Family Law

Recent Dependency Law Cases

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DEPENDENCY (current through 12/17/2023)

By:  John Nieman

The precise holdings in a given case are bolded.

In re K.B. et al.
11/30/23, CA 1/2 A167385

Mother appealed the trial court’s due-diligence finding of the search for relative placement options at Disposition as required by Welfare & Institutions Code (W&I) §358 & §309. The appellate court rejects the contention that mother forfeited her standing to appeal by failing to object to the findings. It reasons that the mandates of W&I §309 are not dependent upon parental cooperation. Ultimately it says that it would not be in the minor’s best interests to allow forfeiture to bar mother’s appeal. It also rejected a contention that substantial evidence supported the finding. It concluded that an inadequate search had been conducted and no written notice had been provided nor any substantive discourse with located relatives about the possibility of placement and support of the minor. Finally, for lack of a better description, the appellate court denied that it could find the error harmless with such a paucity of compliance with the mandates of W&I §309. Reversed and remanded only as to the due diligence finding.

In re N.R.
12/14/23, CA S274943

This case involves interpretation of W&I 300(b)(1)(D) which allows dependency jurisdiction to be based on the risk of physical harm from parental substance abuse. Questions are whether a formal medical diagnosis or the requisite DSM criteria is required for a court to conclude that a parent has a substance abuse problem that interferes with their ability to protect their child from an inordinate risk of physical harm and if not, what evidence is adequate to constitute a finding that a parent so suffers.

Regular Dependency practitioners will not be surprised to hear that the Court rejected the idea that a formal DSM diagnosis or meeting the DSM criteria of substance abuse is required to find parental substance abuse. The legislature did not so specify the definition, which it easily could have done, leaving the ordinary meaning of “substance abuse”. The Court essentially says that the term “substance abuse” doesn’t require a medical diagnosis nor is it so uncommon as to suggest that a technical definition is the only obvious interpretation of its meaning; that the law does not require a purely objective definition as provided in the DSM. Finally, the Court points out that the DSM itself claims to be a guide and also cautions against mechanical application of its criteria and use by those not trained in its use (i.e. it is only designed for use by medical and mental health professionals).

The Court also disagreed with the so-called “tender years” presumption, that any parental substance abuse presents a significant risk of physical harm to very young children. No such presumption, even if rebuttable, is part of the statutory scheme and reliance on such a presumption bypasses the statutorily required due process. This and the DSM reliance noted above are contrary to In re Drake M. (2012) 211 Cal.App.4th 754 (disapproved of on mootness in In re D.P. (2023) 14 Cal.5th 266) upon which the appellate court relied. Other cases that required medical diagnosis, DSM criteria, or the “tender years” presumption, were disapproved. Remanded to the appellate court for a sufficiency-of-the-evidence for jurisdiction analysis.

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