Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re L.B.; In re P.H., Jr.; L.C. v. Superior Court; In re A.K.
In re L.B.—published 01/09/2024; Fifth Dist.
Docket No. F086109; 98 Cal.App.5th 827
Link to Case: https://www.courts.ca.gov/opinions/documents/F086109.PDF
FOR PURPOSES OF APPLYING SECTION 361.5(B)(13), IT IS
IRRELEVANT WHETHER PARENTS ARE ENGAGING IN TREATMENT
AT THE TIME OF THE DISPOSITION HEARING; INSTEAD, THE
BYPASS PROVISION FOCUSES ON WHETHER THERE IS PROOF OF
PARENTS’ (ACTIVE) RESISTANCE DURING THE THREE-YEAR PERIOD
PRIOR TO THE PETITION FILING DATE.
The agency filed a 300 petition, which included allegations of parents’
substance abuse and ongoing domestic violence. At the initial hearing, the
juvenile court ordered minors detained from parents. The jurisdiction report
detailed parents’ lengthy history of substance abuse and domestic violence,
dating back to at least 2007. This history involved multiple child welfare
referrals and two prior dependency cases wherein parents participated in
substance abuse treatment and drug testing but then resumed heavy
drinking, marijuana use, and domestic violence after the children were
returned to their care. At the jurisdiction hearing, parents submitted on the
agency’s report, and the juvenile court sustained the allegations. At
disposition, the parties stipulated for the juvenile court to consider
documents about parents’ progress in services. Parents sought return of the
children with family maintenance services. Counsel for the children asked
the court to deny reunification services to parents under section 361.5(b)(13).
Counsel for minors argued that parents’ continued alcohol abuse after the
prior dependency cases amounted to more than a “mere relapse” as described
in In re B.E. (2020) 46 Cal.App.5th 932 (B.E.). The juvenile court ordered the
children removed from parents and granted reunification services, stating
that it could not deny reunification services under section 361.5(b)(13)
because parents were engaged in treatment. Minors appealed.
Reversed and remanded for a new disposition hearing. The juvenile court’s
decision to order reunification services for parents rested on a misapplication
of the law. Section 361.5(b)(13) provides, in relevant part, that a court “need
not” provide reunification services when it finds, by clear and convincing
evidence, that a parent “has a history of extensive, abusive, and chronic use
of drugs or alcohol and has resisted prior court-ordered treatment for this
problem during a three-year period immediately prior to the filing of the
petition that brought that child to the court’s attention.” (WIC 361.5(b)(13).)
Under the recent amendments to section 361.5, a parent can be found to
“resist” previously court-ordered treatment where there was a refusal to
“participate meaningfully” in the program. (Ibid.) This can include situations
where parents “‘go through the motions’ of treatment with the aim of
achieving reunification and then immediately resum[e] a drug habit.” (B.E.,
supra, 46 Cal.App.5th at pp. 942-943.). In other words, a parent’s
engagement in treatment at the time of the disposition hearing does not
prevent a juvenile court from denying reunification services pursuant to
section 361.5(b)(13). The bypass provision only requires proof of the parent’s
resistance during the three-year period prior to the filing of the petition.
(Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780.) Thus, the
parent’s conduct in the three-year period preceding the petition is the only
relevant consideration for the juvenile court to determine the applicability of
section 361.5(b)(13). There is no requirement in the statute or case law that
the parent must continue to resist prior treatment at the time of the
disposition hearing. Because the juvenile court erroneously concluded that
the bypass provision did not apply because the parents were engaging in
treatment, a new disposition hearing based upon the family’s present
circumstances must be held. (AMC)
In re P.H., Jr.—published 1/12/24; Second Dist., Div. Five
Docket No. B321592; 98 Cal.App.5th 992
Link to Case: https://www.courts.ca.gov/opinions/documents/B321592.PDF
STATEMENTS SUGGESTING A CHILD MIGHT HAVE SOME INDIAN
ANCESTRY ARE NOT ENOUGH TO TRIGGER ICWA NOTICE
REQUIREMENTS AS TRIBAL ANCESTRY IS NOT AMONG THE SIX
CRITERIA IN WIC 224.2(D) THAT ESTABLISH HAVING A REASON TO
KNOW THE CHILD IS AN INDIAN CHILD.
