February 27, 2020 Written by: Stacie Hendrix (SH), Nancy Sariñana (NS), Margaret Lee (ML), Kristin Hallak (KH).
In re Nicole S. (2019) 39 Cal.App.5th 91—Attorney fees are not recoverable in a dependency proceeding. The juvenile court did not err in concluding that section 1021.5 does not apply in juvenile dependency cases because section 1021.5 is not consistent with the purposes of juvenile dependency law where the best interests of the child or nonminor dependent are paramount.
In re A.E. (2019) 38 Cal.App.5th 1124 —To overcome the section 361.5(b)(6) bypass provision, the court must find by clear and convincing evidence that reunification is in the best interest of the child. (WIC 361.5(c)(2).) Without recognition or acknowledgement by the parent of the abusive behavior, participation alone in services is not meaningful. When section 361.5(b)(5) bypass provision applies, the court is prohibited from offering reunification services “unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.” (WIC 361.5(c)(3).) “Testimony” as written in section 361.5(c)(3) means in-court oral statements of a live witness and is not synonymous with “evidence.” A parent has the burden of proving section 361.5(c)(3) applies.
In re I.A. (2019) 40 Cal.App.5th 19 —The WIC 361.5(b)(10) bypass provision applies to the “same child” or “same children” whose parents have already failed at attempts to reunify with them, as opposed to only siblings of the child/children.
In re M.S. (2019) 41 Cal. App. 5th 568 —When the Agency conducts only a cursory search, takes no action to obtain assistance in ascertaining a parent’s whereabouts, and they know the address where the parent resides, there is insufficient evidence to support a finding under WIC 361.5(b)(1) that a parent’s whereabouts are unknown. Failing to remain in consistent contact with the Agency and not consistently visiting your child are not factors that show a parent’s whereabouts are unknown within the meaning of section 361.5(b)(1). If the sole basis of denial of services is the unknown whereabouts of the parent, it is error to set a section 366.26 hearing, and instead the juvenile court must set a 6-month review hearing.
In re D.R. (2019) 39 Cal.App.5th 583 –The agency knew that two of father’s adult children had contact with father via Facebook, yet the agency made no effort to seek out father on Facebook. Service by publication is only valid when there has been reasonable due diligence to locate the person. Because the agency ignored the most likely means of finding father, the service by publication was invalid.
In re Harley C. (2019) 37 Cal.App.5th 494 —The juvenile court’s local rule regarding joint trial statements is invalid under CCP 575.1 and Government Code sections 68070 and 68071. It also violates parents’ due process under WIC 358(b)(1).
In re J.R. (2019) 42 Cal.App.5th 513—A writ advisement sent after the juvenile court terminated family reunification services and set a 366.26 hearing was proper where the court relied on mother’s filed JV-140 form for her mailing address.
In re William M.W. (2019) 43 Cal.App.5th 573 —The juvenile court has the authority to make orders regarding the production of discovery including ordering production at no cost to parents if necessary to give parents meaningful access to the judicial process. (Rule 5.546(i).)
INDIAN CHILD WELFARE ACT (ICWA)
In re A.W. (2019) 38 Cal.App.5th 655 —(I) Ripeness: The federal code/regulations of the ICWA and corresponding state law/rules do not require that, before appellate relief is sought, a petition must first be brought in juvenile court to invalidate any action taken in a child custody matter due to a ICWA notice violation. (II) Standing: There is no requirement that only parents with tribal membership have standing to petition for invalidation. (III) Forfeiture: An appeal remains the appropriate vehicle by which to raise an ICWA notice or inquiry violation, even in the case of a “potential” Indian child, and it can be raised even if the parent did not challenge an earlier ICWA finding.
In re L.D. (2019) 32 Cal.App.5th 579 —WIC 224.3(a) states that ICWA notice is required for “hearings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement.” ICWA notice is not required for a gun surrender hearing.
Brackeen v. Bernhardt (5th Cir. 2019) 937 F.3d 406, rehg. en banc granted Nov. 7, 2019. —The Fifth Circuit affirmed the standing of the plaintiffs to challenge ICWA but overturned the District Court’s finding that ICWA was unconstitutional. (I) Equal Protection: ICWA’s definition of “Indian child” is a political, not racial classification, and therefore Congress had a “rational basis” for enacting ICWA. ICWA is related to tribal self-government and the survival of tribes. (II) Tenth Amendment: ICWA’s directives to the state courts and agencies to enforce federal law do not violate the anticommandeering doctrine. The Constitution’s Supremacy Clause establishes that federal law trumps conflicting state law where Congress is empowered to act, such as in Indian affairs. (III) Nondelegation: 25 USC 1915(c), which provides that a Tribe’s placement preferences control over any specified in ICWA, is not an unconstitutional delegation of federal power to Indian tribes but an incorporation of tribal law into federal law. (IV) The Final Rule: This Rule is constitutional. Also, the Rule’s clearand-convincing evidence standard for good cause to depart from ICWA’s placement preferences is suggestive and not binding on the states.
