Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
DEPENDENCY (current through 4/21/2022)
By: John Nieman
In re Malik T.
1/18/22, CA 2/7: B311135
During post-permanency (after a permanent plan is chosen following termination of efforts to reunify children with their parents*), mother filed a Welfare and Institutions Code (W&I) §388 petition for additional reunification services. The trial court denied the request, stating that time-limited reunification services barred granting more. The appellate court reversed, citing In re Marilyn H. (1993) 5 Cal.4th 295 as authority to grant such a W&I §388 petition, as well as the controlling post-permanency review statute W&I §366.3 subsections (e) and (f) that allow for additional reunification services, if it would be in the best interest of the minor(s).
*Author’s note: While footnote 4 acknowledges that W&I §366.3 is applicable after a permanent plan is chosen (pursuant to §366.26), the case describes interspersed §366.3 and §366.26 hearings (the continued §366.26 hearing scheduled for after publication of the decision). Marilyn H. cites §366(a) as – and §366(a) is by its own words – the review statute for children in foster care prior to completion of the §366.26 hearing. The statutes have changed significantly since Marilyn H., so arguably §366.3 is applicable prior to completion of the §366.26 hearing.
In re A.L.
1/18/22, CA 6: H048761
The trial court denied father’s Welfare and Institutions Code (W&I) §388 petition and terminated his parental rights. The §388 petition was denied on the grounds that return to the father’s care was not in the best interests of the child, primarily because of risk from substance abuse. It failed to find that termination of parental rights would pose a detriment to the child, the third prong from In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), after finding that father met the first 2 requirements: namely that he visited regularly and had a beneficial relationship with his daughter. The father’s basis of appeal was focused on the fact that much testimony was received by the court that father did not fill a parental role with the child, a factor disavowed by Caden C. The appellate court affirmed, indicating that there was sufficient evidence that severance of the relationship would not be detrimental to the child.
In re L.A.-O et al
1/19/22, CA 4/2: E077196M
In denying a rehearing of the case, the appellate court corrected its original opinion by clarifying that the parents did adequately raise in their opening briefs – and therefore did not forfeit – that the trial court too heavily relied on their lack of occupying a parental role.
In re M.F., et al
1/20/22, CA 6: H049128
Mother permitted children to be with father unsupervised, contrary to the visitation order issued in a restraining order protecting mother from father. During a 4th of July visit, the youngest child suffered nonaccidental injuries and died. Delays because of the pandemic, but also related to difficulties in obtaining the coroner’s report, caused jurisdiction to happen about 7½ months after actual detention, and disposition almost 3 months later at a contested hearing. Because of the extraordinary delays, the trial court set a combined 6- and 12-month review hearing, which proceeded accordingly. Mother appealed that decision, claiming the merging of the hearings violated her due process rights. The appellate court followed the guidance about statutory interpretation provided by Tonya M. v. Superior Court (2007) 42 Cal.4th 836 and ruled that there was no statutory or case law support to not combine the hearings as was done. The children were subsequently returned to the mother at the 18-month review hearing in January of 2022, so mother’s claim that she was prejudiced from the combined hearings was not ripe.
In re Leon E.
1/21/22, CA 1/3: A161063
California’s Fostering Connections to Success Act aka AB-12, attempts to provide support that helps foster youth integrate successfully into adult life after turning 18 years old. This support is available to youth in foster care through the juvenile dependency or justice courts. Leon failed to comply with requirements needed to remain in the program and receive the support it provides. As a result, the trial court terminated him from the program. However, it failed to follow the statutory requirements in making that decision, a procedure designed to leave a youth in the best position they can be without continued support. While it was true that in the interim, Leon turned 21 years old (making him ineligible for continued program support), the issue on appeal was not moot as the failure to provide Leon the appropriate documents and information upon dismissal could still be remedied.
In re Abigail L.
