Below are summaries of cases from 2020 to April 2021 affecting child custody issues in California. AFCC California and the Insights staff are very grateful to Dawn for her hard work gathering this vital information for our membership.
In re A.J.
In re A.J. (2019) 44 Cal.App.5th 652, 257 Cal.Rptr.3d 366: In this case, decided on December 24 but ordered published on January 23, 2020, the Second District reversed a Los Angeles County Juvenile Court’s order terminating formerly incarcerated F’s parental rights. It held that because he did not receive proper notice of the original jurisdiction and disposition hearing, “it is reasonably probable that absent the notice error and the related denial of legal representation, father would have been granted reunification services, and his parental rights would not have been terminated. The Department has also not shown that the notice error was harmless beyond a reasonable doubt.” It also held that “(s)o long as an indigent parent or guardian appears or communicates to the court a request for legal representation, counsel should be appointed. The Department’s harmlessness argument ignores the fact that the defective notice caused father to lose not just his right to appear but his right to legal representation during critical stages of the dependency case.” Here was its conclusion:
We cannot agree with the Department’s argument that the failure to give father adequate notice of the jurisdiction and disposition hearing was harmless error. Father promptly responded to the initial notice, clearly indicating his desire to appear at the hearing. But for the error of untimely notice, the reasonable consequence of father’s request would have at a minimum involved appointment of counsel to represent father at the jurisdiction and disposition hearing. As thoroughly explained above, legal representation would have resulted in a tangible benefit to father, altering the course of the dependency case to such a significant degree that we must say it was within the realm of reasonable probability that father, having availed himself of reasonable reunification services and having returned to California and established a relationship with his children, would not have been in his current position of having his parental rights terminated.
Instead, subsequent events only compounded the initial notice error. First, the Department asked the court to bypass father’s reunification services. Second, the court failed to provide notice of some of its critical orders to father. Third, the court summarily denied father’s first petition seeking reunification services once he had returned to California. Fourth, the Department failed to notify the court of father’s April 27, 2015 letter until it had to respond to the section 388 petition filed by father’s counsel after father appeared at the first section 366.26 hearing. In contrast to the Department and the court’s dismal record of protecting father’s rights, father himself took steps to not only improve his chances of reunification, but to seek additional assistance from the court. Even without help from an attorney or guidance from a social worker, father independently took classes while in prison to improve the chances that he could successfully parent his four children.
Considering all of the above, we conclude that not only has the Department failed to show that the notice error was harmless beyond a reasonable doubt (In re Justice P., supra, 123 Cal.App.4th at p. 193), but also that father has demonstrated miscarriage of justice warranting reversal.
Michelle Monasky v. Domenico Taglieri
Michelle Monasky v. Domenico Taglieri (2020) 589 U.S. ___, 140 S. Ct. 719: In this Hague Convention case arising out of Ohio, the U. S. Supreme Court construed the term “habitual residence” in the Hague Abduction Convention. Justice Ginsburg wrote for the majority that ‘habitual residence’ is a mixed question of law and fact that requires the trial court to consider all of the circumstances in a particular case. Agreement of the parents is not a requirement. The court also held that appellate courts should use a deferential standard of review of trial court habitual residence decision. The opinion notes that domestic violence can be the basis to assert the “grave risk” defense to return under the treaty and that the country of habitual residence can consider DV in adjudicating custody on the merits.
Michelle and Domenico married in the United States in 2011. Two years later, they relocated to Italy, where they both found work. Neither then had definite plans to return to the United States. During their first year in Italy, Monasky and Taglieri lived together in Milan. But the marriage soon deteriorated. Taglieri became physically abusive, Monasky asserts, and “forced himself upon [her] multiple times.” 907 F. 3d 404, 406 (CA6 2018) (en banc).
About a year after their move to Italy, in May 2014, Monasky became pregnant. Taglieri thereafter took up new employment in the town of Lugo, while Monasky, who did not speak Italian, remained about three hours away in Milan. The long-distance separation and a difficult pregnancy further strained their marriage. Monasky looked into returning to the United States. She applied for jobs there, asked about U. S. divorce lawyers, and obtained cost information from moving companies. At the same time, though, she and Taglieri made preparations to care for their expected child in Italy. They inquired about childcare options there, made purchases needed for their baby to live in Italy, and found a larger apartment in a Milan suburb.
Their daughter, A. M. T., was born in February 2015.Shortly thereafter, Monasky told Taglieri that she wanted to divorce him, a matter they had previously broached, and that she anticipated returning to the United States. Later, however, she agreed to join Taglieri, together with A. M. T., in Lugo. The parties dispute whether they reconciled while together in that town.
On March 31, 2015, after yet another heated argument, Monasky fled with her daughter to the Italian police and sought shelter in a safe house. In a written statement to the police, Monasky alleged that Taglieri had abused her and that she feared for her life. Two weeks later, in April 2015, Monasky and two-month-old A. M. T. left Italy for Ohio, where they moved in with Monasky’s parents.
Taglieri sought recourse in the courts. With Monasky absent from the proceedings, an Italian court granted Taglieri’s request to terminate Monasky’s parental rights, discrediting her statement to the Italian police. App. 183. In the United States, on May 15, 2015, Taglieri petitioned the U. S. District Court for the Northern District of Ohio for the return of A. M. T. to Italy under the Hague Convention, pursuant to 22 U. S. C. §9003(b), on the ground that Italy was her habitual residence.
The District Court granted Taglieri’s petition after a four-day bench trial. Sixth Circuit precedent at the time, the District Court observed, instructed courts that a child habitually resides where the child has become “acclimatiz[ed]”to her surroundings. App. to Pet. for Cert. 85a (quoting Robert v. Tesson, 507 F. 3d 981, 993 (CA6 2007)). An infant, however, is “too young” to acclimate to her surroundings. App. to Pet. for Cert. 87a. The District Court therefore proceeded on the assumption that “the shared intent of the [parents] is relevant in determining the habitual residence of an infant,” though “particular facts and circumstances . . . might necessitate the consideration [of] other factors.” Id., at 97a. The shared intention of A. M. T.’s parents, the District Court found, was for their daughter to live in Italy, where the parents had established a marital home “with no definitive plan to return to the United States.” Ibid. Even if Monasky could change A. M. T.’s habitual residence unilaterally by making plans to raise A. M. T. away from Italy, the District Court added, the evidence on that score indicated that, until the day she fled her husband, Monasky had “no definitive plans” to raise A. M. T. in the United States. Id., at 98a. In line with its findings, the District Court ordered A. M. T.’s prompt return to Italy.
The Sixth Circuit and this Court denied Monasky’s requests for a stay of the return order pending appeal. 907 F. 3d, at 407. In December 2016, A. M. T., nearly two years old, was returned to Italy and placed in her father’s care.
In the United States, Monasky’s appeal of the District Court’s return order proceeded. See Chafin v. Chafin, 568 U. S. 165, 180 (2013) (the return of a child under the Hague Convention does not moot an appeal of the return order). A divided three-judge panel of the Sixth Circuit affirmed the District Court’s order, and a divided en banc court adhered to that disposition.
The USSCT granted cert and affirmed the Sixth Circuit Court of Appeals. Justice Ginsburg delivered the opinion of the Court, in which Justices Roberts, Breyer, Sotomayor, Kagan Gorsuch, and Kavanaugh joined, and in which Justices Thomas joined as to Parts I, III, and IV. Justices Thomas and Alito filed opinions concurring in part and concurring in the judgment.
The first question presented concerns the standard for habitual residence: Is an actual agreement between the parents on where to raise their child categorically necessary to establish an infant’s habitual residence? We hold that the determination of habitual residence does not turn on the existence of an actual agreement.
…
Because locating a child’s home is a fact-driven inquiry, courts must be “sensitive to the unique circumstances of the case and informed by common sense.” Redmond, 724 F. 3d, at 744. For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence. But suppose, for instance, that an infant lived in a country only because a caregiving parent had been coerced into remaining there. Those circumstances should figure in the calculus. See Karkkainen, 445 F. 3d, at 291 (“The inquiry into a child’s habitual residence is a fact-intensive determination that cannot be reduced to a predetermined formula and necessarily varies with the circumstances of each case.”).
…
The bottom line: There are no categorical requirements for establishing a child’s habitual residence—least of all an actual-agreement requirement for infants. Monasky’s proposed actual-agreement requirement is not only unsupported by the Convention’s text and inconsistent with the leeway and international harmony the Convention demands; her proposal would thwart the Convention’s “objects and purposes.” Abbott, 560 U. S., at 20. An actual-agreement requirement would enable a parent, by withholding agreement, unilaterally to block any finding of habitual residence for an infant. If adopted, the requirement would undermine the Convention’s aim to stop unilateral decisions to remove children across international borders.
The panel then turned “to the second question presented: What is the appropriate standard of appellate review of an initial adjudicator’s habitual-residence determination?”
Absent a treaty or statutory prescription, the appropriate level of deference to a trial court’s habitual-residence determination depends on whether that determination resolves a question of law, a question of fact, or a mixed question of law and fact. Generally, questions of law are reviewed de novo and questions of fact, for clear error, while the appropriate standard of appellate review for a mixed question “depends . . . on whether answering it entails primarily legal or factual work.” U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___–___ (2018) (slip op., at 8–9).
A child’s habitual residence presents what U. S. law types a “mixed question” of law and fact—albeit barely so. Id., at ___ (slip op., at 7). The inquiry begins with a legal question: What is the appropriate standard for habitual residence? Once the trial court correctly identifies the governing totality-of-the-circumstances standard, however, what remains for the court to do in applying that standard, as we explained supra, at 7–11, is to answer a factual question: Was the child at home in the particular country at issue? The habitual-residence determination thus presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court.
After noting that “(a)lthough agreeing with the manner in which the Court has resolved the two questions presented, the United States, as an amicus curiae supporting neither party, suggests remanding to the Court of Appeals rather than affirming that court’s judgment,” the panel held that “(u)nder the circumstances of this case, however, we decline to disturb the judgment below.”
A remand would consume time when swift resolution is the Convention’s objective. The instant return-order proceedings began a few months after A. M. T.’s birth. She is now five years old. The more than four-and-a-half-year duration of this litigation dwarfs the six-week target time for resolving a return-order petition. See Art. 11, Treaty Doc., at 9. Taglieri represents that custody of A. M. T. has so far been resolved only “on an interim basis,” Brief for Respondent 56, n. 13, and that custody proceedings, including the matter of Monasky’s parental rights, remain pending in Italy. Tr. of Oral Arg. 60–61. Given the exhaustive record before the District Court, the absence of any reason to anticipate that the District Court’s judgment would change on a remand that neither party seeks, and the protraction of proceedings thus far, final judgment on A. M. T.’s return is in order.
… We must determine whether, as Kevin argues, that evidence contains a prima facie showing—not, as argued by Tamara, proof—that Tamara knowingly submitted false evidence on which the court in the Marvin Action relied in denying Kevin’s summary judgment motion.
Justice Thomas wrote separately “because I would decide this case principally on the plain meaning of the treaty’s text.” He wrote that “(b)y relying too heavily on the judicial decisions of the treaty’s other signatories, rather than on a more thorough textual analysis, we risk being persuaded to reach the popular answer, but perhaps not the correct one.” Justice Alito agreed with Justice Thomas. He concluded that because “the concept of ‘home’” is multifaceted,
(a)s best I can determine, the concept of “habitual residence” under the Convention embraces all of these meanings to some degree. If forced to try to synthesize them, I would say it means the place where the child in fact has been living for an extended period—unless that place was never regarded
as more than temporary or there is another place to which the child has a strong attachment. I think this is the core of what courts have made of the concept of “habitual residence,” and it appears to represent the best distillation of the various shades of meaning of the term taken in context.
So interpreted, “habitual residence” is not a pure question of fact, at least as we understand that concept in our legal system. But it does involve a heavily factual inquiry. For these reasons, I would say that the standard of review on appeal is abuse of discretion, not clear error. As a practical matter, the difference may be no more than minimal. The important point is that great deference should be afforded to the District Court’s determination.
In re Justin O.
In re Justin O. (2020) 45 Cal.App.5th 1006, 259 Cal.Rptr.3d 312: In this case, the Second District reversed a Los Angeles County juvenile court’s denial of Grandmother’s request for de facto parent status.
The juvenile court denied Grandmother de facto parent status notwithstanding the undisputed facts that mother’s four children lived with her, and that Grandmother cared for them as a parent for an extended period of time. The juvenile court then refused to permit Grandmother to defend herself against the allegations of physical abuse. Her counsel was not permitted to admit evidence or argue on her behalf. Without hearing from Grandmother or her counsel, the juvenile court sustained the allegation of physical abuse, and DCFS removed David, Justin, and Liam from Grandmother’s care.
On appeal Grandmother challenges the juvenile court’s denial of her requests for de facto parent status, made prior to the sustained findings of abuse. Grandmother also challenges the order sustaining the section 387 petition.
We conclude that the juvenile court erred in denying Grandmother de facto parent status. The court then compounded the error by refusing to allow Grandmother an opportunity to present evidence or argument at the purported ‘hearing’ on the section 387 petition.
M.G. v. Superior Court of Orange County
M.G. v. Superior Court of Orange County (2020) 46 Cal.App.5th 646, 259 Cal.Rptr.3d 834: In this case, the Fourth District granted M and F’s petition for a writ of mandate in a dependency case. “They challenge the juvenile court’s order after a contested 18-month review hearing. The court terminated family reunification services for Mother and Father and set a Welfare and Institutions Code section 366.261 hearing (.26 hearing) for March 19, 2020.
Mother and Father assert the court erred by setting the .26 hearing because there was an insufficient evidentiary showing the children would be at risk in their care. We agree with the parents that Orange County Social Services Agency (SSA) failed to present sufficient evidence the children would be at risk if returned to their parents. We therefore grant the petitions.”
In re Andrew M.
In re Andrew M. (2020) 46 Cal.App.5th 859, 260 Cal.Rptr.3d 193:
In this case, the Second District reversed a Los Angeles County juvenile court judge’s order taking jurisdiction over a child without granting F’s repeated requests for the appointment of counsel.
Father was incarcerated and clearly unable to afford an attorney. He requested representation six out of nine times. In particular, he requested appointment of counsel repeatedly for each of Andrew’s scheduled detention hearings and for the November 20, 2018 hearing at which the juvenile court adjudicated Andrew’s petition. These repeated requests triggered the juvenile court’s obligation to appoint counsel for father in Andrew’s case.
