Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re R.M., In re Lilianna C, In re H.D, In re Samantha F.
In re R.M.—published 1/30/24; Second Dist., Div. Three
Docket No. B327716; 99 Cal.App.5th 240
Link to Case: https://www.courts.ca.gov/opinions/documents/B327716.PDF
INCARCERATION ALONE DOES NOT SUPPORT JURISDICTION UNDER
WIC 300(B)(1) OR 300(G). THE PARENT MUST BE UNABLE OR
UNWILLING TO MAKE AN APPROPRIATE CUSTODY ARRANGEMENT.
On December 8, 2022, R.M., mother, and father were in a car that was
stopped after it made an illegal U-turn. Mother and father had felony
warrants for murder and were taken into custody; R.M. was released to the
agency. Father identified paternal grandfather as a possible caregiver.
Mother identified paternal grandmother as a possible caregiver, indicating
that paternal grandmother cares for R.M.’s half-sister. Maternal
grandmother also contacted the agency requesting placement. The agency
filed a WIC 300 petition under subdivisions (b)(1) and (g) alleging mother and
father’s failure to protect due to their arrest, and their failure to provide R.M.
with care and the necessities of life. The agency did not include the half-sister
in the petition because she resided with paternal grandmother. R.M. was
detained from mother and father on December 13, 2022. Three days later,
over the agency’s objection, R.M. was placed with paternal grandmother.
Subsequently, mother informed the agency she wanted to provide paternal
grandmother with temporary legal custody while incarcerated. On February
27, 2023, the court sustained the petition, removed R.M. from mother and
father, and ordered family reunification services. Mother appealed.
Reversed and vacated. The agency did not meet its burden of demonstrating
that something more than the parents’ incarceration supported jurisdiction
under subdivisions (b)(1) and (g). Subdivision (b)(1) applies when a parent
willfully or negligently fails to provide for the child, or the parent is unable to
provide for the child due to mental illness, developmental disability, or
substance abuse. Subdivision (g) applies when, at the time of the
jurisdictional hearing, a parent is incarcerated and cannot make, or is
physically or mentally incapable of making, an appropriate plan for the child.
R.M.’s parents did not have an opportunity to arrange for his care before the
agency intervened. Mother, however, identified paternal grandmother as a
caregiver, sought to legally formalize paternal grandmother’s custody of R.M.
during her incarceration, and maintained regular contact with paternal
grandmother, R.M., and R.M.’s half-sister, evidencing her ability and
willingness to make an appropriate custody arrangement. (EG)
In re Lilianna C.—published 2/8/24; Second Dist., Div. Two
Docket No. B324755; 99 Cal.App.5th 638
Link to case: https://www.courts.ca.gov/opinions/documents/B324755.PDF
THE JUVENILE COURT’S AUTHORITY UNDER WIC 213.5 TO ISSUE A
RESTRAINING ORDER PROTECTING THE “CHILD OR ANY OTHER
CHILD IN THE HOUSEHOLD” APPLIES WHENEVER A DEPENDENCY
PETITION HAS BEEN FILED.
At Lilianna’s birth, the juvenile court removed her from mother due to
positive toxicology test results and mother’s history of substance abuse. The
court eventually returned Lilianna to mother and terminated jurisdiction.
When Lilianna was three, she was detained from her mother again – this
time due to concerns that included mother’s mental health problems and
substance abuse. Lilianna was placed in the home of her maternal aunt (MA)
and maternal uncle (MU), whose toddler-aged child (Lilianna’s maternal
cousin (MC)) resided with them. During the pendency of the case, Mother left
MA a voicemail threatening to murder her for allowing Lilianna to have
contact with the maternal grandmother (MGM) whom she believed, without
basis, was a child molester. In the same voicemail, Mother accused MA of
being a cult member and having mental illness. Mother then left MGM a
voicemail, accusing her of being a child molester and a cult member. Mother
subsequently made three attempts to call MU. Shortly thereafter, the court
issued a temporary restraining order against mother that prohibited contact
with Lilianna, MA, MU, MC, and MGM, aside from her scheduled visits with
Lilianna. At the jurisdiction and dispositional hearing, the court sustained
the petition as to mother’s substance abuse and failure to make an
appropriate plan of care of the child, and ordered reunification services. The
court ordered Lilianna to be placed with MA, MU, and MC. As part of the
proceedings, the court issued a three-year restraining order prohibiting
mother from harassing or contacting Lilianna, MA, MU, MC, and MGM, with
a carve-out for visitation with Lilianna. Mother appealed the restraining
order.