2/15/22, CA 2/7: B310601
Abigail was placed in appellant’s care from 8 weeks old until she was placed with her half-sister’s foster home in Arizona (about 1 year and 9 months later). Her foster mother attempted, unsuccessfully, to obtain de facto parent status starting in early 2020 and until Abigail’s change in placement. De facto parent status in juvenile dependency court affords the de facto parent an opportunity to participate as a party and provide information to the court that they are uniquely qualified to give, as a result of having provided day-to-day care of a dependent minor. The trial court erred in not granting the foster mother de facto parent status. By denying her the status that she was qualified to receive, the trial court denied itself the opportunity to receive important information with the potential to guide the court in making critical decisions on behalf of Abigail. Because de facto parent status is available to both current and former care providers, not having Abigail in her care did not negate either the qualification for, or her ability to provide valuable information to, the court as a de facto parent.
In re Katherine J.
2/17/22, CA 2/1: B313191
The trial court found that the father failed to prove that his relationship with his 10-year-old daughter was beneficial to her (the 2nd of 3 required elements laid out by In re Caden C. (2021) 11 Cal.5th 614.) The appellate court found the evidence showed that, while perhaps most of the time his actual relationship was positive, his continued struggles with violence and substance abuse had directly impacted his visitation with Katherine, at times leaving her weary and fearful of him.
In re H. V.
2/18/22, CA 2/5: B312153
This is an Indian Child Welfare Act (ICWA) case. The ICWA requires social workers and courts to inquire of parents and relatives about possible Native American ancestry in order to provide notice to tribes of dependent minors. The purpose of the ICWA is to protect the integrity and cultural heritage of the tribes by permitting them to participate variously on behalf of dependent minor tribal members and those eligible for tribal membership. In this case, the trial court only had clarity that the mother had no reason to believe she or the father had Native American ancestry. The record reflects no information whatsoever about possible Native American ancestry from maternal relatives, with whom the social worker had direct communication. Required as a first-step inquiry, is to ask any relatives questions about possible ICWA-related ancestry. The appellate court carefully outlined the steps and procedure to follow to focus exclusively on ICWA-related questions on remand. This opinion contained a dissent.
In re S.S., et al
2/24/22, CA 2/1: B314043
This is also an Indian Child Welfare Act (ICWA) case. In this case, the trial court only had clarity that the mother had no reason to believe she had Native American ancestry. The Social Worker did not adequately inquire of the maternal grandmother, pursuant to W&I §224.2(b), information about the potential application of the ICWA. The appellate court, pointedly referencing federal law and not the state statute, followed In re Benjamin M. (2021) 70 Cal.App.5th 735 that no prejudice was shown and further inquiry was unlikely to show that there was Native American ancestry. The appellate court noted that mother’s and minor’s counsel sought placement with the same maternal grandmother. Since the ICWA strongly prefers placement with relatives, failure of any counsel supporting placement with her to include any report of Native American ancestry implied that there was none.
In re Darian R., et al
2/24/22, CA 2/1: B314783
This too is an Indian Child Welfare Act (ICWA) case. This case rules that an acknowledged failure to follow W&I §224.2(b) was harmless. There was a previous undisputed determination by the trial court that the ICWA did not apply to 2 of the children in an earlier dependency case from 2015-16.* Distinguishing this case factually from In re Benjamin M. (2021) 70 Cal.App.5th 735 by pointing out there was only a single and fully identified father in this case (as opposed to several in Benjamin M.), the appellate court finds that “no prejudice” flows from the social worker’s failure to adequately inquire of various relatives about Native American ancestry.
*Author’s note: Significant changes in ICWA inquiry requirements have been implemented within the past few years.
In re Mia. M. et al.