When the court asked DCFS whether it needed to appoint counsel, the agency responded that father was aware of the case and had chosen not to participate. DCFS omitted to make any mention of the fact that father had actually requested appointment of counsel in nearly every one of his JV-451 forms. The court knew that father had never been arraigned, but found that that notice was given and that father had waived appearance. On that basis, the court proceeded with the adjudication. Father’s decision to waive his appearance did not constitute a knowing and intelligent waiver of his right to representation. This was clear error.
In re B.E.
In re B.E. (2020) 46 Cal.App.5th 932, 260 Cal.Rptr.3d 275: In this case, the Fourth District affirmed an Orange County juvenile court’s order holding that parents who relapse have not “resisted prior court-ordered treatment for this problem” under W&I Code §361.5 so as to allow a court to bypass reunification services to the parent. It held that “(w)e are compelled to break with the line of cases that have interpreted subdivision (b)(13) as encompassing passive resistance, where passive resistance simply means relapse. The bypass provision was intended for parents who refuse to participate meaningfully in a court-ordered drug treatment program, not parents who slip up on their road to recovery. A line of cases beginning with Randi R. v. Superior Court (1998) 64 Cal.App.4th 67 (Randi R.) have resulted in a state of the law wherein a parent can be denied reunification services after one significant relapse, even if services have proven beneficial in the past. That is not what the statute means by ‘resisted . . . treatment.’ (Subd. (b)(13). There was no evidence that the parents actively resisted treatment here, and thus the court correctly offered them reunification services.”
Tarin v. Lind
Tarin v. Lind (2020) 47 Cal.App.5th 395, 261 Cal.Rptr.3d 11: In this case, the Second District affirmed a Los Angeles County trial court’s judgment on the pleadings in favor of Defendants.
Dolores alleged that defendants interfered in Dolores’s relationship with her mother, Lucy Torres (Lucy), “by . . . unduly influencing [Lucy] and distorting her understanding and perception” of Dolores “such that [Lucy] would fully reject and exclude” Dolores “from her life.” Dolores alleged that she suffered emotional harm from the deprivation of “the society, care and affection” of her mother.
We agree with the trial court that Dolores’s allegations failed to state a cause of action. Over 80 years ago, the Legislature amended the Civil Code to omit a cause of action for parental abduction, including by persuasion or enticement, and to bar claims for alienation of affection. We conclude, in line with case precedent, that the Legislature thereby removed from California law the right of action asserted by Dolores here. It is immaterial that Dolores asserted her claims under multiple theories, including intentional infliction of emotional distress, loss of parental consortium, elder abuse of Dolores (who is older than 65 years), and false light invasion of privacy, because all were based on allegations that defendants turned Lucy against Dolores, and all harms flowed from Lucy’s severing ties with Dolores.
Although our Supreme Court has recognized the tort of intentional interference with parental consortium, the case the high court cited in support of such a cause of action involved the physical kidnapping of a two-year-old child from her mother, and is readily distinguishable from the instant case.
In re S.R.
In re S.R. (2020) 48 Cal.App.5th 204, 261 Cal.Rptr.3d 378: In this case, ordered published on April 23, 2020, the Second District affirmed a Los Angeles County juvenile court judge’s order sustaining the petition’s jurisdictional allegations against F and removing C from his physical custody, granting him only monitored visits, after he was convicted of possessing child pornography. “The evidence presented below shows that several of the images Justin R. possessed depicted young females around S.R.’s age engaged in various sexual acts, and that one of the images may have depicted a father having sexual relations with his prepubescent daughter.” In affirming, the panel said that
(t)he Supreme Court has held that “‘even…a low degree of probability'” can give rise to a substantial risk if “‘the magnitude of the harm is potentially great.'” (See In re I.J.(2013) 56Cal.4th 766, 778 (I.J.).) Here, viewing the record in the light most favorable to the dispositional order (as we must), we conclude there is substantial evidence of risk of great harm to S.R.-no matter how low the probability-that Justin R. will sexually abuse his daughter if he is provided unfettered access to her. Accordingly, we affirm the juvenile court’s dispositional order.
In re Austin J.
In re Austin J. (2020) 47 Cal.App.5th 870, 261 Cal.Rptr.3d 297: In this case, the Second District affirmed an L.A. County juvenile court judge’s jurisdictional and dispositional order concerning seven children. North Carolina had originally taken jurisdiction over the children. M later moved to California, and “‘(a) North Carolina social worker later told a DCFS social worker that they had “lost contact with the family due to relocating to California.’” Among other things, “Mother contends the juvenile court lacked subject matter jurisdiction over the case under the UCCJEA because North Carolina had continuing exclusive jurisdiction over the children and any issues regarding their custody and care.” Disagreeing, the panel said that “Mother had been living in California since at least October 2018,and she does not dispute that her children lived with her in California for at least six consecutive months before DCFS filed its petition on May 7, 2019.California is thus the children’s home state for purposes of the UCCJEA and California courts have jurisdiction to make an initial child custody determination. (Fam. Code, §3421, subd.(a)(1).)” It also held that the evidence demonstrated that “there was no pending dependency casein North Carolina when the California case began. Rather, North Carolina authorities had returned the children to Mother, contemplated initiating a new investigation and a new case, but ultimately never did so because Mother and children relocated to California.” The panel also concluded that the trial court properly held that
(b)ased upon Leslie’s in-court statement and his parental notification of Indian status declaration indicating that he and his children have no Indian ancestry and are neither members nor eligible for membership in an Indian tribe, there was no “reason to believe” that any of his children are Indian children based on his parentage. (§ 224.2, subd. (e).) Therefore, there was no duty to make a “further inquiry” as to his side of the family.
Whether statements by Mother and her maternal aunt established a reason to believe that her children are Indian children is a closer question.
Although, as explained above, the evidence provided no reason to know that any of the children are Indian children under the criteria in section 224.2, subdivision (d), a belief that a child is an Indian child presumably requires a lesser degree of certitude or factual support than knowing a child is an Indian child. But the duty of further inquiry still requires a legally sufficient reason for that belief. The statutorily-defined reason to know a child is an Indian child is based on a logical and reasonable relationship between a fact—such as the child’s living on a reservation or having been a ward of a tribal court—and the resulting knowledge that the child is an Indian child. (§ 224.2, subd. (d).) So too must a logical and reasonable relationship connect facts with a resulting belief that a child is an Indian child for the purpose of the statute. Information about a tribal connection that “is too vague, attenuated and speculative” will not support a “reason to believe the children might be Indian children.” (In re J.D. (2010) 189 Cal.App.4th 118, 125.)
In re Aubrey T.
In re Aubrey T. (2020) 48 Cal.App.5th 316, 261 Cal.Rptr.3d 394: In this case, ordered published on April 24, 2020, the Second District reversed a Los Angeles County juvenile court’s
“judgment granting a petition to terminate Anthony’s paternal rights and declare Aubrey free for adoption by her maternal great-grandparents. On appeal, Anthony argues the evidence was insufficient to support the juvenile court’s finding that he abandoned Aubrey within the meaning of Family Code section 7822. Anthony also asserts the juvenile court acted in excess of its jurisdiction by adjudicating the petition under Family Code section 7822 when the petition originally was filed under a different statutory provision.”
The case involved competing family court and juvenile court proceedings involving C. At a hearing held on April 21, 2017, the family court denied Anthony’s ex parte application on the ground that the pending requests for custody and visitation had to be stayed until the juvenile court ruled on the petition to terminate parental rights. Anthony’s counsel expressed concern that Taylor and the maternal great-grandparents were engaging in delay tactics to “prevent Anthony from having any contact with his child.” In reversing, the panel held that
Anthony thus presented evidence that he did not intend to abandon Aubrey in 2015. By producing such evidence, Anthony rebutted section 7822’s presumption, which in turn required the juvenile court to find that he had an intent to abandon without regard to the presumption and without reallocating the burden of proof. In terminating Anthony’s parental rights, however, the court continued to rely on the presumption, finding that Anthony’s visits with Aubrey in 2015 were not sufficient “to overcome the presumption of intent to abandon.” Because the presumption disappeared when Anthony met his burden of production, the court erred in making this finding. Furthermore, while the failure to support or communicate with a child is presumptive evidence of an intent to abandon, that evidence, standing alone, is insufficient to prove intent once the presumption no longer applies. Therefore, once Anthony rebutted the presumption, the juvenile court could not rely solely on evidence of Anthony’s failure to support or communicate with Aubrey to find that he intended to abandon her.
Instead, there had to be some other evidence from which the court reasonably could infer that Anthony acted with the requisite intent. The record does not contain such evidence.
In re M.R.
In re M.R. (2020) 48 Cal.App.5th 412, 261 Cal.Rptr.3d 786: In this partially published case, the Fifth District affirmed a Stanislaus County juvenile court judge’s ruling “that the phrase ‘except a psychological evaluation’ would be added wherever ‘follow all recommendations’ appeared in the proposed case plan. Otherwise, the court ruled in favor of the Agency.” It did so on the basis of harmless error, while holding that in general, using the phrase in a case plan “fails to satisfy section 16501.1, subdivision (g)(2).” The issue was the propriety of the inclusion of the phrase “follow all recommendations” in a case plan for a parent. “The court noted it was a ‘test case’ for the county – meaning it could influence how case plans are prepared in the future.” The panel said:
The Agency argues that the “follow all recommendations” language is “needed” because previously-unknown “causes of [Mother’s] behaviors could be revealed” at a later date. We absolutely agree that the Agency needs flexibility to modify or add services in response to additional needs identified by expert service-providers after the initial case plan is prepared. But the need for flexibility in such circumstances is addressed in subdivision (g)(14), which permits casework supervisors to modify the case plan without court approval. (§ 16501.1, subd. (g)(14).) In other words, as soon as a new need or issue is discovered, the social worker may adjust the case plan accordingly – as long as they identify how the new service is appropriate to accomplish specific goals.
…
We hold that the case plan as currently drafted fails to satisfy section 16501.1, subdivision (g)(2), but we will not direct precisely how case plans must be worded, as the Agency has discretion in that regard.
Certainly, avoiding language as to any clinician “recommendations” would remedy the defect under subdivision (g)(2). Then, if any counselors or clinicians do recommend additional services, the social worker can modify the case plan, without court approval, to add those specific services (§ 16501.1, subd. (g)(14)) and identify how the new services are “appropriate[]” to remedy the plan’s specific goals. (§ 16501.1, subd. (g)(2).)
Alternatively, we leave open the possibility that subdivision (g)(2) permits case plans to prospectively require that parents follow all recommendations of a clinician counselor as to a list of specific services – provided that the plan explains the “appropriateness” (§ 16501.1, subd. (g)(2)) of these potential, future services. For example, a plan might identify domestic violence counseling as a planned service and add: “and follow any recommendations of the domestic violence counselor as to any need for family counseling, couples counseling, or anger management.” The plan could then explain how these services would accomplish specific plan goals. Or, if appropriate, the plan could simply note that the potential recommended services are tied to plan goals for the same reasons as domestic violence counseling.
What the case plan must avoid is identifying a category of services so broad as to include services for which there is no explanation of “appropriateness” under subdivision (g)(2). That is where the unqualified phrase “follow all recommendations” falls short.
…
By using the “follow all recommendations” language, the case plan has prospectively included services without explaining how they are appropriate to accomplish plan goals. For this reason, it is not in compliance with section 16501.1, subdivision (g)(2). However, this error would only cause concrete harm to Mother if a clinician actually invokes this language and recommends a service for which the case plan has not identified a connection to plan goals. And, as explained below, there is reason to believe that is unlikely to occur in this case.
In re D.B.
In re D.B. (2020) 48 Cal.App.5th 613, 261 Cal.Rptr.3d 868: In this case, the Second District affirmed a Los Angeles County juvenile court that found jurisdiction over C and terminated the case with a juvenile custody order. Prior to asserting jurisdiction, the family court had granted M sole physical custody of C with visits to F. “Father’s final argument is the juvenile court’s order unreasonably restricted the family court’s power to modify custody or visitation. Father laudably acknowledges the juvenile court is vested with broad discretion to make orders when it terminates jurisdiction. The juvenile court’s primary focus is the best interests of the minor.” Disagreeing with F, the panel said that
Father’s first argument is the juvenile court impermissibly restricted the family court’s power to modify custody or visitation. This invalid argument ignores what the custody order says. The juvenile court did not restrict the family court’s power. Father can go to family court as he pleases and seek modification on whatever basis he wants. What the juvenile court said about counseling does not limit the family court’s power at all. The juvenile court order does not tell the family court what to do. It tells Father and Mother what to do. Father’s first argument is in error.
…
Father’s third argument is the juvenile court’s order was particularly egregious given Daughter’s aversion to visiting Father and her own unwillingness to enroll in counseling, let alone conjoint counseling with her father. Father maintains the juvenile court abdicated its discretion and in effect allowed Daughter to determine whether any visits will occur. The juvenile court, he claims, impermissibly delegated the court’s authority over visits to the child and thus virtually guaranteed visits would never occur. Father cites In re Julie M. (1999) 69 Cal.App.4th 41, 51 (“[T]he ultimate supervision and control over this discretion must remain with the court . . . .”) (Julie) and Ethan, supra, 236 Cal.App.4th at p. 662.)
In short, Father objects the order impermissibly gave Daughter veto power. He says Daughter can shut him out simply by refusing to attend joint counseling with him.
Father’s argument misconstrues the juvenile court order. It is true, as we have detailed, that the juvenile court initially was attracted to Daughter’s counsel’s suggestion the court should empower Daughter to decide about visits with Father. This attorney asked for “either no visits or monitored visits in accordance with the child’s wishes, Your Honor.” (Italics added.)
The juvenile court began to create such an order, prompting a mid-sentence interruption by vigilant Department counsel, who interjected that to give veto power to Daughter would be “reversible error. There is case law that the court can’t do it.” The court immediately grasped the Department’s point and agreed: “As I was saying that, I was thinking I can’t leave that up to the child.”
