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.P., In re S.R., In re Zoe H., In re N.J., In re Dezi C., In re Kenneth D.
In re A.P.—published 7/26/24; Second Dist., Div. One
Docket No. B327857; 103 Cal.App.5th 1137
Link to case: https://www.courts.ca.gov/opinions/documents/B327857.PDF
THE FACT THAT PARENTS NO LONGER LIVED TOGETHER WAS NOT
A PROPER BASIS FOR DENYING A RESTRAINING ORDER; THE
COURT’S ORAL STAY AWAY ORDER WAS NOT AN APPROPRIATE
SUBSTITUTE.
The agency filed a petition under subdivisions (a) and (b) of section 300
alleging, in part, that father has perpetrated domestic violence against
mother. Prior to the filing of the petition, father moved out of the family
home. During the dependency proceedings, mother filed a request for a
restraining order protecting herself from father. The juvenile court granted a
temporary restraining order and set the matter for a hearing on a permanent
order. Pending the hearing for a permanent order, father violated the
temporary order several times by going to the family home to contact mother.
The court held the hearing on the permanent restraining order at the same
time as the jurisdiction/disposition hearing. Mother testified that she
remained afraid of father. The court sustained the allegation of domestic
violence by father but declined to issue a permanent restraining order. The
court reasoned that the parents living separately would accomplish “the same
result as a restraining order would.” The court orally ordered father to stay
away from mother. Mother appealed the denial of the permanent restraining
order.
Reversed. Restraining orders issued under section 213.5 prevent the
restrained part from molesting, attacking, striking, stalking or battering the
protected parties. These restraining orders are entered into the California
Law Enforcement Telecommunications System (CLETS) which permits them
to be enforced by law enforcement officers. Oral orders are “non-CLETS”
orders and not typically enforceable. Substantial evidence supported the
domestic violence allegations in the petition and father did not challenge
those findings on appeal. In light of the sustained domestic violence, the trial
court may not deny a request for a restraining order because the parents no
longer live together. The use of separation as a substitute for a restraining
order is inappropriate where parents have to co-parent and further
interactions are unavoidable. The court’s oral stay away order suggests that
the court believed future abuse might occur but denied mother the
protections of a CLETS-based protection order. (DS)
In re S.R.—published 7/18/24; Fourth Dist., Div. Two
Docket No. E082812; 104 Cal.App.5th 44
Link to case: https://www.courts.ca.gov/opinions/documents/E082812.PDF
WHILE THE JUVENILE COURT HAS GREATER LATITUDE TO TAKE
JURISDICTION PURSUANT TO WIC 300(J) OVER A CHILD WHOSE
SIBLING HAS BEEN FOUND TO HAVE BEEN NEGLECTED OR
ABUSED, A NEXUS OF SUBSTANTIAL HARM TO THE CHILD MUST
STILL BE SHOWN.
Mother had four minor children: daughters S.R. and Brianna, and sons
Dominic and Ethan. Dominic was S.R.’s sibling; Brianna and Ethan were
their half-siblings with a different father, Brandon. The agency investigated
the family multiple times, including for sexual abuse of S.R. by Brandon,
which would be followed by S.R.’s denials. A year later, 17-year-old S.R. again
reported that Brandon had been sexually abusing her since she was eight
years old. S.R. recorded Brandon admitting to the sexual abuse and asking
her to deny it. After S.R.’s disclosure, a petition was filed against mother,
alleging the four children were at substantial risk of physical harm under
WIC 300(b)(1) – mother knew or should have known that Brandon sexually
abused S.R. and failed to protect S.R. and her siblings. Additional allegations
were pled under WIC 300(c) and (d) for emotional and sexual abuse of S.R. As
to the siblings, the petition contained a WIC 300(j) allegation that they were
at substantial risk of “similar harm” suffered by S.R. “as defined in [WIC
300(d)].” Mother disputed the allegations, believing that S.R. had lied about
being sexually abused by Brandon. At the jurisdictional hearing, the court
sustained the allegations as to S.R. under WIC 300(b)(1), (c), and (d). As to
Dominic and the half-siblings, the court sustained the WIC 300(b)(1) and (j)
allegations. Mother appealed the jurisdictional findings as to Dominic.
