detained in April of 2007 upon allegations that included, inter alia, that Felix O. (father) and the children's mother had engaged in physical altercations which endangered the children. The juvenile court ordered the children detained, and Felix O. was ordered to attend domestic violence and parenting programs, as well as counseling.

At both the six- and twelve-month review hearings, the court found that Felix O. was in partial compliance with his case plan. At the 18-month review hearing, the Department requested that services be terminated and a 366.26 hearing be set, primarily because Felix O. had not obtained suitable housing for himself and his children. Felix's counsel requested that services be continued to allow him to do so.

The juvenile court held that although Felix O. was in full compliance with his case plan, his lack of appropriate housing for the children continued to put them at risk if placed under his care and, because the case had reached the statutory limit for reunification, there was no alternative to termination of reunification and the setting of a hearing pursuant to section 366.26. The court encouraged Felix O. to obtain appropriate housing and suggested he may seek a change in the court's order setting the section 366.26 hearing, prior to the date of the hearing, by petition for modification under 388 W&IC.

Felix O. filed a petition for extraordinary relief from the juvenile court's order setting a 366.26 hearing, arguing that the juvenile court improperly terminated reunification services because there was not substantial evidence to support its finding the Department provided reasonable reunification services. Both S.O. and D.O., through their counsel, and the SSA opposed his petition.

The appellate court held that the record showed that reasonable services had been provided and, further, that the court's authority to terminate reunification services and set a section 366.26 hearing at the 18-month stage is not conditioned on a finding of reasonable services. Accordingly, the petition for extraordinary writ was denied on its merits.

Opinion: B213779.PDF, B213779.DOC

In re P.V. et al. (Unpub'd), No. C060003

On March 20, 2007, Sacramento County Department of Health and Human Services (DHHS) filed section 300 petitions on behalf of minors P.V., who was less than a month old, and A.V., nearly three years old. The petitions alleged mother had allowed unsupervised contact between the minors and father, and that father had sexually molested his biological child in 2005 and failed to rehabilitate or successfully reunify with that child. The petition further alleged that mother failed to acknowledge father's sexual molestation of his child.

The juvenile court sustained the petitions, adjudicated the minors dependents of the court, and ordered reunification services for mother and father. The minors were placed with the maternal grandparents. Reunification services were terminated in April 2008 and a 366.26 hearing was set for August of 2008. At that hearing, counsel for both parents requested a continuance because their clients were not present. The juvenile court denied counsels' oral request for a continuance for failure to state good cause. No additional evidence was presented. The juvenile court found the minors were likely to be adopted, terminated parental rights, and freed the minors for adoption.

The parents appealed the termination of parental rights, alleging that the adoption assessment prepared by DHHS was inadequate and that their counsel delivered inadequate representation by failing to object to its adequacy, and that the juvenile court abused its discretion in denying their request for a continuance of the hearing.

As to the adoption assessment, the appellate court held that parents' allegations about the insufficiency of the adoption assessment were waived for failure to object in the juvenile court proceeding. The appellate court further held that "[t]here are no facts suggested by the record that could have been produced to change this state of affairs. Thus, the record does not show there was good cause to object to the assessment or that preparation of a more thorough assessment would change the result of the hearing."

As to the juvenile court's denial of a continuance, the appellate court held that 352(a) W&IC requires that continuances "shall be granted only upon a showing of good cause" and that no such showing was made in this case. Accordingly, "[u]nder the circumstances, the juvenile court acted well within its discretion in denying appellants' counsel's oral request to continue the section 366.26 hearing."

The orders of the juvenile court were thus affirmed, and the appeal was denied.

Opinion: C060003.PDF, C060003.DOC

Case Law Update: 14 April 2009

In re Jeremiah G., No. C058223

Jeremiah G. (minor) was born in October, 2007, and tested positive for cocaine at birth. He was Joann W.'s third child born with a positive toxicology screen for cocaine; she had lost parental rights to the two others several years previously. Mother was offered voluntary services for Jeremiah, but failed to utilize them, so a petition under 300 W&IC was filed.

At the detention hearing, A.G. (father) made statements that it was "a possibility" that he had Native American heritage through his great grandfather, a claim he subsequently recanted. At a February, 2008, juris/dispo hearing, the parties agreed that father does not have Native American heritage, and the court thus found that ICWA did not apply. The court denied reunification services to mother based on the previous terminations of rights to Jeremiah's siblings, and ordered services to father.

In the unpublished portion of the opinion, the court rejected mother's claim that the bypass of reunification under 361.5(b)(10) and 361.5(b)(11) W&IC, noting that substantial evidence of mother's 20 year history of substance abuse, failed reunification and unwillingness to utilize services meant that the juvenile court had not abused its discretion in concluding that reunification services would be futile.

In the published portion of the opinion, mother's claim that the dispositional orders were invalid because the notice provisions of ICWA were not met was likewise rejected. The appellate court explained in its introduction to the opinion that "[w]e publish this opinion to emphasize, again, what we thought that our court made clear in In re O.K. (2003) 106 Cal.App.4th 152. In a juvenile dependency proceeding, a claim that a parent, and thus the child, 'may' have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry." Here, the court held that father's ultimately retracted claim of possible Native ancestry was insufficient to trigger the requirements of ICWA, and thus that the juvenile court did not err in concluding that ICWA did not apply.

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

Opinion: C058223.PDF, C058223.DOC

In re B.O. et al. (Unpub'd), No. C059076

Appellant, mother of B.O. and M.O. (the minors), appealed from juvenile court orders at a review hearing, continuing the minors as dependent children in appellant's custody pursuant to a family maintenance plan. She alleged that the court abused its discretion in denying a motion to continue the review hearing and in denying her request to have the minors testify at the hearing.

The appellate court held that, becaue no showing of good cause for a continuance existed, the juvenile court had not abused its discretion in denying the continuance. Furthermore, the appellate court held that in any case, the appellant was not prejudiced by the decision not to grant a continuance. Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: C059076.PDF, C059076.DOC

In re B.C. (Unpub'd), No. E046700

B.C. (minor) was detained in July, 2006 upon allegations under 300(b), 300(c) and 300(g) W&IC after M.C. (mother), a diagnosed schizophrenic who was at the time not being treated, was arrested for child endangerment, possession of a controlled substance, and being under the influence of a controlled subtstance. The court found the allegations true and ordered the SSA to provide reunification services. However, because of non-compliance and further drug-related arrests, reunification services were terminated.

In September, 2008, Mother (who was again incarcerated at the time) filed a 388 petition seeking additional reunification services, citing the substance abuse program in which she was enrolled while incarcerated as changed circumstances. At a hearing later that month, the juvenile court found a change of circumstances, but concluded a change in the court's order would not be in B.C.'s best interest, and denied the petition. The court also selected adoption as B.C.'s permanent plan and terminated parental rights.