In March 2022, P.H. was detained from mother and father. At the initial
detention hearing, both parents filed ICWA-020 forms indicating that they
may be members of, or eligible for membership, in a federally recognized
tribe. Mother indicated possible Apache and Yuki heritage; father indicated
possible Yucca and Navajo heritage. Both parents provided the names of
relatives who may have more information. The juvenile court ordered the
agency to investigate P.H.’s possible connection to the four tribes. The agency
was unable to speak with maternal relative Christina, but spoke with
maternal relative Maria who indicated no way of proving Yaki heritage. The
agency spoke with father’s paternal grandmother who denied Indian
ancestry. The agency mailed ICWA-030 Notice to the Secretary of the
Interior, the Bureau of Indian Affairs, and several Apache and Navajo tribes,
and received return receipts from all tribes except the Navajo Nation. In
April 2022, the juvenile court found that it did not have reason to know that
P.H. was an Indian child and did not order notice. The juvenile court ordered
the agency to make further efforts to contact maternal relative Christina. At
the disposition hearing in June 2022, the juvenile court removed P.H. from
his parents and found the agency’s ICWA investigation complete and that
there was no reason to know that P.H. was subject to ICWA. Father
appealed.
Affirmed. There is an affirmative and continuing duty to inquire whether a
child is, or may be, an Indian child. If there is a reason to believe the child is
an Indian child, further inquiry is required. If there is a reason to know the
child is an Indian child, formal notice to the relevant tribes is required.
Father’s appeal only challenges compliance with ICWA’s notice requirements.
Pursuant to section 224.2, subdivision (d), a reason to know exists under six
circumstances: (1) a person having an interest in the child informs the court
that the child is an Indian child; (2) the residence or domicile of the child, the
child’s parents, or Indian custodian is on a reservation or in an Alaska Native
village; (3) any participant in the proceeding informs the court that it has
discovered information indicating that the child is an Indian child; (4) the
subject child gives the court reason to know that the child is an Indian child;
(5) the court is informed that the child is or has been a ward of a tribal court;
and, (6) the court is informed that either the parent or child possess an
identification card indicating membership or citizenship in an Indian tribe.
At most, the statements by the parents and relatives suggested that P.H.
might have some Indian ancestry, which was not sufficient to trigger ICWA
notice requirements. (EG)
L.C. v. Superior Court—published 1/16/2024; Second Dist., Div. Seven
Docket No. B331041; 98 Cal.App.5th 1021
Link to case: https://www.courts.ca.gov/opinions/documents/B331041.PDF
[1] A PARENT IS NOT REQUIRED TO COMPLETE REUNIFICATION
SERVICES IN THE UNITED STATES IN ORDER TO REUNIFY WITH
THEIR CHILD. [2] A PARENT’S RESIDENCE OUTSIDE THE UNITED
STATES SHOULD NOT BAR REUNIFICATION WITH THE CHILD WHEN
REUNIFICATION IS IN THE BEST INTERESTS OF THE CHILD.
Three-year-old L.C. was detained from his mother, an undocumented
noncitizen, after mother was arrested for transporting six boxes of fentanyl
pills while L.C. was a passenger in her vehicle. Later, the U.S. Attorney filed
a magistrate’s complaint charging mother with criminal violations related to
her arrest. According to the agency’s investigation, mother did not have any
prior criminal history, substance abuse issues, or mental health challenges,
and mother appeared remorseful. At the jurisdiction and disposition hearing,
the juvenile court sustained a petition pursuant to section 300, subdivision
(b), removed L.C. from mother’s care, and ordered mother to complete a
substance abuse program, parenting classes, therapy, and submit to random
on-demand drug and alcohol testing. Initially, mother visited with L.C. and
submitted to two drug-tests in Los Angeles County. During the reunification
period, however, mother relocated to her home country, Mexico, on the advice
of her criminal attorney. Even though mother’s criminal case had been
dismissed, her criminal case attorney advised her that she faced deportation
because her non-citizenship status was revealed during the criminal
proceedings. As such, mother returned to Mexico to request permission to
reenter the United States legally so she could reunify with L.C. Once in
Mexico, mother contacted Desarrollo Integral de la Familia (DIF), Mexico’s
child welfare agency, for assistance in locating services. Thereafter, mother’s
criminal case reopened, and a warrant was issued for mother’s arrest. Mother
did not return to the United States and followed her criminal attorney’s
advice to stay in Mexico. In Mexico, mother successfully completed a threemonth substance abuse program, parenting classes, therapy, and maintained
frequent positive contact with L.C. and the agency. Mother submitted to
random drug testing through DIF, and never tested positive for drugs or
alcohol. DIF also provided assurances that L.C. would receive developmental
services located near L.C.’s maternal grandparent’s home. L.C.’s maternal
grandparents were available to provide additional support for L.C., and their
home was safe and appropriate. At the twelve-month status review hearing,
the juvenile court terminated mother’s reunification services and set a
permanency hearing. In terminating mother’s services, the court focused on
mother’s failure to return to California to receive reunification services,
speculation regarding a lack of available services for L.C. in Mexico, and
mother’s failure to surrender herself in response to the criminal arrest
warrant. L.C. timely filed a petition for extraordinary writ.
