Case Law Update: 28 April 2009

In re C.S. (Unpub'd), No. G041263

A.S. (mother) appealed from orders terminating her parental rights to her son C.S. (now 14) at a 366.26 hearing, after the trial court found C.S. was likely to be adopted. Mother argued that C.S. was ineffectively assisted by counsel because counsel allegedly failed to tell him that he could object to being adopted. The appellate court, confining itself to that single issue, ruled that "[a] review of the record makes it clear C.S. wanted to be adopted and that, even if the absolutely correct words advising him of his rights are not in the record, the result would have been the same if the proper formula had been used." Accordingly, Mother's appeal was denied, and the juvenile court's orders were affirmed.

Opinion: G041263.PDF, G041263.DOC

In re L.C. et al. (Unpub'd), No. E046593

L., born in May 2007 only 29 weeks' gestation and weighing only three pounds one ounce at birth, came to the attention of the SSA after positive toxicology tests for amphetamines and Mother's lack of prenatal care. L. was born with severe disabilities, which Mother appeared not to understand. Initially, the SSA (which also raised concerns about her other children), recommended maintaining the five older children in Mother's care pursuant to a family maintenance plan while detaining L., but later opted to remove all six children. During the six-month reunification period, Mother barely attempted to participate in her case plan and failed to stay in contact with the social worker.

On April 3, 2008, the court terminated Mother's services and set a section 366.26 hearing for the children. In August, 2008, Mother filed a 388 petition seeking the restoration of reunification services and liberalized visitation, which was denied at a hearing on September 2. At the section 366.26 hearings on September 8 and October 29, 2008, the court terminated parental rights and placed all six children for adoption. Mother appealed both the termination of parental rights and the denial of her 388 petition, arguing violations of her due process rights, insufficient evidence to show L. was adoptable, and that the juvenile court erroneously concluded that the parental benefit exception to the adoption preference did not apply to any of the six children. L.C. (Father) also appealed the 366.26 orders, claiming L.C. claims there was insufficient evidence L. was either "generally" or "specifically" adoptable. Father and Mother joined each other's claims.

Turning its attention first to the 388 petition, the appellate court held that the juvenile court did not err in refusing to allow Mother to present live testimony from herself and her substance abuse counselor at the hearing because Calif. Rules of Court rule 5.570(h) gives the juvenile court discretion to decide what evidence to allow at hearings on 388 petitions, and because the juvenile court could reasonably have concluded, given the severity of L.'s medical needs, that even were the evidence Mother claimed to want to present true, it would nonetheless be insufficient to support a finding that granting Mother's petition would be in L.'s best interests.

As regards L.'s adoptability, the appellate court held, despite L.'s severe medical needs (including hydrocephalus, spastic cerebral palsy, developmental delays and seizures), that the willingness of an identified prospective adoptive family to adopt him notwithstanding these difficulties was sufficient to support a finding of adoptability.

The appellate court further held that substantial evidence showed that none of the children were bonded to Mother "as a parental figure" and that "the court reasonably determined that the benefits to the children of being adopted into a permanent stable home would outweigh any benefit they would realize in maintaining a relationship with Mother", and that therefore the juvenile court did not abuse its discretion in determining the beneficial relationship exception of 366.26(c)(1)(B)(1) did not apply.

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

Opinion: E046593.PDF, E046593.DOC

In re J.M. (Unpub'd), No. B210845

J.M. (aged six) first came to the attention of respondent Los Angeles County Department of Children and Family Services (the department) on August 18, 2008, after her 12-year-old half sister, E.A., was raped by their mother's boyfriend in the same room where the mother was sleeping. The mother blamed E.A. for the incident and hit her with a broom. The boyfriend was arrested and the minors were removed from their mother and placed in foster care. During E.A.'s medical examination and in her interview with the department's social worker, E.A. reported that she had also been sexually abused by B.P. (Father) from the age of nine to 11, while he resided in the same home. She reported that at first B.P. fondled her and then had full intercourse with her on almost a daily basis while her mother was at work. E.A. did not tell her mother because she did not want to be blamed and did not want J.M. to suffer the same abuse.

Both children were detained upon allegations under 300(b), (d) and (j) W&IC. t the detention hearing, the court found B.P. to be the presumed father of J.M., returned the minors to their mother over the department's objection and ordered that B.P.'s visits with J.M. be monitored at the department's office. Neither B.P. nor the boyfriend were to have any contact with E.A. At a juris/dispo hearing, E.A. testified regarding the abuse. The court found E.A.'s testimony credible and sustained the petition as to B.P. The court ordered reunification services for B.P. to include participation in a perpetrator's sexual abuse program and individual counseling, monitored visits with J.M. and no contact with E.A.

B.P. appealed the juvenile court's jurisdictional order, arguing that there was insufficient evidence to support the finding that his abuse of E.A. placed J.M. at substantial risk of sexual abuse. The appellate court rejected this claim, noting that the nature and duration of the abuse supported the finding of risk of harm to J.M. Accordingly, the orders were affirmed and the appeal was denied.

Opinion: B210845.PDF, B210845.DOC

In re J.C. et al. (Unpub'd), No. E046910

J.C., born in 2004, and H.C., born in 2007, were first detained after H.C. was born and tested positive for drugs. Father had been in prison since January 2007. Both parents had criminal and drug histories. The court terminated reunification services in May 2008 and parental rights in October 2008. Prior to the October hearing, Father filed a 388 petition seeking additional reunification services. The court denied his petition, finding it did not state new evidence or a change of circumstances and was not in the best interests of the children.

Father appealed the denial of the 388 petition, asserting that the juvenile court relied on the timeliness of the petition as an improper factor, that there are no disputed facts, and that the petition was based wholly on documentary evidence. He also objected to the termination of parental rights on the grounds that the notice provisions of ICWA had not been properly complied with, asserting that he has a paternal history of Cheyenne and Choctaw heritage.

The appellate court found that, because the record does not demonstrate the Department made any inquiry of father about his Indian heritage and now he is asserting he does have Indian ancestry, the order terminating parental rights must be conditionally reversed and the matter remanded for ICWA noticing. The appellate court directed that, if the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights.

As regads the denial of Father's 388 petition, the appellate court held that father had not made a showing either of changed circumstances or that granting his petition would be in the children's best interests, and rejected his appeal of that denial.

Opinion: E046910.PDF, E046910.DOC

In re Grace P. (Unpub'd), No. D053605

Taylor P. appealed a judgment of the superior court rejecting his status as a presumed father of his biological daughter, Grace P., terminating his parental rights as to her and transferring the matter to the Alameda County Superior Court for completion of proceedings on a petition by T.B. and G.I. to adopt her. Taylor contended that the trial court erred in finding that he was not entitled to rights as a presumed father in accordance with Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).

The appellate court held that substantial evidence, including Taylor's failure to provide emotional and financial support during the pregnancy and his decision to wait "until very late in the pregnancy to file a petition to establish that he was Grace's biological father", supported the trial court's finding. Accordingly, the appeal was denied and the lower court's orders were affirmed.

Opinion: D053605.PDF, D053605.DOC

In re Candace O. (Unpub'd), No. B210136

Candace O., age 15, was the daughter of T.H. (Mother). Candace's father was deceased. On February 22, 2008, the Department of Children and Family Services (DCFS) received a referral that Candace was a victim of Mother's physical and emotional abuse. Candace was afraid of Mother, who verbally abused her and hit her at least twice weekly. Mother drank daily and could not control her anger. Candace reported that when Mother did not take her psychotropic medications, she lost control, was easily irritated, and became angry. The juvenile court ordered Candace detained on February 29, 2008.

