Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re K.B.; In re Kayla W;
In re K.B.—published 11/3/2023; First Dist., Div. Two
Docket No. A167385
Link to Case: https://www.courts.ca.gov/opinions/documents/A167385.PDF
[1] IF A CHILD IS REMOVED FROM PARENTAL CUSTODY, THE
AGENCY MUST IDENTIFY AND LOCATE ALL ADULT RELATIVES.
RELATIVES ARE ENTITLED TO WRITTEN NOTICE OF THE CHILD’S
REMOVAL AND AN EXPLANATION OF THEIR VARIOUS OPTIONS TO
PARTICIPATE IN THE CHILD’S CARE, PLACEMENT AND SUPPORT. [2]
THE FORFEITURE RULE MAY NOT BE APPLICABLE IF ITS
APPLICATION IS CONTRARY TO THE CHILD’S BEST INTEREST.
Dependency proceedings were initiated after Mother’s newborn child, K.B.,
tested positive for amphetamines, methamphetamines, and marijuana. The
agency spoke to maternal relatives in Mississippi and inquired of possible
Indian ancestry. The agency did not discuss placement with the maternal
relatives. The agency was also in contact with paternal relatives in Arkansas
and inquired of possible Indian heritage. The agency did not discuss
placement with the paternal relatives. The parents identified maternal
grandmother, paternal grandmother and maternal aunt as potential
placement options. The children were declared dependents and placed in a
non-relative foster home. In its dispositional findings, the juvenile court
found the agency exercised due diligence in identifying, locating, and
contacting the child’s relatives. The parents were provided reunification
services and the juvenile court set a future hearing to address relative
placement. The parents did not object. Mother timely appealed and asserted
the agency failed to exercise due diligence in identifying, locating, and
contacting the child’s relatives pursuant to section 309.
Reversed. [1] There was insufficient evidence to support a due diligence
finding. Pursuant to section 309, subdivision (e)(1), if a child is removed from
parental custody, the social worker must conduct an investigation in order to
identify and locate all adult relatives of the child. The social worker must use
due diligence in investigating the names and locations of these relatives.
When considering whether the agency was diligent in their efforts, the
juvenile court may consider, among other things, whether the agency has: (A)
obtained information about the location of relatives; (B) reviewed the case file
for any information regarding relatives; (C) telephoned, emailed, or visited all
identified relatives; (D) asked located relatives for the names and locations of
others; and (E) used online search tools. Once located, relatives are entitled to
written notice which explains the ways they can participate in the care and
placement of the child. The record did not reflect the agency used due
diligence to identify, locate, contact, and notify the child’s relatives of the
pending dependency proceedings and their ability to participate and seek
placement. Although the agency was in contact with both paternal and
maternal relatives, there was no discussion of placing the children in their
care. Further, there was no evidence to suggest the relatives were provided
written notice of the child’s removal and an explanation of the various
options to participate in the child’s care, placement, and support. [2]
Although the parents did not object to the juvenile court findings under
section 309, the issue was not forfeited. Section 309 requires the agency to
conduct an investigation into relatives with due diligence, and that the court
find the agency has fulfilled its mandate. Application of the forfeiture rule
was not in the best interest of the children and Mother’s appeal was allowed
to proceed. (MO)
In re Kayla W.—published 11/14/23; Second Dist., Div. Three
Docket No. B326119
Link to case: https://www.courts.ca.gov/opinions/documents/B326119.PDF
ONCE JURISDICTION IS ESTABLISHED UNDER THE UCCJEA, THAT
COURT HAS EXCLUSIVE, CONTINUING JURISDICTION. A STATE MAY
NOT CONDITIONALLY CEDE JURSDICTION.
The agency initiated dependency proceedings after law enforcement found
one-year-old Kayla W. alone in a motel room in May 2019. Mother was born
in California but lived in Nevada from 2017 to May 2019, when she returned
to California. Mother’s two older children lived in California with their
father. Mother was on probation in Nevada, and her partner, Ricky B., who
was not Kayla’s biological father but was raising her, lived in Nevada. At the
initial hearing, the court noted that there was a potential UCCJEA issue.
After a discussion with Nevada authorities, the court reported that Nevada
declined jurisdiction if a pre-release investigation report deemed maternal
grandfather, who lived in California and with whom mother wanted Kayla
placed, a proper placement, but otherwise would assert jurisdiction. At the
adjudication hearing, the court informed the Nevada court that Kayla would
be placed with maternal grandfather. The Nevada court ceded jurisdiction.
The court sustained the petition and subsequently declared Kayla a
dependent and released her to mother and Ricky B. (father), although the
court stayed the order and Kayla remained with maternal grandfather. In
November 2019, when mother and father were living in Nevada with their
two younger children, the court vacated the home of parents order and
sustained a supplemental petition. In December 2021, after the 12-month
review hearing, Kayla moved from the home of maternal grandfather to a
new caregiver but continued to visit grandfather and attend family
gatherings. At the 18-month review hearing, the court terminated
reunification services for the parents and, on November 18, 2022, the court
terminated parental rights. Mother timely appealed, arguing that the court
failed to comply with the UCCJEA and that Kayla’s continued placement in
California violated mother’s constitutional rights.
Affirmed. Mother forfeited the UCCJEA issue. If a California court lacks
fundamental jurisdiction, the issue cannot be forfeited. Here, however, the
California court consulted with the Nevada court, which declined to exercise
home state jurisdiction, thus allowing California subject matter jurisdiction.
Mother did not object to Nevada’s declination and California’s acceptance of
jurisdiction and she did not raise a jurisdictional issue with the juvenile court
when Kayla was removed from maternal grandfather. Furthermore, Nevada
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did not and could not impose a condition precedent that it ceded jurisdiction
only so long as Kayla remained with maternal grandfather. Once jurisdiction
is established under the UCCJEA and the court makes a child custody
determination, that court has exclusive, continuing jurisdiction. Family Code
sections 3429 and 3422 did not require the court to consult Nevada after
Kayla was removed from maternal grandfather. Even if Kayla’s removal from
her grandfather triggered action under section 3422, Kayla resided in
California and there was substantial evidence that mother and Kayla had
significant connections to California, especially given Kayla’s ongoing
connection to her maternal relatives. Furthermore, mother’s decision to
return to Nevada after the inception of dependency proceedings did not
render California an inconvenient forum. Under the UCCJEA, the forum’s
convenience was determined when Nevada declined jurisdiction. Kayla’s
placement in California when mother lacked financial resources to visit did
not violate mother’s rights under the First, Fourth and Fourteenth
Amendments of the United States Constitution. Mother asked for Kayla to be
placed with maternal grandfather in California. She failed to raise
constitutional issues in the juvenile court and did not challenge the
reasonableness of the agency’s reunification services. (SL)