The court then issued a different custody order. This order is properly interpreted in light of this context. The order does not grant Daughter power to veto visits with Father. The court began to give Daughter that power but reversed itself in response to the Department’s objection. Instead the court went with the Department’s recommendation to bar visits until Father had completed his individual counseling, and then to require Father and Daughter to complete five joint counseling sessions, which the Department accurately described as “equivalent” to a “monitored visitation order.”
This order is mandatory. It gives discretion neither to Father nor to Daughter. Father is to complete or make substantial progress in his individual counseling. Father and Daughter are to complete five joint counseling sessions, which are to amount to monitored visits. The order gives Daughter no veto power. Rather, once Father completes his individual counseling, Father has a right to five joint counseling sessions with Daughter, to be monitored and supervised by the counselor.
If Daughter refuses to cooperate with this order, Father would be entitled to seek modification of the order in family court.
In re Mary C.
In re Mary C. (2020) 48 Cal.App.5th 793, 262 Cal.Rptr.3d 278: In this case, the First District affirmed a Sonoma County juvenile court’s orders terminating both parents’ parental rights and finding their children adoptable.
They claim the children have too many special needs to be generally adoptable and should not have been deemed specifically adoptable because the Department’s section 366.26 report failed to contain all the statutorily required detail about the prospective adoptive mother and failed to report at all on her longtime partner who resides with her. Father also appeals from an order on April 2, 2019, terminating both parents’ visitation with Mary, but he has made no arguments in support of that appeal. We shall affirm the judgment in the parents’ appeal (A157444) and dismiss Father’s separate appeal (A157256) as abandoned.
…
The court was not required to find the children “generally” or “specifically” adoptable. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) It was required only to find by clear and convincing evidence that the children were “likely” to be adopted within a reasonable time (ibid.; In re K.B. (2009) 173 Cal.App.4th 1275, 1292; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561–1562; § 366.26, subd. (c)(1)), which it did.
…
We emphasize that the statutory scheme requires only a “preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent.” (§§ 366.21, subd. (i)(1)(D), 366.22, subd. (c)(1)(D), italics added.) Parents here essentially challenge the suitability of the prospective adoptive family, which is not relevant at a section 366.26 hearing.
In re Samantha H.
In re Samantha H. (2020) 49 Cal.App.5th 410, 263 Cal.Rptr.3d 75: In this case, the Second District affirmed a Los Angeles County juvenile court’s judgment selecting adoption as the permanent plan for C. It held that the court did not err when it ordered adoption absent evidence in the record that the prospective non-relative adoptive parent was advised of and affirmatively rejected guardianship in favor of adoption. Stating that M “wants us to create an additional requirement that the court must satisfy before ordering adoption as the permanent plan,” the panel said that
we decline to compel the juvenile court, as a matter of course, to engage in a colloquy with non-relative adoptive parents to determine whether they prefer guardianship, or to otherwise ensure that the record shows an advisement about and affirmative rejection of the guardianship option where adoption is the Legislature’s preferred permanency plan. Here the juvenile court considered, among other things, a Concurrent Planning Assessment, two Case Information Forms completed by the caregiver, and a 366.26 WIC Report, all of which discussed in detail the caregiver’s wishes and DCFS’s recommendations for adoption as the permanency plan. To require the juvenile court to engage prospective non-relative adoptive parents in an on-the record colloquy akin to the taking of a plea in a criminal case is unnecessary.
We find no statute or case requiring the juvenile court to inquire whether a willing non-relative adoptive parent was advised of and then rejected the option of guardianship. And we decline to graft such a requirement onto the adoption protocol in light of the Legislature’s preference for adoption as a dependent child’s permanent plan.
In re J.M.
In re J.M. (2020) 50 Cal.App.5th 833, 263 Cal.Rptr.3d 687: In this case, filed on May 29 but certified for publication on June 17, the second Division reversed a Los Angeles County juvenile court’s denial of her section 388 petition for modification of the existing order that requested either placement of J.M. with her or further reunification services. Here is what it said:
Following termination of her reunification services, Mother addressed the domestic violence issues that comprised the entire basis for the sustained dependency petition regarding J.M. She also addressed various additional concerns the court and respondent Los Angeles County Department of Children and Family Services (DCFS) raised throughout the proceedings. Specifically, the court required efforts from Mother wholly unrelated to domestic violence, such as improving her living conditions, completing drug testing, and receiving mental health services. Mother complied. Thus, since termination of her reunification services, Mother not only successfully completed all programs to address domestic violence issues, but did everything else the court asked of her.
That Mother ameliorated all concerns leading to dependency court jurisdiction constitutes a substantial change in circumstances. Moreover, Mother presented evidence that, in light of this change in circumstances and the record as a whole, it was in J.M.’s best interests to be placed with her. Namely, Mother provided evidence—including testimony of a DCFS social worker—that she was ready, willing, and able to care for her son, that they had a growing bond, and that she posed no danger to him. The court’s primary reason for denying the petition was a concern that Mother had not provided sufficient evidence to address the court’s concern that she was not capable of caring for J.M.’s special needs, such as evidence reflecting she had been “trained” on how to do so. That concern, however, was unsupported by the record and was based on unwarranted speculation. The record contains no evidence suggesting Mother could not appropriately care for her son. Rather, it reflects only that J.M.’s long-term foster caregivers had more experience with doing so—and had done so without first receiving any “training.” Accordingly, the court abused its discretion in not granting Mother’s petition.
Even after the termination of reunification services, at which point a juvenile court focuses primarily on stability and permanency for the child, the court’s analysis must be more nuanced than simply comparing a parent’s home and abilities with those of a long-term caregiver and deciding which the court deems preferable. Although, at this stage, a parent’s interest in maintaining a relationship with his or her biological child is no longer the focus, the court must still consider the benefits to a child of remaining connected with his or her biological parent and extended family. Here, the benefits to J.M. of remaining connected with a biological parent who has made the kind of “reformation” for which section 388 creates an “escape mechanism” (see In re Kimberly F. (1997) 56 Cal.App.4th 519, 528 (Kimberly F.)), overcome the presumption that her son remaining in a stable and potentially permanent foster home is in his best interests. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) The juvenile court erred in concluding otherwise. Accordingly, we reverse the court’s May 15, 2019 order denying Mother’s section 388 petition, and instruct the court to place J.M. with Mother.
Conservatorship of Jose B.
Conservatorship of Jose B. (2020) 50 Cal.App.5th 963, 264 Cal.Rptr.3d 500: In this case, the Second District affirmed a Los Angeles County trial court’s reappointment of the Public Guardian as the conservator. However, it admonished trial court’s that they should follow the 10-day rule stated in W&I Code §5350(d)(2), which provides that a trial must commence within 10 days of the date of a demand for a jury trial by the proposed conservatee. It said:
We are deeply troubled by the significant delay of over four months in holding a trial on Jose’s petition, especially given the lack of any justification by the court for most of the delay. Jose contends trials on conservatorship petitions are routinely continued by the trial courts in violation of the 10-day requirement. Although the record does not reflect whether this is true, we emphasize the statutory obligation of trial courts to hold a jury trial within 10 days, with only a limited exception for a 15-day continuance if requested by the proposed conservatee.
However, the trial court’s failure to commence trial within 10 days of Jose’s jury trial demand does not support dismissal of the petition. The time limit in section 5350, subdivision (d)(2), is directory, not mandatory, because the Legislature has not expressly provided for dismissal of the conservatorship petition if a trial is not held within 10 days. Further, given the lack of prejudice to Jose, who does not challenge the jury’s finding he was gravely disabled or claim he did not receive a fair trial, he was not denied due process. This does not mean trial courts should blithely continue conservatorship trials for their judicial convenience. The trial court should state on the record its justification for continuing a trial beyond the statutory deadline. If a proposed conservatee contends he or she has been prejudiced by the delay, the proper remedy is to file a motion to dismiss for lack of a speedy trial. Jose did not do that here. We affirm.
Alford v. County of Los Angeles
Alford v. County of Los Angeles (2020) 51 Cal.App.5th 742, 265 Cal.Rptr.3d 465: In this case, in which the appeal was brought by P in pro per, the Second District reversed a Los Angeles County trial court’s summary judgment for the Los Angeles County Department of Children and Family Services in P’s petition for a writ of mandate under CCP §1094.5 “seeking to overturn the decision to keep his name on the Child Abuse Central Index.”
Plaintiff and appellant Jay Alford filed a grievance after the Los Angeles County Department of Children and Family Services (Department) placed his name on the Child Abuse Central Index. After a grievance hearing, the Department decided no modification should be made to the previously substantiated allegations of child abuse by plaintiff, resulting in his name remaining on the Child Abuse Central Index. The Department denied the grievance and served its written decision upon plaintiff by mail.
Plaintiff filed a petition for writ of mandate under Code of Civil Procedure section 1094.5, seeking to overturn the decision to keep his name on the Child Abuse Central Index. (All statutory references are to the Code of Civil Procedure.) The trial court granted summary judgment for the Department on the ground that plaintiff’s petition for writ of mandate was barred by the statute of limitations. Plaintiff contends the Department did not serve notice of its decision in compliance with the statute and, for that reason, the statute of limitations did not bar his petition. We agree and therefore reverse.
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The Department gave notice to plaintiff by mail on October 13, 2015, and plaintiff received it on October 20, 2015. Plaintiff did not file his petition until February 17, 2016, four months after the notice was served. But the notice did not clearly tell plaintiff when the decision became final. First, the notice said the decision “is final,” and that section 1094.6 required plaintiff to file any petition no later than “the 90th day on which the petition is deemed final.” But the notice also said the decision would become final “90 days from the date it is placed in the mail.” …
…
Here, the Department’s notice created considerable doubt about when its decision became final. The Department concedes its notice confused plaintiff but contends plaintiff’s confusion over the language in the notice—the sentence stating that “[t]he decision will become final 90 days from the date it is placed in the mail”—could not change plaintiff’s obligation to follow the time limits in the statute. The Department asserts that the just-quoted sentence, when read together with the rest of the notice, could only be reasonably understood to mean that plaintiff could not file a writ if he waited more than 90 days from the date of the mailing of the decision.
We disagree. The notice could be reasonably understood the way the Department construes it, but it also could be reasonably understood to mean the decision was not final until 90 days after it was placed in the mail. The notice tells plaintiff that section 1094.6 “requires you file any petition . . . no later than the 90th day on which the decision is deemed final,” and that sentence is followed immediately by the sentence telling plaintiff the decision “will become final 90 days from the date it is placed in the mail.” We are not surprised that plaintiff misunderstood these words, and we do not think it is permissible to fault plaintiff for the Department’s lack of clarity.
In short, agencies like the Department must comply with statutory requirements. One of those is that, “[i]n making a final decision,” the agency is to provide notice that the time for seeking judicial review is governed by section l094.6. (§1094.6, subd. (f).) An agency must not add confusing information to the required notice that could mislead affected parties about the timing for seeking judicial review. That is what happened here.
The Department’s notice made it reasonable for plaintiff to believe its decision would not become final until 90 days after it was mailed, and under that scenario, his petition would have been timely. Given the statutory goal of eliminating any doubt as to the date a decision is final (Donnellan, supra, 86 Cal.App.4th at p. 1105), we cannot countenance the Department’s creation of ambiguity on that very point. The Department’s notice did not comply with the statute, and so the statute of limitation did not bar plaintiff’s petition.
In re T.S.
In re T.S. (2020) 52 Cal.App.5th 503, 266 Cal.Rptr.3d 170: In this case, the Second District reversed a Los Angeles County juvenile court’s orders terminating jurisdiction over two children, denying F’s request for a contested evidentiary hearing on custody and visitation in its exist order and “granting sole legal and physical custody to the children’s mother, Nataliya S., and granting visitation to Vacheslav. … On appeal Vacheslav contends the court erred in denying his request for a contested evidentiary hearing on custody and visitation. Vacheslav also argues the court’s custody and visitation orders were not in the best interests of the children and constituted an abuse of discretion.”
Agreeing, the panel said that F’s offer of proof was sufficient to entitle him to an evidentiary hearing before the court issued its exit orders and that “(t)he section 364 hearing considered whether court supervision would continue or, if terminated, with whom the children would live and the nature of visitation for the noncustodial parent. While significant, these determinations did not represent Vacheslav’s final opportunity to avert termination of his parental rights. In this context it does not offend due process to condition the right to a contested evidentiary hearing on an offer of proof.” It also said that
the Department acknowledges the juvenile court’s broad authority upon termination of its jurisdiction to fashion a custody and visitation order in the children’s best interests without the need for a section 388 petition. Mirroring the analysis used by the juvenile court, however, the Department argues that discretion does not extend to entering a custody order that removes a child from the physical custody of the parent with whom he or she is residing at the time of the hearing. .
The Department also argues, even if a separate section 388 petition was not required to present to the court Vacheslav’s request for a custody and visitation order awarding him sole physical custody of T.S. and Christian, the juvenile court properly concluded it could not order a change of custody absent a finding of substantial risk of harm to the children and a lack of available services to prevent their removal from Nataliya’s custody. This was also error. To be sure, at the disposition stage of a dependency proceeding, a court may not remove a child from a parent’s custody and place the child in the custody of the Department unless the court finds there is a substantial danger to the child and no available services to protect the child absent removal. There is no statutory language, however, suggesting this standard be applied when the court issues a custody order upon the termination of jurisdiction pursuant to section 364. To the contrary, as discussed, at that stage of the proceedings, the court must consider the child’s best interest.
Conservatorship of O.B.
Conservatorship of O.B. (2020) 9 Cal.5th 989, 266 Cal.Rptr.3d 329: In this case, the California Supreme Court held
that appellate review of the sufficiency of the evidence in support of a finding requiring clear and convincing proof must account for the level of confidence this standard demands. In a matter such as the one before us, when reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.
Because the Court of Appeal below took the position that the clear and convincing standard of proof “‘”disappears”‘” on appeal when it rejected O.B.’s challenge to the sufficiency of the evidence, we reverse.
To summarize, we hold that an appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.
In re M.P.
In re M.P. (2020) 52 Cal.App.5th 1013, 267 Cal.Rptr.3d 106: In this probate case, the Second District granted a petition for a writ of mandate compelling the juvenile court to hold a section 364 review hearing within 15 days “(a)bsent a new and different order continuing the hearing on a proper legal basis.” It said:
In response to the COVID-19 global pandemic, the Governor of California and the Chief Justice of the California Supreme Court issued a series of orders that permit the extension of time within which certain hearings must occur.
