Case Law Update: 27 Mar 2009

In re A.S. et al. (Unpub'd), No. H033234

Appellant R.S. (father) appealed an order of the juvenile court terminating his parental rights as to his daughters, Ad. S. and Al. S., and freeing them for adoption under366.26(c)(1) W&IC. He asserted the court erred in terminating parental rights as to Ad. S, because it lacked clear and convincing evidence of her adoptability, and it failed to apply the exception for residential treatment of 366.26(c)(1)(B)(iii) W&IC. In addition, he argued that if the appellate court found the juvenile court erred in terminating his parental rights as to Ad. S., it must also find the termination as to Al. S. was in error under the sibling exception of 366.26(c)(1)(B)(v) W&IC.

With response to the first set of claims, the appellate court held that substantial evidence supported the juvenile court's conclusion that Ad. S. was adoptable notwithstanding her special emotional and mental health needs. Additionally, the juvenile court noted that Ad. S. no longer lived in a residential treatment facility and thus the exception of 366.26(c)(1)(B)(iii) was unavailing. As regards to the termination of parental rights for Al. S., the appellate court held that since the termination of rights for Ad. S. was not in error, it need not consider R.S.'s alternative argument here. Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: H033234.PDF, H033234.DOC

In re Baby Boy B. (Unpub'd), No. G040104

Baby Boy B. was detained in August of 2006 after a positive toxicological screen for opiates. The identity of his father did not become known for several months after his detention. He was placed with foster parents and reunification services were ordered. Nearly 18 months after the time of detention, the juvenile court issued six- and 12-month review orders finding the parents did not receive reasonable services, extending services for six more months and refusing to remove the child from his foster placement. (His parents and both sets of grandparents sought placement with them.) Father appealed these orders, contending that he was denied due process because he was not given an earlier opportunity to participate in the proceedings and that there was no substantial risk of detriment to placement with him. The Social Services Agency and the child challenged the court's decision to extend reunification services. The maternal grandmother appealed the summary denial of a 388 petition she filed seeking placement of the child with her or increased visitation.

With regard to Father's claims, the appellate court held that the father had received notice of the proceedings and a chance to be heard within a reasonable time from when his identity became known to the Agency, and no due process violation occurred. Additionally, the appellate court held that substantial evidence of father's ongoing alcohol abuse was sufficient to suport the finding of detriment. With regards to the claims by the SSA and the child, the appellate court held that reasonable services were not provided to father because the court never ordered a reunification plan requiring alcohol treatment for the father, and that this failure constituted extraordinary circumstances warranting an extension of reunification services. With regard to grandmother's appeal, the appellate court held that the juvenile court reasonably concluded that grandmother had not stated a prima facie case sufficient to justify a hearing on her 388 petition. Accordingly, the juvenile court's orders were affirmed, the appeals were denied, the stay of the 18-month review hearing was lifted, and the juvenile court was directed to hold the 18-month hearing as soon as practicable.

Opinion: G040104.PDF, G040104.DOC

In re Nicholas Z. (Unpub'd), No. D053883

Gabriel Z. (father) and Candace H. (mother) appealed an order terminating parental rights to their child, Nicholas Z. Gabriel alleged that the juvenile court erred in finding that the beneficial parent-child relationship exception of 366.26(c)(1)(B)(i) W&IC did not apply. Candace implicitly concedes that the beneficial relationship exception does not apply to her, but argues that if the judgment terminating Gabriel's parental rights is reversed, hers must also be reinstated under Calif. Rules of Court rule 5.725(a)(2).

The appellate court observed that, while Nicholas did have a relationship with Gabriel, it was nevertheless true that "throughout the dependency proceedings, Gabriel continued to use drugs and alcohol, he did not comply with his case plan requirements, and he did not focus on Nicholas's well-being." The appellate court thus concluded that the juvenile court did not err in finding that Nicholas's interest in stability and permanency outweighed his interest in maintaining that relationship, and the juvenile court's rejection of the beneficial relationship exception was not in error. Having reached that conclusion, the appellate court declined to consider Candace's argument. The termination of parental rights was thus affirmed, and the appeal denied.

Opinion: D053883.PDF, D053883.DOC

In re T.B. (Unpub'd), No. G040594

T.B. (the child) filed a petition under Welfare and Institutions Code section 388 requesting that the juvenile court divest the Orange County Social Services Agency of its discretion to place him in the paternal grandparents' home in Washington State, where M.L. (the father) lives. T.C. (the de facto parent) filed a brief in support of the petition. The juvenile court denied the petition without a hearing. The child and the de facto parent appeal, claiming the summary denial was an abuse of discretion because the petition made a prima facie showing of changed circumstances and the child's best interests.

The appellate court noted, however, that subsequent to the SSA's decision to make this placement change, T.B. was placed on a trial basis with his mother, who had completed the requirements of her case plan. Given that, the SSA had asserted it was no longer interested in moving the child to Washington, given the likelihood that Mother could reunify. Accordingly, the appeal was dismissed as moot and the petition for a writ of supersedeas was denied as moot.