2/28/22, CA 2/5: B313574
Despite due diligence filings and their acceptance as valid, efforts to locate and notice the alleged father were “woefully inadequate.” The trial court went on to deny alleged father’s W&I §388 petition filed immediately prior to a W&I §366.26 hearing (to determine the permanent plan for a child out of parental care or custody, such as adoption) which asserted the due process violation related to notice and failure to acknowledge his biological parentage. The §388 petition was denied on the grounds that return to the father’s custody was not in the best interests of the child.* The trial court went on to terminate parental rights. The appellate court, noting the inadequate notice and impact on jurisdictional authority (and then-potential parentage findings), reversed and remanded for a new Jurisdiction and Disposition hearing as to father (the appellate court specifically found no due process violation for mother that would justify a re-consideration of issues she might otherwise have at jurisdiction and disposition hearings).
*Author’s note: The opinion does not specify the trial court’s reasoning as to the due process issue, presumably relegated to a mere best interest analysis. The default standard of proof in Juvenile Dependency proceedings is preponderance, which is also generally true for W&I §388 petitions. Yet, wherein other statutes specify higher levels of proof for specific legal determinations, those higher standards apply to such questions raised within a §388 petition.
In re A.C.
3/4/22, CA 2/1: B312391
This is an ICWA case. This case involves an undisputed failure to follow the requirements of W&I §224.2. The appellate court factually distinguishes this case from those above: 1) the mother was in foster care when she turned 18 and, therefore, had less opportunity to know her ancestry through her parents; 2) the initial hearing report indicates (however inexplicably) that the child may be an Indian child; and 3) mother’s relatives were directly involved with the Department because 2 of the children were placed with them and father lived with his family members. As such, the relatives were readily available for inquiry. The Department never inquired of either set of relatives of their Native American heritage. This opinion includes a dissent essentially placing the burden on the appealing party to show some significant probability of prejudice to overcome a harmless error analysis.
In re D.P. et al.
3/10/22, CA 3: C093132
The trial court took jurisdiction over the parents’ 5 children. The parents were engaged in domestic violence and substance abuse while caring for the children, there was physical abuse, and the children exhibited emotional damage. Because of these issues, combined with a history of involvement with child protective services, the parents were bypassed: not granted an opportunity to engage in reunification services. Later, the trial court terminated parental rights after a trial where (it seems) only the mother testified.
Subsequently, mother filed a W&I §388 petition for reunification services. Mother alleged that there were changed circumstances that would justify offering her reunification services in the children’s best interests. The trial court summarily denied that mother’s §388 petition stated changed circumstances nor that what she proposed was in the children’s best interests. The appellate court concluded that mother had a relatively recent sobriety (in the face of her long history of substance abuse), and historically failed efforts to remain sober. It also concluded that mother presented inadequate evidence of change to address the history of domestic violence and failure to protect the children. These justified the trial court’s finding that circumstances were not adequately changed, as required for a §388 petition. It also surmised that those same factors made it impossible to conclude that reunification services and potential return of the children to mother was in their best interests.
As to the W&I §366.26 hearing, the case was remanded to the trial court in order to comply with the 3 factual determinations required to apply the parental bond exception, as enumerated by In re Caden C. (2021) 11 Cal.5th 614, which are 1) regular and consistent visitation (in this case, an undisputed fact); 2) that there is a beneficial relationship between the children and parent; and 3) that termination of that relationship would be detrimental to the children. The appellate court reversed. While it found evidence to support each element, it did not find evidence to the contrary. The trial court’s summary ruling that the exception did not apply was not supported by the evidence. Upon remand, the appellate court specifically warned the trial court NOT to consider the parents’ continuing problems (without relating them to the parent-child relationship) or the relationship between the children and relative caregivers. The appellate court also mentioned possible inappropriate reliance upon possible future contact between the parents and children since they were proposed to be adopted by relatives. Finally, the appellate court also denied father’s claim of minor’s counsel’s conflict of interest as, even though the older children were not to be adopted, they were not in opposition to the adoption of their younger siblings.