Here, petitioner, D.P. (father), joined by A.P. (mother), M.P. and Am.P. (children), and the Los Angeles County Department of Children and Family Services (Department) contend the juvenile court erred in continuing a hearing six months beyond the time period allowed by statute as modified by emergency order. We agree and grant the petition.
Kevin C. Brazile, Presiding Judge of the Superior Court for the County of Los Angeles, issued a general order on March 17, 2020, providing that all courtrooms would remain closed for judicial business beginning March 20, 2020, with the exception of specified “time-sensitive, essential functions.” “Time-sensitive, essential functions” included juvenile arraignment and detention hearings, but not section 364 review hearings. The order also provided: “NOTICE IS HEREBY GIVEN THAT ALL OTHER MATTERS WILL BE CONTINUED BY THE COURT.”
On April 9, 2020, Victor H. Greenberg, Presiding Judge of the juvenile courts in Los Angeles County, issued a memorandum to juvenile court dependency judges discussing dependency cases and continuances. Judge Greenberg explained that in order to “protect the health and safety of litigants, attorneys, justice partners, staff and the bench,” Judge Brazile had extended existing operational limits until an anticipated reopening date of June 22, 2020. Because the court would continue to perform only essential functions until reopening, it was necessary to calendar nonessential matters for a date beyond June 22. Judge Greenberg recognized that “given the likelihood that strict social distancing guidelines will continue to be necessary, as well as the backlogs created during our period of limited operations, it is not feasible to expect an immediate return to normal operations. In addition, while the juvenile courts were fortunate to move quickly to remote hearing capability, the capacity of the court to expand development, support, and implementation of such services is limited by available resources.”
Judge Greenberg further explained efforts to prioritize dependency cases:
“Beyond [e]ssential [h]earings, we have endeavored to prioritize hearings in which the court makes factual determinations regarding allegations of illegal activity, abuse and neglect, in order to provide for due process and the safety of youth, children and our communities. We have further focused upon those hearings where release from detention, return home, or the establishment of a permanent plan is under consideration. In making these decisions, we have necessarily been forced to deem situations in which youth and children are stable and not at risk as less urgent, and to rely to a greater degree upon our justice partners to provide proper care, supervision, oversight, and identification of emergent issues.” Judge Greenberg directed juvenile judicial officers to continue immediately all non-essential matters calendared before June 22, 2020, in accordance with a prioritization schedule set forth in the memorandum. That schedule set priorities by the type of statutory hearing to be held, which bore only a rough approximation to the urgency of any concerns with a child’s welfare in a particular case. Judge Greenberg also advised that “[i]f you have a particular Non-Essential hearing that you believe must be heard outside the Prioritization Schedule, you must receive approval from [one of three supervising judges].”
On April 14, 2020, Judge Greenberg modified the prioritization schedule. In a further memorandum to dependency judicial officers, Judge Greenberg estimated that, despite efforts to hear essential matters remotely, more than 30,000 hearings would have to be continued prior to the anticipated June 22 reopening of the juvenile court. He anticipated “additional potential backlogs after June 22 as we reopen to the extent social distancing allows.” With respect to section 364 review hearings, Judge Greenberg directed they be continued to a date within 220 to 270 days after the expected June 22 reopening.
Consistent with Judge Greenberg’s directive, on April 29, 2020, Commissioner Emma Castro held a nonappearance progress report hearing and continued the May 14, 2020, hearing in this case for 220 days, more than eight months, to January 28, 2021. The minute order states: “Given the recently declared national state of emergency related to the COVID[-]19 pandemic, and the directives from Governor Newsom, health officials and court leadership, matters are to be continued. Good cause existing, this matter is continued to [the] date, and time indicated [below].” There is no evidence any party had an opportunity to object. This is the order challenged in this writ proceeding.
On July 10, 2020, Judge Brazile issued General Order 2020-GEN-019-00,10 which, among other things, extended certain time periods under the Welfare and Institutions Code. Judge Brazile did not, however, adopt Judge Greenberg’s prioritization schedule or otherwise authorize the continuance of section 364 matters beyond 60 days.
The juvenile court continued the section 364 status hearing for 220 days, citing “directives from Governor Newsom, health officials and court leadership.” (Italics added.) As we discussed above, Emergency rule 6, which was enacted pursuant to Governor Newsom’s executive order, only allows a continuance of 60 days. Thus, at most, Commissioner Castro could continue the section 364 hearing from May 14, 2020, to July 13, 2020. Further, although the Chief Justice’s statewide order of March 23, 2020, authorized superior courts to adopt proposed rules or rule amendments intended to address the impact of the COVID-19 pandemic, none of Judge Brazile’s orders allowed the juvenile court’s continuance in this matter. Thus, and as the respondent court concedes, the only authority for the continuance in this matter was Judge Greenberg’s memoranda, which prioritized juvenile court hearings based on the type of statutory hearing to be held.
As we note above, Judge Brazile did not adopt Judge Greenberg’s prioritization schedule when issuing various orders even though the Chief Justice authorized him to adopt rules or rule amendments to address the impact of the COVID-19 pandemic to take effect immediately. We do not express an opinion on whether Judge Brazile, in his capacity as presiding judge, may personally issue an order that prioritizes dependency hearings in light of then prevailing public health conditions in Los Angeles County, the feasibility and efficiency of remote hearings, and an assessment of available judicial resources to assist the juvenile courts in completing the required hearings.
In re S.P.
In re S.P. (2020) 53 Cal.App.5th 13, 266 Cal.Rptr.3d 770: In this case, the Second District affirmed a San Luis Obispo juvenile court’s order invalidating vaccination exemptions from a physician who stated “that the children have ‘a medical reason not to vaccinate,’ but did not state what that medical reason was.”
Does a juvenile court have the authority to order vaccinations for dependent children under its jurisdiction? Yes. Recently enacted Health and Safety Code section 120372, subdivision (d)(3)(C) provides that a state public health officer (SPHO) or a doctor designated by a SPHO “may revoke the medical exemption.” Does that statute deprive the juvenile court of that authority? No.
D.H. (Father) appeals an order of the juvenile court following a disposition hearing after the San Luis Obispo County Department of Social Services (DSS) filed a juvenile dependency petition. (Welf. & Inst. Code, § 300, subd.(b)(1).) The order authorized Father’s children, S.P. and F.P., dependent children of the juvenile court, to receive vaccinations. The court found vaccination exemptions the children had received earlier invalid. We conclude, among other things, that the juvenile court had the authority to order vaccinations. Nor did it abuse its discretion in doing so. We affirm.
In re J.W.
In re J.W. (2020) 53 Cal.App.5th 347, 267 Cal.Rptr.3d 554: In this case, the Fourth District affirmed a San Bernardino County juvenile court judge’s orders at a combined jurisdictional and disposition hearing. The juvenile court found the allegations in both petitions true and ordered family reunification services for Mother and A.W. The juvenile court found it was not in L.M.’s best interest for family reunification services to be offered to her father D.M. The juvenile court found that ICWA did not apply. CFS’s jurisdictional/dispositional report again did not raise, and the juvenile court did not address, UCCJEA jurisdiction. Similarly, UCCJEA jurisdiction was not raised or addressed when A.W. made his first appearance at the 12-month review hearing in February 2018.
The appellate panel held “that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.), which governs which state is to entertain a dependency case, is a mandatory rule, but nevertheless does not regulate a California trial court’s fundamental jurisdiction. For this reason, it can be forfeited by a failure to raise the issue in juvenile court, as was the case here.” It said:
It is clear enough that the rules governing jurisdiction in the UCCJEA are mandatory. Given that the main goals of the UCCJEA include “avoid[ing] jurisdictional competition [and] relitigation of another state’s or country’s custody decisions” (In re Gloria A., supra, 213 Cal.App.4th at p. 482), ensuring that only one state exercise jurisdiction at a time outside of emergencies is a crucial part of how the UCCJEA is supposed to function. (See §§ 3421, 3424; City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 924 [“Invariably, ‘courts look to the procedure’s purpose or function. If the procedure is essential to promote the statutory design, it is “mandatory” and noncompliance has an invalidating effect.’”]; see also County of San Diego v. State of California (1997) 15 Cal.4th 68, 87.)
However, although the jurisdictional rules of the UCCJEA are mandatory, we are not persuaded that the Legislature intended them to be used in California in a manner that implicates a court’s fundamental jurisdiction.
In this state, fundamental jurisdiction over juvenile dependency cases such as this is governed by Welfare and Institutions Code section 300, which states that a child described by that section “is within the jurisdiction of the juvenile court.”
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Over time, however, this statement from Marriage of Ben-Yehoshua, supra, 91 Cal.App.3d 259 has evolved into a statement that UCCJEA jurisdiction can never arise from stipulation, consent, waiver or estoppel. Such a broad rule is not supported by Marriage of Ben-Yehoshua or the UCCJEA itself. (Compare Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1013-1014 [citing Marriage of Ben-Yehoshua for the statement that “[t]here is no provision in [the predecessor act] for jurisdiction to be established by reason of the presence of the parties or by stipulation or consent”] with In re A.C., supra, 130 Cal.App.4th at p. 860 [citing Plas and Ben-Yehoshua for the statement that UCCJEA jurisdiction “cannot be conferred by stipulation, consent, waiver, or estoppel”].) The UCCJEA merely contains no provision affirmatively providing for jurisdiction by such means, and it does not go further. The absence of such a provision in the UCCJEA does not mean that it establishes fundamental jurisdiction. Accordingly, the UCCJEA does not require that a parent such as A.W. should be allowed to silently accede to jurisdiction, or neglect to raise it, for years while parental fitness is adjudicated, only to assert a lack of jurisdiction for the first time after a termination order. We therefore find that the Marriage of Ben-Yehoshua rule does not show that UCCJEA jurisdiction is fundamental jurisdiction.
5. Conclusion
The UCCJEA does not govern fundamental jurisdiction. As a result, A.W.’s contention that the juvenile court lacked UCCJEA jurisdiction “cannot be raised for the first time on appeal” (Kabran, supra, 2 Cal.5th at p. 347).
The issue has been forfeited.
In re I.B.
In re I.B. (2020) 53 Cal.App.5th 133, 266 Cal.Rptr.3d 814: In this case, the Fourth District affirmed an Orange County juvenile court’s order granting M’s section 388 petition returning three-year-old I.B. to her care but ordering that his older brother, A.B., would remain with foster parents. I.B.’s counsel argued that the court erred in separating the boys; the appellate court said that “after carefully reviewing the record, while it is a close case, we cannot say the trial court abused its discretion.” It also said:
The case before us began with a single incident of violence, where Mother lashed out at her abuser by throwing something at him. As the case progressed, the true story about the unequal balance of power between the couple was revealed. There was evidence Father used jealous rages to isolate her, physical abuse to anger her, verbal abuse to harm her self-esteem and independence, and taunts to knowingly trigger a physical reaction. There was also evidence suggesting Father exerted financial control over Mother’s disability payments. Untangling herself from this high level of manipulation and control was an enormous task. The court reasonably concluded Mother’s ability to maintain separation from Father for eight months was only possible because his controlling tactics were no longer effective.
The court correctly saw other evidence indicating Mother understood what was necessary to permanently leave Father. Mother’s therapist also gave several reasons for Mother’s change of outlook. Specifically, through counseling Mother had gained self-esteem and confidence. By developing new friendships, finding a babysitter, and relying on positive relationships she was less isolated. Classes at the Braille Institute taught her to stop feeling shame as well as provided an excellent support system for her journey as a single parent with a physical disability. She testified the new classes, which included learning how to read and write Braille, gave her new access to written resources. The classes helped Mother become independent. She regained financial control of her income and arranged for her own housing, demonstrating she no longer needed to be dependent on Father for life’s necessities. These kinds of achievements were important benchmarks of success for a survivor of domestic violence, in addition to counting the months/years of separation. “Knowing how domestic violence operates is important in understanding how women might succeed in decreasing it. Because domestic violence is the operation of power and control over the woman, it makes sense that the woman’s ability to exercise agency and autonomy within the abusive situation is related to her ability to address the abuse.” (Johnson, Redefining Harm, Reimagining Remedies, and Reclaiming Domestic Violence Law (2009) 42 U.C. Davis L.Rev. 1107, 1126.)
We are also untroubled by Mother’s admission she lied during conjoint therapy because Father told her what to say in June 2018. Mother’s conduct while under the control of an abusive spouse should not be held against her indefinitely. The record shows she discontinued conjoint therapy and with the benefit of individual therapy, she learned to accept and learn from her past mistakes. Moreover, we question the wisdom of conjoint therapy as a requirement of reunification for a disabled Mother struggling to separate herself from an abusive relationship.
Here, Mother rebutted the presumption that continued out-of-home placement was in I.B.’s best interests. The court reasonably relied on evidence I.B., who was only three years old, was bonded to both Mother and his foster parents. Mother was I.B.’s primary caregiver for the first seven months of his life, and thereafter, remained a constant and positive presence every week. She never missed or was late for a visit. The foster family saw I.B. daily while he lived at the group home, and he transitioned easily to becoming a member of their family for nearly one year. I.B.’s bond to both mother and his foster parents was not disputed by the parties. In addition, there was evidence to support the conclusion both Mother and the foster family were ready and able to provide I.B. with a permanent safe and loving home. I.B.’s need for permanency and stability was significant because he had been in four placements over a three-year period. If our analysis were to stop here, it would be difficult to say Mother rebutted the presumption that adoption by the foster family was not in his best interests. What tipped the scales, and was discussed at length at the hearing, was that both potential placements had disadvantages. On one hand, there was evidence of a high risk of future harm to I.B. by his older brother at his current placement. If A.B. was one of the foster parent’s biological children or an unrelated foster child, there would be little discussion about the appropriateness of placing I.B. somewhere he was being treated as a “human punching bag,” sustaining bruises, scratches, and red marks on his neck.
I.B.’s counsel and SSA argue there was a need to preserve the sibling bond, but they do not suggest how this relationship benefitted I.B.’s best interests and, in particular, his need for a stable home environment. Without a bonding study or expert opinion, there is little to contradict the overwhelming evidence the abusive nature of the sibling relationship was unhealthy. Living in an abusive environment can provide permanency but not necessarily a healthy and stable situation. As noted by the court, I.B. needs and deserves a stable environment and “the opportunity to be a child, and allow his own behaviors to grow positive.”
