Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
DEPENDENCY (current through 10/11/2021)
By: John Nieman
In re Samuel A.
9/21/21, CA 2/7: B306103
This case involves an appointment of a Guardian Ad Litem wherein there was no requisite finding of incompetence or inability to aid defense counsel. The mother in this case had many attorneys, almost all of whom were unable to work with her. She was also apparently difficult to social workers, foster parents, and others. In the midst of the proceedings, the trial Court ordered an Evidence Code §730 psychological evaluation that was favorable to the mother. The appellate court, in reaching its decision, several times indicated sympathy for not only the various appointed counsel but the trial court judge. Ultimately, the appellate court found that a parent’s unwillingness to cooperate and assist counsel was not the same as an inability to do the same. As if to emphasize the potential impact of appointment of a Guardian Ad Litem, during the pendency of the appeal, mother’s parental rights were terminated. The case was remanded back to the combined 6-12 month review hearing.
Guardianship of S.H.R.*
9/28/21, CA 2/1: B308440M
Superior Courts in California are authorized by CCP §155 to determine if unaccompanied minors (those not in parental custody) can petition the United States Citizenship and Immigration Service (USCIS) for Special Immigrant Juvenile Status (SIJS). This appellate court interprets that code section to mean that the Superior Court must determine if facts supporting a grant of SIJS exist to permit the petition to be made. Probate Code §1510.1 permits establishment of guardianships of persons aged 18-21 who petition for SIJS. S.H.R., as a minor, petitioned for guardianship and after turning 18, for SIJS status. The appellate court did not mention anything about the applicability of the SIJS status for a nonminor. Maybe this was because §1510.1(d) specifically defines “child” and “minor” to include an unmarried person under 21 years of age. An interesting aspect of §155 is that it specifically permits a trial court to make the requisite SIJS findings based solely upon a declaration of the minor.
According to his declaration, S.H.R. fled El Salvador because he was: subjected to death threats by a local gang; was aware of murders by that gang where he lived in El Salvador; local law enforcement was ineffectual in providing protection from the gang; his parents had no means to support him (without him working) nor apparent ability to protect against the gang; and the gang threatened his entire family. No other evidence was proffered. The trial court declined to make findings required by §155 to permit a petition to USCIS for SIJS.
The appellate court painstakingly reviewed the requisite elements of SIJS, agreeing with the conclusion that S.H.R. failed to prove by a preponderance of the evidence that his parents abandoned him, neglected him, or that he could not reunify with them. Though the appellate court cited the CA Supreme Court defining parental neglect as “failure or inability…to adequately supervise or protect” (In re R.T. (2017) 3 Cal.5th 622, 629) it seemed to conclude that some kind of willfulness by the parents causing the abandonment or neglect and inability to reunify was required to qualify for SIJS. Notably, there is no mention of Welfare and Institutions Code §300(b)(1), perhaps the most common grounds for a Juvenile Court’s jurisdiction (and from which the quoted language above likely derived), which is about parental failure to protect against risk of physical harm.
*This is a Special Immigrant Juvenile Status (SIJS) case, an area of the law (if not practice) near and dear to the hearts of juvenile dependency practitioners.
In re J.D.
9/29/21, CA 1/2: A161973
This case involves a remand to ensure compliance with the Caden C. decision (In re Caden C. (2021) 11 Cal.5th 614) relating to evaluation of the parental bond exception defense to termination of parental rights. Caden C. basically requires a parent to show 3 aspects of a beneficial parental relationship: 1) regular visitation and contact to the extent permitted (a factual question), 2) a substantial positive emotional attachment to the parent demonstrating that continuing the relationship would be beneficial (also a factual question), and 3) that termination of the relationship would be detrimental, even as balanced against the permanency of adoption (a nuanced question that requires careful consideration of multiple factors). In this case, the mother met the first question, as she maintained regular contact with the child. As to the second question, there was significant evidence showing a remarkable bond between the child and his mother but, in the end, enough gaps in the evidence to require remand as to this question alone. The appellate court declined to formally address the third question of the balance of the harm of severing the relationship versus the benefit of adoption. Yet, it felt compelled to point out that the trial court’s failure to completely bar evidence of postadoption contact demonstrated a misunderstanding; namely that it had to consider a complete severance of the parental relationship in measuring the harm (of severance) versus benefit of adoption.
In re Michael G. et al.
10/6/21, CA 4/3: G060407
Despite a no reasonable services finding in the 12-18 month period immediately preceding the setting of the §366.26 hearing, the appellate court did not believe that the trial court had authority to extend reunification services based solely on that failure, or for §352. The court acknowledged the split in authority and disagreed with In re M.F.’s reliance on §361.5(a)(4)(A) as giving guidance to an admittedly ambiguous 366.22 (In re M.F. (2019) 32 Cal.App.5th 1). Notably, there was neither a discussion of interpreting the law to mean there was a mandate without a remedy nor any discussion about the role reasonable services findings might play in the provision of due process. In the final analysis, the appellate court relied upon the trial court’s finding that continued reunification services were not in the child’s best interests. This conclusion was presumably intended to cover all potential legal pathways for more services, namely a §352 continuance, extension of services to the 24-month date, or other discretionary judicial remedy/ies.
In re ARI S.
10/6/21, CA 2/8: B307714. B311334
This is a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) case. Mother suffered significant mental health issues, which were the practical basis for jurisdiction. After living in various states (e.g., Nevada, Montana, and Washington), mother was in California primarily in the time preceding the start of the dependency case. Mother owned land here, a sibling of the minor lived here, mother indicated that she lived here, filed suit in federal court here, and mother never objected to the trial court’s exercise of jurisdiction. The appellate court affirmed the trial court’s exercise of jurisdiction under the UCCJEA, as the child had no home state and the family had significant ties to California. Consequently, the appellate court declined to address a question of forfeiture from mother’s failure to raise her UCCJEA question in the trial court.