Mother appealed, contending the juvenile court erred in denying her 388 petition without a full evidentiary hearing, and that it erred in not finding the beneficial relationship exception of 366.26(c)(1)(B)(i) to apply.

In regard to the 388 petition, the appellate court held that, since the court afforded an opportunity for all parties, including M.C.'s counsel, to express their positions about the 388 petition, that the juvenile court did not err in denying the request. Further, the appellate court noted that the juvenile court's analysis of the 388 petition was "thoughtful, reasonable, and based on the facts of the case" and therefore that no abuse of discretion occurred.

As regards the beneficial relationship exception, the appellate court held that substantial evidence supported the conclusion that the strength and quality of the relationship between Mother and B.C. did not outweigh the sense of security and stability provided to B.C. at her maternal grandparents' home.

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

Opinion: E046700.PDF, E046700.DOC

In re M.S. (Unpub'd), No. C059953

M.S. (then three) was detained in April 2007 following allegations of sexual abuse by M.S.'s mother's boyfriend. The petition named C.M. (appellant) as the alleged father. C.M., who was then incarcerated in state prison for possession of a controlled substance for sale, was found in September, 2007, to be the presumed father, and counsel was appointed for him.

At a December, 2007, review hearing, C.M.'s counsel informed the court that counsel had received a copy of a letter sent to the court from appellant, which referred to a lack of "proper aid of counsel". The court at that time declined to schedule a Marsden hearing, advising counsel it would require additional information to do so. The court also encouraged appellant, through its minute order, to communicate with his counsel.

C.M. was present at the July, 2008 366.26 hearing, where he stated that he opposed the recommended plan of adoption by C.M.'s grandparents (with whom she was placed). At the conclusion of the hearing, the juvenile court terminated C.M.'s parental rights upon a finding that it was likely M.S. would be adopted.

C.M. appealed, contending that the juvenile court committed reversible error in failing to conduct a Marsden hearing. He further claimed that his trial counsel provided inadequate representation for failing to object to the absence of a preliminary adoption assessment, as required by statute, for failing to seek a continuance of the 366.26 hearing on that basis, and for failure to raise the exception to adoption of 366.26(c)(1)(A) because of Grandparents' past criminal history.

The appellate court noted that an exhaustive Marsden inquiry is not required in a juvenile dependency proceeding; rather, the juvenile court must merely "make some inquiry into the nature and complaints against the attorney". This, the appellate court, held had been done. Further, the appellate court held that C.M.'s subsequent failure to raise the Marsden issue at future hearings could have been reasonably concluded by the juvenile court to constitute "an abandonment of his previous claim, if any."

With regard to the inadequate representation claims, the appellate court held that "the record suggests that, presented with a difficult case, appellant's counsel did the best that could be done for appellant under the circumstances presented to counsel."

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

Opinion: C059953.PDF, C059953.DOC

In re A.V. et al. (Unpub'd), No. C059396

R. V., the mother of J. R. (born July, 2005) and A. V. (born March, 2008), appealed from juvenile court findings and orders entered at a juris/dispo hearing. She contended the evidence was insufficient to support the jurisdictional finding that she caused the death of her son S. H. (under 300(f) W&IC), and the dispositional order that she not receive reunification services under 361.5(b)(4), 361.5(b)(10) and 361.5(b)(11) W&IC. Mother further alleged, and the SSA conceded, that the juvenile court failed to ensure compliance with ICWA because she alleged Cherokee heritage but no notices were sent to any Cherokee tribes.

The appellate court vacated the disposition order and remanded to the juvenile court for the purposes of providing proper ICWA notice to the three identified Cherokee tribes. The appellate court directed that if, after proper notice, the provisions of ICWA are found not to apply, the juvenile court shall reinstate the dispositional order.

Opinion: C059396.PDF, C059396.DOC

In re T.B. et al. (Unpub'd), No. D053992

T.B. (mother) appealed judgments terminating her parental rights to her children, T.B. and L.H. (the children). She contends no substantial evidence supports the court's finding the children were likely to be adopted if parental rights were terminated, and the court erred by not finding the beneficial parent-child relationship exception of 366.26(b)(1)(C)(i) applied.

The appellate court held that substantial evidence, including the fact that the children were placed with a caregiver who wanted to adopt them despite some special needs, supported the finding of adoptability. The appellate court further held that "[s]ubstantial evidence supports the court's finding the mother did not have a relationship with the children that was sufficiently beneficial to outweigh the benefits to them of being adopted into a stable home."

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

Opinion: D053992.PDF, D053992.DOC

Case Law Update: 15 April 2009

In re A.N. (Unpub'd), No. C058864

On May 10, 2006, the Department filed a juvenile dependency petition on behalf of the minor, then seven months old, alleging mother's failure to protect the minor and his half-siblings from domestic violence perpetrated by father, father's continuing substance abuse and his failure and refusal to rehabilitate or participate in voluntary services, and mother's failure to participate in voluntary services. The minor and his half- siblings were removed when it was discovered that mother had moved back into father's residence despite having been informed that the children would be placed into protective custody if she did so.

The juvenile court sustained the allegations in the petition, adjudged the minor and his half-siblings dependent children of the court under 300(b) W&IC, committed them to the care and custody of the Department for suitable confidential placement, and ordered regular visitation with the minor. The court further ordered reunification services for both parents.

Reunification services were extended several times upon recommendations of the Agency, but in June of 2007, the SSA, based on fialed drug tests, denial of substance abuse, and lack of appropriate housing, recommended that mother's reunification services be terminated and A.N. be placed with father. The court made those orders at a July, 2007 permanency hearing.

Subsequently, however, the Agency was informed that both parents were living together and abusing alcohol. The Agency filed a 387 petition alleging father was found to be under the influence of alcohol, had failed to participate in services, and was noncompliant with testing, placing the minor at risk of abuse and/or neglect. A.N. was detained and returned to foster care and reunification services were ordered for the father. Father failed to comply with his services, reunification was terminated, and a request by the mother to reinstate services was denied.

Shortly before a February 2008 366.26 hearing, both parents filed 388 petitions seeking return of the minor or additional reunification services. The 366.26 hearing was continued to March, and the court heard the 388 petitions at the same time.

The court denied these petitions, noting that the alleged changed circumstances were not sufficiently changed to grant the motions, and that further, "it would not be in the minor's best interests to reopen services given the amount of time the minor had been in the very stable [foster] home where he is being well cared for." Accordingly, the 388 petitions were denied and parental rights were terminated.