I.B.’s counsel correctly discusses many provisions recognizing the importance of maintaining beneficial sibling relationships “to the psychological health of dependent children” separated from their parents. (In re Hector A. (2005) 125 Cal.App.4th 783, 794.) This case is different because I.B. was being separated from a sibling to be reunited with his mother. While there was evidence of a significant beneficial relationship between I.B. and Mother, the same could not be said about I.B.’s relationship with his brother. Rather, I.B. was terrified of his brother. “Not all sibling relationships are strong or healthy.” (Schwartz, Family Law Siblings Torn Apart No More (2001) 32 McGeorge L.Rev. 704, 708.) “Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952 [discussing significance of sibling relationship in context of statutory exception to termination of parental rights].)
In the case before us now, Mother’s services continued, and she established she could immediately provide I.B. a permanent and stable home. Because Mother met her burden of proof required by the Stephanie M. case, the court did not abuse its discretion in also considering the Kimberly F. factors which involved looking retrospectively at the parent’s past conduct and bond with the child. Those factors added to the holistic evaluation of I.B.’s best interests, which in this case was particularly challenging. The court’s lengthy discussion on the record shows it earnestly undertook the difficult task of evaluating all relevant factors in deciding which placement would provide I.B. with a permanent and stable home. We conclude the court did not abuse its discretion in returning I.B. to Mother’s care.
In re V.L.
In re V.L. (2020) 54 Cal.App.5th 147, 268 Cal.Rptr.3d 433: In this case, the Second District affirmed a Los Angeles County juvenile court’s dispositional order removing two children from Father’s custody.
Father argues that the record is insufficient to support removal of minors by clear and convincing evidence. Further, he argues that the juvenile court’s failure to state the reasons for its decision to remove minors requires us to reverse the order. We conclude that the order must be affirmed. Integral to analysis of the first issue, we heed the holding of Conservatorship of O.B. (2020) 9 Cal.5th 989, 995- 996 (O.B.) establishing that when a statute requires a fact to be found by clear and convincing evidence, and when there is a substantial evidence challenge, the reviewing court must determine whether the record contains substantial evidence from which a reasonable trier of fact could find the existence of that fact to be highly probable.
O.B., of course, is a conservatorship case, not a dependency case. However, it signaled that its holding has broad application. In examining the clear and convincing evidence standard, it observed that the standard applies to various determinations, such as termination of parental rights, involuntary commitment, deportation, liability for punitive damages, whether a conservator can withdraw life-sustaining care from a conservatee, whether conditions necessary for the nonconsensual, nonemergency administration of psychiatric medication to a prison inmate have been satisfied, and whether a publisher acted with actual malice in certain defamation cases. (O.B., supra, 9 Cal.5th at p. 999.)
Also, the court surveyed prior decisions discussing how a finding by clear and convincing evidence should be reviewed in dependency cases, among others. (Id. at pp. 1001-1004, citing T.J., In re Angelia P. (1981) 28 Cal.3d 908, and In re Jasmon O. (1994) 8 Cal.4th 398.) In a footnote, O.B. disapproved of a host of dependency cases to the extent that they are inconsistent with O.B.‘s holding. (O.B., supra, at p. 1010, fn. 7.) We conclude that O.B. is controlling in dependency cases.
In re J.W.-P.
In re J.W.-P. (2020) 54 Cal.App.5th 298, 268 Cal.Rptr.3d 583: In this case, the First District reversed an Alameda County juvenile court judge’s order dismissing dependency jurisdiction without proper notice to F.
Mother testified in the dependency proceedings that R.P. (“father”) is minor’s father, lived with and cared for his daughter during the first two years of her life, acknowledged minor as his daughter, and was subject to a child support order in another state. However, contrary to Welfare and Institutions Code section316.2, subdivision(b),1and California Rules of Court, rule 5.635(g), the trial court clerk never provided father with notice of the procedure he should follow to establish that he is minor’s father and to protect his parental rights. Because we conclude father was prejudiced by this failure, we reverse.
…
Finally, the facts in this case underscore that the direct notice to the parent mandated by section 316.2, subdivision (b), is critical even in cases in which a presumed parent may be represented by counsel. Here, the social worker advised father that he should get an attorney to elevate his status to presumed father. Heeding that advice, father obtained representation by an attorney who sought appointment expressly to address his paternity status but did nothing in the trial court to do so. After that attorney withdrew, the court appointed a legal services agency that was unable to represent father. As a result, unbeknownst to the court, father was effectively unrepresented for five months. No counsel appeared on father’s behalf at the section 366.26 hearing. When the court discovered father’s unintended lack of counsel, an attorney summoned from outside the hearing room accepted the representation on the spot, declined the court’s suggestion that she speak with her new client, and submitted to dismissal of the dependency without ever ascertaining father’s wishes. The notice provided by section 316.2 is a failsafe mechanism that would have told father directly the steps he himself could take – without relying on an attorney – to establish his paternity status and protect his rights. It could have made all the difference to father in this case.
…
We conclude that father was prejudiced by the trial court’s failure to provide him with the notice mandated by section 316.2 and California Rules of Court, rule 5.635(g). (See Paul H., supra, 111 Cal.App.4th at p. 761 [court’s failure to serve alleged father with JV-505 violated his statutory rights and was prejudicial where alleged father may have established paternity].) We need not reach the parties’ other contentions, including father’s claim of ineffective assistance of counsel.
In re Samuel A.
In re Samuel A. (2020) 55 Cal.App.5th 1, 268 Cal.Rptr.3d 893: In this case, the Second District reversed a Los Angeles County juvenile court’s summary denial of M’s petition under W&I Code §§388 and 390 to set aside jurisdictional findings regarding her “alcohol abuse and mental instability and to terminate dependency jurisdiction after a court-ordered psychiatric evaluation found Patricia was not mentally ill and did not meet the diagnostic criteria for alcohol use disorder. Incorrectly characterizing her petition as an untimely new trial motion under Code of Civil Procedure section 659, the court summarily denied it without deciding whether Patricia had made a prima face showing of new evidence or a change of circumstances that demonstrated the relief requested would be in Samuel’s best interests, which would require a hearing on the merits of the petition.” It said that
Patricia’s section 388 petition was based on new evidence—Dr. Dupée’s Evidence Code section 730 findings that Patricia did not suffer from mental illness or meet the diagnostic criteria for alcohol use disorder and therefore was not in need of treatment or rehabilitation—and her contention, allegedly supported by reports from visitation monitors of Patricia and Samuel’s parent/child bond, that termination of dependency jurisdiction would be in Samuel’s best interests. Rather than evaluating whether the petition made the prima facie showing required for a hearing under section 388, the court denied the petition outright, concluding Patricia’s petition was simply “an untimely new trial motion” pursuant to Code of Civil Procedure section 659. The court erred. Filing a section 388 petition to terminate dependency jurisdiction under section 390 is entirely proper. (See In re Y.M., supra, 207 Cal.App.4th at p. 912 [recognizing section 388 as appropriate procedural vehicle for parent to seek termination of dependency jurisdiction pursuant to section 390]; In re Marcus G. (1999) 73 Cal.App.4th 1008, 1014 [same].) That is precisely what Patricia did here.
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At the same time it summarily denied Patricia’s section 388 petition, the juvenile court granted a temporary restraining order prohibiting Patricia from visiting Samuel in person and stated, if it had to make a finding that day, it would find Patricia a detriment to Samuel, a powerful indicator the court believed setting aside the jurisdiction findings and dismissing the dependency petition pursuant to section 390 would not be in Samuel’s best interests. Nonetheless, the court denied the petition solely on an incorrect procedural ground. Rather than speculate as to the juvenile court’s evaluation of the sufficiency of the showing made by Patricia in her petition, we remand so the juvenile court may make that determination in the first instance.
In re J.P.
In re J.P. (2020) 55 Cal.App.5th 229, 269 Cal.Rptr.3d 395: In this case, the Sixth District affirmed a Santa Clara County juvenile court’s order granting M’s ex-boyfriend presumed parent status after having previously holding that he did not qualify for that status. “Mother argues that the juvenile court did not have the authority under Welfare and Institutions Code section 385 to reconsider its prior order in which it found that Albert did not qualify as a presumed parent to J.P. We disagree and conclude that the juvenile court had the authority to revisit its prior ruling.” It said:
Mother argues that the juvenile court erred by finding it was authorized to reconsider its parentage order under section 385 because Family Code section 7636, as well as principles of res judicata and collateral estoppel, absolutely preclude such reconsideration. As explained below, we disagree.
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B. Interplay between juvenile court and family court
Family court and juvenile court serve different purposes. (In re Chantal S. (1996) 13 Cal.4th 196, 200-201.) “The family court is established to provide parents a forum in which to resolve, inter alia, private issues relating to the custody of and visitation with children. . . . The juvenile court, by contrast, provides the state a forum to ‘restrict parental behavior regarding children, . . . and . . . to remove children from the custody of their parents and guardians.’” (Id. at p. 201.)
The overarching purpose of the dependency system is to “ ‘ “ ‘maximize a child’s opportunity to develop into a stable, well-adjusted adult.’ ” ’ ” (In re Joshua A. (2015) 239 Cal.App.4th 208, 218.) “The best interest of the child is the fundamental goal of the juvenile dependency system. . . .” (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) The juvenile court has the special responsibility to consider the totality of a child’s circumstances, “including the maintenance of relationships with other adults with whom [the child has] a strong bond.” (In re J.T. (2014) 228 Cal.App.4th 953, 964.) “Within its limited jurisdiction, the authority of the juvenile court is extensive:
‘In addition to all other powers granted by law, the juvenile court may direct all such orders to the parent, parents, or guardian of a minor who is subject to any proceedings under this chapter as the court deems necessary and proper for the best interests of or for the rehabilitation of the minor.’ (§245.5.)” (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 111.)
Although family court and dependency court serve different purposes, when it comes to questions of parentage, both systems utilize the Uniform Parentage Act (UPA) (Fam. Code, § 7600 et seq.). The UPA “provides the framework by which California courts make paternity determinations.” (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 937.) Where a dependency petition has been filed, the juvenile court is vested “with exclusive responsibility for determining the identity of presumed parents” by section 316.2. (In re Alexander P. (2016) 4 Cal.App.5th 475, 487 (Alexander P.).) This exclusivity is essential because, “inasmuch as a dependency action could eventually result in the termination of parental rights, a court needs first to know the identities of the parents. The legal parents must be identified so that they may receive notice of the hearing; be provided counsel, if necessary; and be accorded a meaningful opportunity to be heard.” (In re Jesusa V. (2004) 32 Cal.4th 588, 620.) The juvenile court’s exclusive jurisdiction over parentage determinations inheres “from the time the petition is filed until the petition is dismissed, the dependency is terminated, or parental rights are terminated.” (Ibid.)
C. Authority to reconsider prior orders
Section 385 authorizes the juvenile court to change, modify or set aside its prior orders sua sponte.6 Within the scope of a dependency proceeding, the juvenile court has broad authority under section 385 to reconsider and change its prior orders. As discussed above, however, even in dependency proceedings, the juvenile court must utilize the UPA with respect to parentage determinations.
Family Code section 7636, which is a part of the UPA, provides: “The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes except for actions brought pursuant to Section 270 of the Penal Code.” In parentage proceedings, this statute embodies the common law doctrine of res judicata and collateral estoppel. (Alexander P., supra, 4 Cal.App.5th at p. 490.) On its face, it appears that the finality afforded to parentage determinations under Family Code section 7636 would operate to supersede the juvenile court’s authority under section 385 to sua sponte reconsider and modify its prior parentage orders. Assuming without deciding that it did, however, another provision of the UPA expressly bestows upon the juvenile court the same authority as is granted by section 385.
Family Code section 7642, which is also a part of the UPA, provides, “The court has continuing jurisdiction to modify or set aside a judgment or order made under this part.” The plain language of this statute confers at least as broad an authority as that afforded to the juvenile court under section 385.
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The matter is also not foreclosed by operation of res judicata or collateral estoppel. Those common law principles are embodied in Family Code section 7636 (Alexander P., supra, 4 Cal.App.5th at p. 490) and are thus similarly subject to the expansive authority to modify or set aside judgments or orders under the UPA set forth under Family Code section 7642.
Here, the juvenile court determined, based on the evidence presented at the June 2019 contested hearing, that its prior order denying presumed parent status to Albert should be modified. Pursuant to Family Code section 7642, it was authorized to reconsider that order.
In re S.S.
In re S.S. (2020) 55 Cal.App.5th 355, 269 Cal.Rptr.3d 484: In this case, the Fourth District reversed a Riverside County juvenile court judge’s order terminating F’s parental rights.
This appeal poses the question whether a juvenile court may, consistent with due process and the dependency statutes, terminate the parental rights of a noncustodial father who seeks custody even though the state detained and removed the child based only on allegations against mother and the court found giving father custody would be detrimental based on problems arising from his poverty.
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Father argues the entire procedure violated his due process rights and there wasn’t adequate support for the trial court’s finding that giving him custody would be detrimental to the child.1 We hold a juvenile court may not terminate parental rights based on problems arising from the parent’s poverty, a problem made worse, from a due process standpoint, when the department didn’t formally allege those problems as a basis for removal. Absent those impermissible grounds for removal there wasn’t clear and convincing evidence that returning the child to father would be detrimental to her. We therefore reverse the termination of father’s rights and remand for further proceedings.
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The real problem with the trial court’s detriment finding is it was based on father’s poverty, which is barred by statute and our case law. The dependency statute directs “[a] child shall not be found to be a person [subject to dependency proceedings] solely due to the lack of an emergency shelter for the family.” (§ 300, subd. (b).) It follows that “poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction. . . . Put differently, indigency, by itself, does not make one an unfit parent and ‘judges [and] social workers . . . have an obligation to guard against the influence of class and life style biases.’” (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212 (G.S.R.).)