Opinion: G040594.PDF, G040594.DOC

In re Angelica A., et al. (Unpub'd), No. D053679

Randy J. and Mary Ann J. (together, the parents) appealed from orders of the juvenile court making jurisdictional and dispositional findings on a juvenile dependency petition filed by the San Diego Health and Human Services Agency (the Agency) on behalf of their minor child, Mark J. (born 2006). They contended the evidence was insufficient to support the order. Randy also claimed the juvenile court erred when it determined that the Indian Child Welfare Act (ICWA) did not apply. Mary Ann appealed from jurisdictional and dispositional findings on a juvenile dependency petition filed by the Agency on behalf of Mark's half-sibling, Angelica A. (born 2001). She also appealed the orders placing Angelica with Angelica's father, Jason, and terminating jurisdiction.

The appellate court rejected the challenges to the jurisdictional orders, finding that Randy's mental illness (voyeurism and paraphilia) constituted a sufficient basis to assume jurisdiction on the basis of serious future risk of harm. However, given Mary Ann's subsequent actions, including joining a sexual treatment group for non-protecting parents and obtaining a restraining order against Randy, the appellate court held that the juvenile court's implied finding that there was no reasonable way to protect the children in Mary Ann's home was unsupported by sufficient evidence. Additionally, the appellate court held that the juvenile court erred in finding that ICWA did not apply to Mark where Randy was unable to produce evidence of Indian ancestry but nontheless believed it existed.

Accordingly, the jurisdictional order declaring Angelica a dependent was affirmed, but the dispositional order removing Angelica from Mary Ann's custody was reversed and the juvenile court was directed to conduct another dispositional hearing "in accordance with the principles expressed in this opinion and with consideration of Angelica's current circumstances."

The jurisdictional and dispositional orders with respect to Mark were reversed and the appellate court remanded his case with instructions for the juvenile court to order the Agency to comply with ICWA. If, after proper notice, ICWA is found not to apply, the juvenile court was directed to reinstate the jurisdictional order for Mark and to conduct another dispositional hearing in like fashion to that ordered for Angelica.

Opinion: D053679.PDF, D053679.DOC

W.P.. v. Superior Court (Unpub'd), No. A123644

In dependency proceedings involving his children, W.P. (father) sought writ review of orders setting for April 6, 2009, a permanency planning hearing for daughter C.P. and son E.P. He asserted that the juvenile court needed to correct or clarify their findings regarding minimal progress and probability of return, alleging that they used the improper statutory language, that the juvenile court judge had committed misconduct in considering his knowledge of father's drug treatment program when such experience was outside the evidentiary record, and that there was insufficient evidence the support the juvenile court's findings that father failed to participate in reunification services and that reasonable services had been provided.

The appellate court held that there was no lack of clarity regarding the juvenile court's intent in the language used in its findings, that the court's impression about the drug treatment program was supported by father's own testimony and thus that no misconduct occurred, and that the juvenile court's findings were supported by substantial evidence. Accordingly, father's writ petition was denied on its merits.

Opinion: A123644.PDF, A123644.DOC

J.J. v. Superior Court (Unpub'd), No. A121041

On January 15, 2009, the Contra Costa County Superior Court, Juvenile Division, entered an order terminating reunification services for J. J. (Father) and setting a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minors, J. J. (born Nov. 2000) and A. J. (born Dec. 2004). Father challenged the order by petition for extraordinary writ, claiming the juvenile court erred in failing to find there was a substantial probability that the minors could safely be returned to his custody within the 18-month statutory period for extended reunification services, as required by 366.21(g)(1). The appellate court concluded that substantial evidence supported the juvenile court's conclusion, and denied the petition for extraordinary writ on its merits.

Opinion: A121041.PDF, A121041.DOC

In re S.A. et al. (Unpub'd), No. A121977

Sherry L. (mother) appealed a juvenile court order terminating parental rights under 366.26 W&IC for her children, S.A. and T.M. Sherry contended that the juvenile court failed to comply with the relative placement preference of 361.3 W&IC, and that the juvenile court failed to comply with the inquiry and notice requirements of ICWA.

The appellate court noted that the Department of Social Services had not, by the time of the 366.26 hearing, identified any suitable relatives, and further, Sherry had failed to identify for the Agency any relatives for possible investigation. Further, Sherry failed to challenge the dispositional order placing the children with foster parents via timely appeal or writ petition, and so the appellate court deemed that issue waived on appeal. However, the appellate court ruled that the juvenile court had not properly complied with the inquiry and notice requirements of ICWA at the juris/dispo hearing, and that the normal forfeiture rules for Mother's failure to raise this issue earlier in the dependency process do not apply to ICWA claims. Therefore, the appellate court reversed the termination of parental rights order and remanded with directions to comply with the inquiry and notice provisions of ICWA. The appellate court directed that if, after inquiry and notice, ICWA is found not to apply, the termination of parental rights order shall be reinstated.

Opinion: A121977.PDF, A121977.DOC