Both parents appealed, arguing that the court failed to provide adequate ICWA notice (based on mother's contention at the 2006 detention hearing that she had Apache ancestry and the Agency's failure to notice all 8 Federally-recognized Apache tribes) and that the court erred in finding that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply. The Agency conceded the ICWA issue but argued that such deficiency was harmless. The parents also appealed denial of their 388 petitions, arguing that the court had erred in concluding they had failed to show changed circumstances and that the best interests of the minor would not be furthered by granting them services.

With regard to the ICWA issue, the appellate court, citing In re Kahlen W. (1991) 233 Cal.App.3d 1414,1424 held that the Agency's failure to provide the necessary notice constituted prejudicial error. With regard to the denial of the 388 petitions by the parents, the appellate court held that sufficient evidence supported the juvenile court's conclusion that "circumstances were changing but not yet changed", and that therefore the question of the minor's best interests need not be considered.

Accordingly, the denial of the 388 petitions was affirmed. The termination of parental rights at the 366.26 hearing was vacated and the case was remanded for proper ICWA noticing. The appeals court directed that if, following notice, any noticed tribe determines that the minor is an Indian child, or if other information is presented showing the minor is an Indian child as defined by ICWA, the juvenile court shall conduct a new review hearing in conformity with all the provisions of ICWA.

Opinion: C058864.PDF, C058864.DOC

In re Valeria B. (Unpub'd), No. D054553

Juan B. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to his children. Citing In re Sade C. (1996) 13 Cal.4th 952, he asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [his] custody of a child or [his] status as the child's parent", denied his appeal.

Opinion: D054553.PDF, D054553.DOC

In re D.D. (Unpub'd), No. F056298

K.G. appealed from an order denying her reunification services with regard to her daughter, D.D. under 361.5(b)(5), 361.5(b)(6) and 361.5(c)(1) W&IC. When D.D. was three years old, she suffered a serious brain injury while in the care of appellant's boyfriend. It is undisputed appellant knew or reasonably should have known her boyfriend was physically abusing D.D. K.G. argued the juvenile court should have granted her reunification services because there was insufficient evidence to support a denial of services on the alternative grounds (361.5(b)(5) & 361.5(b)(6)) that the court found true.

The appellate court noted that K.G. conceded that 361.5(b)(5) [that the child was brought within the jurisdiction of the court under subdivision 300(e) W&IC, because of the conduct of that parent or guardian] apply to her, and that "[t]the evidence before the court compelled neither a finding that reunification services for appellant were likely to prevent D.D.'s reabuse or continued neglect nor one that the denial of services for appellant would be detrimental to D.D."

Accordingly, the order denying reunification services was affirmed, and K.G.'s appeal was denied.

Opinion: F056298.PDF, F056298.DOC

Case Law Update: 13 April 2009

Juvenile Dependency Opinions - 13 Apr 2009

In re C.C. , No. B208675

C.C. (12 years old) was detained in July, 2007 on allegations under 300(a) and 300(b) W&IC pertaining to mother's physical and verbal abuse and unstable behavior. The court ordered reunification services for both parents, including facilitated visits between Lisa and C.C. On September 7, 2007, however, the Department filed an ex parte request seeking suspension of visitation between Lisa and C.C. The application was based on a letter from C.C.'s therapist indicating his level of distress had escalated after each of the three previous monitored visits. C.C. had stated he did not want to have contact with Lisa, a position the therapist viewed as justified, and had threatened to harm himself and Lisa if forced to visit her. The court suspended visitation pending an evidentiary hearing.

At the evidentiary hearing, the court suspended visitation pending further hearings, though monitored visitation and conjoint therapy were ultimately ordered. In April, 2008, the therapy was suspended after the therapist acknowledged that C.C. was not willing to participate and that this rendered the therapy not effective. In September, 2008, the court again suspended vistation and ordered Lisa to complete several programs, including parenting and anger management. Lisa appealed these orders, aguing that the trial court erred in finding continued visitation with her would be detrimental to C.C. and, in essence, improperly permitted C.C. himself to preclude or veto visitation.

While Lisa's appeal was pending, in March of 2009, the juvenile court entered a family-law exit order (under 362.4 W&IC) awarding sole legal custody of C.C. to his father, authorizing monitored visits and terminating jurisdiction. The appellate court nonetheless agreed to hear Lisa's appeal, even though the primary issues raised in it were rendered moot by the 362.4 order, to avoid "the possibility [Lisa] will be prejudiced by the court's finding of detriment and order terminating visitation in some collateral proceeding".

Having thus agreed to hear the appeal, the appellate court found that the juvenile court's orders denying visitation were not supported by by clear and convincing evidence that further visitation with Lisa would be detrimental to C.C. The appellate court noted that "[w]ithout visitation of some sort, it is virtually impossible for a parent to achieve reunification" and expressed that "we cannot tell from the record whether the court's reasoning was properly tethered to the statutory directive mandating parental visitation unless there exists substantial evidence of a threat to the child's safety". For those reasons, the orders suspending visitation were reversed. In light of the subsequent disposition of the case, which included an order restoring visitation, no remand was deemed necessary.

Opinion: B208675.PDF, B208675.DOC

In re R.C. (Unpub'd), No. C059179

R.C. (then six years old) and his sibling were detained in July 2006 upon allegations that mother's mental instability (chronic depression and anxiety) rendered her unable to care for them. The juvenile court sustained the allegations in the petition, and the matter was continued for a dispositional hearing with an order that appellant participate in a psychological evaluation as arranged by the social worker. A psychological evaluation was not completed by the time of the dispositional hearing. The juvenile court ordered services for appellant as recommended by the social worker and again ordered a psychological evaluation.

The SSA's report at the six-month review was fairly positive, showing that mother was attending therapy and a parenting class, and consistently attended visits. The court therefore ordered services be continued and again ordered a psychological evaluation "to identify how to best tailor [appellant's] services." However, the evaluation which was ultimately prepared made no such recommendations, but instead concluded that "it was 'very unlikely' she could benefit from services sufficiently within 12 months such that she would be able to parent her children." The 12-month review report, however, made some recommendations of services, including referral to a neurologist for evaluation.

At the 12-month review hearing in October 2007, the juvenile court found reasonable services had not been provided because the psychological evaluation initially did not address the tailoring of services. The court ordered the Department to utilize the plan of services developed by the psychological evaluation, and set the matter for an 18-month review hearing. However, none of those services were actually provided by the SSA between October, 2007 and the 18-month review hearing. Accordingly, the court terminated services.

