Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
DEPENDENCY (current through 6/19/2022)
By: John Nieman
In re M.V., et al
5/17/22, CA 4/1: D079473
This case involves domestic violence between the parents in the children’s presence. After an initial voluntary services period, and another incident which father reported to their worker, and an executed adjustment, the Department filed a petition and detained the children. The juvenile court also removed the children from the parents’ care and custody and ordered reunification services. After parents basically cooperated fully, the trial court received testimony that potentially viable alternatives to removal had not been explored by Social Services. The maternal great grandmother offered to live in the home of the parents, as a way to keep the children home. The court decided to remove anyway. Notably, both parents and minor’s counsel objected to the removal.
Prior to removing the children from their parents’ care and custody, trial courts must find by clear and convincing evidence sufficient risk of harm without removal and that alternatives to removal are not reasonably available. The appellate court ruled there was insufficient evidence to support removal from the parents. It also found insufficient evidence that a lesser alternative than removal was not available.
In re Z.O.
5/24/22, CA 4/3: G060663
This case involves the faulty appointment of a Guardian ad Litem (GAL) for the mother, which tainted the integrity of evidence to support termination of her parental rights. The appellate court could find no evidence upon which the trial court relied to decide to appoint the GAL. Compounding this was a failure to notice mother of her appellate rights of when the Welfare and Institution Code (WIC) §366.26 permanent plan hearing was set. This failure prevented her from protecting appealable issues for the §366.26 hearing that transpired prior to its setting. Finally, the mother’s appearance was waived by her attorney for the entirety of the proceedings after appointment of the GAL. The record on appeal apparently doesn’t contain information that explains the GAL’s or attorney’s communication with the mother or understanding of her condition, perhaps blurring the picture for the appellate panel.
The appellate court also found that the Social Services Agency failed to include the actual correspondence with Tribes noticed pursuant to the ICWA. The omission meant that the trial court had no way to ensure appropriate information had been provided to the Tribes. The appellate court ordered it be produced on remand as well.
In re M.E. et al
5/25/22, CA 3: C094587
This is an Indian Child Welfare Act (ICWA) case. The juvenile court found that the ICWA does not apply after initially believing there was reason to believe it did. Instead of investigating and noticing accordingly, the Department relied primarily upon the findings from a previous case in Yuba County and the trial court failed to properly utilize that information to whatever extent it was applicable. The Department also failed to inquire of relatives readily available to them of possible Native American Ancestry. This court declined to follow In re Austin J. (2020) 47 Cal.App.5th 870 which ruled that the amount of information (and there was some) that ICWA was applicable was inadequate to require remand. A majority of published cases recently are finding, as this case essentially found, that inadequate inquiry translates into speculation about what information might have been found were the inquiry properly conducted. Conditionally remanded only for further ICWA inquiry and further requisite noticing and other findings as needed.
In re Allison B, et al
5/27/22, CA 2/1: B315698
This is also an Indian Child Welfare Act (ICWA) case, but only on the surface. After termination of mother’s parental rights and her timely filing a notice of appeal about inadequacies of the investigation into the applicability of the ICWA, the Department succeeded in completing an investigation into the ICWA. The Department filed its findings with the trial court and obtained a ruling based on that filing that the ICWA was not applicable.
The appellate court relied on Code of Civil Procedure §909. §909 gives the appellate court latitude on non-jury judgements to make factual determinations under narrow circumstances in the interests of justice. When it can be done, dismissal of dependency appeals has the effect of promoting finality of judgement (i.e., elimination of uncertainty of the child’s future), which is categorically in the child/ren’s best interests.
After providing the mother an opportunity to respond to the Department’s filing, the appellate court chose to admit and consider it directly – rather than rely on the trial court’s determination. Finding the ICWA inapplicable, the appeal was dismissed.
In re A.B.
6/14/22, CA 6: H049676
Father failed to make an adequate offer of proof at the second W&I §366.3 hearing to justify a contested hearing and appealed. Father asserted that the trial court couldn’t require an offer of proof wherein he had a statutory right to notice and to participate in the hearing. The appellate court reviewed the statute and its history and concluded that for a child in legal guardianship, the review hearings did not require notice. Statutes that required notice were specific to post-permanency hearings wherein the minor was in foster care. Notably, the father had been afforded a full evidentiary hearing at the first post-permanency review hearing 6 months earlier, at which point the trial court affirmed the detriment to visit finding.
