Family Law

Recent Dependency Law Cases

DEPENDENCY (current through 6/20/2024)

By:  John Nieman

The precise holdings in a given case are bolded. Auther’s note is italicized.

In re A.F., et al

In re A.F., et al
6/7/24, CA 1/3 A168850

The juvenile Court took jurisdiction based on risk of exposure to domestic violence and substance abuse by the alleged father. In disposition it ordered family maintenance and custody with the mother. Mother appealed, contending that 1) risk from an “alleged father” did not comport with the statute that justifies jurisdiction because of risk by a “parent”; and 2) that since there was no risk specifically alleged from her in the sustained petition allegations, that the case should have been dismissed.

As to paternity, although the father’s status was apparently never elevated past ‘alleged’ it was undisputed that mother thought he was the biological father, the children thought he was their father, and he also thought he was their father. Additionally, there was no dispute that he held a parental role in the children’s lives.

There was a restraining order, because of previous acts of domestic violence perpetrated by the alleged father against the mother, in place during the events which led the court to conclude there was a risk of harm. It was apparently undisputed that the alleged father abused substances while in the presence of and caring for the children and was under the influence during those same events.

The appellate court found that the statute which refers to risks from parents was not intended to exclude alleged parents. It also found that mother was implicitly implicated in the risk perceived by the trial court to justify taking jurisdiction and the subsequent dispositional orders designed to reduce the family’s risk of abuse from domestic violence and substance abuse. Affirmed.

In re Andrew M.

In re Andrew M.
6/11/24, CA 4/3 G063462

Jurisdiction was sustained on allegations of a failure to protect from exposure to substance abuse. Parents engaged in reunification services but failed to benefit significantly. At the Welfare & Institutions Code (W&I) §366.26 hearing to choose a permanent plan, the rial court ruled that the parental benefit exemption applied. To apply the parental benefit exemption, a trial court must find that parents have visited regularly parental visitation, a positive beneficial parental relationship, and that the detriment to termination of parental rights would outweigh the benefits of adoption.

The trial court found the parental benefit exemption applicable. But the third element related to detriment was based on connection to broader family members through the parents. No other evidence of detriment existed in the record. Evidence indicated the child knew the parents and enjoyed visiting with them. But there was virtually no evidence that the child suffered any distress whatsoever when separating from parents upon conclusion of visitation.* The appellate court remanded with orders to terminate parental rights absent a W&I §388 petition providing contrary evidence.

*Author’s note: Notably in this case, the parents opted to not submit the completed bonding study that they requested. Subsequently the trial court denied a motion to enter the report into evidence. Seasoned dependency practitioners will recognize that it is likely that the bonding study did not support all of the 3 required findings needed for the parental benefit exemption to apply. The appellate court mentioned the trial court’s failure to imply anything from its absence.

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