Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re E.W, In re A.H., In re S.F., In re I.E., and In re Ja.O
ICWA—WIC 224.2
In re E.W
Filed 5/8/2023; First Appellate Dist., Div. Two Docket No. A165789; 91 Cal.App.5th 314
THE DUTY OF INITIAL INQUIRY IS SATISFIED WHERE PARENTS’ REPRESENTATIONS, INCLUDING ON THEIR ICWA-020 FORMS, AND THE INTERVIEWS OF EXTENDED FAMILY MEMBERS RELIABLY ANSWER THE QUESTION OF WHETHER MINORS ARE NATIVE AMERICAN CHILDREN.
After the 300 petition was filed on behalf of mother and father’s eight children, mother reported that maternal grandmother, who was deceased, had some Native American ancestry. Mother later reported that she had no Native American ancestry, which she confirmed through genetic testing. Minors were detained. Mother and father stated they had no Native American ancestry in their Parental Notification of Indian Status (ICWA020) forms. The agency subsequently interviewed maternal aunt and paternal grandmother, and both reported no Native American ancestry. At the detention hearing for parents’ newborn child, the juvenile court asked mother and father if they had Native American ancestry, and they responded 2 no. The juvenile court ordered all nine children removed, ordered reunification services for parents, and found ICWA did not apply. Mother, father, and one minor appealed.
Affirmed. Appellants’ claim that ICWA required the agency to include five additional extended family members in its initial inquiry is rejected. As explained in In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1006, compliance with the literal language of section 224.2, including the duty to inquire of every extended family member and every person who has an interest in the child as described in section 224.2(b), is untenable. Instead, the focus should be whether the inquiry reliably determined whether the child is or may be an Indian child. Here, mother initially reported that she may have Indian ancestry but later made repeated representations, including on her ICWA020 form, that she lacked any Native American ancestry. Father was consistent from the outset of the case that he was not Native American. Given mother’s initial statements, the agency appropriately conducted interviews of extended family members on both sides of the family, including the maternal aunt and paternal grandmother, both of whom denied any Native American ancestry. Taken together, mother’s repeated representations, the parents’ ICWA-020 declarations, and the interviews of extended family members on both sides of the family “reliably answered” the question of whether the children were Native American children. Appellants failed to demonstrate otherwise. The agency satisfied its duty of initial inquiry, and the juvenile court’s findings regarding ICWA inapplicability were adequately supported. (AMC)
Placement—WIC 388, 362.7
In re A.H.
Published 5/16/23; First Dist., Div. Two Docket No. A166532; 91 Cal.App.5th 741
A NREFM DOES NOT HAVE STANDING TO CHALLENGE THE JUVENILE COURT’S PLACEMENT DECISION BECAUSE A NREFM DOES NOT HAVE A LEGALLY COGNIZABLE INTEREST IN THE CHILD’S PLACEMENT.
Newborn A.H. was detained from mother and placed in foster care. A.H.’s first cousin twice removed, J.B., expressed interest in caring for A.H. J.B. was a relative in the sixth degree of kinship. The agency assessed J.B. as a NREFM and denied her request for placement. At the jurisdiction/disposition hearing, J.B. filed a JV-285, Relative Information form, requesting placement. The juvenile court did not consider the JV-285, but indicated that 3 it independently considered and denied placement with J.B. Two months later, J.B. filed a section 388 petition and requested that the juvenile court change its dispositional orders and place A.H. in her care. The juvenile court summarily denied J.B.’s request as it did not state new evidence, a change in circumstances, and would not be in A.H.’s best interest. J.B. appealed.
Dismissed. Any person who has an interest in a dependent child may file a section 388 petition to change, modify, or set aside previous court orders. However, not everyone who files a 388 may appeal the juvenile court’s decision. To have standing to appeal, a person must have rights that may suffer injury in an immediate and substantial way. A relative, as defined in section 361.3(c)(2), includes a relative within the fifth degree of kinship. Pursuant to section 361.3(a), relatives have a right to preferential consideration for placement of a minor in dependency proceedings before the termination of parental rights. A relative, therefore, has a legally cognizable interest in the child’s placement. There is no statutory preference for placement with NREFMs. A NREFM does not have a legally cognizable interest in the child’s placement and therefore cannot challenge the juvenile court’s placement decision on appeal. (EG)
Jurisdiction—WIC 300(b)(1); Disposition—WIC 361(d), 362(a)
In re S.F.
Cert. for partial publ. 5/17/2023; First Dist., Div. One Docket No. A166150; 91 Cal.App.5th 696
[1] THERE WAS NO SUBSTANTIAL EVIDENCE OF CURRENT RISK UNDER SECTION 300(b)(1) WHEN NO PHYSICAL ALTERCATION OCCURRED IN THE PRESENCE OF THE CHILD, FATHER MOVED OUT OF THE HOME, AND HAD MAINTAINED SOBRIETY FOR OVER TWO YEARS. [2] THERE WAS NO SUBSTANTIAL EVIDENCE FOR EITHER THE REMOVAL FINDINGS FROM FATHER OR FOR THE DRUG TESTING AND SUBSTANCE ABUSE TREATMENT ORDERS.
