Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re A.F., In re Andrew M, In re B.D.
In re A.F.—published 6/7/2024; First Dist., Div. Three
Docket: A168850; 102 Cal.App.5th 778
Link to Case: https://www.courts.ca.gov/opinions/documents/A168850.PDF
[1] CONDUCT OF AN ALLEGED PARENT ALONE MAY ESTABLISH
DEPENDENCY JURISDICTION. [2] ONCE JURISDICTION HAS BEEN
ESTABLISHED, A NONOFFENDING PARENT MAY BE ORDERED INTO
SERVICES.
The agency filed a petition on behalf of the children due to the conduct of the
alleged father, P.F. The petition alleged domestic violence between the
parents and P.F.’s substance abuse issues. Due to P.F.’s violent behavior in
the past, a criminal restraining order was issued prior to dependency
proceedings; mother and the children were listed as protected parties. Mother
allowed P.F. into the home while he was under the influence and engaged in
a physical altercation with the oldest child. During the altercation, P.F. used
the youngest child as a shield to avoid being struck. Mother acknowledged
letting P.F. into the home because the children missed him. She reported he
was loving when sober, but violent when drunk. The record reflected P.F. had
history of domestic violence, physical abuse directed toward the children and
substance abuse issues. P.F. failed to appear throughout the dependency
proceedings and did not elevate his parentage status. At the time of the
adjudication hearing, he remained an alleged parent. Mother was struck from
the petition but a section 300, subdivision (b), petition was sustained against
P.F. for domestic violence and his substance abuse issues. Mother timely
appealed and raised three issues: [1] a section 300 petition could not be
sustained when an alleged parent was the only offending party; [2] the
evidence was insufficient to support the sustained allegations against P.F.;
and [3] the juvenile court abused its discretion in denying her request to close
the case at disposition.
Affirmed. [1] On appeal, mother contended an alleged father was not a
“parent” under the meaning of section 300, subdivision (b). Mother’s
contention was rejected. When determining whether to exercise jurisdiction
under section 300, there is no basis to distinguish between alleged, presumed,
or biological parents. Moreover, alleged parents could, theoretically, elevate
their status at a future date. [2] Substantial evidence supported the finding
that the children were described under section 300, subdivision (b). P.F.
coming to the home intoxicated and using the youngest child as a shield to
deflect blows from the eldest child justified the assumption of jurisdiction. [3]
Juvenile courts have wide latitude in formulating reasonable dispositional
orders. The court is authorized to require a nonoffending parent to comply
with orders pertaining to the child once the court has accepted jurisdiction.
Ample evidence supported the finding that mother did not understand the
harm P.F.’s actions inflicted upon the children. Despite P.F.’s history of
violence, mother stated the two remained best friends. Further, she believed
it was important P.F. remained in the children’s lives and she did not
appreciate the harm to which the children were exposed. (MO)
In re Andrew M.—published 6/11/24; Fourth Dist., Div. Three
Docket No. G063462; 102 Cal.App.5th 803
Link to case: https://www.courts.ca.gov/opinions/documents/G063462.PDF
THE JUVENILE COURT ERRED WHEN IT FOUND THAT THE
PARENTAL BOND EXCEPTION APPLIED BECAUSE IT CONSIDERED
MINOR’S FUTURE CONTACT WITH EXTENDED FAMILY AND THERE
WAS NO EVIDENCE OF DETRIMENT TO ANDREW IF RIGHTS WERE
TERMINATED.
The juvenile court removed Andrew from the parents and ordered them to
participate in reunification services after Andrew tested positive for
methadone at birth. Throughout the proceedings, the parents were largely
consistent in attending visitation. The parents were noted to be loving,
caring, and attentive to the child. However, the parents did not participate in
programs and the court terminated their reunification services. Pending the
section 366.26 hearing, Andrew was observed to be bonded with the foster
parent and secure in their care. In a visit prior to the hearing, the social
worker observed that Andrew separated from the parents without distress or
sadness. At the hearing, mother testified that Andrew called the parents
“Mommy” and “Daddy” and that he would hold mother more tightly at the
end of visits. The juvenile court found that mother and father had regularly
visited the child and that they had a substantial, positive, emotional
attachment. The court found that Andrew would “suffer a loss” if parental
rights were terminated, finding that there was a connection to the parents
and a connection to the broader family that Andrew. The court ordered legal
guardianship for Andrew. Andrew’s counsel appealed on behalf of Andrew.
Reversed. The juvenile court abused its discretion when it made conclusory
findings that the parents had met the third prong of the Caden C. analysis.
