Family Law

Recent Dependency Law Cases

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DEPENDENCY (current through 4/21/2024)

By:  John Nieman

The precise holdings in a given case are bolded.

F.K. v Sup.Ct.

F.K. v Sup.Ct.
3/18/24, CA 2/6 B333788

This case involves a 6-month review hearing for a minor under the age of 3 at the time of the incident bringing the child before the court. According to governing Welfare & Institutions Code (W&I) Ā§366.21(e), trial courts have discretion to continue reunification services to the 12-month date. That discretion does not require, as apparently the trial court determined, a finding that there is a substantial probability of return based upon factors enunciated in W&I Ā§366.21(g)(1)(B). W&I Ā§366.21(g)(1)(B) pertains to a similar determination at the 12-month review hearing (governed by W&I Ā§366.21(f)). Apparently the social workerā€™s report erroneously indicated that the trial court must apply the statutory factors required found in W&I Ā§366.21(g)(1)(B). Since the trial court found the parent had failed to make substantial progress in her case plan, it didnā€™t believe it had the discretion to continue reunification services, because it couldnā€™t make that substantial probability of return finding.

Reversed and remanded. The appellate court basically followed M.V. v. Superior Court (2008) 167 Cal.App.4th 166 (M.V.), that W&I Ā§366.21(g)(1)(B) was inapplicable at the 6-month review hearing.* In making its determination, the appellate court criticized (but did not find error) the trial courtā€™s finding that mother failed to make substantive progress because of relapse and testing issues. In so criticizing, it cited to the 2022 statutory change to reunification services bypass provision of W&I Ā§361.5(b)(13) which resulted from In re B.E. (2020) 46 Cal.App.5th 932 (B.E.). B.E., at 941, found that relapse during treatment for addiction was not even passive resistance as had been determined by other appellate courts at that time.

*Authorā€™s note: Though not expressed as directly as it might have been in the opinion, a trial court may continue reunification services in this situation to the 12-month review date even without a ā€œsubstantial probability of returnā€ finding. In this way the trial court also erred because it didnā€™t need to make any finding of a ā€œsubstantial probability of returnā€ to exercise its discretion to order continued reunification services.

In re Ca.M., et al.

In re Ca.M., et al.
3/18/24, CA 2/5 B326320

Jurisdiction was sustained on allegations of a failure to protect from exposure to domestic violence, substance abuse, and unsafe storage of a firearm and ammunition. The 5 children were removed at disposition from both parents and returned to motherā€™s care at the 6-month review hearing. Mother appealed a single jurisdictional allegation, that she failed to protect the children from exposure to the domestic violence perpetrated against her by father. The court followed In re I.J. (2013) 56 Cal.4th 766 which says that if a single sustained allegation justifies a courtā€™s jurisdiction, then the reviewing court need not determine the validity of the others. The court only opted to review and affirm the allegation of a failure to protect the minors from fatherā€™s alcohol abuse -for which there was ample evidence.

In re S.G.

In re S.G.
3/28/24, CA 2/3 B326320

Mother lost custody to the juvenile court because of substance abuse and mental health issues while still a dependent minor at age 17. Upon reaching 18 years, apparently mother did not avail herself of non-minor dependent jurisdiction through which services and support are provided. Mother failed to reunify and the trial court terminated her parental rights.

Mother appealed, claiming that application of W&I Ā§388 (she petitioned for more reunification services at the W&I Ā§366.26 hearing) and W&I Ā§366.26 (she requested the trial court choose guardianship instead of adoption) violated her due process rights. She claimed those laws didnā€™t account for the fact that she was a teenager and therefore, given adequate opportunity, possessed of superior prospects for growth and positive change. In affirming, this court stuck to the due process analyses in both In re Marilyn H. (1993) 5 Cal.4th 295 (Marilyn H.) and Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 that focus on the shift from parental fitness to stability and permanency for the child at the W&I Ā§366.26 hearing. Consistent with that perspective, the opinion summarizes additional statutory protections afforded dependent minors, like the mother in this case who is also a parent of a dependent or a possibly dependent minor, prior to setting the W&I Ā§366.26 hearing.

Finally, the appellate court dispenses with an 8th Amendment challenge related to imposition of severe criminal penalties on minors (analogizing a penalty to termination of parental rights). It points out the very different objectives of the Juvenile Justice and Juvenile Dependency systems, including the latterā€™s objective to provide permanence and stability to dependent minors. Affirmed.

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