Adoption of E.B.*
3/16/22, CA 3: C092765
Prior to E.B.’s birth, appellant and the biological parents entered into an agreement that he would have 3 parents and that the non-biological parent would adopt him. Upon approval for adoption by the California Department of Social Services, the trial court denied the otherwise uncontested adoption on the ground that it couldn’t make the detriment finding needed for a 3-parent finding pursuant to Family Code §7612(c). Appellant pointed out that Family Code §8617 was specifically designed to permit adoption by a 3rd parent while preserving the parental rights – “duties and obligations”
– of the current parents (which otherwise would expire upon granting of the adoption petition). The appellate court agreed with appellant that §7612 is a parentage statute and remanded for application of §8617(b), which was added in 2019 specifically to permit adoption by a 2nd or 3rd parent without disturbing the original parental rights.
*Author’s note: This is not a dependency case, but adoption proceedings are conducted in Juvenile Dependency courts, albeit necessarily after termination of parental rights.
In re Antonio R.
3/17/22, CA 2/7: B314389
This is an ICWA case. Amongst the readily available and variously involved relatives, almost entirely maternal, only the paternal great-grandmother was asked about Native American ancestry. Key points of this appellate court’s decision are: 1) parents’ knowledge about their ancestry might be limited; 2) parents might, for whatever reason, be motivated to not involve a tribe; 3) the Department (and court to some degree) is charged with making the inquiry, not the parents (and the parents, thereafter, might become aware of that ancestry as a result of the Department’s inquiry); and 4) expressly disagrees with Division 1’s perspective of prejudice by asserting that the proper focus of prejudice is the likelihood of finding out relevant information about Native American ancestry, not the likelihood that such ancestry will be found and, as to those relatives not asked in this case, that likelihood was very high. In short, the appellate court sticks firmly to the notion that you don’t know what you don’t know, and refuses to use some measure of speculation about the likelihood of finding actual Native American ancestry in its calculus of prejudice.*
*Author’s note: In normal jurisprudence, required showings of prejudice are necessarily against a particular party or parties. In ICWA cases, the potential prejudice is against a tribe that, if unidentified, has been afforded no voice. For this reason, the legislature has charged social workers and the courts to protect that potential tribe through the inquiry mandates of W&I §224.2.
In re J.Y.
3/18/22, CA 2/8: B313020
The trial court found that failure of the Department to adequately investigate relative placements during reunification justified removing the child from De Facto and prospective adoptive parents and placement with paternal relatives in Arizona. The paternal relatives requested placement after the child was freed for adoption. A stay was filed and granted pending the appeal. The trial court’s decision was reversed because there was no factual support for the conclusion that the Department failed to properly consider relatives and the move wasn’t in the minor’s best interests. The appellate court found that a subsequent ICPC approval for the paternal relatives in Arizona was irrelevant to their decision.
In re K.T., et al
3/23/22, CA 4/2: E077791
This is an Indian Child Welfare Act (ICWA) case. The ICWA is federal law, effectuated by Welfare and Institutions Code (W&I) §224.2, and requires social workers and courts to inquire of parents and relatives about possible Native American ancestry. The purpose of the ICWA is to protect the integrity and cultural heritage of tribes by permitting them to participate variously on behalf of dependent minor tribal members or those eligible for tribal membership. In this case, after failed reunification efforts, parental rights were terminated. Social workers and the trial court had reason to believe the children had Native American ancestry. There were failures to provide all relevant information in noticing the tribal entities. Both the court and social worker failed to further inquire as information about Native American ancestry became available. Reversed and remanded to conduct proper inquiry and notice, with direction to reinstate the termination of parental rights unless the ICWA is found to apply.
In re Antonio R.
3/29/22, CA 2/7: B314389N
This is an Indian Child Welfare Act (ICWA) case, originally published on 3/16/2022, opinion only modified on 3/17/2022, and further modified on 3/29/2022. In this last installment, the court basically clarifies its decision to remand for further ICWA inquiry and, if none found, reinstate termination of parental rights. If ICWA found, redo proceedings as required by law as well as the §366.26 hearing.