Secondly, father asserted that due process for his constitutionally protected parental rights required that he be given a contested hearing. The appellate court disagreed and pointed out that the trial court’s focus was statutorily on the continued stability and well-being of the minor in the guardians’ home. This was particularly salient as the minor had 9 placements prior to living with grandparent guardians in Alaska where she had been the most stable since the outset of the case. Included in the analysis was a reference to differences in the importance of due process for parents at different stages of a dependency case, citing various cases wherein the question of utilizing an offer of proof to require a contested hearing was at issue.
In re Dezi C. et al.
6/14/22, CA 2/2: B317935
This is another Indian Child Welfare Act (ICWA) case. This case involves an undisputed failure to follow the requirements of Welfare and Institutions Code (W&I) §224.2(a) & (b) – that charges the Social Services Department and the court to conduct inquiries 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 creates “A Fourth Rule” for analyzing such cases by requiring some indication anywhere in the record that there is a possibility that the ICWA might be applicable to justify remand for an inquiry that conforms to §224.2(a) & (b). The appellate court qualifies the “record” as information obtained at any time (following In re Allison B. – reviewed above). The appellate court relies on the People v. Watson (1956) 46 Cal.2d 818 miscarriage of justice standard for reversal that requires a showing of error wherein an outcome more favorable “to the appealing party would have been reached in the absence of error” (People v. Watson (1956) 46 Cal.2d 818, 836). Since at no time was any evidence submitted or alleged to create a reason to believe the ICWA applicable, the decision was affirmed.*
*Author’s note: This Fourth (“reason to believe”) Rule means that failure of the Department to discharge its duty under §224.2(a) & (b) may have no impact unless a parent or someone else does their own inquiry to create the required evidence. This ostensive shifting of the burden of inquiry is contrary to the express terms of the statute; it renders moot the recent statutory changes intended to ensure that a full ICWA inquiry in every case is conducted by the Department. Moreover, given the very low frequency that the ICWA is found to be applicable in dependency cases in general (even in those cases wherein there is some reason to believe the ICWA to be applicable) a finder of fact (the appellate court under CCP §909) could conceivably take judicial notice of the unlikelihood that, upon remand, the ICWA would be found applicable wherein no information indicates as much – because a Watson miscarriage of justice requires a reasonable probability of an outcome more favorable “in the absence of error.” At the risk of beating a dead horse, this decision potentially reduces the extraordinary steps taken by the Legislature to ensure that the ICWA be fully investigated in every dependency case to only those cases with a “reason to believe” the ICWA to be applicable; it is tantamount to saying: Because we don’t have the required (§224.2(a) & (b)) inquiry results nor any other relevant information, we’re going to presume that, had an inquiry been done no information implicating applicability of the ICWA would have been found. For intents and purposes this Court’s decision, were it to be followed, rewrites the statute to make the §224.2(a) & (b) inquiry contingent upon there being some “reason to believe” that the ICWA might apply.
I hasten to reiterate my deep respect for each appellate court panel’s work on juvenile dependency cases by acknowledging their extraordinary burden to navigate seemingly conflicting statutes in the context of the extreme emotional impact their decisions can have on children and families.
In re Q.M. et al.
6/16/22, CA 2/3: B313171
This is also an ICWA case. Here, initial inquiry indicated possible Cherokee ancestry on father’s side. But after that initial inquiry, the parents provided no further information about Native American ancestry or information about any of their relatives which proved useful in the ICWA inquiry. Try as they might, the Department was unable to communicate with any relatives. Notice was sent to the Cherokee Tribes, the BIA, and Secretary of the Interior with what limited information had been gathered, albeit presumptively lacking. Yet, in this case, since there was no “reason to know,” formal notice was not required. The appellate court basically ruled that the Department complied with its W&I §224.2(b) duty to investigate and needn’t do extensive searching for unidentified (by the parents) relatives.