Vol. 16, No. 1 January 14, 2020 Issued by the Children’s Law Center of California on the second and fourth Tuesday of each month Written by: Stacie Hendrix (SH), Nancy Sariñana (NS), Margaret Lee (ML), Kristin Hallak (KH).
NEW DEPENDENCY CASELAW
Detriment—WIC 361.2
In re Adam H.—filed 11/20/19; Cert. for Publ. 12/6/19; Second Dist., Div. Five Docket No. B298289 Link to case https://www.courts.ca.gov/opinions/documents/B298289.PDF
THE JUVENILE COURT ERRED WHEN IT REMOVED THE MINOR FROM THE NONCUSTODIAL PARENT UNDER WIC 361 INSTEAD OF ANALYZING THE FACTS UNDER WIC 361.2
14-year-old Adam H. was detained from his mother, the custodial parent. Father, the noncustodial parent, was located and granted visits prior to disposition. By disposition father was having unmonitored visits with Adam and the agency had not identified any safety hazards in the home. After the petition against mother was sustained, father asked for custody. The agency and minor’s counsel argued that it was premature to place Adam with father because Adam was still getting to know father. Although the court found that father was s non-custodial parent, it removed Adam from both parents under WIC 361, subdivision (c) and found that Adam would be in substantial danger of harm if “returned” to his parents’ care. Specifically, the court stated it would be “premature” to return Adam to father “given the fact he does not have a history of a relationship with his father.” Father appealed from the juvenile court’s order removing Adam from his custody under section 361, subdivision (c).
Affirmed in part, reversed in part, and remanded with directions. The juvenile court erroneously failed to apply section 361.2, subdivision (a), to father’s request for custody of Adam. The court was required to place Adam with father unless such placement would be detrimental to the
safety, protection, or physical or emotional well-being of the child. The error was not harmless because there was no clear evidence that implied a finding of detriment was warranted. The only concern cited was that Adam did not yet know father well which alone did not justify a finding of detriment under section 361.2. The matter was remanded to the juvenile court to consider the facts within the appropriate provision. (NS)
Appellate Advisements—Rule 5.590(a); Rule 8.406(a)
In re J.A. — published 12/6/19; Fourth Dist., Div. Two Docket No. E072398 Link to case: https://www.courts.ca.gov/opinions/documents/E072398.PDF
FAILURE TO ADVISE A PARTY OF APPELLATE RIGHTS DOES NOT PERMIT AN UNTIMELY NOTICE OF APPEAL TO REOPEN A CLOSED DEPENDENCY CASE
In October 2017, nine-year-old twins were detained from mother due to allegations of neglect and emotional abuse. Mother had an open dependency case at the time, but the new petition was filed after mother drove her son to the hospital to try to abandon him there. On November 20, 2017, the allegations were sustained, the twins were removed from mother, and father was granted sole physical and legal custody, with mother having monitored visits. The dependency cases were closed, and all future proceedings were referred to family court. The juvenile court did not advise mother of her right to appeal under California Rules of Court (“CRC”), rule 5.590(a). On September 5, 2018, mother’s family law attorney filed a section 388 petition in juvenile court asking to terminate the previous dispositional orders removing the twins from mother. The 388 petition was denied and mother did not appeal the denial. On March 21, 2019, mother’s attorney filed a notice of appeal from the disposition hearing on November 20, 2017. The appeal was dismissed because it exceeded the 60-day deadline to challenge the judgment under CRC rule 8.406(a). Mother’s attorney moved to vacate the dismissal, attached a copy of the transcript from the hearing showing that mother was never advised of her appellate rights, and argued that the juvenile court’s failure to advise mother of her appellate rights constituted good cause to excuse the lateness of her appeal under the decision In re A.O. (2015) 242 Cal.App.4th 145. The appeal was reinstated.
Appeal dismissed. A party has 60 days from the date of the judgment to file a notice of appeal, and an untimely notice of appeal cannot be heard. In re A.O. is distinguishable because in that case, mother filed the notice of appeal of the dispositional orders at the same time she timely appealed from the six-month and twelve-month hearings, and the dependency case was still open when In re A.O. was heard. In comparison, this appeal was filed a year and a half after the dependency case was terminated. The mother was not diligent in filing her section 388 petition, did not appeal the ruling on that petition, and then took over six additional months to file the notice of appeal from the dispositional orders. The failure of the juvenile court to give writ and appeal advisements to a party does not authorize a parent to reopen a dependency case to relitigate jurisdictional and dispositional issues. Appeal deadlines exist to ensure finality of judicial decisions and security to the parties, and mother’s proper recourse is family court. (KH)