Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re Dora V. v. Superior Court, In re V.S, In re Gilberto G.
Dora V. v. Superior Court—published 9/4/24; Second Dist., Div. Three
Docket No. B332985; 104 Cal.App.5th 987
Link to case: https://www.courts.ca.gov/opinions/documents/B332985.PDF
LEGAL GUARDIANS APPOINTED BY THE JUVENILE COURT ARE NOT
ENTITLED TO REUNIFICATION SERVICES AND MAY ONLY RECEIVE
THOSE SERVICES IN THE DISCRETION OF THE COURT IF IT IS IN
THE BEST INTEREST OF THE CHILD.
The agency filed a petition as to Rene and his two older siblings, Valerie and
Ricardo, due to their parents’ substance abuse. The children were placed with
Dora V., their maternal-great aunt. After failed efforts to return the children
to the parents, the juvenile court appointed Dora V. as the children’s legal
guardian and terminated jurisdiction. Four years later, the agency filed a 387
petition against legal guardian Dora V., alleging she physically abused the
children, allowed maternal grandmother and mother to have unmonitored
access to the children despite their past substance abuse history, and allowed
a NREFM access to the children despite his past sexual abuse of Valerie. The
juvenile court sustained the 387 petition but released the children to Dora V.,
ordering no contact between the NREFM and the children. Subsequently, the
agency filed a second 387 petition alleging legal guardian Dora V. continued
to allow the NREFM access to Valerie and Dora V. slapped and punched
Valerie on multiple occasions. The juvenile court removed the children from
Dora V. and ordered reunification services for her. The agency placed
children with maternal aunt and uncle, but Valerie experienced psychiatric
issues and was replaced with a foster caregiver for the pendency of the case.
During the reunification period, Dora V. completed her case plan and her
visits with Ricardo and Rene were liberalized to overnights. However, while
Ricardo was comfortable with Dora V. and eventually returned to her care,
Rene began refusing overnight visits, conjoint counseling, and any other
further contact, expressing discomfort with returning to her. At this time,
Ricardo began to bully and hit Rene as well, which Dora V. minimized in
conversations with social workers. The court continued Dora V.’s
reunification services at the .21e and .21f hearings as to Rene. At the .22
hearing, Rene continued to refuse to contact or visit with Dora V., expressing
he was happy living with maternal aunt and uncle and did not want to return
to Dora V. because she was mean and physically abused him and his siblings
in the past. Rene also did not want to live with his brother Ricardo because of
Ricardo’s bullying. Rene’s therapist also confirmed Rene’s ongoing fears of
Dora V. and Ricardo. The juvenile court terminated Dora V.’s family
reunification services and set a .26 hearing, finding it was detrimental to
return Rene to Dora V. or facilitate further reunification based on Rene’s
ongoing fears. However, the juvenile court declined to terminate Dora V.’s
legal guardianship, stating she still had the ability to file a 388 during the
pending .26 hearings. Dora V. appealed, arguing her due process rights to
visitation were violated because of Rene’s refusal to visit her, the agency did
not provide reasonable services, and she was entitled to an extension of family reunification services.
Affirmed. While this appeal was pending, the parties were asked to provide
supplemental briefing addressing: (1) whether a legal guardian is entitled to
reunification services, and (2) if a legal guardian is not entitled to
reunification services, was it an abuse of discretion for the juvenile court not
to grant reunification services. In this case, Dora V.’s legal guardianship was
granted through dependency court and she was not entitled to reunification
services. The statutory language referring to “guardians” or “legal guardians”
in the reunification statutes of sections 361.5, 366.21, and 366.22 references
probate guardianships and does not contemplate these statutes applying to
guardianships created in dependency court. Minors in the care of a
dependency legal guardian continue to remain a ward under the jurisdiction
of the juvenile court and the guardianship is neither irrevocable nor
permanent. Moreover, when a minor is removed from the care of a
dependency legal guardian pursuant to section 387, the legal guardian is not
entitled to reunification services through statute and reasonable services are
not required to be provided. Instead, the juvenile court has the discretion to
order reunification services if it is the child’s best interest to preserve the
dependency legal guardianship. In re Carlos E. (2005) 129 Cal.App.4th 1408
is instructive in this case as it concluded that a dependency legal guardian’s
challenge to the juvenile court’s findings failed because the guardian was not
statutorily entitled to reunification services. Similarly, although Dora V.
asserts a violation of her statutory rights to reunification services, her
arguments have no merit given her status as a dependency legal guardian.