On May 13, 2008, the juvenile court adjudicated the matter and sustained a section 300 petition as to three counts: Mother's threats to inappropriately discipline Candace; Mother's past and current alcohol abuse, and numerous occasions being under the influence of alcohol while Candace was in her care; and Mother's mental and emotional problems, including bipolar disorder and depression, rendering her periodically unable to provide care for Candace.

After detention, Candace exhibited severe behavioral challenges, including self-mutilation, AWOL patterns, and acting out. At a contested dispositional hearing on June 5, 2008, the juvenile court declared Candace a dependent child of the juvenile court pursuant to 300(b) W⁣ found by clear and convincing evidence that substantial danger existed to Candace's physical health and/or Candace suffered from severe emotional damage, and there was no reasonable means to protect Candace without removal from Mother's physical custody; removed custody from Mother and placed custody of Candace with the DCFS for suitable placement; and ordered the DCFS to provide family reunification services for Candace and Mother.

The juvenile court ordered Candace to have individual counseling, to participate in conjoint counseling with Mother when appropriate, to have a psychiatric evaluation, and to take prescribed medication. The juvenile court ordered Mother to participate in parenting education and individual counseling to address case issues including anger management, to complete an alcohol rehabilitation program with random weekly alcohol testing, testing on demand, and an aftercare program, to have a sponsor, to participate in conjoint counseling with Candace, and to see a psychiatrist and to take prescribed medication. The juvenile court ordered Mother to have unmonitored visits with Candace in placement, monitored visits outside of placement, three times weekly for three hours each visit.

Mother appealed, contending that substantial evidence did not support the finding that there were no reasonable means to protect Candace without removing her from Mother's care. The appellate court held, since Mother conceded to the placement of Candace outside Mother's home (by stating at the dispositional hearing that "I would like to see her in appropriate placement", for example), that it was not necessary for the DCFS to produce evidence that there were no reasonable means to protect Candace's physical health without removing her from Mother's physical custody. Accordingly, the juvenile court's orders were affirmed, and the appeal was denied.

Opinion: B210136.PDF, B210136.DOC

In re L.B. (Unpub'd), No. B210574

L. (born 2005) and A. (born 2007), and their half-sister J., were detained in November 2007 based upon Mother's history of substance abuse which rendered her incapable of providing regular care for her three children. However, at the time of the detention hearing, L. and A.'s whereabouts were unknown. Neither Mother nor Father appeared at the November 8 hearing, and arrest warrants were ordered for each parent. Additionally, the court ordered protective custody warrants to be issued and held for the two boys. The court found a prima facie case for detaining the children, the existence of a substantial danger to the physical or emotional health of the children, and that there were no means of protecting the children short of removal from the parents.

In a subsequent hearing, the juvenile court stated that it could not do anything regarding L. and A. as they had still not been located. The court declared J. a dependent of the court. DCFS was ordered to provide family reunification services (although the parents' whereabouts were unknown), and set the six-month review hearing for May 7, 2008. Mother was arrested on April 19, 2008. At that time, the police apparently turned the boys over to the children's maternal grandfather, who in turn delivered A. to his paternal grandparents and L. to his cousin, to care for them.

At a continued hearing on July 11, DCFS filed a first amended petition, alleging that Mother had a history of substance abuse which rendered her incapable of caring for the children, while Father had a history of domestic violence, having been convicted of violating Penal Code section 273.5, subdivision (a), infliction of corporal injury on a spouse or cohabitant. The court sustained the amended petition and ordered family reunification services. The children were ordered to be suitably placed, and the parents were allowed monitored visits (Mother's to commence upon release from custody). The court set the next hearing for December 17, 2008 as a 12-month review pursuant to section 366.21, subdivision (f), and DCFS was ordered to prepare and submit a section 366.21, subdivision (f) report for that hearing. The court explained that the reason it denominated the hearing a 12-month, rather than a six-month, review hearing, was that the time frame for ordering reunification services ran from the time the court found a prima facie case at the detention hearing held in November 2007.

Father appealed these orders, contending that the juvenile court erred in finding that "that the allotted time for the parents to receive reunification services [commenced to run] at the detention hearing, rather than when the children were placed in foster care." The appellate court held, since the court did not order fewer or different reunification services as a consequence of its conclusion that the hearing would proceed under subdivision (f), rather than subdivision (e), of section 366.21, that any purported error was prospective only and not yet ripe for appeal. Accordingly, the appeal was dismissed.

Opinion: B210574.PDF, B210574.DOC

Case Law Update: 27 April 2009

In re A.G. et al. (Unpub'd), No. A123999

T.H. is the mother of two sons, A.G., who was born in January 2003, and J.A. who was born in October 2005. Both children were detained in November 2006 upon allegations of mother's substance abuse problem, an anger management problem, a criminal history, and mental health problems. At disposition, the court ordered the children removed from mother's custody and that mother be provided reunification services including substance abuse classes and psychological help.

Mother made significant progress in addressing the problems that led to the dependency. At the six-month review hearing held in August 2007, the court set a hearing to determine whether mother could regain custody of her children. Then in October 2007, the court ruled mother had made enough progress that the children could be returned to her custody, although it ordered that the dependency remain in place. In August 2008, a supplemental petition under section 387 was filed alleging that the prior disposition had been ineffective because mother failed to follow her case plan, one of the children had been exposed to a domestic violence incident, and mother did not have suitable housing.

At the conclusion of the hearing on the 387 petition, the court sustained the petition, ordered that the children be removed from mother's custody, terminated reunification services, and set the matter for a hearing on May 6, 2009, to determine whether mother's parental rights should be terminated. Mother filed a petition for extraordinary writ contending that the trial court applied an incorrect standard when making its decision, and that the court's ruling is not supported by substantial evidence.

As to the standard used by the juvenile court in evaluating the 387 petition, the appellate court explained that, absent evidence to the contrary, we must presume the court applied a clear and convincing standard when making its decision even though it did not expressly state it had done so. Accordingly, mother failed to show error in this regard.

As to the sufficiency of the evidence, the appellate court noted that "there was ample evidence that the children would be at risk if they were left in mother's custody. The record indicates and the trial court found that mother had a long-term drug problem that she was failing to address adequately. She failed to complete several aftercare treatment programs, and failed to submit to regular drug testing. In addition, the record indicates and the court found that one of the children had been exposed to an incident of serious domestic violence. The trial court reasonably could conclude that the children would be at substantial risk of physical or emotional harm if they were left in the custody of a parent who was struggling with ongoing drug addition and domestic violence issues. The court's ruling is supported by substantial evidence."

Accordingly, the petition for extraordinary writ was denied on the merits. Additionally, the appellate court ordered that Mother be barred in any subsequent appeal from making further challenges to orders terminating reunification services and setting a hearing under section 366.26.

Opinion: A123999.PDF, A123999.DOC

In re Raymond S. et al. (Unpub'd), No. C060208

In February 2005, mother gave birth to Raymond, tested positive for amphetamine, and admitted using methamphetamine. Dependency proceedings commenced relative to both Raymond and mother's older child, Eric O. Eric's father was given legal custody of him, and in March 2007, dependency jurisdiction was terminated as to Eric.

On March 18, 2007, mother tested positive for methamphetamine. A few days later mother gave birth to Alex, and both Alex and Raymond were taken into protective custody. On March 27, 2007, Welfare and Institutions Code section 3002 petitions were filed for both Alex and Raymond and they were placed in a foster home on March 28, 2007. Mother was ordered to participate in drug treatment programs and drug dependency court as part of her reunification plan. Mother did not actively engage in a drug treatment program until 11 months after the children had been declared dependents and removed from her custody.

