Case Law Update: 23 Mar 2009

In re D.F., No. C057250

Appellant, the father of the minor, appealed from orders made at a dispositional hearing followed by a rehearing at which he was denied reunification services. He claimed the juvenile court erred by denying him services under 365(b)(3) W&IC, and that the social services agency failed to adequately apprise the court of information concerning his deafness because his mannerisms may have been misperceived as aggressive and nonresponsive by someone unfamiliar with deaf culture.

The appellate court found that the juvenile court did not err in determining that the requirements of 365(b)(3) were met in this case, and that the court did not abuse its discretion in denying reunification services. The appellate court, noting that the juvenile court had specifically noted on one occasion that the social worker's perceptions of the father as aggressive were "very likely a misunderstanding on his gesturing to speak with sign language", held the claim that the court was unaware of his deafness was unavailing. Accordingly, the appeal was denied and the lower court's orders affirmed.

Opinion: C057250.PDF, C057250.DOC

M.L. v. Superior Court, No. B212274

M.L. (mother) made plans in early September, 2008, to surrender her (not yet born) baby for adoption. When the baby was born, however, the mother and her attorney contacted the hospital, revoked consent to release the baby to the adoption agency (who were prepared to place the infant with "Adoptive Parents B"), and attempted to provide adoption papers designating a different adoptive family. Hospital staff had concern that mother might be under the influence of drugs, so they declined to accept the adoption papers and contacted the Social Services Agency. The social worker, noting that mother had rescinded the adoption plan and not yet executed a successor plan, detained the child. Mother subsequently executed adoption paperwork, and "Adoptive Parents C" filed an adoption petition and provided copies of their paperwork to the Agency. The hospital discharged the infant to the Agency, who placed her with "Adoptive Parents B" because "Adoptive Parents C" were not then a licensed foster home. At a series of contested hearings, from which the court excluded "Adoptive Parents C" because of lack of standing, the court sustained the allegations of the dependency petition, continued the newborn in foster care, bypassed reunification services, and set the matter for a permanent plan hearing pursuant to section 366.26.

Mother filed a petition for extraordinary writ seeking to reverse the juvenile court's orders and dismiss the dependency. She argued that the court erred in not investigating the safety of a placement with "Adoptive Parents C" prior to detention, that the court erred in detaining the child when mother had executed adoption papers for Adoptive Parents C (and that the child was thus not in continuing danger), and that the court abused its discretion in allowing the infant to be placed in a foster home.

The appellate court noted that, at the time of the detention, the agency was unaware of the documents mother had executed relative to Adoptive Parents C, and that in any case, the juvenile court retains the authority to determine whether that plan, or another, is in the child's best interests. Accordingly, the appellate court held that no abuse of discretion had occurred, and denied the petition for extraordinary writ.

Opinion: B212274.PDF, B212274.DOC

In re I.C. (Unpub'd), No. B208452

I.C., then four years old, was detained in April 2008 under 300(b) and 300(g) W&IC following A.W. (mother)'s arrest for possession of narcotics paraphenalia 3 days earlier. A.W. challenged jurisdictional and dispositional findings under 300(b), arguing that there was insufficient evidence showing that the drug paraphenalia with which she was arrested belonged to her and that she was a current drug user, and hence that there was insufficient evidence to support the jurisdictional finding. The appellate court held that the juvenile court's finding was supported by substantial evidence, and affirmed the jurisdictional and dispositional orders.

Opinion: B208452.PDF, B208452.DOC

In re A.G. (Unpub'd), No. B209266

A.G. (born in 2002) was detained in February, 2008 on a number of allegations under 300(a), (b), (g) and (j). Allegations b-1 and j-1 concerned Mother's failure to supervise and care for the children, and allegations a-1 and b-2 concerned Father's violent past. The jurisdictional report stated that father had been acquitted of all murder charges related to the 2006 stabbing, and that Father had received 3 years probation) after an altercation in which he grabbed and pushed Mother and caused her a "busted lip"; the record shows that Father completed the requirements of his probation including domestic violence counseling. The jurisdiction/disposition report further indicated Father had established a significant relationship with his son; Father told DCFS that he would remain in the home of his mother for added support until he was able to find a job and that his first priority was caring for the Minor. At a March, 2008 juris/dispo hearing, the court placed A.G. with Father (who was then living at Grandmother's house) and ordered family reunification services, and issued, inter alia, an order stating requiring that no corporal punishment be used in the home.

