Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re Damari Y., In re M.D.; In re Delilah D.; In re Jayden M.
In re M.D.—filed 07/11/2023; Fourth Appellate Dist., Div. One
Docket No. D081568; 93 Cal.App.5th 836
Link to Case: https://www.courts.ca.gov/opinions/documents/D081568.PDF
WHERE A PARENT FAILS TO RECOGNIZE A CHILD’S BASIC NEEDS
AND CONTINUES TO DENY THE REASONS THAT LED TO THE
AGENCY’S INVOLVEMENT, JURISDICTION IS NOT BASED SOLELY ON
INDIGENCE, AND THE PARENT’S LACK OF INSIGHT SUPPORTS
REMOVAL.
The agency filed a 300 petition, alleging father failed to adequately supervise
and protect his 8-year-old daughter, M.D., and failed to provide her with
adequate food and shelter, after police found her left alone and wandering
her apartment complex. The family apartment was found to have no
electricity, an empty non-operable refrigerator, and no edible food. It was
strewn with trash, dog feces, electrical cords, and power tools. At the initial
hearing, M.D. was detained, and service referrals were given to father. The
agency’s reports revealed that M.D. was behind academically, did not know
all the letters of the alphabet or numbers, and only knew some colors. She
needed step-by-step help with bathing and brushing her teeth and required
extensive dental care. Interviews of family and neighbors indicated that they
had previously offered childcare help to father, but he refused. At the
contested jurisdiction/ disposition hearing, father testified. He denied leaving
M.D. home without supervision on the day police found her, and he
maintained she was not in need of medical attention. The juvenile court
sustained the allegations, found M.D.’s statements that she had been locked
in the home alone on multiple occasions and that she ate dog biscuits
credible, and concluded that being in father’s care left M.D. with food
insecurity issues. The juvenile court found that father had not followed
through with his service referrals and lacked insight into the issues. The
court ordered M.D. removed from father’s care. Father appealed.
Affirmed. While section 300(b)(2)(C) prohibits dependency jurisdiction over a
child solely due to a parent’s indigence, father’s poverty was one of many
conditions that exposed M.D. to harm. Another key condition was father’s
negligent disregard of M.D.’s basic needs. He resisted offers from family and
neighbors for childcare help. He failed to prepare dry food that was in the
apartment, resulting in M.D. eating dog biscuits. Father was able-bodied, yet
he nevertheless left M.D. to live in filth and failed to teach her matters of
basic hygiene such as how to brush her teeth. These circumstances were due
to father’s neglect, not his financial condition. Father’s insistence that M.D.’s
educational needs were adequately met was belied by evidence that, at eight
years old, she could identify only some colors and did not know all the letters
of the alphabet. The jurisdictional findings along with father’s ongoing
denials, lack of insight into the conditions that led to dependency, and lack of
interest in services established that there were no reasonable alternatives to
removal. (AMC)
In re Delilah D.—filed 7/21/2023; Fourth Dist., Div. Two
Docket No. E080389; 93 Cal.App.5th 953
Link to case: https://www.courts.ca.gov/opinions/documents/E080389.PDF
[1] THERE IS ONLY ONE DUTY OF INITIAL INQUIRY, AND THAT DUTY
ENCOMPASSES INQUIRING OF AVAILABLE EXTENDED FAMILY
MEMBERS NO MATTER HOW THE CHILD IS INITIALLY REMOVED
FROM HOME. [2] FAILURE TO ASK AN AVAILABLE EXTENDED
FAMILY MEMBER ABOUT THE CHILD’S HERITAGE PREJUDICED THE
TRIBES AND WARRANTED REMAND.
After an investigation, a protective custody warrant was sought for Delila D.,
and she was placed in a foster home. Her parents denied Native American
ancestry. A petition was filed, and Delila was detained from her parents at
the initial hearing. In the jurisdiction and disposition report, the social
worker listed the names of seven relatives they tried to reach to no avail.
Delila was removed from her parents at the disposition hearing, and later
placed with her half sibling’s paternal grandmother where she thrived.
Neither parent reunified, and ultimately parental rights were terminated.
Mother appealed.