Finding Mother's efforts "way too little and way too late", the juvenile court terminated reunification sevices in February 2008 and selected a permanent plan of adoption. On September 17, 2008, the court found by clear and convincing evidence that the children were likely to be adopted, and the parental rights of father and mother were terminated.

Mother appealed, contending there was insufficient evidence that the children were adoptable. The appellate court, explaining that "the children are young, part of a small sibling group, and are both physically healthy", and that "[t]he only potential obstruction to the children being adopted is that they may have developmental delays[; however], these delays are not so significant or severe that they are likely to dissuade individuals from adopting them", rejected mother's contention on factual grounds. The appellate court also noted that mother failed to object to the adoption assessment in the 366.26 proceeding and hence forfeited the right to raise it on appeal.

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

Opinion: C060208.PDF, C060208.DOC

In re S.C. et al. (Unpub'd), No. B210850

M.R. (mother) has an extensive dependency history dating back to 2001; the instant case involving S.T. (born 2005) and M.P. (born 2006) was brought in March 2006, based upon allegations of maternal drug use and the fact that their siblings were already court dependencts as a result of sexual abuse by mother's boyfriend. Mother submitted to the drug use allegation in April 2006, and was given monitored visitation and reunification services.

Over the next 18 months, Mother exhibited an ongoing pattern of failure to comply with the terms of her reunification plan, failure to be honest with the SSA about her progress, and interference with the SSA's attempt to find a permanent placement for the children. A contested 366.26 hearing was set for September 2008. One day before the hearing, Mother filed a 388 petition seeking return of the children to her or resumption of reunification services.

At the conclusion of a contested hearing, the juvenile court denied Mother's 388 petition, found that the children were adoptable and that the beneficial relationship exception of 366.26(c)(1)(B)(i) did not apply, and terminated parental rights. Mother appealed, contending that the denial of her 388 petition was an abuse of discretion and that the juvenile court erred in finding that the beneficial relationship exception did not apply.

As to the 388 petition, the appellate court found Mother's attempt to show changed circumstances was not sufficiently credible and that, in any event, she failed to establish that the modification would be in the best interests of the children. As regards the beneficial relationship exception, the appellate court held that "[t]here is no evidence to support a conclusion the girls would be greatly harmed if their relationship with mother was severed, especially when any marginal benefit they may have received from that relationship are weighed against the stability and permanency adoption will provide."

Accordingly, Mother's appeals were denied and the juvenile court's orders were affirmed.

Opinion: B210850.PDF, B210850.DOC

Case Law Update: 24 April 2009

In re Baby Boy E. (Unpub'd), No. B208312

Baby Boy E. (minor) was detained at birth in August 2007 based on a positive toxicology result for cocaine. He was placed by DCCFS with L.R. (petitioner). L.R. was bonded with Child and expressed a desire to adopt him as early as October 2007. L.R. filed an application requesting that she be appointed Child's de facto parent in November 2007; in December 2007, the attorney for Child's mother opposed L.R.'s application, and the juvenile court denied the application without prejudice. February 13, 2008 hearing, L.R. renewed her application for de facto parent status; all parties stipulated to the granting of the application, and the juvenile court granted it. The juvenile court ordered that "the child not be removed from placement with [L.R.] absent 5 days written notice to all parties and counsel."

In early April 2008, a social worker preparing the adoptive home study for L.R. discovered that L.R., as a licensed foster mother, had a history of child neglect referrals in 2000 that she had not disclosed during her adoption interview. On that basis, DCFS removed Child from L.R.'s custody on April 16, 2008, and placed him in a prospective adoptive home. Subsequently, an investigation by the state Community Care Licensing agency determined that the neglect referrals which served as the basis for the denial of her adoptive home study and the Agency's removal, were not substantiated. L.R. filed two 388 petitions seeking return of the minor to her care.

At a hearing on the 388 petitions, the juvenile court denied them, explaining that "in light of the outstanding evidence that there's been substantiated claims, [and that] the home study has been denied[,] I am not going to make an affirmative [order] ordering [DCFS] to place that child" and denied visitation. L.R. appealed these orders, arguing, inter alia, that the juvenile court abused its discretion in failing to consider evidence supporting her 388 petition because it did not allow her to submit a supplemental memorandum or to cross-examine the social worker.

The appellate court held that, because the juvenile court noted that it had made no specific placement order with respect to L.R., and L.R. did not identify any error or abuse of discretion. The appellate court further held that that, because L.R. did not request to cross-examine the social worker, the court's failure to afford her that opportunity sua sponte did not constitute error. Further, the appellate court held that L.R.'s appeal did not address the issue of the court's exclusion as untimely of her suppelemental memorandum, and thus she failed to show the ruling was erroneous.

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

Opinion: B208312.PDF, B208312.DOC

In re S.W. (Unpub'd), No. H033351

On June 27, 2008, the Santa Clara County Department of Family and Children's Service's (Department) filed a petition pursuant to 300(b) and 300(c) W&IC, in which it alleged that 16-year-old S.W. (minor) was at risk of suffering serious physical harm or illness as a result of her mother's failure or inability to protect her, and that minor was suffering or at risk of suffering serious emotional damage because she had no parent capable of providing appropriate care. The juvenile court sustained the allegations of the petition and adjudged minor a dependent child of the court.

M.N. (mother) appealed from the orders, arguing that there was insufficient evidence to support them. The appellate court held that substantial evidence, including mother's own statements that she "would not agree to taking minor back into the home, could not say when, if ever, she would be capable of providing appropriate parenting to minor, and insisted that she (mother) would not benefit from further services" supported the court's finding under 300(c) W&IC. The appellate court noted that "[s]ince there is substantial evidence to support the juvenile court's determination that the minor came within the provisions of subdivision (c), we need not address mother's claim that there was insufficient evidence to find jurisdiction under subdivision (b)."

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

Opinion: H033351.PDF, H033351.DOC

In re C.S. (Unpub'd), No. H033538

Appellant N.G., mother of C.S., a four year-old girl, appealed from a juvenile court jurisdictional and dispositional order pursuant to 300 W&IC based on allegations of domestic violence and criminal gang involvement by mother. On September 5, 2008, at the dispositional hearing, the juvenile court found the petition to be true, declared the child a dependent of the court, and adopted the Agency's recommendations to remove the child from parents' custody and place her in foster care. The court ordered reunification services be provided to both parents.

Mother appealed the jurisdictional and dispositional orders. Her appointed counsel filed an opening brief which raised no specific issues for appeal. In the opening brief, counsel acknowledged that this court has no duty to independently review the record pursuant to People v. Wende, but requested that appellant be given the opportunity to submit a brief in propria persona pursuant to Conservatorship of Ben C., (2007) 40 Cal.4th 529, 543, 544.

The appellate court, concluding that "the process of allowing the appellant to file a motion to vacate counsel's appointment and then file a supplemental brief . . . would likely take as long if not longer than directly notifying the appellant that he has the right to file a supplemental brief", granted N.G. the right to submit written argument in her own behalf within 30 days. She failed, however, to do so, and thus her appeal was dismissed as abandoned.

Opinion: H033538.PDF, H033538.DOC

In re B.G. et al. (Unpub'd), No. B210663

I.C. (mother) appealed from an order terminating her parental rights to four-year-old B.G. and two-year-old P.H. On appeal, mother argued that substantial evidence did not support the trial court's finding that the children are likely to be adopted and that the trial court should have applied the beneficial relationship exception to termination of parental rights of 366.26(c)(1)(B)(i).