First, the court relied on an improper factor when it cited Andrew’s
relationship with members of the “broader” family. The parental bond
exception applies to parents and the court cannot consider other family
members in its analysis. Furthermore, in determining detriment, the court
must weigh the strength of the bond against the benefits of adoption. The
relationship between Andrew and parents, while positive, was not especially
strong – he had never lived with them, had mostly monitored visits, and they
did not participate in his medical hearings. Additionally, Andrew did not
display distress when visits ended, when visits were cut short, or when the
parents missed visits. Neither the parents nor the juvenile court described a
specific harm that Andrew would suffer if parental rights were terminated.
Under these circumstances, the evidence did not support withholding the
benefits of a permanent adoptive home. (DS)
In re B.D.—published 6/28/24; Second Dist., Div. Three
Docket No. B327625
Link to case: https://www.courts.ca.gov/opinions/documents/B327625.PDF
ASSERTION OF DEPENDENCY JURISDICTION UNDER SECTION
300(B) IS IMPROPER WHEN A CHILD TESTS POSITIVE FOR OPIATES
AT BIRTH BUT NO OTHER EVIDENCE DEMONSTRATES THE CHILD
SUFFERS FROM SERIOUS PHYSICAL HARM OR ILLNESS OR
SUBSTANTIAL RISK OF HARM AS A RESULT OF THE PARENT’S
SUBSTANCE ABUSE.
The agency filed a petition concerning three-year old B.D. and newborn C.D.
after mother and newborn C.D. tested positive for opiates at C.D.’s birth.
Mother also tested positive for marijuana and opiates six months before
giving birth to C.D., at her first prenatal visit for C.D. In an initial interview
with the agency, mother admitted to testing positive at the prenatal visit but
represented she was prescribed pain medication because of a prior surgery.
She also explained she stopped taking marijuana after discovering she was
pregnant. A hospital social worker informed the agency that at the prenatal
visit, mother was forthcoming about her marijuana and pain medication use,
but mother indicated she got the pain medication from a friend. As to the
positive test at C.D.’s birth, mother informed the agency she took pain
medication she obtained from her aunt about a week before C.D.’s birth
because of back pain. Subsequently, the agency interviewed maternal
grandmother. She expressed her belief that mother did not abuse marijuana
or prescription drugs and informed the social worker that she gave pain
medication to mother a week before birth because of mother’s back problems.
At the detention hearing, the children were released to mother and was
provided with testing referrals. Mother submitted to one test a couple of
weeks later, which resulted in a positive test for opiates. She refused to test
on subsequent occasions on the advice of her attorney and declined other
service referrals. The agency visited B.D. and C.D. multiple times before the
adjudication hearing, finding that the children were well cared for and
newborn C.D. exhibited no health problems after birth from the opiate
exposure. At the adjudication hearing, mother testified, admitting to using
pain medication she received from maternal grandmother a week before
C.D.’s birth, but otherwise denying any pain medication abuse. The juvenile
court sustained the petition and released the children to mother, ordering
family maintenance services. Mother appealed.
Reversed. While some evidence supports a finding that mother abused
prescription drugs, a determination of whether substance abuse existed is not
necessary in this case because insufficient evidence exists demonstrating
harm to the children. While appellate courts have recognized that a newborn
child’s positive toxicology for drugs at birth is sufficient to sustain allegations
pursuant to the presumption in section 355.1, subdivision (a), the evidence in
this case is not adequate to support the presumption. All the evidence
presented indicates C.D. suffered no physical harm and exhibited no
withdrawal symptoms or any other health issues after he was born.
Moreover, in the cases where appellate courts have found a positive
toxicology screen at birth sufficient to support a jurisdictional finding, all
those cases involved positive tests for “dangerous” illegal drugs like heroin,
cocaine, or methamphetamines. The facts here are more analogous to In re
J.A. (2023) 47 Cal.App.5th 1036, in which the court found that the section
355.1 presumption did not apply to a child testing positive at birth due to
mother’s medical marijuana usage. Additionally, the children were not
placed at substantial risk of harm even if mother engaged in prescription
drug abuse. The agency consistently observed the children to be well taken
care of and healthy. Moreover, mother was not engaged in any drug-related
behavior (e.g. caring for the children while impaired, or a prior drug abuse
history) that would have placed the children at risk. Nor did the agency offer
any expert testimony or any other evidence demonstrating why mother’s
positive drug tests alone would affect her ability to parent them.
Accordingly, the jurisdiction findings under section 300(b) are reversed. (SW)