In June, 2008, after Father and Grandmother got into an altercation, Grandmother made a report to DCFS, who took the child into protective custody. When he was interviewed by DCFS, he stated that "he did not want to be with his Father because Father is mean and that he hits and yells at the child. When questioned further about being hit, the child told the social worker: 'He hits me with his hand on the butt and told [sic] me to go to bed.'" On June 18, 2008, DCFS filed a petition under 342(a) and (b) alleging that "[f]ather physically abused the child by striking the child's face and buttocks with the father's hands. Such physical abuse was excessive and caused the child unreasonable pain and suffering" and that the 2004 domestic violence incident "endangered the child's physical and emotional health, safety and well-being and placed the child at risk of future harm." The court ordered the child detained, noting that DCFS should have filed a 387 rather than a 342 petition. At disposition, father alleged that the incident of slapping the child occurred prior to the original 300 petition and did not result in either criminal charges or a DCFS investigation. At that hearing the court sustained the physical abuse charges, struck the domestic violence issue as being "old news", and ordered the child detained and placed in in a foster home.

Father appealed the order, alleging that neither the 342(a) allegations nor the dispositional orders that flowed from it were supported by substantial evidence. The appellate court found that DCFS's own description of the allegations — namely that Father had spanked the minor on one occasion ahd that one one other occasion he slapped the minor on the face for saying a bad word — are insufficient to support a finding of "serious physical harm". Additionally, the appellate court held there was no evidence of a pattern of abuse or repeated infliction of injuries, and that there was thus no evidence to support the finding that the minor was "at risk of severe physical abuse in the future." Accordingly, the jurisdictional order issued from the 342 petition, and the dispsitional order, were reversed and the case was remanded to the juvenile court.

Opinion: B209266.PDF, B209266.DOC

In re Bentley G. et al. (Unpub'd), No. B209430

Bentley G. (born in 2003) and J.K. (born in 2005) were detained from Jennifer L. (mother) because of mother's drug use and incarceration. They were removed from mother's custody and she was granted monitored visitation and reunification services. Mother had regular visits with the children and attended court-ordered services from the time of her release from custody until September 2007, when she violated the terms of her probation and moved to Missouri. That month, the court held a contested six-month review hearing at which it found that Mother was not in compliance with the case plan and Bentley and J. could not be returned safely to Mother's custody. The court terminated services and set the case for a section 366.26 hearing. Mother returned to California in early 2008, and the 366.26 hearing was continued.

On June 26, 2008, Mother filed a Section 388 petition. She requested Bentley and J. be placed with her in her residential treatment program. The Section 366.26 hearing and Mother's Section 388 petition were called on July 15, 2008. The Section 366.26 hearing was continued and the court considered the Section 388 petition. The court, noting that Mother was just beginning to address her long history of substance abuse, summarily denied her 388 petition. Mother appealed, contending that the court had abused its discretion in denying her petition. The appellate court held that Mother had not made a prima facie showing of changed circumstances or that the proposed modification would be in the children's best interests, and on that finding affirmed the lower court's orders and denied mother's appeal.

Opinion: B209430.PDF, B209430.DOC

In re R.S. (Unpub'd), No. C059355

S.F., the mother of R.S. (born October 27, 2007), appealed from a juvenile court order terminating her parental rights under 366.26 W&IC. Mother contended (1) the court committed reversible error by failing to appoint a guardian ad litem for her because she was incompetent, (2) her trial counsel's failure to request a guardian ad litem constitutes ineffective assistance, and (3) her failures to object in the juvenile court and to file a writ petition did not forfeit her right to raise these issues on appeal.

The appellate court held that Mother's contention that her failure to request a guardian ad litem in the juvenile court did not forfeit her right to raise the issue on appeal has merit, because a person entitled to a guardian ad litem under 372 and 373 Civ. Pro. is not necessarily in a position to recognize the error and to protest a dependency court's failure to appoint one. However, it found no evidence to support the claim that "Mother lacked the capacity to assist counsel in preparing her case", and that any error in failing to appoint a guardian ad litem was harmless. Likewise, the appellate court found no evidence that "but for trial counsel's failings, the result would have been more favorable to" mother. ( In re Nada R. (2001) 89 Cal.App.4th 1166, 1180) Accordingly, the appeal was denied and the lower court's judgment affirmed.

