Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re N.R.; re L.B.;
In re N.R.—published 12/14/23; California Supreme Court
Docket No. S274943; 15 Cal.5th 520
Link to case: https://www.courts.ca.gov/opinions/documents/S274943.PDF
SUBSTANCE ABUSE AS DEFINED IN SECTION 300(b)(1)(D) CAN BE
PROVEN THROUGH ITS ORDINARY MEANING OF “EXCESSIVE USE
OF DRUGS OR ALCOHOL” AND DOES NOT REQUIRE FULFILLMENT
OF DSM CRITERIA OR A DIAGNOSIS BY A MEDICAL PROFESSIONAL;
[2] THE “TENDER YEARS” PRESUMPTION IS INCONSISTENT WITH
LEGISLATIVE INTENT AND CANNOT BE RELIED ON AS THE SOLE
BASIS FOR DEPENDENCY JURISDICTION WHEN CONSIDERING A
PARENT’S SUBSTANCE ABUSE.
The agency filed a petition pursuant to section 300(b) of the Welfare and
Institutions Code concerning then 12-month old N.R. after mother allowed
grandmother, who was allegedly abusing drugs, to reside with mother and
N.R. The agency also filed allegations against father for failing to protect
N.R. despite knowing about grandmother’s drug use and because of father’s
own drug abuse history. Father had initially denied drug use, but tested
positive for cocaine while caring for N.R. He later admitted to the social
worker that he had used cocaine for four consecutive days prior to caring for
N.R. while celebrating his birthday. Father stated he used cocaine at least
once or twice a week for the past five years but denied having an addiction
because “otherwise [he’d] be broke.” Social workers reported N.R. otherwise
appeared to be doing well when she resided with father. Father also
confirmed he did not use cocaine whenever he cared for N.R. and did not plan
to use cocaine if his child was placed with him again. Before the adjudication
hearing, father had two negative drug tests, two missed drug tests, and one
leaked test sample. The juvenile court dismissed the allegation concerning
grandmother but sustained the count concerning father’s cocaine abuse and
released N.R. to mother’s custody. Father appealed. The Court of Appeal
affirmed, finding substantial evidence supported the juvenile court’s ruling
based on father’s initial denial and later admission of cocaine use and the
tender years presumption. Father filed a petition for review, which was
granted to: (1) resolve the split in authority concerning the meaning of
“substance abuse” as defined in section 300(b); and (2) determine whether
substance abuse by a parent should be found to be prima facie evidence of a
substantial risk of serious physical harm when a young child of “tender
years” is involved.
Reversed. [1] While section 300(b)(1)(D) refers to “substance abuse” by a
parent as a possible basis for the juvenile court to assert jurisdiction, the
juvenile court is not required to apply relevant DSM diagnostic criteria for
substance abuse or obtain a qualified professional diagnosis of a substance
abuse disorder in order to find the existence of “substance abuse” for purposes
of the statute. The dependency statutory scheme does not specifically define
the term “substance abuse,” which suggests that the Legislature intended for
the ordinary meaning of substance abuse to apply. Although father argues
substance abuse is a technical term for which DSM criteria for diagnosing
substance abuse is applicable, the Legislature did not refer to the DSM in the
statutory scheme or in the legislative history addressing dependency
jurisdiction. Additionally, the Legislature did not implement the
classifications distinguishing “substance abuse” from “substance dependence”
that are present in the DSM. Moreover, adopting father’s definition of
substance abuse through DSM criteria does not resolve the public policy
considerations of ensuring greater consistency in dependency findings.