Reversed. At the time of the jurisdiction hearing, there was no evidence that
Dominic was at substantial risk of being sexually abused. Brandon’s abuse of
S.R. began when she was 8 years old, but Dominic was 15 years old by the
time of the jurisdiction hearing and much less vulnerable to the sexual abuse
that S.R. suffered. There was neither evidence that Brandon ever touched
Dominic inappropriately during the nine years they lived together, nor that
Brandon had a propensity to sexually abuse boys, particularly teenage ones.
S.R. also never expressed concern that Dominic might be sexually abused by
Brandon but did worry about her younger half-siblings. This case is
distinguishable from In re I.J. (2013) 56 Cal.4th 766 in that Dominic was
several years older than the older sons in I.J., and therefore less vulnerable
to sexual abuse. Additionally, the WIC 300(j) allegation as pled was
limited solely to the risk of sexual abuse of Dominic, whereas the
same allegation as to the sons in I.J. spanned the risk of physical harm,
damage, danger, sexual abuse, and failure to protect, which allowed
the I.J. court to consider a range of jurisdictional grounds under subdivisions
(a), (b), (d), (e), or (i). Likewise, under these facts, there was no basis to find
that mother’s failure to protect S.R. from sexual abuse placed Dominic
at substantial risk of physical harm under WIC 300(b). (ML)
In re Zoe H.—published 8/8/24; Fourth Dist.; Div. Two
Docket No. E082653; 104 Cal.App.5th 58
Link to case: https://www.courts.ca.gov/opinions/documents/E082653.PDF
ONLY A SECTION 300(e) JURISDICTIONAL FINDING CONSTITUTES
PRIMA FACIE EVIDENCE THAT A CHILD CANNOT SAFELY REMAIN
IN THE HOME.
The family came to the attention of the agency in 2023 after Zoe reported
mother beat her and that she wanted to kill herself. Zoe subsequently told
the social worker that she fabricated the allegations, even though someone
witnessed her banging her head against a wall. Mother, who was a DPSS
worker in Riverside County, called Zoe “an angry little girl” and a liar. When
the social worker arrived at the home with law enforcement, mother kicked
Zoe out of the home. Zoe believed mother directed her anger at Zoe, rather
than younger siblings Zecheriah and Zuri. At the initial hearing, the juvenile
court detained only Zoe from mother’s care. Zecheriah denied physical abuse.
Zuri disclosed mother hit Zoe before recanting after Zecheriah ran into the
room and yelled at his sister. The juvenile court later detained all the
children. The juvenile court sustained petitions pursuant to section 300,
subdivisions (b), (c) and (j), and continued the dispositional hearing. The
children yelled, were physically aggressive and refused to leave with
caregivers at the end of visits with mother. Zecheriah “cried that he was told
that if they behave this way they will get to go home.” Mother threatened to
kill staff at Zoe’s short-term residential treatment program, and mother and
Zoe threatened a social worker. While mother engaged in some services prior
to the dispositional hearing, the agency opined that mother had not
benefitted from the programs and recommended removal. The juvenile court
removed all three children based on “a lack of benefit and continued
aggression and anger” by mother.
Affirmed. Substantial evidence supported the juvenile court’s removal order.