S.F. was the subject of a section 300 petition alleging mother’s drug abuse and mental health and father’s anger management and history of drug use two years prior placed S.F. at risk of serious physical harm under subdivision (b)(1). Father was living in New York at the time of the investigation and commencement of the proceedings, but providing mother with monetary assistance for S.F. Father reported to the agency that he had been sober from drugs and alcohol for about two years, and he desired to have custody of S.F. Mother reported that father sent her and maternal grandmother threatening texts, she was in the process of applying for a restraining order, and that 4 when they were dating they “tussled” but she did not consider it to be domestic violence. S.F. was detained at the initial hearing. Father was referred for drug testing, though he did not test since he indicated he was focused on securing housing and a job. The agency reported in the jurisdiction/disposition report that both parents were arrested for a domestic violence incident in May 2021, and both parents indicated the other was the source of the violence. Right after that incident, father moved to New York. Once father became aware of the dependency case, he moved back to California and visited S.F. consistently. The father’s proposed case plan included securing housing, an assessment for substance abuse, random drug testing, individual therapy to focus on co-parenting, and parenting education. Days before the jurisdiction/disposition hearing, father completed a substance abuse assessment which indicated he did not meet medical necessity. At the jurisdiction/disposition hearing, father testified about his sobriety and that he first learned about mother’s drug use after S.F.’s birth. He had one negative drug test, had completed the substance abuse assessment, and previously attended a 90-day in-patient treatment program. He denied domestic violence but reported that the incident in May 2021 was a misunderstanding. S.F. was not present for any disputes. Mother testified that when she previously said she and father “tussled” she meant “getting close” and “getting loud” and maybe some pushing away. The social worker testified that they did not want to initially place S.F. with father because he had not been involved in his daily life for a long time. The juvenile court sustained the petition, removed S.F. from parental custody, and ordered father to submit to random drug testing, substance abuse assessment and follow its recommendations. Father appealed.
Reversed. There was no substantial evidence to support the jurisdictional findings against father, the removal findings from father, or the dispositional orders for drug testing and treatment. There was not sufficient evidence to sustain an allegation based on domestic violence since prior evidence of domestic violence, alone, does not support jurisdiction under section 300, subdivision (b)(1). Here, the evidence was that there were three incidents of “tussling” which included some form of touching but without any physical injury, and were outside the presence of S.F., and a vague description of “threatening” texts, none of which was likely to continue or placed S.F. at substantial risk of serious physical harm. Father removed himself from the situation by moving to New York, which was a proactive step in protecting the minor. Additionally, there was not sufficient evidence for the substance abuse count, as no evidence was presented that father was not sober or that his prior or any potential current use posed a substantial risk of serious physical harm to S.F. When removing S.F. from father’s custody, the juvenile 5 court should have done so pursuant to section 361, subdivision (d) instead of subdivision (c) since father was noncustodial, but any error was harmless since both subdivisions require the same burden of proof and fact-finding requirements. Father was not requesting physical custody because he did not have housing, but the juvenile court erred by removing S.F. from father since there was no substantial evidence for the removal, especially given the heightened clear and convincing standard. Further, while a juvenile court may “make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child” pursuant to section 362, subdivision (a), that discretion is not unfettered and must be directed at eliminating the conditions that led to dependency. Since there was no sufficient evidence to support a jurisdictional finding for father’s substance abuse, the dispositional orders for treatment of substance abuse must also be reversed. (KH)
Parental Benefit Exception—WIC 366.26(c)(1)(B)(i)
In re I.E.
Published 5/17/23; Fourth Dist., Div. Two Docket No. E080223; 91 Cal.App.5th 683
THE COURT MUST CONSIDER THE CHILD’S WISHES IN DETERMINING WHETHER TERMINATION OF PARENTAL RIGHTS WOULD BE DETRIMENTAL.