The appellate court found that mother had waived the issue of the sufficiency of the adoption assessment by failing to raise it in the juvenile court and that, in any case, substantial evidence, including the foster parents' willingness to adopt the children, supported the finding of adoptability. The appellate court further found that, given mother's sporadic visits, non-compliance with her case plan, frequent complaints about the children's behavior, and her admission that she did not feel a strong bond with P.H., the juvenile court did not err in finding that the substantial relationship exception did not apply.

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

Opinion: B210663.PDF, B210663.DOC

In re Genesis C. (Unpub'd), No. B210141

Genesis C. (Genesis, born January 2007), is the minor child in this case. Her parents are F.C. (Mother) and Jose L. (Father). The case came to the attention of the Los Angeles Department of Children and Family Services (the Department) when it received notice from a clinic where Mother received mental health care services that Mother was not taking prescribed psychotropic medication for her diagnosed condition of paranoid schizophrenia. In January 2007 the parents agreed to Department oversight of the minor's welfare through a Voluntary Family Maintenance Program (VFM), which included weekly in-home counseling.

Based on severe incidents of paranoia, Genesis was removed from her parents' care on June 13, 2007, and placed in a foster home, and a 300 petition was filed on her behalf based on Mother's diagnosed paranoid schizophrenia condition, Mother's inconsistent medication and participation in mental health services, Father's not demonstrating that he understands Mother's condition and medication needs, and his being away from the home for hours at a time because of his employment. The allegations were found true, Genesis was placed in a foster home, and ordered reunification services.

At a 12-month review hearing, the court terminated services for mother based upon her failure to make substantive progress in court-ordered treatment. Services were extended for Father, and stated the suitable placement order must remain in full force and effect, rather than returning the minor to him under a home of parent order, because the issue continued to be that Father resides with Mother and Mother continued to be as much of a risk to the child as she was at the time of the disposition hearing when the suitable placement order was made.

Both parents appealed these orders. Mother argued that it was an abuse of the trial court's discretion to terminate her reunification services. Father asserted that there was insufficient evidence to support the trial court's finding that returning the minor to his care under a home of parent order would create a substantial risk of harm to the child.

With regard to mother's contention, the appellate court held that the record, including evidence that mother had been placed on a 5150 hold during the period between the six-month and 12-month review hearings, supported the juvenile court's conclusion that she had not demonstrated an ability to complete her case plan. With regard to father's contention, the appellate court held that "[r]easonable inferences can be drawn that if Mother was not compliant with her medication regimen or the medication was not working sufficiently well such that she was not able to control her delusions, a likely result is that the delusions will occupy her attention and perhaps prevent her from devoting necessary attention to Genesis when Father is not available to look after the minor, or cause her to devote inappropriate attention, thus placing the minor at risk."

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

Opinion: B210141.PDF, B210141.DOC

In re D.B. (Unpub'd), No. G041243

D.B. was detained in May 2007 following mother's arrest on charges of willful cruelty to a child. The petition alleged father, who was not living with mother, had a history of domestic violence, anger management issues, and a criminal background. Dependent received various placements following his detention, but never with mother or father.

At a 12-month review hearing in July, 2008, the court declined to return dependent to either parent. On the other hand, the court found parents had not received reasonable services in a timely fashion. The court ordere continued services for parents and ordered the Orange County Social Services Agency (SSA) to investigate further father's psychiatric treatment needs. The court set an 18-month review hearing for October 30, 2008.

At the 18-month hearing, the SSA submitted a status review report, describing father's case plan progress as "moderate" and expressing concern about father's "impulse control issues". Reviewing the evidence presented at the 18-month review and the entire dependency file, the court found both parents had now received reasonable services. The court returned dependent to the custody of mother, and ordered family maintenance services to be provided to dependent, mother, and grandmother. The court terminated father's services, but provided for monitored visitation between father and dependent. Finally, the court identified the need for a restraining order against father to allow mother "to protect herself and the child."

Father appealed these orders, alleging the court abused its discretion in providing only monitored visitation, and that the court improperly issued a restraining order against him because there was insufficient evidence to support the order.

The appellate court explained that "[t]he record is replete with evidence supporting the court's exercise of discretion in setting the terms of father's visitation rights and in protecting dependent and mother against unmonitored contact by father by means of a restraining order." Accordingly, it affirmed the juvenile court's orders and denied Father's appeal.

Opinion: G041243.PDF, G041243.DOC

In re S.R. (Unpub'd), No. H033202

On May 18, 2006, the Department filed a juvenile dependency petition under 300(b), (g) and (j) W&IC. The petition stated that three of Ms. L.'s four other children were dependents of the juvenile court due to her extensive criminal and substance abuse history. The whereabouts of S.R.'s father Julius R. were unknown. Mr. R. had a criminal and substance abuse history dating back to 1981. While Ms. L. was incarcerated in state prison in May 2006, S.R. was born. Upon S.R.'s release from the hospital, she was placed in protective custody. Shortly thereafter, the juvenile court ordered that S.R. be detained.

In the report prepared for the jurisdictional and dispositional hearing, the social worker recommended that the juvenile court sustain the petition under section 300, subdivisions (b) and (g), adjudge S.R. a dependent of the court, remove her from Ms. L.'s custody, deny reunification services for Ms. L., and offer reunification services for Mr. R. The report also stated that S.R. was bonding well with her foster parents. After Ms. L. suggested her mother Lucy L. as a possible placement, the social worker interviewed her. Lucy L., however, was seeking approval to become a foster parent for A. G. and V. R., and felt that she could not care for an infant. Mr. R. provided no information about potential relative placements.

Following a contested jurisdictional hearing in August 2006, the juvenile court adjudged S.R. a dependent child, placed S.R. in foster care, denied reunification services to Ms. L., extended reunification services to Mr. R., and ordered visitation between S.R. and her siblings. The juvenile court also ordered that there be no visitation with Ms. L. until the Department determined that it would be safe for S.R. or until further court order.

While the Department was conducting an adoption homestudy of S.R.'s caregivers in the summer of 2007, concerns arose regarding the foster parents' frequent changes of address and cell phone numbers and their failure to provide the documentation required for completion of the adoption home study. On September 10, 2007, the Department received an anonymous report that a "suspicious individual" was visiting the foster parents' home. Following an investigation, the Department learned that this individual was the foster mother's ex-husband, who had been convicted of molesting her daughter. The foster parents had also allowed him to be with their children when they were not home.

On September 21, 2007, the 12-month permanency hearing was held. The SSA did not inform the parties or the court that the placement was under investigation. Following the hearing, the juvenile court terminated reunification services to Mr. R., continued prior orders, and set the matter for a section 366.26 hearing.

On October 5, 2007, the Department gave notice to the foster parents that S.R. would be moved. The foster parents objected to S.R.'s removal and requested a grievance hearing, which was held on October 15 and 18, 2007. The Department notified S.R.'s attorney, who was unable to attend. Neither the parents nor the parents' attorneys were notified. On October 29, 2007, the hearing officer upheld the Department's decision. On November 2, 2007, the Department moved S.R. from the foster parents' home.