Opinion: C059355.PDF, C059355.DOC

In re K.G. (Unpub'd), No. D054144

K.C. (mother) appeals the findings and orders entered at the jurisdictional and dispositional hearing held undersections 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: D054144.PDF, D054144.DOC

In re D.G. et al. (Unpub'd), No. D054333

Darnell G. appeals the findings and orders entered at a post permanency planning review hearing, including the denial of his 388 W&IC petition. 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: D054333.PDF, D054333.DOC

Angela G. v. Superior Court (Unpub'd), No. D054397

Angela G. (mother) sought writ review of orders terminating her reunification services and setting a 366.26 W&IC hearing regarding her daughter, Jazmin A. She contended the court erred by finding she was provided reasonable services. The appellate court held that Angela forfeited her arguments by failing to raise them in the juvenile court, and moreover that she did not sustain her burden to show a lack of substantial evidence to support the court's findings. Accordingly, her petition for writ relief was denied.

Opinion: D054397.PDF, D054397.DOC

In re T.G. et al. (Unpub'd), No. A123052

M.G. (father) is the father of two young girls, T.G. and A.G.. He appealed the juvenile court's order terminating his parental rights regarding those two children pursuant to 366.26 W&IC. He claimed that insufficient evidence supported the court's finding that his two children were adoptable. He also challenged the lower court's summary denial of his section 388 petition to reinstate reunification services. The appellate court held that father had failed to meet his burden for showing changed circumstances in his 388 petition, and that substantial evidence supported the lower court's finding that department established by clear and convincing evidence that the children were adoptable. Accordingly, the father's appeal was denied and the lower court's orders were affirmed.

Opinion: A123052.PDF, A123052.DOC

In re C.G. et al. (Unpub'd), No. B210023

C.G. (father) and C.M. (mother)'s children were detained following severe domestic violence by E.M. (mother's present boyfriend). E.M. had previously assaulted C.G., resulting in his hospitalization; on the occasion which resulted in the emergency DCFS referral, E.M. severely beat mother to the point that she stopped breathing several times while officers were providing emergency medical assistance. DCFS filed a petition under 300(a) and 300(b) W&IC based on mother's history of domestic violence with E.M.. C.G. was named in the petition as a nonoffending party. On May 28, 2008, DCFS filed an ex parte 385 petition seeking to vacate the earlier order placing G.M. (child) with Father, because Father allegedly permitted Mother to have unsupervised overnight visits with G.M., G.M.'s babysitter released G.M. to Mother and E.M. on at least one occasion; and Father's live-in girlfriend was hitting E.G. with her hands and/or a belt. At a June 30, 2008 dispositional hearing, the court sustained the 300 petition, removed all the children from mother's custody, placed C.G., E.G., and J.G. (children) in the care of Father and placed G.M. in foster care. The court entered orders for a variety of reunification services, including individual counseling by Father "to address child protection and the case history". Father appealed the portion of the court's order pertaining to counseling, alleging it is unsupported by sufficient evidence.

The appellate court noted that the juvenile court has broad discretion "to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly." The court further noted that "[i]ndividual counseling would assist Father in recognizing the severity of the abuse suffered by the children and understanding the impact of the abuse on the emotional well-being of the children" and that there was " ample evidence to support the trial court's order directing Father to attending individual counseling." The appeal was therefore denied and the lower court's order was affirmed.

Opinion: B210023.PDF, B210023.DOC

In re Emily O. (Unpub'd), No. H033036

Jose P. (father) and Karen O. (mother) filed two appeals, which were consolidated, seeking review of the juvenile court's denial of their 388 W&IC petitions which sought the child's return to them or reinstatement of reunification services, and review of an order terminating parental rights pursuant to 366.26 W&IC. As to the 388 petitions, father alleged that the court abused its discretion in denying his petition, and mother alleged that the court violated her due process in failing to consider new evidence related to the treatment of her psychological diagnosis and her ability to parent Emily. As to the termination of parental rights, the parents argued that the beneficial relationship exception of 366.26(c)(1)(B)(i) should have applied, and that juvenile court erred in determining it did not. The appellate court held that substantial evidence supported the juvenile court's orders, affirmed those orders and denied the appeals.

Opinion: H033036.PDF, H033036.DOC