Mother appealed, arguing that she was not provided reasonable services during the last six months of reunification efforts. The appellate court noted that Mother "was not provided most of the services in her updated case plan, including individual therapy, independent living skills training and a neurological examination" and that the only service provided following the 12-month review was hands-on parenting training with R.C.'s sibling. Accordingly, the appellate court held that the juvenile court's termination of services at the 18-month hearing was not based on a reasonable finding that appropriate services had been provided, and therefore that the termination of services was an abuse of discretion.

Accordingly, the order terminating reunificaiton services was reversed, and the case was remanded with direction to the juvenile court to order additional reunification services.

Opinion: C059179.PDF, C059179.DOC

D.M. et al. v. Superior Court (Unpub'd), No. G041370

C.M. (now 15 years old) was adopted by D.M. (father) and L.M. (mother) in 2003 at age 9. According to C.M., she never felt a sense of belonging with her adoptive parents. Her birth mother reappeared in her life when she was in seventh grade, showering her with affection. The birth mother contacted C.M. at school and attended her basketball practices. Meeting surreptitiously, C.M. enjoyed the attention. But her behavior deteriorated, marked by lying, stealing, a defiant attitude, and truancy. She stole money from her adoptive mother to give to her birth mother, and stole cell phones from friends to call her birth mother. Petitioners placed C.M. on restriction and further attempted to modify her behavior and safeguard her by moving her to a different school.

Petitioners grounded C.M. on May 17, 2008, after she received a poor report card and a classmate's father complained she harassed his daughter with hostile text messages. While the rest of the family attended a birthday party, C.M. remained home. Later claiming she only intended to cause the two family dogs to have diarrhea for her mother to clean up, C.M. fed the animals her adult sister's medication, Naproxen. The family returned home to find one dog already dead and the other, foaming at the mouth, about to die. Petitioners called the police, who arrested C.M. for animal cruelty, escorting her out of the house in handcuffs. The police transported C.M. to juvenile hall, where she spent two months awaiting a delinquency hearing on two counts of misdemeanor animal cruelty filed by the district attorney.

On June 11, 2008, the delinquency court sustained the district attorney's animal cruelty allegations against C.M. and ordered a probation report. Based on her interview with the parents, the probation officer concluded they "have no desire to reunify with the minor." According to the probation officer, the parents planned "to pursue reversal of the adoption." The officer "d[id] not recall that the parents ever referred to the child they have raised for the past seven years as their 'daughter.' It is clear they want no part of a future relationship with her." They proffered no relatives or suitable adults to assume responsibility for C.M.

On the basis of this decision, the SSA filed a dependency petition under 300(b) and 300(g), alleging, inter alia, that C.M. was left without any provision for support by her adoptive family. The parents declined reunification services, and after a conference and an SSA's report in November, 2008, the court determined that dependency jurisdiction was more appropriate for C.M. than wardship.

The parents filed a petition for extraordinary writ, contending that the SSA and probation department's report prepared under 241.1 W&IC was inadequate because no independent assessment was done by C.M. probation officer, that the court erred in declining to require C.M.'s probation officer to consider a new wardship petition under 601 W&IC, and that substantial evidence did not support the court's jurisdictional findings.

As to the first contention, the appellate court held that since, at the time the November report was prepared, C.M. was not a ward of the court and thus a 241.1 report was not required, and in any case, there was no evidence the probation department failed to participate in the preparation of the evaluation. The appellate court likewise rejected the second contention, noting that since a 241.1 report was not required, the trial court therefore did not err in refusing to order the probation department to consider filing a section 601 petition as part of preparing such a report.

As to the sufficiency of the jurisdictional findings, the appellate court noted that "petitioners' focus on how they believe the dependency proceedings reflect poorly on them misconstrues the purpose of juvenile court dependency jurisdiction" because "[f]undamentally...the focus of the system is on the child, not the parents." The appellate court noted that, whatever their motives for doing so, the parents' actions left C.M. with no home and nowhere to go, and that therefore jurisdiction under 300(g) was justified.

The orders of the juvenile court were thus affirmed, and writ relief was denied.

Opinion: G041370.PDF, G041370.DOC

In re Charles N. (Unpub'd), No. A121373

This case comprised three consolidated appeals by the parents and grandparents of Charles N., who was taken into the juvenile dependency system before he was a year old. The dependency concluded with the termination of both parents' rights as to the child. Through this entire period, the grandparents unflaggingly sought to have the child placed with them, even if the reunification efforts of the parents were not successful.

The parents, who filed separate and lengthy briefs, presented numerous arguments looking to overturn the order terminating their parental rights. Many of these arguments are joined by the grandparents.

The primary goal of the grandparents' appeal — which was joined by the parents — was to overturn the placement order made at the same time as the termination order. They insisted that the juvenile court abused its discretion in maintaining placement with the foster parents who were prepared to adopt, arguing that what the court should have done was shift placement to a member of the family, most obviously the grandparents themselves.

The appellate court, after considering all the arguments in a 49-page opinion, expressed that "although we sympathize with the family's frustration at not getting custody, we are unable to conclude that the juvenile court exceeded the bounds of reason by leaving the minor with the extraordinarily-qualified foster parents who had cared for him since he was detained." Accordingly, the juvenile court's orders were affirmed, and the appeals were denied.

Opinion: A121373.PDF, A121373.DOC

Case Law Update: 10 April 2009

Juvenile Dependency Opinions - 10 Apr 2009

In re E.G. (Unpub'd), No. F056515

E.G. was detained in January 2008 (at age 10 months) after he suffered a significant burn on his lower back. Based on the fact that C.J. (mother) neither sought treatment nor could reasonably explain the injury, and the fact that C.J.'s other son M. had two years previously been removed (at the age of 9 months old) following a similar injury and that parental rights for M. were ultimately terminated, E.G. was detained upon allegations under 300(a), 300(b) and 300(j) W&IC.

The court granted E.G.'s father reunification services, but denied them to C.J. pursuant to 361.5(b)(7) and 361.5(b)(11) W&IC (prior denial of reunification services for a sibling, and parental rights terminated as to a sibling.) C.J., after completing a domestic violence class, a parenting course and substance abuse treatment, filed a petition under 388 W&IC seeking reunification services. That petition was denied after an evidentiary hearing, and though C.J. appealed the denial, she failed to file a timely writ petition, resulting in dismissal of the appeal.

C.J. then filed a second 388 petition, seeking reunification services or the return of E.G. to her care, and alleging that she continued to participate in services, that she had established an appropriate home for E.G., and that his best interests would be served because she consistently visited him and demonstrated an ability to care safely for him. This second petition was heard concurrently with a 366.26 hearing, at which the juvenile court denied the 388 petition for failure to show changed circumstances, determined E.G. was likely to be adopted, and terminated parental rights.