In re J.M. (2019) 40 Cal.App.5th 913 —Where the lack of showing of a current risk of harm is due to the parent’s malfeasance — here, in absconding with the children and preventing the agency from monitoring their welfare — the juvenile court should assess whether the evidence before it warrants jurisdiction under WIC 300(b) without any consideration of the passage of time due to the parent’s misconduct.
In re I.I. (2019) 42 Cal.App.5th 971 —As previously held in In re Ethan C. (2012) 54 Cal.4th 610, WIC 300(f) does not require a finding of current risk of harm to the surviving children in the parent’s care. Where there is uncontroverted evidence to support the section 300(f) allegation, the court must find it to be true and assert jurisdiction.
In re Roger S. (2018) 31 Cal.App.5th 572 – Jurisdiction under WIC 300(b) requires a risk the child will suffer serious physical harm or illness. Without more, body odor and/or ill-fitting clothing does not place a child at substantial risk of physical harm. In order to support jurisdiction, there must be a nexus between the conduct alleged and a defined risk of harm.
In re D.D. (2019) 32 Cal.App.5th 985 —In a WIC 387 petition, individual instances of inappropriate discipline may not support a finding that a child is at substantial risk of serious physical harm or illness, but the juvenile court looks to the totality of the circumstances, including all instances of discipline, refusal to allow the agency to investigate, and history of physical abuse to support its findings. Continued use of inappropriate discipline after intensive services demonstrates that there are no reasonable means to protect without removing the child from the parent’s custody.
In re L.W. (2019) 32 Cal.App.5th 840 —Drug use or substance abuse, without more, is an insufficient ground to assert jurisdiction in dependency proceedings under WIC 300(b). Additional evidence, however, such as arrests and a conviction within a year of the referral and refusal to enroll in treatment programs, can show that a parent’s substance abuse is spilling over into areas that will pose a substantial risk of physical harm to the child. It is reasonable to infer that safety problems posed by a parent’s substance abuse will continue to multiply to the child’s detriment until the substance abuse is resolved.
In re L.C. (2019) 38 Cal.App.5th 646 —A legal guardian’s occasional methamphetamine use that doesn’t affect their ability to care for the child does not constitute abuse and cannot be the basis for jurisdiction under WIC 300(b). A child is not at risk of serious physical harm when regularly cared for and an appropriate plan of care was made when the legal guardian was using methamphetamine. Physical harm is not presumed from a parent or guardian’s substance abuse.
In re M.F. (2019) 32 Cal.App.5th 1 —At the 12-month or 18-month review hearings, the juvenile court has the authority to extend reunification services to the 24-month date if the court finds the agency failed to provide reasonable services to a parent. The court does not have to consider the likelihood of return in the next 6 month period if it finds reasonable services have not been provided.
RELATIVE AND SIBLING PLACEMENT
In re Charlotte C. (2019) 33 Cal.App.5th 404 —A foster child has the right to receive information about his or her out-of-home placement and case plan. (WIC 16001.9). Those portions of the RFA assessment report relied on by the social worker to make the required assessment for placement under WIC 361.3 are part of the juvenile case file. Minor’s counsel is entitled to access the file under WIC 827 and, under WIC 317(f), is entitled to all records relevant to the case that are maintained by a state or local agency.
In re L.M. (2019) 39 Cal.App.5th 898 —The best interest standard at a WIC 366.26(n) hearing encompasses both the child’s current circumstances and her future best interest. The court must consider the child’s sibling bonds, relationships with potential caregivers, and those potential caregivers’ ability to foster the sibling bond and to provide for the child’s future physical, mental, and emotional needs. When considering a removal request under section 366.26(n), the court should consider the proposed placement as an essential element of the best interest standard.
In re K.T. (2019) 42 Cal.App.5th 15 —Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023 held that relatives have standing to appeal an order denying a request for placement under section 361.3. To sustain a petition under section 387, the court must decide that the previous disposition was not effective, and then that the placement with the relative is not appropriate under section 361.3. There is no real distinction between a decision not to place a minor with a relative and a decision to remove a minor from a relative. Thus, under Cesar V., a relative has standing to appeal when a minor is removed from the relative under WIC 387.
In re A.M. (2019) 37 Cal.App.5th 614 —Under WIC 213.5, a juvenile court may issue an order enjoining any person from contacting a child if contact, including telephonic or electronic means, would jeopardize the child’s physical or emotional safety. Whether or not the child can be described as “resilient” is irrelevant in considering the issuance of a protective order.