Affirmed in part; reversed in part. WIC 213.5 provides that, after a petition
has been filed pursuant to WIC 311, the juvenile court has the exclusive
jurisdiction to issue a restraining order protecting the child, “any other child
in the household,” and “any parent, legal guardian or current caretaker of the
child” from harassment by a parent. WIC 311 refers to petitions filed by a
“probation officer.” On appeal, mother made the two-fold argument that there
was insufficient evidence to support the order restraining her from Lilianna
and that WIC 213.5 did not authorize the inclusion of MC and MGM, who
were of attenuated relationship to the dependent child, as protected persons
in the restraining order. (I) As a preliminary matter, the Court rejected any
literal reading of WIC 213.5(a) that restricts the juvenile court’s authority to
only those cases in which the probation officer has filed the dependency
petition. To give the text its literal meaning would lead to the absurd result of
stripping from the juvenile court its ability to provide maximum safety and
protection to abused and neglected children. Additionally, WIC 213.5’s
legislative history reveals that the drafters, when amending the statute in
1996, never intended to constrain the juvenile court but to clarify that its
authority began upon the filing of a petition to declare a child a dependent.
Another drafting error was observed in the 1996 amendment of WIC 304
which likewise provides that, after a petition has been filed pursuant to WIC
311, no other division of the superior court shall hear proceedings regarding a
child in juvenile dependency proceedings. Both sections suffer from the
drafters’ oversight to additionally reference WIC 325, which authorizes
“social workers” to file petitions. (II). A juvenile court may issue a restraining
order when it finds that the person to be restrained has “disturbed the peace”
of the person to be protected. Evidence that the restrained party destroyed
the protected person’s mental or emotional calm is enough; there is no
requirement of prior physical abuse or a reasonable apprehension of future
physical abuse. Here, the evidence showed Mother disturbed the child’s peace
by regularly yelling at and sometimes striking the child, causing her to be in
fear. (III) Mother also argued that MC and MGM did not qualify as protected
persons under WIC 213.5. Because the statute authorizes protection over the
child and “other children in the household,” the restraining order
appropriately reached the MC who was a child in Lilianna’s household.
However, because MGM was not a “legal guardian” or “current caretaker” of
the child (or, in other words, not one of the enumerated persons in WIC
213.5), she should not have been included as a protected person in the
restraining order. This is not to say that MGM had no recourse under another
statute for protection. (ML)
In re H.D.—published 2/14/24; Fourth Dist., Div. One
Docket No. D082615; 99 Cal.App.5th 814
Link to case: https://www.courts.ca.gov/opinions/documents/D082615.PDF
(1) THE JUVENILE COURT HAS THE AUTHORITY UNDER WIC 213.5 TO
ISSUE A RESTRAINING ORDER REGARDLESS OF WHETHER THE
PROBATION OFFICER OR SOCIAL WORKER FILED THE DEPENDENCY
PETITION. (2) AT THIS TIME, MOST JUVENILE STATUTORY
PROVISIONS HAVE BEEN REVISED TO REPLACE “PROBATION
OFFICER” WITH “SOCIAL WORKER,” BUT THOSE TERMS ARE
INTERCHANGEABLE.