C.J. appealed the denial of the 388 petition, contending the court abused its discretion when it denied her modification petition because she satisfied both requirements of a section 388 petition, namely that there are changed circumstances and a modified order would promote the child's best interests.

The appellate court held that C.J. failed to introduce any evidence of changed circumstances other than that introduced at her first 388 hearing, and that further, the record showed other services were offered to her which she did not take advantage of. The appellate court also noted that she "minimized her need for mental health treatment and needed another mental health evaluation." Finally, the appellate court noted that C.J. overlooked "the evidence in the department's '366.26 WIC Report' that they no longer shared a strong parent-child relationship". Accordingly, the appellate court concluded the juvenile court had properly exercised its discretion in denying her second 388 petition, affirmed the order terminating parental rights, and denied the appeal.

Opinion: F056515.PDF, F056515.DOC

In re S.R. et al. (Unpub'd), No. E046194

Appellants W.R. (Father) and C.R. (Mother) are the parents of seven children, the youngest five of whom are the subjects of this appeal. The parents separately appealed from orders terminating their parental rights to their three youngest children, twins Child 1 and Child 2, now ages six, and Child 3, now age five, and placing those children for adoption. Mother also appealed from an order denying her 388 W&IC petition seeking to terminate a guardianship for Child 4, now age 11, liberalize Mother's visitation with Child 4, and Child 5, now age 12, and reinstate Mother's services for Child 1, Child 2, Child 3, Child 4, and Child 5. The parents' two oldest children, Child 6, now age 16, and Child 7, now age 18, were dependents of the court but were later returned to Mother's care and are not subjects of either parent's appeal.

The parents raised a wide variety of contentions, including inter alia that the juvenile court erroneously determined that ICWA did not apply because the SSA failed to give adequate notice to all federally-recognized Apache tribes. DCS conceded this contention. Accordingly, the appellate court remanded the case to the juvenile court so that the SSA could give adequate ICWA notice. The appellate court stated that, in the event no tribe intervenes, all affected orders shall continue to have full force and effect. In all other respects, the appeals were denied.

Opinion: E046194.PDF, E046194.DOC

In re B.W. (Unpub'd), No. G014490

B.W. (then age six) was detained in 2003 based on mother's inability to protect him. Father's whereabouts were then unknown, and the dependency terminated in 2006 with a guardianship placement with B.W.'s maternal aunt and uncle. A second dependency proceeding was initiated in late 2006 alleging general neglect and caretaker absence by his guardians. In response to the petition, the aunt and uncle stated they no longer wished to serve as guardians, and that they did not want him returned to their care because of fear of false allegations "coached" by his mother.

The court ordered the child detained and placed with foster parents. In July, 2007, father contacted the SSA from Ohio, claimed he had been unaware of the dependency proceeding, and asked for custody of the child. In October, 2007, the court held a 366.26 hearing at which it adopted long-term foster care as the permanent plan. In April, 2008, over the father's objection, the child's caretakers (who had several times expressed interest in guardianship) were given de facto parent status.

At a status review hearing in May, 2008, the court noted that "there is a more permanent plan available other than long-term foster care for this child" based upon the caregivers' interest in guardianship. The court further noted that the evidence "clearly shows that the father is not an appropriate person to return the child to at this time and it would clearly not be in the child's best interest to return the child to the father at this point." The court explained that the father had never met the child, has shown no real involvement in B.W.'s life, and has made no effort to work a case plan. Accordingly, the court set a new 266.26 hearing to terminate parental rights and adopt guardianship as the permanent plan, and denied father's requests for placement.

Shortly before the 366.26 hearing, father filed a 388 petition seeking placement of B.W. with him. The court rejected this petition without a hearing, finding that father had shown neither changed circumstances nor that placing B.W. with him would be in his best interest.

Father appealed the denial, arguing the court erred in denying his petition without a hearing. The appellate court held that the juvenile court was well within its discretion in denying father's petition, explaining that "[f]ather's petition did not establish a change in circumstances or other new evidence that would suggest a modification of the court's previous orders would promote the child's best interests." The court further explained that "[t]here were simply too many concerns with father to merit changing the child's successful placement with his foster parents, such as father's previous lack of interest or involvement in the child's life, father's mental health issues, father's prior illegal drug use and incarceration, father's residence in Ohio, and the lack of evidence suggesting father was capable of managing the child's behavioral problems." Accordingly, the juvenile court's order was affirmed, and father's appeal was denied.

Opinion: G014490.PDF, G014490.DOC

Case Law Update: 09 April 2009

In re Leah S. et al. (Unpub'd), No. C059580

Marsha S., mother of Leah S. (aged 9) and Melissa S. (aged 13), and Ronald V., father of Leah S., appeal from orders of the juvenile court terminating the parental rights of mother and father under 366.26 W&IC. Mother and father contended the juvenile court committed reversible error in finding that Melissa did not object to the proposed permanent plan of adoption, and in concluding that the beneficial parental relationship exception of 366.26(c)(1)(B)(i) W&IC did not apply.

As to the first issue, the appellate court noted that Melissa had testified at the 366.26 hearing, both in response to the court's questioning and that of her counsel, that she understood reunification was not under discussion and that she had clearly expressed a desire for the permanence of adoption. The appellate court concluded that, in light of that evidence, the juvenile court had properly discharged its duty under 366.26(h)(1) W&IC to "consider the wishes of the child" and that substantial evidence supports its conclusion that Melissa did not object to adoption.

As regards the beneficial relationship exception, the appellate court explained that the statute requires "both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship". On the facts before it, the court held that, although there was evidence of regular contact, "the record here does not support mother's suggestion that the minors would benefit substantially from continuing their relationship with her primarily because of the length of time the minors had lived with her and the attachment existing between them."

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

Opinion: C059580.PDF, C059580.DOC

In re E.J. (Unpub'd), No. B209123

E. (then 10 years old) was detained in March 2008, following an allegation of molestation by E.J. (father) made by her 12-year-old sister. At the dependency proceeding, E. testified that she was not molested, and other witnesses controverted some of E.'s sister's testimony. Nevertherless, the court found that E.'s sister's testimony was credible, that E.'s testimony was not credible, and that E. wanted to protect her father. The court sustained a dependency proceeding under 300(d) W&IC. E.J. was at that time incarcerated, and based on the length of his incarceration, no reunification services were ordered. E. was placed with her mother.

After E.J.'s counsel (appointed by the appellate court) informed the court that she was unable to file an opening brief on the merits, E.J. himself filed a letter brief arguing that E.'s sister's unsubstantiated testimony is not substantial evidence for the trial court ruling denying him reunification services. He contended that E. was not at risk of harm, citing her testimony that she was never inappropriately touched.

