Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re S.G., H.A. v. Superior Court, In re Kieran S.
In re S.G.—published 3/28/24; Second Dist., Div. Three
Docket No. B330106; 100 Cal.App.5th 1298
Link to case: https://www.courts.ca.gov/opinions/documents/B330106.PDF
SECTIONS 366.26 AND 388 DO NOT VIOLATE A MINOR PARENT’S DUE
PROCESS RIGHTS; THE EIGHTH AMENDMENT JURISPRUDENCE
REGARDING JUVENILE OFFENDERS DOES NOT APPLY TO
DEPENDENCY PROCEEDINGS.
Two-month-old S.G. was detained from his mother who was 17 years old and
a dependent of the juvenile court. The court eventually sustained a petition
regarding the minor-mother’s marijuana abuse and unaddressed mental
health issues. The court continued the disposition hearing, expressing that
the statutory scheme required considerations to be made for the barriers
facing minor parents and noting that mother, as a minor, couldn’t drug test
on her own. At the dispositional hearing, the court acknowledged again
mother’s status as a young parent but ordered S.G.’s removal from her
custody. Mother was ordered to complete individual counseling, a drug and alcohol
program, drug testing, and was granted unmonitored visits in the caretaker’s home.
The child welfare agency then filed a 388 to make mother’s
visits monitored due to continued marijuana use, failure to drug test and
treat her mental health, and unstable housing. Mother, now 18, closed her
dependency case and was without wraparound services. The court granted
the 388 in part, allowing mother to continue unmonitored visits at the
caregiver’s home so long as the caregiver was present. At the WIC 366.21(e)
hearing, the agency asked to terminate reunification services (“FR”) because
mother had not complied with her case plan including testing. In extending
mother’s FR, the court recognized that mother faced barriers to reunification
including homelessness, incarceration, a lack of family support, and her
young age. At the combined 12- and 18-month review hearing, minor’s
counsel and the agency requested termination of FR. Minor’s counsel cited
the child’s young age, extensive time out of his mother’s custody, and need for
permanency. The court found there was no legal basis to continue FR given
mother’s failure to consistently drug test and attend programs and visits, and
even in consideration of the challenges mother faced as a young parent. Prior
to the 366.26 hearing, mother filed a 388 to reinstate FR; DCFS opposed the
request as mother was neither visiting regularly nor in her programs and on
her medication. The court denied mother’s 388, finding that mother’s
circumstances had not changed enough, and then terminated parental rights.
Mother appealed, arguing that sections 366.26 and 388 violated her
substantive due process rights as a teenage parent.
Affirmed. The California Supreme Court in Cynthia D. v. Superior Court and
In re Marilyn H. previously rejected due process challenges to the postreunification dependency scheme based on the shift in focus from parental reunification to a permanent, stable placement to which children have an
independent, fundamental interest. Likewise, here, mother argued that the
court should be required after the termination of FR to consider factors, such
as the parent’s youth, that may make it possible in the future for the child to
safely return to parental custody. Mother’s attempt to distinguish Marilyn H.
based on the unavailability of research on juvenile brain development at the
time Marilyn H. was decided is unavailing. Further, the statutory scheme
provides multiple safeguards for minor parents who are themselves
dependents of the juvenile court. (See, e.g., §§ 16002.5(a), (c), (e), 361.5,
361.8(b)(4), 366.21(e)(1), 366.21(f)(1)(C), 366.22(a)(1), (b)(1).) This includes
the obligation of reasonable efforts to provide remedial services to prevent
removal of the child from the minor parent, including resources to the child
and minor parent’s extended family, before seeking termination of parental
rights. (§ 361.8(b)(2), (3).) Similarly, the legislative preference for adoption
and section 388’s requirement of changed circumstances do not violate a
minor parent’s due process rights – a parent’s youth does not diminish the
child’s need for permanence and stability and to wait for teenage parents to
achieve maturity, such as at or over the age of 21, would result in children
lingering in foster care. Finally, due to the fundamental differences of the
criminal justice and juvenile dependency systems, the Eighth Amendment
bar against severe criminal penalties for juvenile offenders has no application
to teen parents who seek to reinstate FR or retain parental rights. Whereas
the Eighth Amendment prohibits cruel and unusual criminal punishments
based on the juvenile offender’s moral culpability, capacity for reformation,
and unique attributes of their neurological development, the purpose of the
juvenile dependency system is to protect children through risk assessments
and, when reunification efforts fail, to ensure their stability and permanency.
(ML)
H.A. v. Superior Court—published 5/3/2024; Third Dist.
