Recent Dependency Law Cases

In re C.P.
5/2/23, CA 4/2 E078696
https://www.courts.ca.gov/opinions/documents/E078696.PDF

Grandparents appealed the permanent plan decision of guardianship over adoption. Children and Family Services recommended guardianship because of alleged, and unclarified reasons. A question of standing was raised. The Appellate Court determined that since the grandparents stood in a parental role vis the minor, that they had actual standing, and at worst discretion that they could exercise. Grandparents were approved as a Resource Families per Welfare & Institutions Code (W&I) §16915.5 only after winning a previous appeal of the trial court’s denial of their request for an exemption for placement. Since the statute requires the trial court to choose adoption absent a legal exception, finding none, the appellate court reversed and remanded for the trial court to reconsider its decision in light of that analysis.

In re E. W. et al.
5/8/23, CA 1/2: A165789
https://www.courts.ca.gov/opinions/documents/A165789.PDF

This is an Indian Child Welfare Act (ICWA) case. Parents and one child appealed from disposition that the initial inquiry required by W&I §224.2(b) was not adequately made. They did not appeal any particular dispositional orders, but requested the appellate court affirm but remand to make the adequate initial inquiry. Mother initially claimed possible Native American ancestry through her mother. However she later withdrew this claim, noting at some point that her DNA analysis revealed no Native American ancestry. Father claimed none and indicated as much through the requisite ICWA-020 form. The Human Services Agency inquired of some relatives, all of whom corroborated the court’s determination that no ICWA was applicable, and in accord with all latter assertions by the parents. The appellate court implied that the list of persons in W&I §224.2(b) required to be communicated with regarding the ICWA included some not communicated with as required in this case. In any case, it followed In Ezequiel G. (2022) 81 Cal.App.5th 984 that a mechanistic application of the requirements was not tenable and therefore not required. Acknowledging that an ongoing duty exists to inquire according to W&I §224.2(a), it unqualifiedly affirmed (that the trial court’s implied finding that the initial ICWA investigation was adequate).

In re A. H.
5/16/23, CA 1/2: A166532
https://www.courts.ca.gov/opinions/documents/A166532.PDF

A nonrelative extended family member (NREFM) appealed denial of her W&I §388 petition that requested placement with her instead of in a regular foster home. The appellate court denied her standing to appeal. In the first place, the appellate court ruled that though the NREFM could file a W&I §388 petition, having standing to appeal required that she have a right related to child, which she did not have. The Appellate Court determined that appellant lacked an adequate interest in the minor to have standing on appeal. It went on to compare the NREFM with a de facto parent who, although has a recognized role in trial court proceedings, nonetheless generally has no standing to appeal placement decisions (citing In re P.L. (2005) 134 Cal.App.4th 1357 and In re B.S. (2021) 65 Cal.App.5th 888).

In re S.F.
5/17/23, CA 1/1: A166150
https://www.courts.ca.gov/opinions/documents/A166150.PDF

Father claimed the trial court took jurisdiction and made dispositional orders (ordering him to undergo substance abuse testing and removal of the minor) based on inadequate evidence, and also failed to comply with initial inquiry as required by the Indian Child Welfare Act of his family. Father admitted past alcohol and cocaine abuse and that he had not undergone treatment. Yet he claimed that he only presently monthly used marijuana. He testified to this effect and no other evidence of his substance use was before the court. There was also an allegation related to physical altercations between the parents. The trial court found father’s statements about the alleged domestic violence incident with the mother to lack credibility and therefore reduced credibility of his testimony related to substance abuse. The Appellate court ruled that statements from father and mother about incidents from a year ago that did not happen in the presence of the minor did not constitute substantial evidence of future risk to the child. Also, there was no significant service recommendation to the father related to these incidents. As to the allegation of father’s substance abuse, there was no evidence that he had a current substance abuse problem nor that any such use presented a risk to the minor.

The trial court went on to find that the same lack of evidence to support jurisdictional findings or risk from the father did not support the higher standard of proof findings required to remove from his care and custody. The Appellate court also pointed out that there was not adequate evidence presented to justify the required finding that there were no reasonable means to protect the minor from risk if placed with the father.

As to the ICWA issue, the Agency made multiple inquiries of father’s relatives. The Appellate Court found that since there was only a reason to believe -not know– that the child had native American ancestry, it was permissible to proceed without giving notice (but continuing to inquire).

In re Ja.O. et al.
5/17/23, CA 4/2: E079651
https://www.courts.ca.gov/opinions/documents/E079651.PDF

This is an Indian Child Welfare Act (ICWA) case. Mother appealed from disposition claiming the social services agency, DPSS’s, failed to inquire about possible Native American heritage as required under W&I §224.2(b). All evidence was that parents denied native American ancestry except on one occasion where the father indicated possible ancestry. The Social Services Agency made some, inquiry but not all that might be required under W&I §224.2(b) This court followed Robert F. (2023) [E080073, reviewed here last month] that, since the child was taken into protective custody by a warrant issued pursuant to W&I §340 and not W&I §306 (which does not require a warrant) as specified in W&I §224.2(b), the inquiry mother claims was not followed was not required. This court also pointed out that ongoing inquiry would continue as required under W&I 224.2(a) and (c).

In re I.E.
5/17/23, CA 4/2: E080223
https://www.courts.ca.gov/opinions/documents/E080223.PDF

Mother appeals the termination of her parental rights on the ground that the trial court failed to find that the beneficial bond exception applied. Mother visited regularly and had a positive and beneficial relationship with the child. However the Appellate Court found ample evidence to support the trial court’s conclusion that terminating the parental relationship would not be detrimental to the child. What seemed most salient to the Appellate Court was that the child suffered no distress when visits terminated and repeatedly stated her desire to be adopted. The Appellate Court also pointed out that the trial court appropriately did not compare caretaking abilities of the mother and foster parent.