Nevertheless, Dora V. may still contest whether the juvenile court abused its
discretion in denying reunification services. In this case, continued
reunification services were not in Rene’s best interest because he was doing
well in his current placement with maternal aunt and uncle, did not want
any further contact with Dora V., and feared placement with her given his
past experiences of bullying with his older brother Ricardo. Accordingly, the
juvenile court did not abuse its discretion in terminating services for Dora V.
(SW)
In re V.S. —published 09/09/2024; Second Appellate Dist., Div. Four
Docket No. B332310; 104 Cal.App.5th 1154
Link to Case: https://www.courts.ca.gov/opinions/documents/B332310.PDF
THE EXCEPTIONS IN SECTION 366.26 APPLY ONLY UNDER LIMITED
CIRCUMSTANCES, AND THE PARTY OPPOSING TERMINATION OF
PARENTAL RIGHTS HAS THE BURDEN TO DEMONSTRATE THAT AN
EXCEPTION APPLIES.
At birth, V. tested positive for methamphetamines. The agency filed a 300
petition. V. and her 9-year-old half-brother, N., were placed with a relative.
The allegations in the petition were found true under section 300(b). At
disposition, N. was released to his father, who was nonoffending. At the age
of nine months, V. was placed with maternal great aunt, C.L. In 2019, C.L.
became V.’s legal guardian. N. returned to mother’s custody after his father
encountered some health problems. N. and V. saw each other sporadically
during V.’s visits with mother and grandmother. In 2022, C.L. filed a 388,
seeking to adopt V. Mother opposed termination of parental rights under the
parental relationship exception to adoption under section 366.26(c)(1)(B)(i).
The juvenile court held that mother did not meet her burden to demonstrate
that this exception applied. The court then, without request or input from the
parties, held that adoption would not be in V.’s best interest under the sibling
exception in section 366.26(c)(1)(B)(v). The court selected legal guardianship
as the permanent plan for V. The agency and V. appealed.
Reversed. Adoption is the clear preference under the law. The exceptions in
section 366.26 apply only under limited circumstances, and the party
opposing termination of parental rights has the burden to demonstrate that
an exception applies. Section 366.26 does not require the juvenile court to
consider the sibling relationship exception when no party has argued that it
applies. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292.) The juvenile court
erred in applying the wrong legal standard to the sibling relationship
exception and in relieving mother of her statutory burden to prove that an
exception applied. Mother was the only party opposed to termination of
parental rights, and she bore the burden of demonstrating that an exception
in section 366.26 applied. Yet, mother did not assert that the sibling
relationship exception applied, and she would not have been able to meet this
standard, given the record. N. is nine years older than V., and they lived
together for only the first four months of V.’s life. While they visited each
other and enjoyed each other’s company, sibling visits were sporadic.
Moreover, their shared experiences were limited. By the 366.26 hearing, V.
was six years old and did not have experiences similar to N., a 15-year-old
high school student. The juvenile court must enter a new order, selecting
adoption as the permanent plan for V. (AMC)
In re Gilberto G.—published 9/12/24; Second Dist., Div. Seven
Docket No. B332002
Link to case: https://www.courts.ca.gov/opinions/documents/B332002.PDF
A SINGLE INCIDENT OF HAVING TOO MANY BEERS WHILE CARING
FOR CHILDREN IS NOT ENOUGH FOR JURISDICTION.
Mother had two beers at lunch and boarded a bus with her three children
ages 10, 8, and 6 to see their father. A cast was on her broken foot and she
was on crutches. During the bus ride, the driver stopped abruptly, causing
her to fall. She was taken to the hospital and found by a physician to be in
mild distress with minor injuries, but alert, communicative, and cooperative.