However, partial publication was warranted to correct the agency’s erroneous
argument that jurisdictional findings are prima facie evidence that a child
cannot safely remain in the home. Only section 300, subdivision (e), findings
of severe physical abuse to a child under age five constitute prima facie
evidence that a child cannot safely remain in the home, pursuant to section
361, subdivision (c)(1). The statute’s silence as to other section 300
subdivisions implies that only subdivision (e) findings create such prima facie
evidence. The agency’s erroneous argument was included in nine published
and hundreds of unpublished opinions, effectively depriving parents “of
appellate review of removal if there was a sufficient evidentiary basis for
jurisdiction.” Limiting when jurisdictional findings constitute prima facie
evidence that a child cannot safely remain in the home to section 300,
subdivision (e), is consistent with the statutory scheme, which imposes a
higher burden of proof at disposition and requires the court to make findings
about the availability of reasonable means to protect children without
removal. (SL)
In re N.J.—published 8/12/24; Second Dist., Div. Four
Docket No. B326007; 104 Cal.App.5th 96
Link to case: https://www.courts.ca.gov/opinions/documents/B326007.PDF
[1] WHEN A PARTY IS CONSERVED, THE AGENCY MUST SERVE
NOTICE OF ALL PROCEEDINGS TO THE CONSERVATOR. THE COURT
HAS A DUTY TO EITHER APPOINT A GAL OR TO ORDER THE
CONSERVATOR TO APPEAR ON THAT PARTY’S BEHALF; [2] THE
RELATIVE PLACEMENT PREFERENCE CAN APPLY AFTER
TERMINATION OF REUNIFICATION SERVICES IF THE AGENCY OR
COURT HAS FAILED TO PLACE THE MINOR WITH A RELATIVE
DESPITE THEIR AVAILABILITY AND MULTIPLE REQUESTS FOR
PLACEMENT THROUGHOUT THE PROCEEDINGS; FURTHER, THE
AGENCY AND COURT CANNOT RELY ON THE PASSAGE OF TIME TO
FIND THAT RELATIVE PLACEMENT IS NOT IN THE CHILD’S BEST
INTEREST WHEN THE AGENCY CREATED THE DELAY.
In August 2021, the agency detained N.J. in foster care after mother tested
positive for methamphetamines and was on a psychiatric hold at the time of
N.J.’s birth. At the time of detention, the maternal aunt requested the social
worker to place N.J. with her. The agency did not assess her, and instead
placed N.J. with an unrelated caregiver identified as a “trial attorney for the
County Counsel’s office, Dependency Division.” At the detention hearing, the
court ordered the agency to assess family members for placement and to
afford mother nine hours of monitored visits. The following month, mother
remained in a mental health facility and had not received any visits. The
court ordered video visits with mother if in-person visits were not possible at
her facility, and again ordered the agency to assess the maternal aunt for
placement and gave the agency discretion to place with her. Three months
after detention, placement with maternal aunt was “still pending.” A report
indicated maternal aunt was also mother’s appointed conservator. For the
adjudication and disposition hearings, the agency reports did not address
maternal visits at all. Mother’s counsel requested an order to place with
maternal aunt under the relative placement preference. For a third time, the
court ordered the agency to continue to assess relatives for placement. A
month later, maternal aunt received resource family approval. The social
worker informed the caregiver it would be giving a 14-day notice to replace.
The caregiver told the worker that she would not allow placement sooner
than fourteen days and would file a grievance to prevent a placement change.
The agency did not follow through with the 14-day notice. A year after
detention, mother had 15-20 minute long monitored zoom visits because the
caregiver was only available for one hour a day to facilitate visits. Caregiver
also monitored monthly in-person visits with maternal aunt, who now had
resource family approval. The agency attributed the meager visitation
schedule to caregiver and maternal aunt’s conflicting schedules. In its report,
the agency expressed concern that N.J. was not developing a strong bond
with maternal aunt, and recommended placement with the maternal aunt
only if a bonding study deemed it to be in N.J.’s best interest. The agency
filed a last-minute information two months later reporting that the caregiver
did not feel a bonding study was necessary because her bond with minor was
“obvious.” N.J. had not seen mother in-person since her discharge from the
hospital after birth, and caregiver asserted that she and N.J. were not
available for weekend visits with maternal aunt because caregiver reserved
weekends to have “quality time” with N.J. Caregiver also reported that N.J.
was receiving regional center services once a week and that N.J.’s
pediatrician had found her at high risk for mental illness due to family
history. The agency recommended termination of services to mother and N.J.