On March 7, 2008, Ms. L. filed a modification petition under section 388 in which she sought return of S.R. to her. Ms. L. alleged that she would have had "the opportunity to lobby and seek related relative placement of" S.R. if she had been notified of the change in S.R.'s placement in November 2007. The juvenile ccourt oncluded that it would not be in S.R.'s best interest to reunify with Ms. L., because she was over two years old and had bonded with her current foster parents. Mother appealed, contending that the Department's failure to provide advance notice of S.R.'s change of placement violated her due process rights, that the Department erred in failing to consider relative placement when the decision was made to move S.R., that the juvenile court abused its discretion in denying her section 388 petition in which she sought placement of S.R. with her, and that the juvenile court had failed to properly comply with the notice provisions of ICWA.

As to the failure to provide advance notice of the change in placement, the juvenile court held that, unless the new placement is out-of-county, no statutory right exists to notice. Further, the appellate court noted that, although Ms. L. had a dignity interest in receiving notice regarding the change of placement, her liberty interest in the decision was minimal, her contribution to this decision was not likely to be significant, and the governmental interest in determining the best placement for S.R. with as few impediments as possible was substantial. Thus, the appellate court held that due process did not require advance notice. However, the court noted that "if Ms. L. had been receiving reunification services or her visits with S.R. had been affected by the placement change, our conclusion might very well have been different" and recommended that the SSA provide notice in the future in similar circumstances.

As to the failure to consider relative placement, the appellate court held that "Ms. L. has presented no legal authority that either she or S.R. had a substantive due process right that was violated by the Department."

As to the denial of her 388 petition, the appellate court held that Ms. L. had demonstrated a change of circumstances by making progress in substance-abuse treatment and other services. However, the appellate court held that she had failed to show that a change in placement would be in S. R.'s best interest given her 17 years of substance abuse and her failure to maintain sobriety outside of an institutional setting, and given S.R.'s attachment to the foster parents who sought to adopt her.

As to the ICWA noticing issue, the Department conceded that the matter must be remanded for compliance with the ICWA, and that their attempt to incorporate and rely on the ICWA notices that were sent in the case involving one of Ms. L.'s other children did not comport with the noticing requirements of ICWA.

Accordingly, the order terminating parental rights was reversed and the case was remanded to the juvenile court with instructions to complete ICWA notices. The appellate court directed that if, after proper notice, the court finds that S. R. is not an Indian child, the order shall be reinstated.

Opinion: H033202.PDF, H033202.DOC

Case Law Update: 23 April 2009

W.R. v. Superior Court (Unpub'd), No. G041616

N.R. (minor, then seven years old) was taken into foster care in May, 2007, based on allegations of general neglect and substance abuse by mother. (W.R., Father, was at that time on parole in Texas and had no contact with N.R. since he was a baby.) N.R. and his half siblings were placed in the home of mother's godmother, N.H., where they had resided with mother for the previous three years. The juvenile court ordered family reunification services, and authorized visitation.

Father requested that N.R. be placed with him in Texas, but as of the date of a November 2008 status report, the social worker had not received necessary information to complete an evaluation of father's home in Texas. The social worker stated that the Agencycould not recommend placement of N.R. with father because (1) N.R. did not want to move away from N.H. or his half siblings, (2) N.R. and father had not spent enough time together to develop the trusting relationship and bond which would be vital to N.R.'s emotional well-being, and (3) father's status of being on active parole would place N.R. at risk of reentering the child welfare system. Father's parole officer further stated that Father "can not verify any income, he makes excuse after excuse and I am concerned how he is able to support himself without income that is verifiable".

At the 18-month review hearing, the juvenile court found that returning N.R. to father's custody would create a substantial risk of detriment. The court then terminated family reunification services, and set the matter for a permanency hearing. Father filed a petition for extraordinary writ, arguing that the SSA failed to meet its burden of proof in establishing substantial detriment.

The appellate court noted that participation in a case plan (which the SSA concedes Father did) is not prima facie evidence that return of the child to the parent's custody would not be detrimental, and that "the court must give consideration to the effect returning the child to the parent's custody might have on the child." The appellate court held that factors such as the minor's desire to remain with his siblings, Father's lack of understanding of or sensitivity to N.R.'s behavioral problems, and Father's arrest for domestic violence all supported the necessary finding of detriment.

Therefore, the petition for extraordinary writ was denied on its merits.

Opinion: G041616.PDF, G041616.DOC

In re J.C. (Unpub'd), No. D053742

J.C. (then five months old) was detained in October 2007 under 300(b) W&IC after police found Michael (father) "pushing J.C. in a stroller while he cursed and swore at imaginary people" and he told police that he was homeless. The SSA reported that Michael had an extensive criminal history, suffered from severe mental health problems and a history of violence, and frequently self-medicated with marijuana. In October 2007 the court held a detention hearing. The court declared J.C. a dependent and ordered he be placed in out-of-home care.

In March, 2008, Michael was found to be J.C.'s biological father. The court entered a judgment of paternity and ordered Michael to participate in reunification services and enroll in the Substance Abuse Recovery Management System (SARMS) program, therapy, a domestic violence program, a psychological evaluation, and psychotropic medication monitoring.

In May, 2008, the SSA prepared a six-month review report which recommended continuing services because Michael visited J.C. twice weekly, participated in the SARMS program (and had only one positive drug test) and had begun therapy. At that time, one positive drug test) and had begun therapy. At that time, Michael had not yet submitted to a psychological evaluation or participated in domestic violence courses. Michael admitted he was not yet in a position to take care of J.C. because he did not have a stable home or job. In July 2008, the SSA reported that Michael had been arrested and charged with assault with a deadly weapon, and the social worker believed there was no substantial probability the court would be able to place J.C. with Michael by the 12-month review hearing scheduled for November 2008. The Agency changed its recommendation as to Michael and reported services should be terminated.

A six-month hearing was held in August, 2008. The social worker testified that he "believed Michael would not be able to complete the evaluation, participate in SARMS or comply with the remaining components of his case plan by the 12-month review hearing. In addition, Michael's criminal case was still pending." The juvenile court found Michael had made substantive progress with the provisions of his case plan and ordered the Agency to provide Michael with an additional six months of services.

Counsel for J.C. appealed, arguing the juvenile court erred by continuing services because Michael had not made substantive progress with his case plan and there was no evidence showing the substantial probability that J.C. would be returned to Michael's care by the 12-month review hearing. The SSA joined in this appeal.

The appellate court concluded that the juvenile court had abused its discretion by continuing services because "the evidence in the record does not support the trial court's conclusion. Here, there was no showing Michael made substantive progress with his case plan or that there was a substantial probability J.C. would be returned to the custody of Michael by the 12-month review hearing." The appellate court further explained that "[t]here was no showing of any kind that Michael would be ready to properly care for J.C. in the foreseeable future. Under these circumstances, there was no substantial evidence on which it reasonably could be concluded J.C. would be returned to Michael by the review hearing."

Accordingly, the appellate court ordered that the juvenile court's order extending reunification services be reversed.

Opinion: D053742.PDF, D053742.DOC

In re M.M. (Unpub'd), No. A122925

M.M (then eight months old) was detained under 300(b) W&IC in March 2007 because of "[Mother] habitually leaving her child with other people without their permission, [Mother's] admitted drug use[,] and prior contacts and referrals regarding [Mother]." The court sustained the allegations, and ordered supervised visitation and the provision of reunification services to Mother. M.M. was placed in the home of Amanda W., who was a friend of M.M.'s maternal grandfather.

In January 2008, the court designated Amanda W. to be M.M.'s de facto parent. Following a contested six-month review hearing, the court found Mother had failed to participate in court-ordered treatment and services, and that M.M. would be at substantial risk of detriment if she were returned to Mother. The court terminated reunification services, and set a 366.26 hearing to terminate Mother's parental rights.