The child welfare agency’s social worker filed a section 300 petition on behalf
of 14-year-old, H.D., and 10-year-old, A.D., which led to their removal from
Mother due to drug abuse. Eventually, H.D. was ordered into legal
guardianship and parental rights over A.D. were terminated. Before A.D. was
adopted, A.D. filed a request for a temporary restraining order against
Mother. The juvenile court granted the request and set a restraining order
(RO) hearing. At the RO hearing, Mother asked for its dismissal. The juvenile
court granted the three-year permanent RO against Mother. Mother
appealed.
Affirmed. On appeal, Mother raised the same argument as the appellant in
In re Lilianna C. (Feb. 8, 2024, B324755) 99 Cal.App.5th 638 (Lilianna C.) –
that the plain language of section 213.5 that directs the reader to section 311
restricts the juvenile court’s authority to issue a RO to only those cases where
the probation officer, rather than the social worker, has filed the section 300
dependency petition over the child. In analyzing the statute, words are given
their plain, commonsense meaning, but portions at issue are also interpreted
congruently with their overall statutory scheme. Juvenile law was originally
administered by the probation officer. It was not until 1968 that the
Legislature authorized the delegation of child welfare duties from the
probation officer to the social worker and, in 1976, section 300 was enacted to
govern dependent children. Section 272 was also passed to authorize a
county’s board of supervisors to delegate duties to dependent children from
probation officers to social workers. (See also Cal. Rules of Court, rules
5.620(b) & 5.630(a)(1).) Thus, where, as here, the child’s dependency case is
in a county that has approved this delegation of duties, the juvenile court’s
authority to issue a RO under section 213.5 extends to petitions filed by social
workers. Moreover, section 215 provides that “probation officer” shall include
“any social worker in a county welfare department” and cites to section 272.
(See also rule 5.502(31), (39).) (ML)
In re Samantha F.—published 2/22/24; Fourth Dist., Div. Two
Docket No. E080888
Link to case: https://www.courts.ca.gov/opinions/documents/E080888.PDF
THE DUTY TO INQUIRE OF KNOWN RELATIVES APPLIES
REGARDLESS OF HOW A CHILD ENTERS CUSTODY.
In 2021, the agency took infant Samantha into protective custody pursuant to
a section 340 warrant. Mother and father repeatedly denied Indian ancestry.
The record was silent as to whether the agency asked known relatives about
Indian ancestry. Multiple relatives participated in the proceedings. Paternal
grandparents and a paternal aunt attended the initial hearing, at which the
court detained Samantha from parents. Two paternal aunts and an uncle
attended the combined jurisdictional and dispositional hearing, at which the
court removed Samantha from parents. The agency placed Samantha with
paternal grandparents before placing her with a paternal aunt. The court
terminated parental rights. Father timely appealed.
Reversed. The duty to inquire of extended relatives applies even when a child
comes into protective custody pursuant to a warrant. The conclusion of some
courts, including In re Robert F. (2023) 90 Cal.App.5th 492 and In re Ja.O.
(2023) 91 Cal.App.5th 672 (review granted on both July 26, 2023), that the
section 224.2(b) duty to inquire of known relatives applies only when a child
is taken into temporary custody pursuant to section 306 is unpersuasive. The
reasoning in In re Delila D. (2023) 93 Cal.App.5th 953 (review granted
September 27, 2023) is persuasive. Children taken into protective custody
and delivered to a social worker pursuant to section 340 are in temporary
custody pursuant to section 306. All pre-petition removals of Indian children
are “emergency removals” under the ICWA regardless of warrant status.
Applying the same expanded duty of initial inquiry regardless of how a child
enters custody comports with federal ICWA standards, which imposes
requirements for removal of an Indian child without consideration of warrant
status. To do otherwise runs contrary to legislative intent and federal and
state statutory schemes. The agency’s failure to ask the many paternal
relatives involved in the dependency proceedings about the child’s possible
Indian heritage was prejudicial error. The dissent finds the reasoning in In re
Robert F. and its progeny persuasive. (SL)