The appellate court noted as a preliminary matter that the review of the juvenile court's finding is for substantial evidence, and that the appellate court may not and does not reweigh the evidence. Further, the appellate court noted that reunification was denied as to E. based on the length of E.J.'s incarceration and not under 361.5(b)(6) W&IC.

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

Opinion: B209123.PDF, B209123.DOC

Case Law Update: 08 April 2009

In re R.W., No. G040791

The opinion in this matter (appealing orders limiting A.W. (mother)'s right to make educational decisions on behalf of the minor and ordering the minor placed in a residential treatment program in Laramie, Wyoming) filed on March 26, 2009 was certified for publication under Calif. Rules of Court rule 8.1105(c) upon a request by the SSA.

Opinion: G040791.PDF, G040791.DOC

In re J.W. (Unpub'd), No. D054099

R.W. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to her children. Citing In re Sade C. (1996) 13 Cal.4th 952, she asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent", denied her appeal.

Opinion: D054099.PDF, D054099.DOC

In re. L.M. (Unpub'd), No. D054363

Rebecca G. appeals the findings and orders entered at a dispositional hearing held under 360(d) and 361(c) W&IC. Citing In re Sade C. (1996) 13 Cal.4th 952, she asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent", denied her appeal.

Opinion: D054363.PDF, D054363.DOC

In re J.J. (Unpub'd), No. A122599

J.J. (minor) was detained in October, 2006, following allegations under 300(b) and 300(g) W&IC, and was subsequently returned to P.L. (mother) under family maintenence. A subsequent petition under 387 W&IC was filed in 2007, alleging that mother had left J.J. with his godmother and that mother's whereabouts were unknown, and that J.J. had a fracture to his right femur which had been left untreated. J.J. was detained in P.'s care, and reunification and visitation were ordered for mother. At six- and twelve-month review hearings, the SSA reported problems with mother's compliance with both reunification services and visitation.

In July, 2008, mother filed a 388 petition seeking return of the minor and dismissal of jurisdiction, which was summarily denied, with the court finding that mother's efforts were "much too little, much too late" and that the evidence of changed circumstances submitted by mother was unverified. At the 366.26 hearing in August, 2008, the court terminated parental rights. Mother appealed, arguing that the juvenile court abused its discretion in denying her 388 petition without a hearing, and that the juvenile court erred in finding that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply.

As to the denial of mother's 388 petition, the appellate court agreed that section 388 imposes no requirement that an attachment to the petition be separately verified, but held that, given the case's procedural posture and J.J.'s interest in permanency, there was no showing that additional testimony would have produced a different result and therefore no abuse of discretion in the denial.

As to the termination of parental rights, the appellate court explained that the juvenile court had terminated mother's parental rights after finding clear and convincing evidence that minor was likely to be adopted and that the permanence and stability offered by his continued placement with P. was in his best interests. In so ruling, the appellate court found, the juvenile court had properly determined that J.J.'s need for permanency and stability outweighed his relationship with his mother, and the juvenile court did not err in determining that the beneficial relationship exception did not apply.

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

Opinion: A122599.PDF, A122599.DOC

In re Holly B. (Unpub'd), No. C058116

Cluster B. (father) appealed from an order filed by the SSA rescinding a prior order for a psychological examination of Holly B. (minor), and from findings and orders at a status review hearing continuing the minor in foster care.

He alleged that the juvenile court abused its discretion in granting the SSA's order and thereby erred in finding that the Department provided adequate services to the minor. He also argued that the findings and orders were invalid because the court failed to comply with the notice provisions of ICWA

As to the recission of the order for the pyschological evaluation, the appellate court held that, because the purpose of the psychological evaluation was to aid the SSA in selecting determining an appropriate level of placement, Cluster lacked standing to challenge its recission.

As to the ICWA issue, the appellate court held that, because the orders issued at the status hearing did not affect the minor's placement in foster care or the termination of her parents' rights, the notice requirements of ICWA were not implicated in those orders. Therefore, the appellate court held this issue not to be cognizable on appeal.

The lower court's orders were thus affirmed, and Cluster's appeal was denied.

Opinion: C058116.PDF, C058116.DOC

D.S. v. Superior Court (Unpub'd), No. G041451

D.S. (mother) petitioned for extraordinary writ relief from the orders of the juvenile court referring the dependency proceedings regarding her three younger children, V.S., A.S. and S.S., to a permanent plan selection hearing.

She challenged the jurisdictional finding as to S.S., arguing that there was no substantial evidence of harm to support jurisdictional findings under 300(b) and 300(j) W&IC. Additionally, she challenged the order denying her reunification services as to all three of the children under 361.5(b)(10) W&IC, arguing that she made reasonable efforts to treat the substance abuse issues that led to removal of her four older children.

As to the first issue, the appellate court held that substantial evidence, including ongoing drug use and incarcerations, supported the court's finding of substantial evidence of harm. As to the denial of reunification, the appellate court noted that "[d]espite years of services, she repeated the same neglectful behavior with V.S. and A.S. that she had exhibited with the older children. She left her children with an unsafe caretaker, she engaged in criminal activity resulting in her incarceration, and she continued to associate with the father, who was a long-term drug addict and a negative influence in her life." The appellate court held that these facts supported the denial of reunification services.

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

Opinion: G041451.PDF, G041451.DOC

E.M. et al. v. Superior Court (Unpub'd), No. G041223

Petitioners W.L., a prospective adoptive mother, and now four-and-a-half- year-old E.M. and almost three-year-old C.M. (the children), filed petitions for extraordinary writ challenging an order removing the children from W.L.'s home under 366.26(n) W&IC based on issues with the children not receiving proper nutrition and the prospective adoptive parent's failure to address those issues or to complete the requirements of the adoptive home study. Petitioners contended it was not in the children's best interests to be removed from W.L.'s care or separated from their sibling whom W.L. had previously adopted.

The appellate court, after noting that the decision in this matter was a difficult one, held that the juvenile court had properly weighed the factors mitigating both in favor of and against the removal. The appellate court concluded that the juvenile court's decision, after weighing all of the evidence, constituted "a reasonable exercise of discretion" and declined to disturb it.

The writ petitions were therefore denied.

Opinion: G041223.PDF, G041223.DOC

In re J.B. (Unpub'd), No. G040774

C.B. (mother) appealed an order denying her 388 W&IC petition seeking requesting placement of the minor with her or, alternatively, extended reunification services.

