Recent Dependency Law Cases

In re A.P., et al
7/26/24, CA 2/1 B327857
https://www.courts.ca.gov/opinions/documents/B327857.PDF

Mother appeals denial of her request for a restraining order (RO) against the father. At the time of the trial court’s decision, father had recently committed multiple acts of domestic violence against the mother. The trial court denied issuing an RO because the parents no longer lived together. In lieu of an RO the trial court issued an oral order to both parents to stay away from each other.

In issuing an RO the juvenile court is not limited to sustained jurisdictional allegations related to domestic violence. Nevertheless, there were sustained allegations that father had perpetrated domestic violence against the mother. Additionally, father had basically admitted to having committed domestic violence against the mother. Father was ordered to complete a domestic violence treatment program.

Following In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106, the court stated that mere physical separation was insufficient grounds upon which to deny a request for a restraining order. In that case as in this case, the parents still had to coparent their children.

The appellate court also ruled that the mutual stay-away order, which was not put into CLETS forms and filed as it might have been, provided significantly less protection than a properly executed stay-away or restraining order.
Reversed and remanded.

In re S.R., et al
8/6/24, CA 4/2 E082812
https://www.courts.ca.gov/opinions/documents/E082812.PDF

Mother appeals jurisdiction and dispositional orders related to her children. Only one child, D.R., is effectively the subject of the appeal. Sexual abuse allegations were made and denied variously by D.R.’s older sister. But risk of sexual abuse related to her was sustained. As to D.R., the trial court found risk vis a Welfare & Institutions Code (W&I)  §300(b)(1) (risk of serious physical harm) and (j) (same risk(s) to sibling).

Apparently no evidence was presented of actual abuse or significant risk to D.R. The appellate court rejected the argument that the same risk found for the older sister -absent other evidence- also applied to him. This transferred risk, which is the heart of W&I 300(j) was, as it were, sanctioned in principle by In re I.J. (2013) 56 Cal.4th 766. Moreover. that case also involved sexual abuse of an older sibling which was (in that case) appropriately found to exist also for the younger siblings. The appellate court distinguished the circumstances of this case because D.R. was 15 years old, had suffered no abuse during the previous 9 years living with the perpetrator, the abused older sister had no concerns of risk to D.R., and there was no other evidence in the record to suggest D.R. was at risk. Findings and orders as to jurisdiction and disposition were reversed as to D.R., including orders to dismiss the petition.

In re Zoe H., et al
8/8/24, CA 4/2 E082653
https://www.courts.ca.gov/opinions/documents/E082653.PDF

Mother appeals jurisdiction and dispositional orders related to her children. Petitions were sustained for W&I §300(b)(1), (c) (risk of serious emotional damage), and (j). The children were removed and mother was ordered to engage in reunification services. The appellate court affirmed.
The case was partially published primarily to put the kibosh on the notion that sustaining W&I section 300 allegations are prima-facie evidence that removal is warranted. Incredulously, there is apparently much confusion as to this question.

In the first place, jurisdictional allegations are sustained by a preponderance of the evidence, whereas dispositional orders (like removal) are made exclusively by clear and convincing evidence. Secondly, there is a statute, W&I §361, wherein subdivision (c) specifically proscribes that clear and convincing evidence is needed to justify removal. Thirdly, the statutory scheme goes to great lengths to ensure that all reasonable means are taken to prevent the need for removal. Finally, W&I §361(c)(1) indicates that only a sustained allegation of W&I §300(e) is prima facie evidence that removal is required and, even then it directs the court to consider alternatives to removal. The appellate court basically covers all of this and, hopefully, this issue will be put to rest once and for all.

In re N.J.
8/12/24, CA 2/4 B326007
https://www.courts.ca.gov/opinions/documents/B326007.PDF

Mother appeals termination of her parental rights, failure to follow ICWA, and failure to follow the relative placement preference. Minor was removed from mother at birth because of severe mental health and substance abuse issues. The mother was ultimately unable to reunify within the time allowed and parental rights were terminated. From the outset and consistently throughout the case, a maternal aunt requested placement. Orders to evaluate this aunt for placement were also made consistently. Placement was never made with the maternal aunt.

The scenario of this case may, unfortunately, be familiar to dependency practitioners: The Social Services Agency over the course of a year or more, give or take, from removal to termination of reunification services: 1) drags its feet regarding evaluation of the relative’s (aunt’s) home for placement; 2) doesn’t follow through with the placement change when it is available after relative’s (aunt’s) home receives resource family approval; 3) fails to promptly set up significant visitation between the minor and relative (aunt); and 4) ultimately concludes that it would not be in the minor’s best interests to be moved from the foster caregiver to the relative’s (aunt’s) home because of the strong bond between the caregiver and minor -especially considering with the not-so-strong bond with the relative (aunt).

As would be readily discerned to even recent initiates to juvenile dependency practice, this scenario brings anguish and hardship to all involved: judges, both parents’ and minors’ counsel, agency attorneys, relatives (not just those seeking placement), social workers, foster care providers, and dependent minors. This appellate court, saw the clear pattern and did not shirk from its duty to uphold the legal mandates. It is worth quoting the decision:

“This series of events–repeated violations of DCFS’s duty to follow the law and the court’s failure to enforce its own orders— resulted in a complete failure to honor the clear legislative mandate to give early and prompt priority to placement with family members.”

Other significant issues plagued this case. One was that attention to mother’s conserved status (the aunt was her conservator) required reversal of the termination of her reunification services. Another was that notice about the requirement to file an extraordinary writ (when reunification services are terminated) was improper: it should have been given orally to mother’s conservator, the aunt, who was at the hearing; and notice to mother was not properly sent by mail (as required). Thirdly, a later ICWA inquiry was required based on new information, and it was not done properly.

Reversed termination of parental rights and reunification services, and designation of caregiver as prospective adoptive parent. Remanded accordingly and to consider the aunt’s placement request and to properly complete the additional ICWA inquiry.