In re J.C.
4/4/22, CA 2/7: B312685
This is also an Indian Child Welfare Act (ICWA) case. This case involves a failure of the social worker to inquire of various relatives following an initial finding based on required Judicial Council form ICWA-020 filings by both parents indicating they didn’t believe they had Native American ancestry. Subsequently, parents failed to reunify and parental rights were terminated. Social workers had significant interactions with relatives and never inquired further of possible Native American ancestry. Remanded to correctly inquire, notice (as needed), and proceed by statute accordingly. Namely, if the ICWA is found to not apply, termination of parental rights will be reinstated.
In re A.J.
4/4/22, CA 3: C093305
Juvenile dependency proceedings are first and foremost about children. While the applicable codes are designed to protect the familial rights involved (those of parents, children, and Native American tribes under the ICWA), all findings and orders ultimately center on the child.
In this case the trial court attempted to conduct separate jurisdiction and disposition hearings for the parents because the father was incarcerated and not transported. It took jurisdiction and disposition ‘as to’ the mother in June of 2020, and ‘as to’ father in November of 2020 (when he was still not present).* This court emphatically asserts that the practice is both “unauthorized and erroneous.” It implores jurisdictions from doing it by pointing out the negative consequences and that the statutes describe the hearings as explicitly about the child/ren.
Failure to grant father another continuance for jurisdiction and disposition hearings ‘as to’ him (after 15 months of failed efforts to bring him before the trial court) was not error since the jurisdiction and disposition hearings were accomplished in June 2020. Since Penal Code §2625 does not require production of prisoners to hearings between adjudication of dependency and choosing a permanent plan, he didn’t have a right to be present at the November 2020 hearing. Not only did the trial court err by extending continuing disposition well beyond the statutory limit, but having done disposition in June 2020, the proper action was for father to appeal that decision – there being only one disposition for the child/ren.
*Author’s note: This is not the only venue which purports to take jurisdiction ‘as to’ a particular parent and not the other (noted recently in this publication).
In re I.F. et al.
4/6/22, CA 6: H049207
This is yet another Indian Child Welfare Act (ICWA) case. The juvenile court found that the ICWA does not apply at disposition based on evidence from an inadequate investigation. In previous proceedings, mother had indicated that she thought she did have Native American ancestry, and grandparents were interviewed, at least one of whom indicated there was possible ancestry. Subsequently, the social worker believed there was reason to believe that the children were possibly of Native American Ancestry. Thereafter, the social worker didn’t follow the requirements of doing a further investigation, but instead followed only the requirements of an initial inquiry under Welfare and Institutions Code (W&I) §224.2(b). The appellate court says therein was the error, as there are clear guidelines on how to proceed – with a further duty to inquire under W&I section §224.2(e) – when there is reason to believe children might fall under the ICWA. In addition, there were other noticing defects. Remanded for further inquiry and either reinstatement of the ‘ICWA is not applicable finding’ or further requisite noticing, and other findings as needed.
In re A.R. et al.
4/7/22, CA 4/3: G060677
This is yet another Indian Child Welfare Act (ICWA) case. This case involves an undisputed and apparently complete failure to follow the requirements of Welfare and Institutions Code (W&I) §224.2 – the statute that charges the Social Services Department and Court to conduct inquiries, as needed, to ascertain potential Native American heritage of each and every child who comes before the juvenile court outside of parental physical custody. The appellate court basically cuts right to the chase, acknowledging that the tribal interests specifically protected by the ICWA are what suffers when the code is not followed (as opposed to the parents), emphasizing the importance of following the law in each and every case. Reversed and remanded to conduct proper initial inquiry, with direction to reinstate the termination of parental rights if that inquiry finds no evidence of Native American heritage.