Mother's request was based on evidence that since December 2007 (about six months prior to the filing of the petition), she had been in a sober living program, had drug tested, and had completed a parenting class. The juvenile court had noted that mother's sobriety appeared "to be a work in progress[,] so that it is really more a showing of changing circumstances as opposed to an actual change in circumstances." The juvenile court therefore held that Mother's changes in her life did not yet "prove her situation had really changed" and denied her petition.

On appeal, Mother argued that her petition had in fact been supported by evidence of changed circumstances, including declarations in her favor. The appellate court, however, noted that Mother had to show not only changed circumstances, but also that her petition would be in the minor's best interests, and held that Mother had not met the second prong of the test.

As the appellate court explained, "Mother is in the beginning stages of resolving a 20-year drug problem. At the time of the hearing, she had only lived one month outside the sober living home and had a history of relapses. Mother's brief and recent sobriety does not support a finding the requested modification would be in J.B.'s best interests."

Accordingly, the juvenile court's denial of the 388 petition was affirmed, and Mother's appeal was denied.

Opinion: G040774.PDF, G040774.DOC

In re Wyatt N. (Unpub'd), No. D054091

Jay N. (father) filed a petition under 388 W&IC seeking to set aside the order at a six month review hearing terminating reunification for failure to comply with his case plan and setting a 366.26 hearing, and impliedly seeking to set aside the subsequent order at the 366.26 hearing (held the same day the 388 petition was heard) terminating his parental rights.

He contended that his circumstances had changed in that he had been clean and sober since for about ten months and had completed a parenting class. He asserted that it was in Wyatt's best interests to be with his biological father. Jay submitted a certificate showing that he had completed a 12-session parenting education program.

The appellate court observed that "Jay's modification petition did not contain facts showing that Jay could attend to Wyatt's needs without support or intervention during visitation, or that a mental health professional or social worker had concluded that Jay was now able to safely and appropriately parent Wyatt, or that Jay had continued to participate in a substance abuse treatment or a 12-step program." Accordingly, it held that the juvenile court had not abused its discretion in determining that Jay's petition failed to show a prima facie case for changed circumstances and best interests of the child.

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

Opinion: D054091.PDF, D054091.DOC

In re J.M. et al. (Unpub'd), No. C058919

L.M. (appellant), the mother of eight minors, appealed from an order of the juvenile court denying her motion for substitution of appointed counsel. Claiming an irreconcilable conflict with trial counsel existed, such that ineffective representation by counsel was a likely outcome, appellant contended the juvenile court's denial of her motion was an abuse of its discretion, from which she suffered prejudice.

The appellate court held that "[b]ased on the record before it, the court's implicit determination that the conflict between appellant and her trial counsel was not irreconcilable was well within its discretion." It further held that, finding no abuse of discretion, it need not consider the claim of prejudice.

Therefore, the juvenile court's order denying the motion for substitute counsel was affirmed, and the appeal was denied.

Opinion: C058919.PDF, C058919.DOC

Case Law Update: 07 April 2009

In re Andrew M. (Unpub'd), No. B208640

Andrew M. (born 1994) was detained in September, 2007, upon allegations under 300(a), 300(b), and 300(d) W&IC alleging that Robert M. (father) had physically and sexually abused Andrew, including beating him with a belt and coat hanger and by sodomizing him on at least two occasions. After a contested hearing which was continued several times, the court sustained the 300(a) and 300(d) allegations, and four out of five of the 300(b) allegations and removed Andrew from his father's custody. The father appealed, contending that the court had abused its discretion in denying a third continuance, and further that the court's refusal to allow father's counsel to present a closing argument was a violation of due process. He also alleged that there was not substantial evidence to support the jurisdictional and dispositional findings.

As to the issue of the continuance, the appellate court held that the juvenile court had not abused its discretion by denying the continuance because the minor's need for prompt resolution of the case was of primary importance, and because the requested continuance would have caused the hearing to be delayed past six months om the detention hearing. On the second issue, the appellate court held that no authority supports Father's contention that he has a due process right to present a closing argument, and that the court's determination of Andrew's credibility placed father's privilege to present a closing argument within the court's discretion. As to the sufficiency of the evidence, the appellate court held that "[i]n this case, the substantial evidence standard is easily met." Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: B208640.PDF, B208640.DOC

In re K.M. (Unpub'd), No. B207743

K.M. was detained shortly after her birth in May, 2007, due to information that mother was depressed, with possible suicidal ideation. At a 12-month hearing in May, 2008, the SSA reported that mother had stated many times to the CSW that she felt that K.M. was well taken care of and that the best place for her was with father, where she had been placed since disposition under Agency supervision. On May 8, 2008, the court terminated jurisdiction and entered a custody order pursuant to section 362.4. Father was awarded sole physical custody of K.M., while both parents were given joint legal custody.

Father appealed the custody order, contending that the grant of joint legal custody was an abuse of discretion and unsupported by substantial evidence because the evidence showed mother was a danger to K.M., because she had insufficient mental stability to warrant unsupervised visits with her, and because there was insufficient evidence of mental stability to justify allowing mother to participate in making significant decisions about K.M., or to interfere with father's choices.

The appellate court held that the evidence showed K.M. was able to participate in decisionmaking, and that father never suggested that mother had interfered with K.M.'s care. Having found no evidence that the court's decision was arbitrary, capricious or patently absurd, the appellate court affirmed the order and denied the appeal.

Opinion: B207743.PDF, B207743.DOC

In re A.A. et al. (Unpub'd), No. B201619

S.A. appealed from the order terminating her parental rights to her son A. and her daughter G. D.J. (who is G.'s father, but not A.'s) appealed from the order terminating his parental rights to G. Both contended that teh beneficial relationship exception of 366.26(c)(1)(B)(i) should have applied. The appellate court noted that S.A. had only cared for the children for a short period of time but was never their primary caretaker. The noted that D.J. visited when he was not incarcerated, but that "we can find nothing in those facts which mean that he occupied a parental role in her life." Accordingly, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: B201619.PDF, B201619.DOC

In re I.R. et al. (Unpub'd), No. D053861

Emma C. and Isidro V. (together, the parents) appealed judgments declaring their minor children I.R. and Carolina V. (together, the minors) dependents of the juvenile court under 300(b) W&IC (because of parental drug use and violation of the terms of a voluntary services agreement) and removing them from parental custody. The parents argued that at the time of the hearing, the minors were not subject to the defined risk of harm because Emma was cooperating with Agency, participating in drug treatment and testing negative for drugs.

The appellate court noted that both parents were drug abusers, and that they had failed to comport with the terms of their voluntary services agreement. The appellate court further noted that substantial evidence supported the juvenile court's finding that "returning the minors to Emma's custody was not a feasible alternative". Accordingly, the judgments were affirmed, and the appeals denied.