Conditionally reversed with conditions. The inquiry requirements of section
224.2(b) require extended family members to be interviewed about whether
the child is an Indian child, regardless of how the child came to be in
placement. The Legislature expanded the scope of the initial inquiry with the
enactment of A.B. 3176 and revised California Rules of Court, rule 5.481, to
implement section 224.2(b). These provisions impose on the social worker an
affirmative and continuing duty of inquiry, which begins with the first
contact with the family and includes the reporting party, parents, extended
family members, and other interested persons. A.B. 3176 and the expansion
of the initial inquiry to include more than just parents was supported by
California tribal leaders. Previously, In re Robert F. (2023) 90 Cal.App.5th
492 held that section 224.2(b) only applied to children placed into temporary
custody without a protective custody warrant. Such an interpretation
disregards the plain language and purpose of A.B. 3176. Robert F. was
wrongly decided, as the Legislature enacted section 224.2(b) to expand the
initial inquiry and impose a much broader duty to inquire which does not
depend on whether a child was placed into temporary custody pursuant to a
warrant or pursuant to exigent circumstances. Here, the failure to speak with
an available extended family member whom the social worker spoke to about
other issues was prejudicial and required remand to the juvenile court. (KH)
In re Jayden M.—published 7/27/23; Second Dist., Div. Two
Docket No. B321967
Link to case: https://www.courts.ca.gov/opinions/documents/B321967.PDF
IN DECIDING WHETHER TO DENY REUNIFICATION SERVICES
UNDER WIC 361.5(B)(10) AND (B)(11), THE STARTING POINT IN TIME
BY WHICH TO GAUGE THE REASONABLENESS OF THE PARENT’S
EFFORT IS THE SIBLING’S REMOVAL FROM THE PARENT IN THE
PRIOR CASE WHERE REUNIFICATION SERVICES OR PARENTAL
RIGHTS WERE TERMINATED.
Jayden, mother’s seventh child, was born in 2021 with opiates, morphine,
and amphetamines in his system. By the time of Jayden’s birth, five of his
older siblings had been removed from mother due to her substance abuse that
had begun at least from 2001 with the birth of sibling Damion and continued
on for two decades. Mother never reunited with any of the siblings and the
juvenile court had terminated reunification services and parental rights as to
some of them. Mother admitted to long periods of substance abuse, sporadic
efforts to address her drug addiction, and multiple relapses between 2001
and 2021. Mother continued to use amphetamines, methamphetamines, and
heroin during her pregnancy and Jayden was born with positive toxicology
results. A month after a WIC 300 petition was filed over Jayden, mother
enrolled in a three-month outpatient drug treatment program. During the
first two months of the program, her participation was unsatisfactory. In the
last few weeks of the program, however, mother’s participation greatly
improved, and she completed the program with two and half months of
negative drug tests and six parenting classes. At the contested dispositional
hearing, the juvenile court ordered reunification services for father but
denied mother reunification services under subdivisions (b)(10) and (b)(11) of
section 361.5, finding that mother’s recent four months of effort to address
her drug problem was insufficient considering her 20-year history of drug
abuse and dependency cases. The juvenile court also found that denial of
reunification services was in Jayden’s best interest and that, with more clean
drug tests and consistent visitation, mother could file a 388 petition for
reunification services. Mother appealed.
Affirmed. A parent is generally entitled to reunification services when their
child is removed from their custody. However, the Legislature has also
authorized the denial of services under certain enumerated situations in
section 361.5 that are known as the “bypass provisions.” Subdivisions (b)(10)
and (b)(11) permit the juvenile court to deny reunification services where it is
shown by clear and convincing evidence that (1) the parent failed to reunify
with the child’s sibling or their parental rights over the sibling were
terminated, and (2) the parent failed to undertake subsequent reasonable
efforts to treat the problem that led to the sibling’s removal. Here, mother
appealed the finding that she did not make a reasonable effort to address her
drug addiction and specifically argued that the efforts she made in the four
months since the agency filed its petition over Jayden were reasonable. This
appeal thus presents a question of law: should the juvenile court restrict its
focus to the time since the current case was filed in assessing whether a
parent had made a reasonable effort to treat the problem under subdivisions
(b)(10) and (b)(11)? “The juvenile court should consider the entire span
between, at the one end, the earliest time a sibling or half sibling was
removed from the parent’s custody due to that problem and, at the other end,
the dispositional hearing in the current case.” This holding is based on three
reasons. First, the plain language of (b)(10) and (b)(11) is dispositive. Both
provisions state the court is to assess whether the parent has “subsequently
made a reasonable effort to treat the problems that led to removal of the
sibling or half sibling,” indicating the efforts are to be measured from the
point at which the first sibling was removed for the same reasons the child in
the current case was removed. Second, this statutory interpretation is
consistent with every relevant published decision’s review of the parent’s
efforts, all of which begin from the first sibling’s removal. Third, the holding
is consistent with the public policies behind the bypass provisions that (1)
aim to conserve limited social services where providing them would be
“fruitless,” but (2) also seek to provide parents who’ve previously failed to
reunify another chance based on subsequent reasonable efforts to address
their longstanding problems. The best way to balance these competing
policies is to consider the full breadth of a parent’s history. If those efforts,
albeit commendable, are too short-term, the parent can later seek an order
for reunification services by filing a section 388 petition. (ML)