We recognize this rule because the overriding interest of the dependency laws is to maintain and support the family unit. (Hansen v. Department of Social Services (1987) 193 Cal.App.3d 283, 293-294 [“a regulation that requires the removal of a child from his or her family in order to interpose social services with the ostensible purpose of providing shelter for such child, contradicts and subverts the primary purpose of our child welfare laws”].) Thus, where family bonds are strained by the incidents of poverty, the department must take steps to assist the family, not simply remove the child and leave the parent on their own to resolve their condition and recover their children. That approach is consistent with “the purpose of the Juvenile Court Act that the bond between a minor and [their] family be ‘preserved and strengthened’ (§202) through the provision of appropriate services. [Citation.] ‘The legislative scheme contemplates immediate and intensive support services to reunify a family where a dependency disposition removes a child from parental custody.’” (Hansen, at pp. 292-293, quoting In re John B. (1984) 159 Cal.App.3d 268, 274.)
To that end, California courts have repeatedly found social services must actively seek to assist a parent suffering from poverty in obtaining adequate housing and that trial courts may not terminate reunification services or parental rights if they have failed to do so. …
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We recognize there’s no completely satisfactory remedy for this situation. The department’s failure to engage with father’s core problem—his poverty—and its focus on peripheral issues have deprived him and his daughter of years during which they could have established a loving relationship. As a result, Serenity has been placed in a prospective adoptive home that is presumably loving and at least stable. We wish there were a way of addressing the problem that would not create even more turmoil and uncertainty than she already has experienced. Obviously, it would have been better for Serenity and father had the trial court and the department been more diligent from the outset. It’s unfortunate that we have to reset the clock now, but we can’t permit termination of father’s parental rights on the basis of his economic status when the department failed to provide adequate assistance.
In re N.S.
In re N.S. (2020) 55 Cal.App.5th 816, 269 Cal.Rptr.3d 732: In this case, filed on September 17 but certified for publication on October 9, the Fourth District affirmed a San Diego County Commissioner’s order “under Welfare and Institutions Code section 366.261 selecting adoption as the permanent plan for her son N.S. and terminating her parental rights. N.S.’s father is a member of the San Pasqual Band of Mission Indians (the Tribe). The Tribe has been involved in this case since the juvenile court found that N.S. is an Indian child and that the Indian Child Welfare Act (25 U.S.C. §1901 et seq.) (ICWA) applies.”
Although Mother’s federal preemption argument is necessarily based on conflict or inconsistency between ICWA (federal law) and California’s juvenile dependency statutes (state law), the direct conflict that she addresses is the conflict between the Tribe’s preference for guardianship as N.S.’s permanent plan and the state law preference for termination of parental rights and adoption. Mother argues that the state’s legislative preference for adoption as a child’s permanent plan, unless a specific statutory exception applies, “frustrates the purpose of the tribal cultural tenet that parental rights should remain intact.” She maintains that termination of parental rights is antithetical to the cultural beliefs of the Tribe and many other Native American tribes, and that the Tribe has stated that its selection of guardianship as the best plan for N.S. is based on its on its cultural policy that it is in the best interests of children to provide parents with additional opportunities for reunification even when it is outside the state statutory timeframes.10 She asserts that because the state’s statutory preferences for permanent plans conflict with “the Tribe’s laws and tenets,” the doctrine of preemption applies, and the state court is barred from overriding the Tribal decree. In other words, Mother contends that the court lacked the authority to order any permanent plan other than the one that the Tribe selected for N.S.
We disagree that the Tribe’s letter selecting guardianship as the best permanent plan option for N.S. precludes the court from ordering a different plan. The Agency contends that Mother waived the right to raise this contention on appeal because she conceded the issue at the section 366.26 hearing. The Agency’s contention has merit. At the section 366.26 hearing, the court raised the issue as follows: “I think the legal issue was whether or not the tribe had an unquestioned, unfettered position to demand a legal guardianship, or whether, under state law, it comes under the natural statutory scheme where the court would have to consider it within the context of a compelling reason.”
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In any event, Mother’s argument that the Tribe’s permanent plan choice “preempts” the state law permanent plan preference for adoption and termination of parental rights is without merit. There is no conflict between state and federal law that raises federal preemption concerns because under both ICWA and the state statutory dependency scheme, the state court has jurisdiction to select N.S.’s permanent plan and is not required to order whatever plan the Tribe selects.
Under 25 U.S.C. section 1911(b), a dependency case that involves an Indian child not domiciled or residing within the reservation of the child’s tribe remains in state court unless a parent, the tribe, or the Indian custodian petitions to transfer the proceeding to the jurisdiction of the tribe; the court does not find good cause not to transfer the case; neither parent objects to the transfer; and the tribe does not decline the transfer. Welfare and Institutions Code section 305.5, subdivision (d) similarly provides that “[i]n the case of an Indian child who is not a ward of a tribal court or subject to the exclusive jurisdiction of an Indian tribe, . . . the state court shall transfer the proceeding to the jurisdiction of the child’s tribe upon petition of either parent, the Indian custodian, or the child’s tribe, unless the state court finds good cause not to transfer.” Thus, under both federal and state law, jurisdiction remained with the state juvenile court in this case because no one petitioned to transfer the case to the jurisdiction of the Tribe.
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Thus, in the present case, where the Tribe did not even recommend TCA, the court unquestionably had discretion to order a permanent plan other than the Tribe’s recommended plan of guardianship. There is no statutory preference for guardianship when recommended by an Indian child’s tribe as there is for TCA. The juvenile court had the discretion to order traditional adoption with termination of parental rights as N.S.’s permanent plan absent a compelling reason not to terminate parental rights. (H.R., supra, 208 Cal.App.4th at p. 764.)
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Mother contends that the court erred in finding that the Indian child exception of section 366.26, subdivision (c)(1)(B)(vi)(I) and (II) did not apply to preclude the termination of parental rights. In addition to renewing her argument that “the statutory exceptions are preempted by the Tribe’s decree,” she contends that the evidence does not support the juvenile court’s conclusion that adoption would not interfere with N.S.’s connection to the Tribe. Additionally, Mother argues that the court should have deferred to the Tribe’s selection of guardianship as N.S.’s permanent plan because guardianship served N.S.’s best interests as an Indian child. The essential basis for both arguments is Mother’s contention that Grandmother will not make efforts to foster N.S.’s connection to the Tribe if she adopts N.S. and parental rights are terminated, whereas Mother would foster N.S.’s connection with the Tribe if his permanent plan were guardianship.
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We conclude that the juvenile court reasonably determined that termination of parental rights would not substantially interfere with N.S.’s connection to the Tribe. There was no evidence that N.S. actually had any connection to the Tribe at the time of the section 366.26 hearing. Rather, the evidence showed that Tribe had “little to no” contact with Grandmother during the period of her guardianship, and that in December 2019, N.S. did not know which tribe he was connected to and did not recall having heard the Tribe’s name when he was told what it was.
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It may be that the Tribe’s apparent lack of interest in N.S. during the period of Grandmother’s guardianship and the lack of any connection between N.S. and his paternal relatives are related—i.e., that the main reason that N.S. had no connection with the Tribe in his early childhood was because none of his Indian relatives were involved in his life. However, regardless of the cause, the reality at the time of the section 366.26 hearing was that any substantial interference with N.S.’s connection to the Tribe for the court to consider would be interference with a potential future connection, because there was no significant past or present connection. As discussed, the juvenile court reasonably found that Grandmother would make efforts to foster a connection in the future. Accordingly, we conclude that the court reasonably found that termination of parental rights would not substantially interfere with N.S.’s connection to the Tribe.
We further conclude that the juvenile court acted well within its discretion in determining that the Tribe’s recommendation of guardianship as N.S.’s permanent plan was not a compelling reason to find that termination of parental rights would not be in N.S.’s best interests. As we discussed ante, the juvenile court was not required to order the permanent plan that the Tribe preferred.
In re Anna T.
In re Anna T. (2020) 55 Cal.App.5th 870, 269 Cal.Rptr.3d 779: In this case, the Second District affirmed a Los Angeles County juvenile court judge’s order terminating jurisdiction over C but vacated its orders purporting to modify that judgment.
Welfare and Institutions Code section 362.4 authorizes the juvenile court, when terminating jurisdiction over a dependent child, to issue a custody and visitation order that will become part of the parents’ family law file2 and remain in effect in the family law action “until modified or terminated by a subsequent order.” Section 302, subdivision (d), reinforces the post-termination significance of the juvenile court’s section 362.4 custody orders by providing that those orders (commonly referred to as “exit orders”) may not be modified by the family court “unless the court finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child.” Here, the dependency petition was filed, and the juvenile court assumed jurisdiction, after the family court had entered a final judgment awarding Todd T. sole legal authority to make healthcare decisions for his daughter, Anna T. When the juvenile court terminated its jurisdiction a year later, it expressly declined to issue a juvenile court custody order pursuant to section 362.4, “revert[ing] back to the original family law decision.”
Nonetheless, the court ordered Anna to continue in treatment with a therapist selected by Anna’s mother, Nancy D., to be paid by Todd, until that therapist determined a change would not interfere with Anna’s treatment. The court also prohibited Todd from returning Anna to two healthcare providers (a pediatrician and a therapist) who had previously seen her. Todd appeals the healthcare orders, arguing the juvenile court improperly delegated to the therapist the decision of how long Anna would continue in treatment with her at his expense and abused its discretion by basing the order precluding him from taking Anna to her former pediatrician and therapist on mistaken factual assumptions. We do not reach those issues. The challenged orders, not having been made as part of a juvenile court custody order pursuant to section 362.4, had no continuing effect after the juvenile court terminated its jurisdiction. Accordingly, those orders are vacated. Any ongoing issues regarding Todd’s authority to make healthcare decisions regarding Anna are properly addressed to the family court.
In re D.N.
In re D.N. (2020) 56 Cal.App.5th 741, 270 Cal.Rptr.3d 620: In this case, stating that “(d)ependency cases require the wisdom of Solomon,” the Second District reverses a Los Angeles County juvenile court judge’s “denial of father’s request for a continuance of the permanency review hearing, the juvenile court’s finding of detriment, and the order terminating reunification services, and remand for further proceedings consistent with our opinion.” It said that
juvenile courts typically balance parental rights against the child’s best interests, important interests that sometimes conflict. The Legislature has given juvenile courts tools to ameliorate these conflicts, notably providing reunification services to a parent without custody of his or her child. The Legislature has set forth a deadline for how long reunification services can be offered to parents, after which the focus of the juvenile court is no longer to preserve parental rights, but instead, to secure permanency and security for the child. Thus, terminating reunification services to a parent is significant; it is often the prelude to termination of parental rights.
The case before us involves the minor, D.N., a teenager, who was failing in the group and foster care homes in which the juvenile court had placed him, and his father, who, because of his poverty and despite sincere efforts, could not find housing before expiration of the statutory deadline for providing reunification services. The questions before us are whether the juvenile court erred in finding it lacked authority to provide additional reunification services given that the statutory deadline had long passed, and whether, if so, given the confluence of father’s poverty and efforts to find housing and D.N.’s failure to thrive in a nonparental environment, the court abused its discretion in not giving father additional time to find housing.
We answer these questions in the affirmative where father’s failure to reunify with D.N. was due solely to poverty, and terminating reunification services for father was not in D.N.’s best interests. These errors, moreover, caused the juvenile court to make a premature finding of detriment that could affect father in future dependency proceedings. Finally, we reject DCFS’s assertion that an order returning D.N. to mother’s physical custody issued after the filing of this appeal renders the instant appeal moot.
In re Christopher L.
In re Christopher L. (2020) 56 Cal.App.5th 1172, 271 Cal.Rptr.3d 147 (opinion vacated on grant of review in Supreme Court: In this case, the Second District affirmed a Los Angeles County juvenile court judge’s termination of F’s parental rights to C.
Christopher L., born in December 2017, and I.L., born in February 2017, are the children of appellant Carlos L. (Father) and V.L. (Mother), who is not a party to this appeal. Father was represented by counsel in connection with, and personally participated in, the Welfare and Institutions Code section 366.261 permanency planning hearing at which his parental rights regarding Christopher were terminated. He appeals from that termination based on the juvenile court having conducted the earlier jurisdiction/disposition hearing regarding both children in his absence and without counsel present on his behalf. Father had not provided a written waiver of his right as an incarcerated parent under Penal Code section 2625 to participate, personally or through counsel, in the jurisdiction/disposition hearing; to the contrary, in documents provided to the juvenile court before that hearing, Father requested that he be allowed to participate. Before the jurisdiction/disposition hearing, the court was also presented with documents establishing that Father was entitled to “presumed father” status, which carries with it the right to appointed counsel. On these bases, Father argues that he was denied due process at the jurisdiction/disposition hearing, that these due process errors affected the ultimate outcome of the proceedings, and that, in any case, they constitute structural error and trigger automatic reversal.
We agree with Father that the trial court erred, and that these errors affected the due process afforded Father at the jurisdiction/disposition hearing in that they denied him counsel at that hearing. But even errors of a constitutional dimension can be subject to a harmless error analysis in dependency proceedings, given the unique nature of such proceedings, unless it is impossible to assess prejudice without engaging in speculation. (See In re James F. (2008) 42 Cal.4th 901, 915–919 (James F.); In re J.P. (2017) 15 Cal.App.5th 789, 800; In re S.P. (2020) 52 Cal.App.5th 963, 972, petn. for review filed Sept. 1, 2020, S264203, time to grant or deny review extended to Nov. 30, 2020.) No such speculation is necessary here. The record clearly establishes that, had Father appeared and/or been represented by counsel at the jurisdiction/disposition hearing, Father would not have obtained a more favorable result. We decline Father’s invitation to expand current law and deem reversible per se an error in dependency proceedings that is amenable to harmless error analysis. Accordingly, although we are troubled by the errors Father identifies in connection with the jurisdiction/disposition hearing, we conclude that they would not have affected the ultimate outcome of the dependency proceedings and affirm the trial court’s order regarding Christopher.
On February 27, 2021, the California Supreme Court granted a petition for review in this case and ordered the appellate opinion depublished in light of the review grant. The issue framed in the review grant is: “Is it structural error, and thus reversible per se, for a juvenile court to proceed with jurisdiction and disposition hearings without an incarcerated parent’s presence and without appointing the parent an attorney?”
Noergaard v. Noergaard
Cite: Noergaard v. Noergaard (2020) 57 Cal.App.5th 841, 271 Cal.Rptr.3d 905: In this appeal from three consolidated custody cases, filed on October 29th but certified for publication on November 24, 2020, the Fourth District held that M’s appeal of a Hague Convention return order was moot “because the child is nearly 18 years old and the Convention does not apply after the child who is the subject of the return petition turns 16;” reversed the trial court’s attorney fee award “because mother had no opportunity for a full and fair hearing on father’s motion for fees,” and affirmed the court’s postjudgment sealing orders.