There was, however, an anonymous caller to the child welfare agency who
reported mother had fallen due to heavy intoxication, that she was
belligerent, and observers were concerned for the children who were “dirty,
disheveled, and extremely hungry.” Mother also tested positive for marijuana
and her blood alcohol content was at .22 percent. A social worker interviewed
mother who denied the allegations. She explained she fell due to the abrupt
stop of the bus. If the children were hungry, it was because of their long stay
at the hospital, and any belligerence on her part was due to pain and the
rudeness of hospital staff. The social worker noted mother was well-groomed,
alert, and not slurring her words. Mother had a prior dependency case due to
domestic violence with father, but the parents completed their classes and
now amicably coparented. The children were interviewed and found to be
alert, in good spirits, and without signs of abuse or neglect. They denied the
allegations. Father and maternal grandmother, who had frequent contact
with the family, were interviewed and denied any concerns. A few days later,
mother voluntarily tested for drugs and alcohol, and the test was negative. A
few weeks later, the social worker visited the home and found it to be safe
and tidy, but later that day requested a police welfare check at the direction
of her supervisor because the parents had been argumentative and appeared
to have slurred, rapid speech. The police advised they could not enter the
building to check on the family. The social worker visited the children at
school – they were in good health and again denied seeing their mother
drunk or acting strangely. The agency filed a 300(b) petition alleging mother
had a history of substance abuse and was an abuser of marijuana and alcohol
that made her incapable of caring for her children; the court followed the
agency recommendation to leave the children undetained. Further
investigation yielded nothing new aside from the social worker’s requests
that mother drug test which she declined at one time but otherwise could not
make due to work or appointments for the children. At the jurisdiction
hearing, the agency’s attorney recounted the incident of mother falling and
having a blood alcohol content over twice the legal limit. The agency’s
attorney argued that mother had refused to test further for the agency and
cited to a 387 allegation sustained over four years ago for mother’s substance
abuse (of which the agency report made no mention). Six months after the
referral, the juvenile court sustained the 300 petition, finding that, in view of
the previously sustained allegations, this was more than a bad day or isolated
incident of mother caring for the children while under the influence, and
ordered 360(b) informal supervision. Mother appealed.
Reversed. Mother argued that a single incident of being under the influence
of alcohol and marijuana while caring for her children neither harmed them
nor created a substantial risk that they would suffer serious physical harm or
illness by the time of the jurisdiction hearing. This case is like In re J.N.
(2010) 181 Cal.App.4th 1010 where the agency alleged a single incident of a
parent’s intoxication while caring for the children and the parent occasionally
drank in the home. Here, mother cooperated with the agency’s investigation,
tested once, attended an anger management class, and the children were
consistently found to be healthy and without signs of abuse or neglect.
Although the agency’s attorney argued that .22 percent blood alcohol content
was twice the legal limit, that is as to driving under the influence, and
mother was riding, not driving, a bus. During the six months between the bus
incident to the jurisdiction hearing, there was no evidence of mother caring
for the children while under the influence of drugs or alcohol. As to the prior
387 petition based on substance abuse, there was little information about it
in the record other than the agency attorney’s argument, which is not
evidence. Likewise, the juvenile court’s judicial notice of the children’s case
files, which may have included the 387 petition, was not enough to show a
history of substance abuse. Even if the juvenile court had sustained a
previous allegation of substance abuse, there was no evidence that years later
mother drank or used marijuana in excess while caring for her children.
Although mother did not take full ownership of her poor judgment and
actions, she cooperated with the investigation, submitted to a drug and
alcohol test, and agreed to test and participate in services in the future. In
other cases where a parent’s failure to take responsibility supported
jurisdiction, there were other concerning factors such as their lack of
enrollment in services or decreasing acceptance of responsibility. Further,
even if mother had a substance abuse problem, the evidence was insufficient
to show it placed the children at substantial risk of serious physical harm as
they were by all accounts well taken care of, healthy and without
developmental delay, and showed no signs of abuse or neglect. (ML)