Several criteria present in the DSM for assessing substance abuse are only
obtainable in a clinical setting, and the DSM itself warns against individuals
applying DSM criteria without sufficient clinical and medical experience. All
of these reasons also mitigate against requiring a professional medical
diagnosis of a substance abuse disorder in order to find substance abuse as
well. Accordingly, the ordinary meaning of substance abuse as “excessive use
of drugs or alcohol” is applicable and satisfies all due process considerations
to notice parents of a potential jurisdictional finding. The statute safeguards
parental rights by requiring that the juvenile court not only find the
existence of substance abuse, but also whether that places the child at
substantial risk of harm or illness. [2] The “tender years” presumption as
formulated in In re Drake M. is rejected as contrary to legislative intent. In re
Drake M. concluded that a “finding of substance abuse is prima facie evidence
of the inability of a parent or guardian to provide regular care resulting in a
substantial risk of physical harm to a child of tender years.” However, the
plain language of WIC 300(b) does not include a rebuttable presumption and
is instead clear that the agency must prove three elements in order to
establish jurisdiction through substance abuse: (1) substance abuse by a
parent or guardian; (2) which makes the parent or guardian unable to
provide regular care for a child; and (3) this inability causes the child to
suffer serious physical harm or illness or creates a substantial risk of such
harm or illness. Applying the tender years presumption oversimplifies the
300(b) analysis because it conflates a parent’s substance abuse automatically
with the parent’s inability to provide regular care for a child which creates a
substantial risk of harm. While it is reasonable for juvenile courts to infer
that very young children require close supervision and care, this fact on its
own does not constitute prima facie evidence sufficient for jurisdiction that a
parent is then required to rebut. The juvenile court should take into account
all relevant facts, including a child’s age and maturity level, in making a
determination that the agency has met its burden under WIC 300(b).
Accordingly, the case is reversed and remanded to the Court of Appeal to
revisit its analysis in light of this opinion. (SW)
In re L.B.—filed 12/28/2023; First Dist., Div. Four
Docket No. A167363
Link to case: https://www.courts.ca.gov/opinions/documents/A167363.PDF
THE AGENCY’S FAILURE TO COMPLY WITH ITS DUTY OF INITIAL
INQUIRY IS PREJUDICIAL WHERE THERE IS READILY OBTAINABLE
INFORMATION IN THE RECORD THAT IS LIKELY TO BEAR
MEANINGFULLY UPON WHETHER THE CHILD IS AN INDIAN CHILD;
[2] THE DUTY OF INITIAL INQUIRY IMPOSED BY SECTION 224.2
APPLIES REGARDLESS OF HOW THE CHILD IS INITIALLY REMOVED
FROM THE HOME.
After law enforcement served a section 340 protective custody warrant, the
agency filed a petition under section 300 and placed L.B. in foster care. At the
initial hearing, L.B.’s mother completed a form indicating she might be
eligible for membership in a federally recognized tribe. Both parents later
denied having any Native American ancestry. The agency’s reports named
several of L.B.’s extended relatives but did not include information regarding
the relatives’ ancestry. Nevertheless, at the section 366.26 hearing, the
juvenile court terminated the parental rights of L.B.’s parents and found that
the Indian Child Welfare Act did not apply. L.B.’s mother timely appealed,
arguing the court erred by failing to ensure the agency conducted a proper
inquiry under the Indian Child Welfare Act.
Conditionally reversed with conditions. Appellate courts are divided on the
proper standard for determining prejudice when the agency fails to conduct
an adequate initial inquiry under section 224.2. This issue is pending review
by the California Supreme Court. (In re Dezi C. (2022) 79 Cal.App.5th 769,
review granted Sept. 21, 2022, S275578.) However, as articulated in In re
Benjamin M. (2021) 70 Cal.App.5th 735, reversal is required where the
agency fails to conduct an initial inquiry and the record contains readily
obtainable information that would bear meaningfully upon whether the child
is an Indian child. Furthermore, the duty of initial inquiry imposed by section
224.2, subdivision (b) applies regardless of how the child is initially removed
from the home. Considering the remedial purpose of the Indian Child Welfare
Act, and the need to ensure timely identification of a child’s Indian
community, the duty is triggered whether a child is initially detained
according to a section 340 warrant or taken into temporary custody under
section 306. As such, the narrow reading of section 224.2 articulated by In re
Robert F. (2023) 90 Cal.App.5th 492, review granted July 26, 2023, S279743,
plainly conflicts with the statute’s intended purpose. Because the agency had
contact with multiple members of L.B.’s extended family and nevertheless
failed to ask them about L.B.’s ancestry, the agency’s inquiry was legally
inadequate. Further, the existence of L.B.’s relatives was readily obtainable
information that bore meaningfully on whether L.B. is an Indian child. Under
these circumstances, the agency’s failure to contact the relatives and inquire
whether L.B. had any Native American ancestry was prejudicial. The matter
is therefore conditionally reversed. (TL)