Christian is a Danish citizen. He and Tammy, an American, married in California in September of 2001. They had two children, Mia and Sarah, both born in California. When their marriage fell apart, “a bitter child custody battle ensued.”
From the start, this battle was marked by Tammy’s repeated claims to Danish police that Christian was physically abusing her and the children. In November 2010, a Danish court tried and acquitted Christian of domestic violence charges. On October 13, 2011, a Danish family court awarded Christian full custody of the girls and gave visitation rights to Tammy, having concluded Tammy’s repeated domestic violence claims were baseless and the high level of parental conflict was harmful to the girls and precluded shared custody.
Over the next year, Tammy challenged the custody order with multiple appeals and new charges of domestic abuse. In December 2012, Denmark’s high court affirmed the custody order. Five months later, in May 2013, Mia went missing. Tammy claimed Mia had run away because she feared Christian and did not want to live with him. That was a lie, according to the trial court’s findings in the recent Hague petition trial. Tammy had, in fact, orchestrated and participated in a plan to secretly get Mia out of Denmark and fly her, accompanied by her maternal grandmother, into the United States. In late January 2014, approximately eight months after Mia’s disappearance, Orange County Sheriff’s Department deputies found her living with Tammy in Laguna Niguel. The deputies took Mia into protective custody, acting on a warrant issued on Christian’s ex parte custody demand in his Hague petition. The ensuing Hague petition trial resulted in a judgment granting Christian’s petition for return of Mia to Denmark and his care.
Mia was then 11 years old. Since that first return order, Mia has lived in Denmark with her father and younger sister, Sarah. Mia will be 18 years old in a few months.
Tammy successfully appealed the trial court’s first trial on her Hague petition and the Fourth District remanded for a retrial.
On remand, the trial court took pains to ensure Tammy received in the second trial on the Hague petition the due process denied her in the first trial. … The one obvious defect in the second trial was the significant delay which occurred between remand on April 22, 2016, and the start of trial on January 22, 2019. Much of that delay, however, was undeniably caused by Tammy.
…
The Final Statement of Decision contained a lengthy recitation of the trial court’s findings of fact and law. Importantly, the court concluded Tammy failed to prove the Danish courts denied her due process in the custody proceedings. Based on the “very complete” “documentary history of this case” presented at trial, the court concluded the Danish courts fully examined Tammy’s claims Christian committed physical violence and other abuse against her and the children. The court found multiple Danish courts, from the trial court through several layers of appeal ending with the Danish High Court, considered Tammy’s proffered evidence of abuse. The court determined this “extensive” evidence included a wealth of reports from police, social workers and psychologists, teachers, medical professionals, neighbors, and Tammy herself. The court was satisfied the Danish legal proceedings fully and fairly considered the evidence and determined Tammy’s claims of abuse were false. Consequently, the court concluded the Danish custody order was deserving of comity in the Hague proceeding.
The trial court also found Tammy failed to disprove Mia’s habitual residence was Denmark at the time of her abduction. The court made the related finding Tammy never filed a Hague petition in Denmark, as she had claimed.
The court further found Tammy failed to meet her burden of proof regarding her two affirmative defenses: that Mia faced a “grave risk” of harm if returned (Art. 13(b)) because of Christian’s history of domestic violence and recent death threats, and Tammy and Mia faced deprivation of fundamental rights in Denmark (Article 20) because the Danish legal system routinely denies a fair hearing to noncitizen victims of domestic violence. In explaining why Tammy failed to prevail on either affirmative defense, the court carefully stated its reasons for finding Tammy’s evidence, including her witnesses, unpersuasive.
We think it important to note the trial court found Tammy herself completely lacked credibility. The court found Tammy’s testimony “largely false,” “selfserving, evasive, frequently obstructionist, disingenuous and a non-credible narrative.” The court observed, “[T]his Court’s proceedings were seriously impacted in efficiency by extensive need for in-depth cross-examination of” Tammy because her testimony was often “contradicted in large measure by Danish court rulings and other [documentary] evidence” which Tammy herself introduced, but claimed not to have read. The court
found Tammy lied to the court about the lack of due process in Danish courts, falsely claiming the courts there did not provide translators, and she lied to the Danish courts in her 2013 “changed circumstances” appeal by allowing her attorney to assert Tammy did not know where Mia was, though Tammy was then living with Mia in Laguna Niguel. Perhaps most damning was the court’s finding, based on the court’s own confidential interview with Mia, whom the court found “exceptionally straightforward and honest,” that Tammy “coached and cajoled” Mia into falsely accusing Christian of abuse, and Mia told these lies “to psychologists, social workers and law enforcement individuals after the[marriage] breakup upon the insistence of her mother.”
After finding Mia’s “best interest and well-being . . . is best served by remaining in Denmark, again, with her father and her sister,” the trial court ordered Mia’s return “to her habitual residence in Denmark from which she [was] abducted and wrongly retained[.]” The court specifically reserved jurisdiction under Article 26 of the Convention (Article 26) to award Christian his expenses and costs, including attorney fees, as the prevailing party.
Tammy appealed and the Fourth District dismissed her appeal of the court’s return order, holding that it was moot “because the child is nearly 18 years old and the Convention does not apply after the child who is the subject of the return petition turns 16;” affirmed the court’s postjudgment sealing orders and reversed its attorney fee award “because mother had no opportunity for a full and fair hearing on father’s motion for fees.” First, it held that the return order was moot, stating that “Mia turned 16 years old soon after the trial court rendered its final decision on the Hague petition. At her 16th birthday, the Hague Convention no longer applied to Mia. In other words, even if the trial court had erred somehow in the Hague proceeding, we are powerless to provide any effective relief from the return order.” As to the trial court’s sealing order,
During trial the trial court distributed to counsel for their use copies of the transcript of its February 1, 2019, confidential interview with Mia (the confidential interview transcript). There is no record of the instructions the court gave to counsel regarding the use or dissemination of this transcript.
On February 7, 2019, Tammy filed a motion in which she quoted portions of the interview. On May 9, 2019, the court on its own motion issued an order sealing Tammy’s February 7, 2019 motion and set a hearing on the matter for July 26, 2019.
At the July 26, 2019 hearing, the court ordered the parties to return the original and any copies of the confidential interview transcript to the court within 10 days. The minute order from the hearing explained the necessity for the order as follows: “[T]he Court made clear the transcripts were sealed and released to Counsel for use during trial. Now it has been brought to the Court’s attention that the transcripts may have been disseminated.”
Stating that “(i)t is very difficult to discern from Tammy’s opening brief the basis of her objection to these two orders, the panel held that “(t)here is absolutely no merit to Tammy’s appeal of these two postjudgment orders.” Finally, it reversed the trial court’s award of attorney fees and costs to Christian as the prevailing party. It said that
(a)lthough case law clearly supports the conclusion courts have no power under the Convention to order the return of a child who has attained the age of 16 (see above), we found no case directly addressing whether a court in a Hague proceeding has the power to decide a prevailing party’s motion for fees and costs, or to review an order for fees and costs, after the child turns 16. Nonetheless, we conclude that so long as the trial court issued a return order before the child’s 16th birthday, as happened here, the court has the power to rule on the prevailing party’s motion for fees and costs under Article 26 and ICARA.
The pillar of this conclusion is a small body of federal case law recognizing that in a Hague proceeding the only absolute prerequisite for an award of fees and costs to the prevailing party is an order for the return of the child. …
…
Further support for our conclusion a Hague trial court has the power to award fees to the prevailing party if the court issued the return order before the child’s 16th birthday comes from the two-fold statutory purpose of such an award. As the court explained in Salazar, supra, 750 F.3d 514, “[T]he purpose of [ICARA’s section 9007(b)(3)], and Article 26 upon which it is based, [is] not only . . . to compensate the
bearers of the expenses incurred but also ‘to provide an additional deterrent to wrongful international child removals and retention.’ [Citations.] Mandatory fee shifting discourages manipulation of the judicial process for purposes of delay and encourages the prompt return of the child.” (Salazar, supra, 750 F.3d at p. 520.)
Those statutory purposes were undoubtedly served in the present case when the trial court issued the fees award to Christian after ordering Mia’s return, based on its findings Tammy abducted Mia from Denmark, retained the child in California for eight months in violation of a valid Danish custody order, and then lied to the court throughout the Hague petition trial in an effort to prove her affirmative defenses. This case starkly illustrates the need to “discourage[] manipulation of the judicial process” and “encourage[] the prompt return of the child.” (Salazar, supra, 750 F.3d at p. 520.)
Once the trial court ordered Mia’s return, ICARA obligated the court to award Christian his expenses as prevailing party. (22 U.S.C. § 9007(b)(3).) We see no reason to conclude Mia’s 16th birthday terminated that obligation. Though Article 4 ended the court’s power to order (or prevent) Mia’s return at age 16, we do not read Article 4 as ending the court’s power to award expenses including attorney fees under Article 26 or ICARA. We have found no case supporting that view.
Of course, if a trial court has the power to award fees and costs to the prevailing party, the appellate court has the power to review the award. Accordingly, we conclude Tammy’s appeal of the fees award is not moot.
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Tammy objected to the severely shortened notice of the fees motion she received and requested a continuance of the hearing so she would have sufficient time to review the motion and prepare opposition. The trial court denied the continuance, believing, wrongly, that it would have no jurisdiction to award fees after Mia turned 16.
Tammy objected to the bills Christian’s counsel submitted, both as to the unreasonableness of the fees charged and the improper duplication of effort reflected in the bills, among other claims. Tammy also questioned whether Christian needed the fees award because, she alleged, the Danish government had paid substantially more money to Christian for his legal fees than the $50,000 sum he acknowledged receiving.
The trial court’s determination to rule on the fees motion before “losing jurisdiction” not only severely impacted Tammy’s due process rights, but also the court’s ability to exercise its important discretionary function of deciding the proper amount of fees and costs to award Christian.
The minute order further confirms our view. The order states: “The Court finds it appropriate to order fees to be paid by the Respondent based on her conduct and to deter the misuse of the legal system. The Court further finds the Petitioner has incurred $229,755 in attorney fees that are owed to other parties, based on the information that has been provided by Counsel for Petitioner.” (Italics added.) Importantly, the court relied in part on the oral representation of Christian’s counsel during the hearing “as an officer of the court[.]” Tammy, however, lacked a fair opportunity to rebut the evidence supporting the fees award, primarily because the court believed it faced a jurisdictional deadline. The court on remand will be able to better assess the sufficiency of the evidence supporting Christian’s fees motion after considering Tammy’s opposition, if any.
We conclude the fees award must be reversed and remanded for a new hearing. We add, however, in the new hearing on the fees motion Tammy will be collaterally estopped from challenging the trial court’s determination Christian is entitled to an award of fees as the prevailing party. The sole purpose of the remand is to allow the trial court to determine the amount of attorney fees and other expenses to award Christian under Article 26 and ICARA. We direct the trial court upon remand to allow Christian to amend his fees motion to include his fees and costs on appeal.
Conservatorship of the Person of O.B.
Conservatorship of the Person of O.B. (2020) 58 Cal.App.5th 87: In this case, decided on remand from the California Supreme Court’s recent decision in Conservatorship of O.B. (2020) 9 Cal.5th 989, the Second District held that sufficient evidence supported the trial court’s granting of a petition to appoint a conservator of O.B., a person with autism.
In Conservatorship of O.B. (2020) 9 Cal.5th 989, 1012, the California Supreme Court reversed the judgment rendered in our prior opinion filed on February 26, 2019. The court remanded the cause to us with directions “to reevaluate the sufficiency of the evidence in light of [its] clarification” of how an appellate court should review a “finding made by the trier of fact pursuant to the clear and convincing standard.” (Id., at pp. 995, 1012.) As directed, we have reevaluated the sufficiency of the evidence in accordance with the Supreme Court’s clarification of the standard of review. We conclude that the evidence is sufficient.
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A person with autism is not automatically a candidate for a limited conservatorship. Each case requires a fact-specific inquiry by the probate court. “Autism is known as a ‘spectrum’ disorder because there is wide variation in the type and severity of symptoms people experience.” <https://www.nimh.nih.gov/ health/topics/autism-spectrum-disorders-asd/index.shtml> [as of Nov. 17, 2020], archived at <https://perma.cc/UQ4C-5VE3>. Based on the facts here, we affirm the order establishing a limited conservatorship of appellant’s person.
In re T.G.
In re T.G. (2020) 58 Cal.App.5th 275: In this case, the Second District reversed and remanded several related cases, holding that the juvenile court did not conduct an adequate ICWA inquiry.
Tamara S. is the mother of four children, 16-year-old Jazmine H., 14-year-old T.G., 12-year-old N.G. and eight-year-old P.G. Jason H. is the biological father of Jazmine. Shaka G. is the presumed father of T.G., N.G. and P.G. All four children were declared dependents of the juvenile court, removed from parental custody and placed with the same nonrelated extended family members who were subsequently appointed their legal guardians. In separate appeals Jason H. challenges the juvenile court’s order pursuant to Welfare and Institutions Code section 366.26 granting a guardianship, appointing legal guardians and terminating its jurisdiction as to Jazmine (B304055), and Tamara challenges the section 366.26 orders granting guardianships, appointing legal guardians and terminating jurisdiction as to T.G., N.G. and P.G. (B303987).
The sole issue in both appeals is whether the juvenile court and the Los Angeles County Department of Children and Services (Department) complied with their duties of inquiry and notice under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law. We agree the Department failed to adequately investigate Tamara’s claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding, if it ever actually did, ICWA did not apply to these proceedings. In reaching this result, we disagree with the holding in In re Austin J. (2020) 47 Cal.App.5th 870, 888-889 (Austin J.) that amendments enacted by Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (Assembly Bill 3176) were intended to limit the Department’s robust duty of inquiry. Accordingly, we conditionally reverse the orders for legal guardianship and remand the matters to allow the Department and the juvenile court to rectify their errors and to take all other necessary corrective actions.
In re A.G.