The court removed four-year-old I.E. from mother and ordered reunification services to address problems with substance abuse and domestic violence. During the first six months of services, mother consistently visited but struck the child during a visit, causing her to scream and cry. At the 12-month status review hearing, the agency recommended termination of mother’s reunification services based on her missed and positive drug test results, lack of completion of a drug abuse program, and a therapist’s report that mother had not benefited from therapy. The child reported being afraid to return to mother whom she believed was still in a domestic violence relationship and wanted to stay with her caregiver. At the contested status review hearing, the court terminated reunification services and reduced mother’s monitored visits to once monthly for two hours. At the WIC 366.26 hearing, the agency recommended termination of parental rights and reported the child had been in the prospective adoptive home for more than a year, was “well-adjusted” to her placement, and had a “mutual attachment” to her foster mother whom the child viewed as a “parental figure.” The foster mother reported the child was bed-wetting and worried about taking care of her mother. The child told the social worker she wanted her foster mother to be her “forever mother” 6 and the foster home to be her “forever home.” In confirming her understanding of adoption, the child reported it meant she would live with her foster mother “for the rest of her life and live in a safe home.” At the contested permanency hearing, mother testified to high quality regular visits that ended positively and a bond with her child. Mother’s counsel argued that the parental benefit exception applied. The court found that mother had satisfied the exception’s first element of regular visitation, seemed to assume the second prong of a substantial and positive relationship, and focused on the third prong as to whether severance of the relationship would be detrimental to the child. In finding the exception did not apply and, specifically, that whatever detriment would be outweighed by the benefits of permanency, the court highlighted the now seven-year-old child’s statements in the reports that she identified the caretaker as her mother, wanted to stay in the caretaker’s home and have it be her forever home, and that she believed it would be a safe home. Mother appealed.
Affirmed. Once the court determines a child is likely to be adopted, it must terminate parental rights unless it finds termination would be detrimental to the child under one of the exceptions in WIC 366.26(c)(1). In re Caden C. (2021) 11 Cal.5th 614 clarified that a parent is required to show the following to prevail under the WIC 366.26(c)(1)(B)(i) parental benefit exception: (1) regular visitation and contact with the child, (2) the child has a “substantial, positive, emotional attachment to the parent—the kind of attachment implying the child would benefit from continuing the relationship,” and (3) terminating that attachment would be “detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.” As to the third prong, the court must conduct a case-specific, balancing inquiry of the benefit of placement in the adoptive home versus the harm the child would experience from losing a significant, positive, emotional relationship to their parent. Mother ignores the importance of the child’s statements that she wished to be adopted by her caregiver, which the court appropriately considered under the third prong. The agency is mandated to obtain the child’s statements regarding placement and their permanent plan; at all 366.26 hearings, the court must consider the child’s wishes and act in the child’s best interest. “‘It is a reminder to all, but particularly those weighted with the decision-making responsibility, that the child is not a cipher in the process.’” Thus, a child’s feelings about adoption are necessarily considered in determining the parental benefit exception. Here, the child’s consistent wishes served as powerful evidence that she did not have the type of attachment to mother that would cause her to suffer detriment from the termination of parental rights. (ML)
ICWA—WIC 340, 224.2
In re Ja.O
Published 5/17/2023; Fourth Dist.; Div. Two Docket: E079651; 91 Cal.App.5th 672
INQUIRING OF KNOWN RELATIVES IS NOT PART OF THE DUTY OF INITIAL INQUIRY WHEN AN AGENCY TAKES A CHILD INTO PROTECTIVE CUSTODY PURSUANT TO SECTION 340.
On October 21, 2021, the agency took five siblings into protective custody pursuant to a warrant. Four days later, the agency filed section 300 petitions and attached ICWA-010(A) forms stating that mother and R.O., the father of Je.O. and Ja.O., provided a social worker no reason to believe the children were Indian children. At the initial hearing, mother, R.O. and a maternal aunt denied Indian ancestry. Mother submitted an ICWA-020 form denying Indian ancestry. In his ICWA-020 form, R.O. checked the box indicating that an ancestor is or was a member of a federally recognized tribe but provided no identifying information. In November, Mother and R.O. again denied Indian ancestry when questioned by a social worker. That same month, A.C.’s alleged father, J.T., denied Indian ancestry in court. At the combined jurisdiction and disposition hearing, the juvenile court found that ICWA did not apply, sustained an amended petition and removed the children from their parents’ care. Mother timely appealed, arguing that the agency failed in its duty of initial inquiry because it did not question known relatives and close family friends.
On October 21, 2021, the agency took five siblings into protective custody pursuant to a warrant. Four days later, the agency filed section 300 petitions and attached ICWA-010(A) forms stating that mother and R.O., the father of Je.O. and Ja.O., provided a social worker no reason to believe the children were Indian children. At the initial hearing, mother, R.O. and a maternal aunt denied Indian ancestry. Mother submitted an ICWA-020 form denying Indian ancestry. In his ICWA-020 form, R.O. checked the box indicating that an ancestor is or was a member of a federally recognized tribe but provided no identifying information. In November, Mother and R.O. again denied Indian ancestry when questioned by a social worker. That same month, A.C.’s alleged father, J.T., denied Indian ancestry in court. At the combined jurisdiction and disposition hearing, the juvenile court found that ICWA did not apply, sustained an amended petition and removed the children from their parents’ care. Mother timely appealed, arguing that the agency failed in its duty of initial inquiry because it did not question known relatives and close family friends.