to remain placed with caregiver due to their strong bond. At the final review
hearing, mother was not present, but aunt was. The court found notice
proper, terminated services to mother, ordered unmonitored visits for
maternal aunt, and set a WIC 361.3 hearing. The agency’s WIC 361.3 report
recommended against placement with aunt. For the first time, the agency
indicated concerns about maternal aunt’s mental health because she had
depression and anxiety and had seen a therapist nine years before. Aunt
stated she managed her mental health through medication and secured
therapy for her daughter after she was bullied and experienced anxiety. The
agency’s brief also attached a letter from caregiver asserting that N.J., now
fifteen months old, experienced separation anxiety, and letters from her
pediatrician and preschool opining that separation of N.J. from caregiver
could damage her mental health. At the hearing, the court found that the
relative placement preference did not apply post-disposition, and, regardless,
it was in N.J.’s best interest to remain with caregiver due to their bond and
because of N.J.’s “special psychological and emotional needs.” The juvenile
court terminated mother’s parental rights eight months later. Mother
appealed the denial of her request to place with aunt and the termination of
her parental rights.
Reversed. [1] The agency’s failure to serve the aunt as her conservator with
hearing notices and the court’s failure to either appoint a GAL for mother or
order maternal aunt to appear for mother was prejudicial. The agency and
the juvenile court knew that mother was conserved at least three months
before adjudication and disposition. Service on the maternal aunt as mother’s
conservator was required. Further, when a party has been conserved, the
juvenile court has a sua sponte obligation to either appoint a GAL or order
the conservator to appear for the party. Though the aunt was present at
many hearings, the court never advised her she could speak for the mother,
depriving the family of an opportunity to voice their concerns about both
mother’s and maternal aunt’s lack of visits and the delays in assessing aunt
for N.J.’s placement. The error compelled reversal of the order terminating
mother’s parental rights. [2] The court’s finding that the WIC 361.3 relative
placement preference should not apply after termination of reunification
services was prejudicial error necessitating reversal of both the order denying
relative placement and termination of parental rights. The Legislature has
expressed a strong preference that when a child is removed, preferential
consideration is to be given to relatives whenever possible. WIC 361.3
requires that when a relative is seeking placement, the relative should be the
first in line to be considered and investigated anytime a child is removed
pursuant to WIC 361. A timely request by a party for relative placement
triggers assessment under WIC 361.3; no formal motion is required. Although
the juvenile court did not consider relative placement until after termination
of mother’s reunification services, mother’s counsel, minor’s counsel, and
maternal aunt herself had requested placement with maternal aunt since the
inception of the case. The court committed error when it relied on In re M.H.
(2018) 21 Cal. App.5th 1296 to find that the relative placement preference
does not apply after disposition unless a new placement is required, because,
unlike the potential caregiver in M.H., maternal aunt was immediately
available for placement and the agency in M.H. was not dilatory in assessing
placement. Here, the agency did not comply with its duty when it never
explained why it did not assess or approve aunt for emergency placement,
gave no information to the parties or court regarding why RFA was pending
for the first seven months of the case, and never followed through with giving
the caregiver a 14-day notice or with placing N.J. with maternal aunt after
she became resource family approved. The juvenile court never enforced its
prior orders for the agency to assess maternal aunt and provide information
in subsequent reports. The court also violated its duty to assess aunt under
WIC 361.3 by the dispositional hearing. Finally, the WIC 361.3 relative
preference still applies after disposition even when a new placement is not
required. The juvenile court’s error in failing to consider placement using the
factors provided in WIC 361.3 was prejudicial because it was reasonably
probable that doing so would have resulted in placement with maternal aunt.
By focusing its analysis solely on N.J.’s relationship with caregiver, the court
neglected to assess the statutory criteria under WIC 361.3, including the
strong legislative preference for placement with a family member, her
willingness to provide permanency through adoption, her participation in all
the visits allowed to her, and her ability to provide for N.J.’s mental health
issues and her own. The court’s finding that keeping N.J. with caregiver was
in her best interest was undermined by the agency’s and the court’s
dereliction of duty to foster a bond between N.J. and aunt and to timely
facilitate placement with aunt. Instead, the agency allowed the caregiver to
unilaterally deny the bonding study and restrict the aunt’s visits with N.J. to
two hours a month, in favor of allowing the caregiver more bonding time with
N.J. The agency and the juvenile court cannot flout their duties to timely
assess and place with relatives, and then point to the minor’s bond with the
caregiver as the reason placement with family is not in the minor’s best
interests. (LL)
In re Dezi C.—published 8/19/24; Cal. Supreme Ct.