In August 2008, Mother sought to modify the order terminating her reunification services and filed a 388 petition asking that they be restored. Mother's petition alleged that "[t]he minor and mother have visited more consistently and the parental bond is growing. The minor is excited to see the mother and disappointed when the visits end. The mother has engaged in services which ameliorate the conditions which brought the minor before the court." At a combined hearing in September, 2008, the juvenile court denied Mother's 388 petition, ound by clear and convincing evidence that it was likely M.M. would be adopted, terminated Mother's parental rights, and issued an order permitting post-adoption visitationthrough a post-adoption contact agreement.

Mother appealed the orders, arguing that all of the parties except for M.M.'s counsel preferred guardianship as the permanent plan, and that the juvenile court entered an unenforceable visitation order as part of the termination proceedings and therefore the termination must be reversed, and that there was no substantial evidence to find that M.M. was adoptable.

As to the appropriateness of adoption as the permanent plan, the appellate court held that the record of the parties' preferences was more equivocal than Mother states, and that the preference of the parties is not the controlling criteria that is to guide the juvenile court's determination. Rather' it was Mother's burden to show that termination would be detrimental to M.M. and guardianship would be the better plan than adoption. The appellate court held that Mother had not met this burden.

As to the visitation issue, the appellate court held that "[t]he possible unenforceability of the visitation provisions in the juvenile court's termination order provides no basis to overturn the otherwise proper termination of Mother's parental rights. Mother cites no authority that holds a termination order is void simply because it contains provisions regarding post- termination visits. Moreover, it is clear from the record that the juvenile court did not improperly condition the termination of Mother's rights on her ability to have continuing contact with M.M."

As to the issue of the minor's adoptability, the appellate court explained that "specific questions about M.M.'s prospective adoptive placement were not relevant to the determination of adoptability" because "[t]his is not a case where the child was 'not otherwise adoptable if placement with the [prospective adoptive parent] were to fall through.'" The appellate court held that substantial evidence supports the juvenile court's finding of adoptability.

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

Opinion: A122925.PDF, A122925.DOC

In re Daniel C. (Unpub'd), No. D054001

On August 7, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Daniel under 300(b) W&IC, alleging Jessica (mother) used marijuana during her pregnancy with him, and she had lost custody of her other children because of her substance abuse. The paternal grandmother (the grandmother) had adopted Jessica and D.C. (father)'s other two children. The court ordered Daniel detained. D.C. said he and Jessica were no longer in a relationship. Both parents wanted Daniel placed with the grandmother.

At the six-month hearing on April 18, 2008, neither parent was present and Jessica's whereabouts were unknown. The court found the parents had not made progress with their case plans, and there was no substantial probability Daniel could be returned to parental custody by the next review hearing. It terminated services and referred the case for a section 366.26 hearing. The social worker said if Daniel's grandparents did not adopt him, there were 11 other families in San Diego interested in adopting a child with his characteristics. At the 366.26 hearing, the court found Daniel was generally adoptable and none of the statutory exceptions to termination of parental rights and adoption were present. It terminated parental rights and referred Daniel for adoption.

The parents appealed, contending that the adoption assessment was inadequate, that insufficient evidence supported the finding that Daniel was generally adoptable, and that the beneficial relationship exceptions of 366.26 W&IC should have been found to apply. The appellate court rejected all these claims as unavailing, and affirmed the juvenile court's judgment.

Opinion: D054001.PDF, D054001.DOC

Case Law Update: 22 April 2009

In re J.W. (Unpub'd), No. A122051

J.W., then age 7, was detained in 2003 under 300(b) W&IC for allegations that included mother's alcohol abuse, lack of a stable and appropriate residence, and failure to ensure J.W.'s attendance at school. In the ensuing years, Mother showed a pattern of resistance to reunification services, lack of responsibility for her actions, and combativeness toward the SSA. The court ultimately, in 2005, adopted a plan of long-term foster care for J.W.

The instant action arose after Mother, who had by then achieved twice-monthly supervised visits, appeared in court for a status hearing while apparently intoxicated. The juvenile court continued J.W. in foster care and ordered that visits remain supervised, with Mother required to undergo a breathalyzer test prior to each visit. Mother appealed these orders, claiming the court erred in requiring the visits be supervised and that this order improperly delegated to the SSA the court's authority to supervise visitation.

The appellate court noted, given that a subsequent review hearing occurred after the date of the challenged orders, that Mother's appeal was likely moot. However, since no superseding orders were a part of the record, the appellate court elected to briefly address her claims.

The appellate court held that no issue exists as to whether the visitation order required supervised visits, because mother never requested that the visits be unsupervised and never objected to the supervision requirement in the juvenile court. Accordingly, the appellate court deemed this issue forfeited on appeal. As regard the delegation of authority issue, the appellate court held that the juvenile court had properly exercised its authority in ordering twice-monthly visits, and that its delegation of the "time, place and manner" of visits to the SSA was statutorily proper.

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

Opinion: A122051.PDF, A122051.DOC

In re J.R. (Unpub'd), No. B212728

M.H. appealed the findings and orders entered at a termination of parental rights hearing held under 366.26 W&IC terminating parental rights to she children, and from the denial of a petition under 388 W&IC requesting that the court change its orders terminating reunification services and ordering DCFS to find a suitable placement for J.R.

Citing In re Sade C. (1996) 13 Cal.4th 952, her appellate counsel notified the court that he was unable to find any arguable issues for appeal.M.H. then filed a letter brief on her own behalf, in which she reported that she is currently enrolled in a residential drug and alcohol treatment center and that she plans to continue working to become a productive and responsible parent. She also stated that she is receiving reunification services for J.R.'s younger brother, and she feels that both children deserve to have a chance to live with their biological parents and experience life as a family unit with clean and sober parents.

The appellate court noted that "[w]hile we commend the positive steps mother has taken, her letter does not raise a claim of legal error or defect in the juvenile court's rulings in J.R.'s case." Accordingly, the appeal was dismissed.

Opinion: B212728.PDF, B212728.DOC

In re William O. (Unpub'd), No. B209426

William O. (minor) was detained in November, 2006, following allegations of emotional and physical abuse at the hands of William S. (Father), and drug use by Father. The juvneile court sustained the allegations, ordered reunification services for both parents, and ordered visitation.

By the time of the 18-month review hearing, Father had failed to comply with court-ordered counseling, denied that William was being abused or neglected, and refused to attend parenting and anger-management classes. The minor indicated he did not want to be reunified with his father, and the SSA reported only sporadic visitation. A contested hearing was set for July, 2008. At that hearing, the juvenile court ordered that William be returned to mother's home with family maintenance services to mother. Although father was granted monitored visitation, his reunification services were terminated. Father appealed, contending that he did not receive reasonable reunification services because the juvenile court failed to ensure regular visitation.

The appellate court held that Father had forfeited the right to challenge the termination of services by failing to raise it at the July, 2008 hearing. Furthermore, the appellate court noted that 361.5 W&IC does not give the juvenile court the discretion to extend reunification services beyond the statutory limit [absent extraordinary circumstances which were not present here], and in any case, the record supports that the court properly ordered visitation and it was Father's choice not to participate.

Accordingly, the appeal was denied, and the order terminating reunification services was affirmed.

Opinion: B209426.PDF, B209426.DOC

In re A.B. (Unpub'd), No. C059618

A.B. (minor, then seven years old) was detained in May, 2008, upon an allegation that P.L. (father) had physically abused A.B.'s half-sibling. However, a June 2008 DHHS report recommended dismissal of the dependency petition "without prejudice", based on its finding that the minor was not at risk of harm in the home of father.