Granted. The juvenile court’s finding that returning L.C. to his mother in
Mexico would place L.C. at substantial risk of physical harm was erroneous.
Mother coordinated with DIF to diligently complete her case plan from
Mexico, demonstrated insight, and maintained consistent contact with L.C.
through video calls and phone calls. There was no evidence mother ever had a
substance abuse problem or tested positive for drugs. Although it would have
been easier to provide reunification services to mother in Los Angeles,
nothing in the dependency scheme requires a parent to complete services in
the United States in order to reunify with their child. Furthermore, the
record demonstrates mother could provide for L.C.’s needs in Mexico, as DIF
confirmed L.C. could receive developmental services, and L.C.’s maternal
grandparents were available to provide additional support. In assessing
detriment, the juvenile court must consider the actual evidence of risk rather
than perceptions of risk. Although it was appropriate for the court to consider
mother’s outstanding arrest warrant and residence in Mexico in assessing
such detriment, the court’s perception that mother would not comply with
court orders while residing in Mexico was unfounded as mother had complied
with every directive from the court and the agency. Because the dependency
scheme does not operate to punish a parent but rather focuses on the best
interests of the child, a parent’s absence from the United States should not
bar the child from reunifying with the parent when reunification is in the
child’s best interests. This principle applies regardless of whether the
parent’s absence is due to involuntary deportation or because the parent
elected to leave the country for some other reason. Therefore, the juvenile
court’s order terminating mother’s reunification services is vacated. The
juvenile court shall set a new twelve-month review hearing at which L.C.
must be returned to his mother absent any new developments establishing
L.C. would suffer a substantial risk of physical harm in mother’s care. (TL)
In re A.K.—filed 1/18/2024, Cert. for Publ. 1/30/2024; Third Dist.
Docket No. C097776
Link to case: https://www.courts.ca.gov/opinions/documents/C097776.PDF
[1] AN ALLEGED PARENT’S DUE PROCESS RIGHTS TO NOTICE AND
AN OPPORTUNITY TO PARTICIPATE IN THE PROCEEDINGS IN AN
EFFORT TO ESTABLISH PRESUMED PARENT STATUS WERE
VIOLATED BY THE FAILURE OF THE CHILD WELFARE AGENCY AND
JUVENILE COURT TO COMPLY WITH SECTION 316.2 AND CAL. RULE
OF COURT, RULE 5.635 TO DETERMINE ALL ALLEGED PARENTS AS
EARLY AS POSSIBLE, PROVIDE ADEQUATE NOTICE OF THE
PROCEEDINGS AND THEIR POSSIBLE EFFECT ON THE PARENT’S
RIGHTS, AND NOTICE OF SPECIFIC HEARINGS. [2] THE DUE
PROCESS ERROR WAS PREJUDICIAL BECAUSE IF THE FATHER HAD
RECEIVED ADEQUATE NOTICE OF THE FUTURE HEARING DATES
AND THE NATURE AND CONSEQUENCES OF THE PROCEEDINGS, HE
LIKELY WOULD HAVE COME FORWARD EARLIER AND HAD THE
OPPORTUNITY TO RECEIVE SERVICES.