Opinion: D053861.PDF, D053861.DOC

In re L.M. (Unpub'd), No. B212023

J.W. (Mother) appealed from the order summarily denying her 388 W&IC petition seeking that reunification services be restored and the 366.26 hearing be taken off calendar, as well as the order terminating her parental rights over L.M. (Daughter). Mother contends the juvenile court's erroneous decision to deny her section 388 petition without a hearing requires reversal of the order terminating parental rights and remand for a hearing on her section 388 petition.

The appellate court held that mother failed to make a prima facie showing of a change of circumstances, because Mother has a history of drug abuse more than two decades long, she has been involved with the juvenile dependency system for 13 years, she has lost her six oldest children because of her drug abuse, and the record showed she was continuing to struggle with drug addiction. Accordingly, the appellate court concluded that the juvenile court acted well within its discretion in summarily denying the petition, and affirmed the lower court's orders.

Opinion: B212023.PDF, B212023.DOC

In re Sebastian L. (Unpub'd), No. D054096

Z.C. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to her child. Citing In re Sade C. (1996) 13 Cal.4th 952, she asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent", denied her appeal.

Opinion: D054096.PDF, D054096.DOC

In re J.C. (Unpub'd), No. D054428

C.C. appeals the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to his children. Citing In re Sade C. (1996) 13 Cal.4th 952, he asked the appellate court to exercise its discretion to review the record for error. The appellate court, noting that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [his] custody of a child or [his] status as the child's parent", denied his appeal.

Opinion: D054428.PDF, D054428.DOC

In re S.C. et al. (Unpub'd), No. E046590

Both parents together appealed the termination of parental rights as to their children, S.C. (age four) and J.C. (age 3). They argue the juvenile court applied the wrong legal test in determining that the beneficial parent-child relationship exception to termination of parental rights (366.26(c)(1)(B)(i) did not apply because the mother did not establish day-to-day contact.

The appellate court explained that "[c]ontrary to mother's assertion, the trial court did not find that the exception was inapplicable based on the lack of day-to-day contact, although the court did mention that as one of several criteria to consider in determining whether there was a significant bond. The court properly evaluated the existence of a significant relationship, needed to establish the exception; the isolated reference to day-to-day contact was simply the court's attempt to describe a significant relationship as one based on frequent contact in a parental role, rather than just having a visit and playing with your children." Accordingly, the court held that the juvenile court had properly determined the exception did not apply. The juvenile court's orders were affirmed, and the appeal was denied.

Opinion: E046590.PDF, E046590.DOC

In re B.C. (Unpub'd), No. E045996

Father appealed from the termination of his parental rights under Welfare and Institutions Code section 366.261 as to his daughter B.C. (minor), who was born in 1995. Father challenged the sufficiency of the evidence to support the order terminating his parental rights. He also argued the termination order should be reversed because he has a continuing and beneficial bond with minor and an exception to the termination of parental rights of 366.26(c)(1)(B)(i) applies.

The appellate court held that because, at the 18-month review hearing, "father had not demonstrated an ability to complete the objectives of the case plan or to provide for minor's physical and emotional well-being and special need for close supervision and guidance", substantial evidence supported the termination of parental rights and reunification services. The appellate court further held that although it was undisputed that father had a continuing bond with the minor and frequent and consistent visitation, father was unable to establish himself in a positive parental role for any significant period of time despite continuing contact and reunification services on two separate occasions. Accordingly, the juvenile court's judgment was affirmed, and the appeals were denied.

Opinion: E045996.PDF, E045996.DOC

In re J.R. (Unpub'd), No. A121721

N.R. (mother) appealed from the termination of her parental rights to her son, J.R. She argued the juvenile court erred by failing to apply the beneficial parental relationship exception of 366.26(c)(1)(B)(i) W&IC because she had a warm relationship with J.R. and because the juvenile court failed to order a bonding study.

The appellate court held preliminarily that mother's argument regarding a bonding study was forfeited because she failed to raise it in the juvenile court following the initial 366.26 hearing, and rejected her argument that the court should have ordered it sua sponte. The appellate court further held that the fact that mother had (and the juvenile court recognized) a warm relationship with J.R. and that the court had commented that it would would be in J.R.'s best interest to maintain contact with her and other maternal family members did not conflicts with the court's ultimate decision that the beneficial parental relationship exception did not apply. Accordingly, the lower court's order was affirmed, and the appeal was denied.

Opinion: A121721.PDF, A121721.DOC

In re L.T. et al. (Unpub'd), No. A122050

At an 18-month status review hearing, the juvenile court declined to set a hearing under 366.26 W&IC and instead ordered minors H.T. and L.T. placed in long-term foster care. The minors appeal, arguing that because there was not clear and convincing evidence they were not proper subjects for adoption, the court was required to order a section 366.26 hearing. The minor's mother filed a respondent's brief in support of the juvenile court's order. Respondent Contra Costa County Bureau of Children and Family Services (CFS) then filed a motion to dismiss this appeal as moot because the juvenile court, at another review hearing, scheduled a section 366.26 hearing to be held on June 4, 2009.

The appellate court noted that "[t]he relief sought in the appeal is an order requiring the juvenile court to set a section 366.26 hearing. The juvenile court has already done so. Even if the trial court was wrong in failing to order the section 366.26 hearing before, it has now given the minors the only relief this court could have afforded them." The appellate court further rejected mother's opposition of the motion to dismiss, arguing that the juvenile court did not give minors the relief they seek in their appeal because what they are seeking is a permanent plan of adoption, holding that the ultimate disposition of the case was not an issue under appeal. The appeal was therefore dismissed as moot.

Opinion: A122050.PDF, A122050.DOC

In re P.L. et al. (Unpub'd), No. E046549

S.W. (mother) appealed from the termination of her parental rights under 366.26 W&IC as to her daughter E. (born 2005); son K. (born 2006); and daughter P. (born 2007). Mother challenged the sufficiency of the evidence to support the juvenile court's finding of adoptability, as well as the order terminating her parental rights. She also argued the termination order should be reversed, because she has a continuing and beneficial bond with all three children, so an exception to the termination of parental rights applies as set forth in section 366.26(c)(1)(B)(i). C.L. (father) joined mother's appeal pursuant to rule 8.200(a)(5) of the California Rules of Court, and also sought reversal of the order terminating his parental rights.

The appellate court held that, notwithstanding the children's special needs, substantial evidence including the social worker's testimony supported the finding that they were adoptable. The appellate court further held that mother's good relationship with the children did not outweigh the benefits the children would gain from adoption. Accordingly, the juvenile court's orders were affirmed and the appeals were denied.

Opinion: E046549.PDF, E046549.DOC