Docket No. S275578
Link to case: https://www.courts.ca.gov/opinions/documents/S275578.PDF
WHEN THE AGENCY’S CAL-ICWA INQUIRY IS INADEQUATE,
CONDITIONAL REVERSAL AND REMAND OF THE PARENTAL RIGHTS
TERMINATION ORDER FOR FURTHER COMPLIANCE WITH CAL-ICWA
IS WARRANTED AS IT BEST PROTECTS THE RIGHTS OF CHILDREN,
PARENTS, AND TRIBES.
Dezi C. and her sibling Joshua C. came to the attention of the agency in 2019
due to the parents’ substance abuse and domestic violence. Throughout the
dependency proceedings, both parents denied having any Native American
heritage. They also submitted ICWA-020 forms indicating they had no Native
American heritage. Although the social services agency spoke to several
relatives, the relatives were never asked whether the children had any
Native American heritage. At the permanency hearing, the juvenile court
terminated parental rights. ICWA was not mentioned. Mother timely filed an
appeal contesting the agency’s compliance with its duty under ICWA and
related California provisions to initially inquire of extended family members
regarding the children’s Native American ancestry. On appeal, the Second
Appellate District affirmed, holding that if the agency’s inquiry is deficient,
such error is harmless unless the record contains information supporting a
reason to believe the child may be an Indian child within the meaning of
ICWA. The California Supreme Court granted review.
Reversed. When the agency fails to conduct an adequate inquiry, the error is
not subject to a “reason to believe” assessment on appeal. Instead, the order
terminating parental rights must be conditionally reversed and remanded
with directions to comply with Cal-ICWA. Here, the agency concedes failure
in making the appropriate initial inquiry because the agency failed to
interview several available relatives regarding the children’s Native
American ancestry, as statutorily required under section 224.2. Such an
inadequate Cal-ICWA inquiry requires conditional reversal of the juvenile
court’s order terminating parental rights with directions to the child welfare
agency to conduct an adequate inquiry, supported by documentation. Upon
conditional reversal, if the juvenile court determines the subsequent inquiry
is adequate, any inquiry error is cured and the judgment terminating
parental rights will be reinstated. If instead the inquiry reveals a reason to
know the dependent children are Indian children, the tribe is notified, and
the tribe determines the children are members or eligible for membership in
an Indian tribe, ICWA applies, and the judgment will be reversed. A
conditional reversal for further Cal-ICWA compliance appropriately supports
the independent interests of tribes and promotes the tribes’ important
sovereign right to determine the child’s membership in the tribe by ensuring
the agency complies with its duty to inquire and provide notice to the tribes.
Conditional reversal is also supported by the 2016 regulations implementing
ICWA, which encourage early and prompt inquiry compliance. Although
conditional reversal will result in delay to the children’s permanency,
agencies may avoid unnecessary delay and repeated remands by conducting a
prompt and adequate inquiry, which may be simultaneously done with the
agency’s other obligations to locate family members for placement and
investigate the circumstances underlying a child’s removal. Furthermore,
reversal is not required in all cases; on a well-developed record, the juvenile
court has broad discretion to determine whether the agency’s inquiry was
proper. However, when the inquiry is inadequate, the agency’s error results
in an absence of information making it impossible to properly assess
prejudice. Therefore, where the Cal-ICWA error is undisputed, conditional
reversal is necessary to develop the record and cure the inadequacy. Adopting
the “reason-to-believe” rule where the appealing parent must produce
additional post-judgment evidence tending to show the child is Indian, as
Justice Groban’s dissent proposes, improperly shifts the burden to the parent
to demonstrate that the error is prejudicial. Under ICWA, it is the agency,
not the parent, that is charged with the duty to conduct the Cal-ICWA
inquiry and thus it is the agency, and not the parent, who must attempt to
cure any compliance errors. The reason-to-believe rule adopted by the dissent
also improperly shifts the burden of protecting tribal rights to the parents,
who for several reasons, may be incapable of or uninterested in doing so.