Docket No. C099704
Link to case: https://www.courts.ca.gov/opinions/documents/C099704.PDF
[1] IT WAS PREJUDICIAL ERROR FOR THE JUVENILE COURT TO FIND
THAT ICWA DID NOT APPLY WHEN THE AGENCY FAILED TO
INTERVIEW EXTENDED RELATIVES, ESPECIALLY GIVEN THAT THE
PARENTS DID NOT KNOW THEIR COMPLETE FAMILY HISTORY; [2]
THOUGH THE FORFEITURE DOCTRINE DOES NOT APPLY TO ICWA
ISSUES, COUNSEL AND THE AGENCY ARE EXPECTED TO RAISE ANY
ICWA DEFICIENCIES PROMPTLY.
A petition was filed on June 14, 2022. Both parents denied any Native
American ancestry and submitted ICWA-020 forms indicating they had no
knowledge of Native American ancestry. Mother, now 21 years old, informed
the social worker that she was 12 when she entered the foster care system,
and provided the names of several of her relatives, some of whom she had a
difficult relationship with or none at all. Father did not provide a family
history, but provided the agency with the names of the paternal grandmother
and paternal great-aunt, both of whom were in contact with the agency, since
the children were placed with the great-aunt. The agency failed to interview
any of the extended relatives about possible Native American ancestry. The
juvenile court terminated reunification services in August 2023 after finding
that the ICWA did not apply. Father filed a writ petition.
Writ petition granted and stay issued. It was error to proceed with a finding
that the ICWA did not apply when the agency and juvenile court failed to
fully develop the ICWA information, and the agency failed to interview
extended relatives. While the parents were able to provide some information
on their family, the facts suggest that they were not “fully aware” of their
family history and backgrounds, and thus interviews with the extended
relatives about Native American ancestry could likely lead to additional
information. While the forfeiture doctrine does not preclude ICWA
consideration on appeal, it does not mean that counsel should take no action
to ensure ICWA compliance. Rather, counsel should promptly raise any
ICWA deficiencies to the juvenile court, even if the issue is pending on
appeal. Further, the juvenile court must carry out a meaningful ICWA
analysis on the record, instead of just adopting the agency’s proposed ICWA
findings. Finally, the agency has an ongoing and affirmative duty to inquire
about possible Native American ancestry, and it must include its efforts in a
report and not simply rely of the belief that the error in failing to interview
relatives is not prejudicial. The matter was remanded for further proceedings
to ensure compliance with the ICWA prior to the section 366.26 hearing. (KH)
In re Kieran S.—published 5/6/24; Second Dist., Div. Seven
Docket No. B318672
Link to case: https://www.courts.ca.gov/opinions/documents/B318672.PDF
A CHILD’S YOUNG AGE MAY BE CONSIDERED WHEN DETERMINING
WHETHER A PARENT’S SUBSTANCE ABUSE PLACES A CHILD AT
SUBSTANTIAL RISK OF HARM.
In April 2019, mother tested positive for amphetamine, methamphetamine
and morphine. She failed to cooperate with the agency and absconded with
Kieran. The agency filed a petition based on mother’s alleged substance
abuse. Nearly two years later, law enforcement located the family. Mother
admitted to having a “problem with meth” and admitted recent use. She
reported having a 10-year opiate addiction. Law enforcement found a
methamphetamine pipe in a detached room. The home was clean and Kieran
appeared well. The juvenile court sustained a section 300, subdivision (b),
petition and removed Kieran from both parents. Mother timely appealed. In a
prior opinion, the Court of Appeal relied on the tender years presumption
outlined in In re Drake M., (2012) 211 Cal.App.4th 754 (Drake M.), to affirm
the juvenile court’s jurisdictional findings. However, after the California
Supreme Court struck down the tender years presumption in In re N.R.,
(2023) 15 Cal.5th 520 (N.R.), it granted mother’s request for review and
ordered the Court of Appeal to vacate its prior opinion and reconsider the
matter in light of N.R.’s holdings.
Affirmed. Mother’s 2019 positive test, inconsistent statements about and
repeated denials of her substance use were substantial evidence of drug
abuse. In the wake of N.R., a finding of substance abuse is no longer prima
facie evidence of a parent’s inability to provide regular care for a child age six
or younger, resulting in a substantial risk of physical harm. A fact-specific
inquiry is required. Yet, Kieran’s young age supported a finding that
mother’s drug abuse placed him at substantial risk of physical harm. Mother
tested positive when Kieran was an infant requiring close supervision. Two year-old Kieran’s residence in a home suspected of drug activity and the
presence of a methamphetamine pipe posed a risk to his safety. Mother’s
denial of substance use, despite evidence to the contrary, heightened the risk.
Her argument that there were no referrals or reports of injuries in the two
years between the initial referral and law enforcement’s contact with the
family was unavailing. The absence of referrals or known injuries was a
consequence of mother’s choice to abscond with Kieran, which limited the
family’s access to supportive services. (SL)