In re C.W. (2019) 33 Cal.App.5th 835 —Under the UCCJEA where a state has issued a custody order, that state retains exclusive and continuing jurisdiction. If the issuing state has not ceded its continuing jurisdiction, a court exercising temporary emergency jurisdiction under the UCCJEA cannot exercise jurisdiction to determine a child’s permanent custody.
In re E.W. (2019) 37 Cal.App.5th 1167 —Under the UCCJEA, a state that has made the initial custody determination has exclusive, continuing jurisdiction unless: 1) that state determines that the child and a parent or someone acting as a parent no longer have a significant connection with the state and substantial evidence is no longer in the state, or 2) any state determines that the child and parents no longer live in the state.
In re J.P. (2019) 37 Cal.App.5th 1111—The juvenile court ordered visits for a minor and a nonparent. Mother argued the visitation order was unauthorized because the minor was in her custody and the nonparent had no legal relationship to the minor. Pursuant to sections 362(a) and (b), the juvenile court has the inherent authority to order visitation between a dependent child and a non-parent, if it finds that visitation would be in the child’s best interest.
In re C.M. (2019) 38 Cal.App.5th 101—The presumption against ordering joint legal custody based on a finding of domestic violence under Family Code section 3044 does not apply in a dependency case. When a juvenile court makes a custody and visitation order, it does so pursuant to its authority under the Welfare and Institutions Code, based on the best interests of the child without any preferences or assumptions.
In re N.O. (2019) 38 Cal.App.5th 899 – In a family maintenance case of a child living in Mexico with her mother, the agency and minor’s counsel lost contact with the child. The Court properly terminated jurisdiction where there was no evidence that conditions still exist which would justify initial assumption of jurisdiction or that such conditions are likely to exist if supervision is withdrawn. A lack of current information due to the challenges arising out of the involvement of international borders and agencies in supervising a case does not require continued jurisdiction.
WIC 366.26 HEARINGS
In Re Cody R. (2018) 30 Cal.App.5th 381 —A parent can only raise issues on appeal that affect her own rights, not the rights of others. Parents have standing to challenge termination of parental rights based on the child’s placement only if the placement order’s reversal advances the parent’s argument against terminating parental rights. Writs of habeas corpus are only viable in dependency for ineffective assistance of counsel claims or claims of wrongful withholding of custody (including lack of jurisdiction).
In re E.T. (2018) 31 Cal.App.5th 68 —The standard for finding the beneficial parental relationship exception to adoption is not whether children’s bond to their mother “was not to such an extent that they can’t be happy in their godparents’ placement,” but whether the children would benefit from continuing the parental relationship. Mother had high quality, regular visits, the children were closely bonded to her, she maintained her sobriety and participation in programs after services were terminated, and the children would benefit from continuing the relationship even if mother were to not regain custody.
In re B.D. (2019) 35 Cal.App.5th 803 —The information about the foster parents’ criminal and child welfare histories, which was withheld from the court, completely undermines the legal underpinnings of the trial court’s judgment. The agency breached its duty under section 366.22(c)(1)(D) to provide a full, fair, and evenhanded assessment of the minor’s adoptability, violating the minor’s due process rights.
*In Re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, No. S255839, 249 Cal.Rptr.3d 520. *Not citable as binding precedent pursuant to Cal. Rules of Court, rule 8.1115. —To prove a beneficial parental relationship exception to adoption, the parent must show that 1) she has maintained regular visitation, 2) a beneficial relationship exists, and 3) the existence of that relationship is a compelling reason for finding that termination of parental rights would be detrimental to the child. Even if the parent-child relationship is strong and beneficial, if it also destabilizes the child, fosters unhealthy interactions, and deprives the child of a permanent home with an “exceptional caregiver,” maintaining the relationship does not outweigh the benefits of adoption.
M.L. v. Superior Court of San Mateo County (2019) 37 Cal.App.5th 390 –It is within the juvenile court’s inherent and statutory authority to modify a disposition and order removal of a child as relief for a section 388 petition as long as the parties are afforded full due process, including notice and an opportunity to be heard.
People v. Keo (2019) 40 Cal.App.5th169 —(I) Because a social worker is not law enforcement nor its agent, the social worker is not required to Mirandize the parent before interview nor ensure counsel is present in the interview. (II) WIC 355.1(f) immunity protects only sworn in-court statements, not out-of-court statements.
In re Anthony L. (2019) 43 Cal.App.5th 438 —WIC 625.6 says a minor 15 years old or younger shall consult with an attorney prior to custodial interrogation and Miranda waiver, and the court shall consider noncompliance with this statute in adjudicating the admissibility of the minor’s statements. However, the “Truth-inEvidence” provision of the CA Constitution makes a minor’s statements admissible even if they were made in violation of WIC 625.6, unless there was a due process violation under the U.S. Constitution.