Such a rule weakens the tribe’s ability to discover and ultimately assert its
interest in the children. The dissent’s concerns regarding gamesmanship are
unsupported, nor do such concerns outweigh the critical importance of
ensuring an adequate inquiry. Although California courts have adopted
several tests to assess prejudice, conditional reversal when the Cal-ICWA
inquiry is inadequate best protects the rights of tribes, parents, and the child.
In a concurring opinion, Justice Kruger discusses the threshold question of
what constitutes an adequate initial inquiry under Cal-ICWA. (TL)
In re Kenneth D.—published 8/9/2024; Cal. Supreme Ct.
Docket: S276649
Link to Case: https://www.courts.ca.gov/opinions/documents/S276649.PDF
POSTJUDGMENT EVIDENCE MAY NOT BE USED IN AN ATTEMPT TO
DEMONSTRATE HARMLESS ERROR FOR ICWA VIOLATIONS.
A petition was filed after the child tested positive for amphetamine and
syphilis shortly after his birth. Mother admitted to using methamphetamine
throughout her pregnancy. Mother identified T.D. as the child’s father. T.D.
was found to be the child’s presumed parent because he signed the child’s
birth certificate. During the initial investigation, Mother stated she might
have native ancestry on her father’s side; she denied being an enrolled tribal
member. T.D. also indicated that he may have Cherokee ancestry on his
mother’s side. At the detention hearing, both parents denied native heritage
and the juvenile court found ICWA did not apply. At the jurisdiction and
disposition hearing, the child was declared a dependent and removed from
mother and T.D. The juvenile court again found ICWA did not apply.
However, another individual, J.T., was found to be the child’s biological
father. The juvenile court did not inquire of J.T.’s possible native heritage. At
the section 366.26 hearing, the parental rights of T.D. and mother were
terminated. The agency spoke to mother’s family and T.D.’s family. Both
denied native heritage. However, neither J.T. nor his family was contacted as
to possible native heritage. J.T. timely appealed and challenged the trial
court’s ICWA findings. On appeal, the agency submitted postjudgment
evidence that outlined its efforts to comply with ICWA by inquiring of J.T.
and his family. Using this postjudgment evidence, the Court of Appeal,
Division Three, found any ICWA error harmless. J.T. sought further relief
and the California Supreme Court granted review. The sole issue before the
California Supreme Court was whether the Court of Appeal properly
considered postjudgment evidence in concluding that any ICWA error was
harmless.
Reversed. ICWA requires sufficient inquiry into a child’s native heritage. The
inquiry includes, but is not limited to, asking the child, parents, legal
guardian, Indian custodian, extended family members, other whose have an
interest in the child, and the party reporting the abuse or neglect, whether
the child is, or may be, an Indian child. The Court of Appeal recognized “the
abject failure of the [agency] and juvenile court to inquire as to [J.T.’s]
possible Native American heritage . . .” The agency did not disagree with this
assessment but argued the submitted postjudgment evidence demonstrated
any error was harmless. However, the California Supreme Court found use of
postjudgment evidence to be erroneous when considering ICWA errors.
Ordinarily, appellate courts review a trial court’s judgment based on the
record as it existed when the trial court ruled. The reviewing court may only
consider facts outside the record in limited exceptional circumstances. An
agency’s subsequent attempts to remedy an ICWA error pending appeal does
not qualify as an exceptional circumstance. If the Court of Appeal were to
accept postjudment evidence in ICWA error cases, it would be forced to treat
such evidence as undisputed. However, there is often competing and
additional evidence with respect to an agency’s ICWA inquiry, which is
precisely why it is the purview of the juvenile court to weigh credibility and
determine whether an inquiry was adequate. Furthermore, accepting
postjudgment evidence would deny Indian tribes the ability to adequately
participate—tribes have a right to intervene and even overturn prior
judgments for failure to comply with ICWA. (MO)