In April of 2022, A.K. was detained from mother and alleged father, D.C., at
an initial hearing. At a continued hearing the next month, mother and D.C.
appeared, and D.C. asked for paternity testing, which was ordered. The
jurisdiction hearing was continued because the paternity results were not
back. At each of the hearings, the juvenile court did not inquire of mother
about the identity of any other alleged fathers. When the paternity results
showed that D.C. was not the biological father, mother informed the agency
that C.B. may be the father. The disposition report filed in June listed C.B. as
an alleged father and included his contact information, but C.B. was not sent
the report. Instead, the agency sent C.B. a letter indicating that he may be
the biological father of A.K. who was a dependent of the court and attached
the JV-505 Statement Regarding Paternity. The jurisdiction/disposition
hearings were continued multiple times, and an amended petition was filed
listing C.B. as the father, but he did not receive notice of the hearings and
was not sent the petition. When the court finally conducted the
jurisdiction/disposition hearings, it sustained the petition and bypassed
mother for reunification services. C.B. was not present, nor did he receive
notice of the hearings. On August 16, C.B. had a visit with A.K. and took a
paternity test, which later determined he was the father. C.B. and his mother
were told there would be a hearing to discuss his paternity in September, but
his mother later told the agency they could not attend. At the hearing, C.B.
was appointed an attorney and designated as the biological father. The court
ordered the agency could serve C.B.’s counsel for the section 366.26 hearing.
The section 366.26 report recommended terminating parental rights, and
indicated C.B. had a warrant for his arrest, was thought to be living with his
mother, and had not been visiting. The report was not sent to C.B. C.B. filed
two 388 petitions asking for reunification services, noting he did not realize
the consequences of the hearings. They were both denied. At the section
366.26 hearing, C.B.’s counsel argued he had been denied due process, but
parental rights were terminated. Father appealed.
Reversed. Father was deprived of due process when the juvenile court failed
to comply with the mandates of the dependency statutes and rules of court to
provide him with notice and the parentage inquiry requirements. Notice in
the dependency system is both statutorily and constitutionally required. A
parent must be advised both that proceedings are underway, and of the
nature of the hearings. The juvenile court has the duty to determine a child’s
parentage at the earliest possible chance, and this is a continuing duty. (WIC
316.2; Cal. Rules of Court, rule 5.635.) Section 316.2 delineates the statutory
procedure for protecting an alleged parent’s limited due process and
opportunity to appeal in court to attempt to elevate parentage status to
presumed. It requires alleged parents be sent notice that there is a
dependency case and that the proceedings could ultimately result in the
termination of their parental rights. The JV-505 form must be included.
California Rules of Court, rule 5.635(g) places a duty on the clerk of the trial
court to provide to alleged parents a copy of the petition, notice of the next
hearing, and the JV-505. Here, father was deprived of his due process
because the juvenile court had the opportunity to inquire of mother about
other possible alleged fathers, but failed to do so, and he was not adequately
informed of the proceedings or their significance to his rights. While he was
sent a letter from the agency it did not include the statutorily required
language informing father “that the proceedings could result in the
termination of [his] parental rights and adoption of the child.” (WIC 316.2,
subd. (b).) Adequate notice to an alleged father requires the combination of
that warning plus the JV-505. Further, the clerk did not mail father the
petitions or notice of the next hearing, as required by rule 5.635(g), despite
his address being known and included in the disposition report, and he did
not receive notice of multiple hearings, including the jurisdiction/disposition
hearings. These errors made it so that father did not know the significance of
the proceedings or his right to try to keep the juvenile court from terminating
his parental rights to his child. Despite being outside the bounds of the
typical time to file an appeal, father’s appeal was timely because he raised
the due process issues on the record and filed multiple 388s on the issue,
which were denied. The due process errors were prejudicial to father because
it is reasonably probable that he would have come forward, obtained counsel,
and received services if he had been properly advised on his rights as an
alleged parent and been located earlier. The order terminating parental
rights is reversed and remanded to the juvenile court to comply with section
316.2 and California Rules of Court, rule 5.635 and to determine if father is
the presumed father if he requests such status. (KH)