K.B. (mother) appealed the court's order, arguing (inter alia) that the court's order dismissing dependency jurisdiction is an appealable order. However, the appellate court held that the dismissal order was not an appealable order as defined in 395 W&IC. Accordingly, the appeal was dismissed.

Opinion: C059618.PDF, C059618.DOC

In re I.H. (Unpub'd), No. B208137

I.H. (then an infrant) was detained in mid-2007 pursuant to 300(b) W&IC upon allegations relating to mother's medical neglect and her failure to provide adequate care and supervision, and also under 300(b) and 300(g) W&IC for failure of I.H.'s father (whose whereabouts were unknown) to provide support.

In February, 2008, Cynthia S. (maternal grandmother) filed a petition requesting that I.H. be placed with her, despite the fact that she had failed to comply with the terms of a safety plan she signed early in the process, and that she was "hostile, uncooperative, and resistant to DCFS." The juvenile court ultimately denied the petition, determining that "the child's best interests would not be served by the requested change of order."

Grandmother appealed the denial of the 388 petition, contending that it was denied because of her own prior dependency case and that it was denied without "any further discusion", constituting an abuse of discretion.

The appellate court noted that while, at one point in an earlier proceeding, the juvenile court did in fact comment on her prior dependency case, there was no evidence this fact formed any part of the basis for denying the 388 petition. Further, the appellate court held that the juvenile court conducted a full and proper hearing on the 388 petition and that substantial evidence supported the juvenile court's implicit conclusion that placing I.H. in Cynthia S.'s custody would not have been in I.H.'s best interest.

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

Opinion: B208137.PDF, B208137.DOC

In re A.B. (Unpub'd), No. B211762

A.B. (then six months old) was detained in March, 2008, after he was found to have 17 fractures, in various stages of healing, to his arms, legs and ribs, as well as multiple unexplained bruises. The juvenile court denied family reunification services for Mother under 361.5(b)(5) and 361.5(b)(6) W&IC and ordered the SSA to prepare an adoption assessment.

On the day of the October 29, 2009 366.26 W&IC hearing, by which time A.B. was living with prospective adoptive parents who were willing to adopt him, mother filed a 388 petition seeking to change the order denying her reunification services, on the basis of her recent enrollment in counseling. The juvenile court denied the 388 petition upon a finding that Mother was only in the "beginning stages" of addressing the problems that had brought A.B. under the court's jurisdiction, found him adoptable, and terminated Mother's parental rights.

Mother appealed the orders denying her 388 petition and terminating parental rights. The appellate court, pursuant to In re Sade C. (1996) 13 Cal.4th 952, appointed her appellate counsel. Appellate counsel ultimately reported to the court an inability to find any arguable issues. Mother filed a letter brief, arguing that she was denied a fair trial because she didn't understand the proceedings, she was denied reunification despite completing parenting classes and counseling, she could not reasonably be expected to know about the minor's injuries, and the minor's current placement is unsafe for him.

The appellate court, after finding that substantial evidence supported the juvenile court's conclusions and that those conclusions were not arbitrary or capricious, held that Mother did not raise any arguable issues in her letter. Therefore, the juvenile court's orders were affirmed and the appeal was denied.

Opinion: B211762.PDF, B211762.DOC

Case Law Update: 21 April 2009

In re Valerie W. et al. (Unpub'd), No. D053604

Greg W. and S.W. (together, the parents) appealed judgments terminating their parental rights to their minor children Valerie W. and Gregory W. (together, the minors) under Welfare and Institutions Code section 366.26. In a prior appeal filed by the parents, this court reversed the judgments terminating parental rights on the ground the evidence was insufficient to support a finding the minors were adoptable because the assessment report was inadequate in several respects. (In re Valerie W. (2008) 162 Cal.App.4th 1)

The appellate court at that time remanded the matter to have the San Diego County Health and Human Services Agency (Agency) prepare an assessment report in compliance with statutory requirements and to have the juvenile court conduct a new section 366.26 hearingl. In accordance with that opinion, the Agency prepared a second assessment report, and the juvenile court held a new selection and implementation hearing. The court found the minors were likely to be adopted within a reasonable time and terminated parental rights.

The parents challenged the sufficiency of the evidence to support the court's finding of adoptability. They asserted that the assessment report was inadequate under 366.21 W&IC because it does not include necessary information about the minors or their caregiver, that substantial evidence does not support the court's finding the minors are adoptable; and that Agency intends to allow the caregiver and her mother to jointly adopt the minors even though there is no legal authority for such an adoption.

With regard to the sufficiency of the adoption assessment, the appellate court held that "[t]he assessment report substantially complied with the statutory requirement of providing an evaluation of the minors' medical, developmental, scholastic, mental and emotional status". With regard to the juvenile court's finding of adoptability, the appellate court held that "the evidence showed the minors were adoptable based on their general characteristics, their placement in a prospective adoptive home and the interest of other prospective adoptive families". With regard to the last issue, the appellate court noted that the agency modified its plan and was, at the time of the second adoption assessment, seeking to allow the current caregiver alone to adopt the children, and explained that "[w]e are presented with no opportunity here to decide the propriety of a joint adoption by a mother and her adult daughter."

Accordingly, the juvenile court's judgments were affirmed, and the appeals denied.

Opinion: D053604.PDF, D053604.DOC

In re Angelina G. et al. (Unpub'd), No. D054328

On August 8, 2008, Angelina and Tessa were taken into protective custody after police found the family home in disarray, with numerous cats, trash and cat feces all over the floor. One-year-old Tessa was naked on the floor; three-year-old Angelina was wearing only a dirty diaper. Tessa was severely malnourished and weighed only 10 pounds. The children's father, Mathew G., had just returned from military deployment. Crystal was arrested for child endangerment.

The San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of Angelina and Tessa under 300(b) W&IC. Both petitions alleged the family home was filthy and unsanitary and the floors were covered with feces, trash and fleas. The petition on Tessa's behalf also alleged she was discovered naked amidst trash and feces and suffered from severe health conditions, including failure to thrive, hypernatremia, dehydration, renal failure, hyperchloremia and hair loss.

The Agency subsequently filed amended petitions on Tessa's behalf under 300(e) W&IC ["[t]he child is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child"] and on Angelina's behalf under 300(j) W&IC ["[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."]. The court found those allegations true and ordered the children placed with paternal relatives in Kentucky. The court denied reunification to Crystal under 361.5(b)(5) W&IC, finding that offering services would not prevent continued abuse.

Crystal appealed, contending that there was insufficient evidence to support the jurisdictional findings under 300(e) and 300(j) because the evidence did not show her actions in depriving Tessa of food were "willful", and that the court erred by denying reunification services to her under 361.5(b)(5) because the evidence showed services were likely to prevent reabuse and the Agency did not meet its burden to investigate as required by 300(c) W&IC.

With regard to the jurisdictional findings, the appellate court held that "[t]he evidence before the court fully supports a finding Crystal willfully deprived Tessa of food for a prolonged period." With regard to the denial of reunification services, the appellate court held that "Crystal has not shown the court erred by finding there was no likelihood that reunification services would prevent reabuse in the future."

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

Opinion: D054328.PDF, D054328.DOC

In re R.B. (Unpub'd), No. H032978

R.B. (born in July 2002) was placed in protective custody after being severely abused by his maternal aunt and uncle, in whose care the mother had left him. The juvenile court detained the child and placed him with non-relative caretakers, with whom he had stayed for long periods in 2006 and 2007. At the time of the child's detention, the father (R.B.) was a federal prisoner facing deportation upon his anticipated 2008 release from prison.

The Department filed several amended petitions beginning in November 2007. In late February 2008, the father's attorney advised the court that he was seeking an order placing the child in his care as the noncustodial parent, with the paternal aunt as a possible placement.

At the conclusion of a contested juris/dispo hearing held in March, 2008, the court took jurisdiction over the child. In its oral comments, the court addressed each allegation of the third amended petition. The court sustained most of the allegations without change, but it did amend or reject others. The court found that the maternal relatives had subjected the child to physical and sexual abuse and that the mother had not protected the child from the abuse. The court also found that the father had committed domestic violence against the mother prior to the child's birth.

Concerning disposition, the court denied a motion made by the child's attorney for a bypass of reunification services for the mother. The court also denied the father's request for placement of the child with him. However, the court did make provisions for the father to send cards and letters to the child through the social worker; the court also asked the Department to "do an assessment of the paternal aunt" with authorization for monthly supervised visitation between her and the child. Without comment, the court adopted the Department's written recommendation that reunification services be provided only to the mother. The court's dispositional order also included this provision, submitted by the Department: "The previously noncustodial parent...shall not receive Family Reunification Services because he or she has not requested placement of the child."

The father appealed, contesting the jurisdictional finding of domestic violence, challenging the dispositional order to the extent that it denied him reunification services, and asserting that his counsel was ineffective in failing to pursue reunification.

As regards the jurisdictional finding, the appellate court held that, since the jurisdictional order concededly can be sustained on other grounds, the specific finding challenged by the father is not adverse, and therefore he lacks standing under 395 W&IC to challenge it.

As regards the denial of reunification services, the appellate court noted that, although Father failed to raise the issue in the juvenile court, it nevertheless was exercising its discretion to address Father's claims on the merits because "it is incumbent upon the juvenile court... to ensure a parent has a reasonable opportunity to pursue reunification" (quoting In re Luke L. (1996) 44 Cal.App.4th 670, 681) and because "to the extent that the father asserts the application of the wrong legal standard, the case for automatic forfeiture carries less weight".

Having thus decided, the appellate court noted that the original factual reason for the Department's recommendation for denial of reunification (that the father had not sought custody) no longer existed by the time of the juris/dispo hearing since Father had by then declared his desire for custody. The appellate court noted that the Department argued that "while it is always preferable for the juvenile court to specify its reasons for denying services to an incarcerated parent on the record, the required detriment can nevertheless be implied and supported by substantial evidence in the record."

The appellate court explained that, although it agreed that the evidence could support an implied finding of detriment, it nevertheless declined to reach such an inference here because the juvenile court did not make factual findings on the record explaining its reasons for the denial, and, as the appellate court explained, "the court's failure to do so is particularly troubling here, given the admittedly erroneous factual predicate for the denial of services." The court noted that factual evidence of detriment had been adduced on the record, but "that evidence apparently was adduced in connection with the court's placement decision, made under section 361.2, not in connection with its decision to deny reunification services, which must be made under section 361.5, subdivision (e)(1)."

Accordingly, the jurisdictional orders were affirmed. The dispositional order was reversed, and the matter was remanded to the juvenile court for a determination of detriment from the provision of reunification services to the father under the appropriate statute.

Opinion: H032978.PDF, H032978.DOC

In re Kendall R. (Unpub'd), No. A122322

L.R. appealed from an order of the juvenile court terminating her status as de facto parent to dependent child Kendall R. (Kendall). The order issued on the motion of T.R., who was also a de facto parent, as well as Kendall's maternal aunt and guardian. L.R. contended that: (1) T.R. lacked standing to bring the motion; (2) no change of circumstances supported the order; (3) the order did not serve the child's best interests; and (4) her own "outspoken concern" below about T.R.'s ability to care for him did not support the order. Having taken judicial notice of a subsequent order dismissing the dependency and terminating the court's jurisdiction, the appellate court dismissed the appeal as moot.

Opinion: A122322.PDF, A122322.DOC

In re F.R. et al. (Unpub'd), No. D054155

Julie R. (mother), who has CPS histories in Colorado and Maryland, was charged with first degree murder in July, 2008, after admitting that she gave birth to a baby and subsequently "put [her]hand over his mouth and let him die." She also admitted that the death was intentional.

On the basis of those admissions, the SSA filed dependency petitions for F.R. (then 15), Dominique (then 11), Jeremiah (then 9), Daniel (then 5) and E.S. (then 18 months) under 300(f) W&IC. At a juris/dispo hearing in October, the court entered true findings on the petitions, removed the children from Julie's custody, and denied her reunification services pursuant to section 361.5(b)(4) ["[r]eunification services need not be provided to a parent...when the court finds, by clear and convincing evidence...[t]he parent...has caused the death of another child through abuse or neglect."].

Julie appealed this determination, contending that reunification was in the children's best interests because of her bond with them, their continued contact with each other, and her acknowledgment of wrongdoing. The appellate court held that there was no evidence on the record to suggest that Julie will be able to provide the children with permanency and stability, and therefore concluded that substantial evidence supported the denial of reunification. The appeal was therefore denied, and the juvenile court's order was affirmed.

Opinion: D054155.PDF, D054155.DOC

A.K. v. Superior Court (Unpub'd), No. F056949

This case is a petition for writ relief by A.K. (Mother), in pro per, which accompanies a petition for writ relief by J.K. Sr. (No. F056946), decided on April 20. In this petition, Mother contends principally that the juvenile court erred in denying her request for additional time to reunify with her children, given her full compliance with her court-ordered services and the unique demands of her special needs children.

The appellate court explained that "[i]n this case, while there is evidence favoring an order continuing services (i.e. petitioner's progress, the strong parent/child bond, the children's desire to return home and the prospect of long-term foster care), we cannot say the juvenile court abused its discretion in denying petitioner's request for a continuance." The court noted that "[t]his court was impressed with the sincerity with which petitioner argued her case and her commitment to reunify with her children. Nevertheless, we conclude the juvenile court did not abuse its discretion by denying petitioner's motion for a continuance. Nor do we find error in the court's order setting a section 366.26 hearing to implement a permanent plan."

Accordingly, the petition for extraordinary writ was denied.

Opinion: F056949.PDF, F056949.DOC

S.L. v. Superior Court (Unpub'd), No. F056960

S.L. (father)'s children, then 13- year-old S., 8-year-old J., and 7-year-old K., were adjudged dependents of the court in March, 2004 because of their mother's substance abuse and petitioner's imprisonment. amily reunification efforts failed and, in October 2005, at a section 366.26 hearing, the juvenile court ordered the children placed in long-term foster care with a goal of legal guardianship. Over the ensuing years, the children remained in foster care as ordered by the juvenile court at periodic post-permanency plan review hearings (review hearing). During that time, petitioner remained incarcerated with a projected release date of December 2010.

At a January 2009 review hearing, the SSA reported that K.'s foster parents wanted to assume guardianship of her. Consequently, the juvenile court set a 366.26 hearing as to K. and set review hearings as to S. and J. The court also ordered monthly visitation for petitioner and K.

S.L., in pro per, filed a petition for extraordinary writ to vacate those orders. However, he failed to challenge the correctness of the juvenile court's order issued at the setting hearing. Since he failed, to set forth a claim of error, the appellate court deemed his petition facially inadequate under Calif. Rules of Court rule 8.452 and consequently dismissed it.

Opinion: F056960.PDF, F056960.DOC

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