In re A.G. (Cal. Ct. App., Dec. 18, 2020) 2020 WL 7418984: In this case, the Sixth District reversed and remanded a Monterey County juvenile court’s order after a 366.26 hearing “with directions that it, consistent with this opinion, further consider the legal sufficiency of mother’s offer of proof in support of the beneficial parental relationship exception. The court shall permit further argument and, in its discretion, may allow mother the opportunity to amend her prior offer of proof with any specific evidence she believes she can produce that is consistent with her prior oral and written offers of proof to assist the court’s determination of whether her proffer is ‘specific, setting forth the actual evidence to be evidence to be evidence to be produced, not merely the facts or issues to be addressed and argued the facts or issues to be addressed and argued.’ (Tamika T., supra, 97 Cal. App.4th at p. at p. 1124.) If the juvenile court concludes that the denial of a contested hearing is appropriate, in order to permit meaningful appellate review, it shall specify its reasons for determining that mother’s offer of proof is not legally sufficient.”
Conservatorship of Navarrete
Conservatorship of Navarrete (Cal. Ct. App., Dec. 4, 2020) 2020 WL 7496286: In this case, filed on December 4, but certified for publication on December 21, the Fourth District reversed a Riverside County probate judge’s order that the conservatee, who is 33 years old and alleged that her father raped her, attend joint counseling with her father. It appointed her mother as her conservator; “after further hearings, the trial court granted father visitation and ordered Navarrete to attend joint counseling sessions with her father. The court concluded, over the objection of Navarrete, her conservator, and her attorney, that such visits were in her best interest because it would allow reconciliation in the event the accusations of sexual assault weren’t true.” In reversing, the panel said that Probate Code §23510
does not similarly suggest the court has the power to force an unwanted visitor on the conservatee. We’re not asked to decide whether the court properly could allow the conservator to stop Navarrete from seeing someone who was exercising undue influence on her or engaging in unwanted or unsafe sexual contact. We’re asked to decide whether the trial court’s statutory power to limit Navarrete’s personal rights to receive visitors extends to allowing the court to require a conservatee to receive a visitor she and her conservator insist she does not want to see.
We are aware of no case reading the statute to allow a conservator or a court to require an adult conservatee to spend time with someone against their will, even a parent. As the trial judge recognized, speaking of his own adult child, “An adult has no right to visit an adult child. If my son ever wanted to tell me, ‘You’ll never see me again . . . he would have the right to say so.” The statute distinguishes conservatees, who are adults, from wards, who are children. The statute treads on the autonomy of conservatees only to the extent required to assist them. The guardianship provisions allow for more court intervention. For that reason, the courts may order a guardian to allow visits from the child’s noncustodial relatives if it’s in their best interests. (Guardianship of Reynolds (1943) 60 Cal.App.2d 669, 676 [under prior statute].)
It’s a different matter to require an adult to visit with an estranged parent. Navarrete and conservatees like her are adults, and the statute treats them as such even while investing aconservator and the court with certain powers to assist them where they are unable to assist themselves. Critically, the statute explicitly preserves conservatees’ personal rights against invasion by the conservator. (Prob. Code, § 2351, subd. (a).) Such rights, as Navarrete argues, include her right to refuse to visit someone, which implicates the fundamental interest “of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” (Union Pacific R. Co. v. Botsford (1891) 141 U.S. 250, 251.)
An adult conservatee’s disability does not put them in the legal position of a minor.
In re the Marriage of Wang and Zhou
In re the Marriage of Wang and Zhou, Cal.App., April 9, 2021, H046250: In this case, the Sixth District affirmed a Santa Clara County family court’s denial of a request to register a Chinese judgment that contained a custody order.
The parties were married in 2010, separated in 2016 and divorced in September of 2017. They have one child, who was born in China and lived primarily in China with Jiaojiao, although she made frequent extended trips to visit Sean in California where he worked. In March of 2016, Sean filed a motion in California to take emergency jurisdiction over custody under the UCCJEA. “He asserted the ‘emergency’ was Zhou’s desire to take Daughter back to China. Zhou stated she would file an action in China ‘right away’ if she was allowed to return to China.”
The court held a second hearing the following day. The parties conceded that jurisdiction over custody rested with China, unless the trial court exercised emergency jurisdiction. The court held an off-the-record discussion with the parties about custody and visitation issues. Thereafter the parties agreed that California would assume emergency jurisdiction, despite the fact that China was Daughter’s country of habitual residence. The parties agreed they would “either register the order from [California] or create an identical order in China so that there will be a fully enforceable order in both jurisdictions.”
At the end of the hearing, the trial court indicated that it would “include in its orders the language of Family Code section 3048 that California has jurisdiction to make the custody order especially having made the finding that China is the country of habitual residence; United States had emergency jurisdiction and makes these orders within that context recognizing that China will now be the custodial jurisdiction state.” The parties reached additional agreements regarding their visitation with Daughter, which the court memorialized in a written order filed in July 2016. The written order confirmed that the court “assumed emergency child custody jurisdiction,” and ordered that a copy of the written order either be registered in China, or that an order be filed in China reflecting the same terms and conditions as set forth in the California order. Under the terms of the order, Daughter would return to China with Zhou, and then return to California, with Zhou, for several extended periods during the year, at which time Daughter would have regular visitation with Wang.
In August 2016, the parties entered into an agreement concerning property and support issues and agreed that the July 2016 custody order would remain in full force and effect. Thereafter the parties signed a stipulation for judgment in September 2017, agreeing that the “emergency child custody jurisdiction order filed . . . on July 21, 2016, shall remain in full force and effect until further order of a court of competent jurisdiction. . . . Based on the July 21, 2016 emergency child custody jurisdiction order, it is further acknowledged that the minor child’s country of habitual residence is the People’s Republic of China (China), and that this court only assumes emergency child custody jurisdiction in this matter.” Neither party appealed that judgment.
In June 2018, Zhou filed the Judicial Council form to register the Chinese judgment, issued by the Beijing Xingcheng District People’s Court in China in May 2018. The English translation of the Chinese judgment states that the Chinese court conducted a trial, at which Zhou and her “designated agent,” and Wang and his designated agents appeared to participate in the lawsuit. The Chinese judgment indicates Zhou informed the Chinese court of the dissolution proceedings in California, referencing a “provisional hearing” in the United States regarding custody, wherein the California court issued a “temporary order.” The Chinese judgment also indicates Zhou alleged to the Chinese court that she was “tricked” or “forced” by Wang into the California dissolution. Zhou asked the Chinese court to award her custody of Daughter, with Wang to have visitation in China one weekend per month.
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The Chinese court denied Wang’s request to admit and implement the California dissolution judgment, as “the divorce case of both parties was in trial of Chinese court according to the provision Item (4), Clause I, Article 12 of Provision of Supreme People’s Court on Chinese Citizen Applying for Admitting Divorce judgment Procedure of Foreign Court.” The Chinese court determined that Zhou should have “full and sole child custody” of Daughter, with Wang to have visitation on Saturday and Sunday in the third week of every month. The Chinese judgment specifies that either party could appeal the judgment to the Beijing Second Intermediate People’s Court.
Wang filed written opposition to Zhou’s registration of the out-of-state custody order with the trial court and asked the trial court to order Zhou to renew Daughter’s United States passport, and to return Daughter to the United States for visitation in Summer 2018. According to Wang, the Chinese judgment was not yet operative, because he had appealed the judgment, resulting in a stay of the order. Wang supported his claim with a “legal opinion” prepared by his attorneys in the Chinese action, as well as a declaration from a Chinese legal expert, all of whom opined that the Chinese judgment was not yet in effect due to Wang’s appeal. Thus, he asked the trial court to vacate the registration of the Chinese judgment and order Zhou to comply with the July 2016 custody order.
The California court held a hearing in August of 2018. It “issued a written order on August 14, 2018, granting ‘Father’s request to deny mother’s request to register the [Chinese judgment].’” On Jiaojiao’s appeal, the Sixth District affirmed. After reviewing the trial court’s authority under the UCCJEA, it said that
Section 3443 requires California courts to recognize and enforce custody determinations issued by other states, “if the latter court exercised jurisdiction in substantial conformity with [the UCCJEA] or the determination was made under factual circumstances meeting the jurisdictional standards of [the UCCJEA] and the determination has not been modified in accordance with [the UCCJEA]. (§ 3443, subd. (a).) The provisions of section 3441 et seq. also apply to custody orders issued by foreign countries “under factual circumstances in substantial conformity with the jurisdictional standards of [the UCCJEA].” (§ 3405, subd. (b).) However, a California court does not have to apply the UCCJEA “if the child custody law of a foreign country violates fundamental principles of human rights.” (§ 3405, subd. (c).)
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The trial court stated it denied Zhou’s request to register the Chinese judgment on the theory that Zhou had violated the September 2017 judgment in which she had stipulated to obtaining identical custody orders in Chinese. However, we conclude the trial court properly denied Zhou’s request to register the Chinese order because Wang established that the Chinese judgment was stayed pending his appeal. (§ 3445, subd. (b)(2).) First, there is evidence in the record supporting a finding that the Chinese order was stayed. Wang submitted the written analysis of the attorneys representing him in the Chinese proceedings, and a declaration from an attorney in China, indicating that Wang’s appeal resulted in a stay of the Chinese judgment. Zhou did not dispute that the order was stayed pending Wang’s appeal. In the memorandum of points and authorities she filed in opposition to Wang’s requests, she indicated that Wang had not provided a finding or order indicating that he had appealed the Chinese judgment. However, Zhou indicated in correspondence to Wang that she was not following the Chinese judgment because of the pending appeal. Moreover, the attorney declaration Wang filed in support of his motion indicates the attorney reviewed and verified the filing receipt for Wang’s appeal. Zhou did not object to the trial court considering any of the evidence submitted by Wang.
There also is evidence supporting a finding that the Chinese court had jurisdiction to stay the Chinese judgment under section 3421 et seq. Daughter had lived with Zhou in China for at least six consecutive months prior to the commencement of the proceedings in 2016, such that China was her home state under sections 3402, subdivision (g), and 3421, subdivision (a)(1). While California issued custody orders under its temporary emergency jurisdiction pursuant to section 3424, subdivision (a), under those provisions of the UCCJEA codified in California’s family law statutes, China retained continuing, exclusive jurisdiction to issue and modify custody orders. … The record shows that Daughter and Zhou remained in China at the time the Chinese court issued its judgment, rendering these provisions inapplicable. Unless China declined to exercise its jurisdiction (see § 3421, subd. (a)(3)), China had jurisdiction over custody under the UCCJEA, and thus had authority to stay its custody orders pending Wang’s appeal.
Because Wang established that the Chinese court, as a court with jurisdiction under section 3421, et seq., stayed the Chinese judgment, the trial court properly denied registration of that judgment. (§ 3445, subd. (b)(2).) Pursuant to section 3424, subdivision (b), the custody orders issued by the trial court thus remained in effect until a valid order was obtained from the home state, which the evidence here shows was China. (See In re Gino C. (2014) 224 Cal.App.4th 959, 966; Fernandez-Abin, supra, 191 Cal.App.4th at p. 1041.) The August 2018 order, in addition to denying registration of the Chinese judgment, served to enforce the trial court’s prior orders until the litigation in China was resolved and the case was no longer stayed on appeal. In the absence of a valid order from the Chinese court (i.e., an order that had not been stayed), such enforcement was appropriate.
In re Nathan E.
In re Nathan E. (2021) 61 Cal.App.5th 114, 275 Cal.Rptr.3d 380: In this case, “(a)t a combined jurisdiction and disposition hearing on July 9, 2020, the juvenile court sustained counts a-1 and b-1 based on the parents’ history of multiple domestic violence incidents and dismissed counts a-2, b-2, and j-1 as to each of the children. The juvenile court ordered reunification services, separate visitation for mother and father, and ordered that the children remain placed with their paternal grandparents.” On M’s appeal, the Second District affirmed.
On the face of her arguments, mother challenges the sufficiency of the evidence to support the trial court’s jurisdictional and dispositional findings. Underlying mother’s contention, however, runs an assertion that evidence of domestic violence between parents will never suffice to support a jurisdictional finding under section 300, subdivision (a), because such violence is not aimed at the child and thus any harm it may cause would not be “inflicted nonaccidentally upon the child” as subdivision (a) requires. (§ 300, subd. (a).) …
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Section 300, subdivision (a) creates juvenile court jurisdiction over a child when there is “a substantial risk that the child will suffer[] serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian.” (§ 300, subd. (a).) Mother argues that to find jurisdiction under section 300, subdivision (a), the juvenile court must find a substantial risk that a child will suffer serious physical harm as a result of violence or conduct aimed at the child, rather than conduct aimed at another adult. Mother cites a variety of cases involving physical assaults on children, including beatings and sexual assaults. Mother’s argument appears to be that any injury inflicted during a physical altercation between parents would be accidental, and therefore any risk of that injury would not fall within the bounds of subdivision (a).
Our colleagues in the Fourth District have specifically rejected this contention. In In re Giovanni F. (2010) 184 Cal.App.4th 594, 598-599 (Giovanni F.), they concluded that “the application of section 300, subdivision (a) is appropriate when, through exposure to a parent’s domestic violence, a child suffers, or is at substantial risk of suffering, serious physical harm inflicted nonaccidentally by the parent.” “Domestic violence is nonaccidental,” the court explained. (Id. at p. 600.)
The court also explained that “[a]lthough many cases based on exposure to domestic violence are filed under section 300, subdivision (b), section 300, subdivision (a) may also apply.” (Giovanni F., supra, 184 Cal.App.4th at p. 599; see In re M.M. (2015) 240 Cal.App.4th 703, 721 [where child present for incident of domestic violence, “ongoing risk of domestic violence between mother and father placed minor at substantial risk of serious harm under subdivision (a)”].)
We firmly reject mother’s contention that domestic violence cannot be the basis for juvenile court jurisdiction under section 300, subdivision (a).
In re I.R.
In re I.R. (2021) 61 Cal.App.5th 510, 275 Cal.Rptr.3d 810: In this case, the Second District partially reversed a decision by a Los Angeles County Pro Tem judge.
Following an incident of domestic violence between R.R. (Mother) and E.R. (Father) witnessed by their infant daughter, I.R., and Mother’s son, D.R., the Los Angeles County Department of Children and Family Services (DCFS) instigated dependency proceedings on behalf of both children. After a combined jurisdictional and dispositional hearing, the juvenile court found jurisdiction over the children under Welfare and Institutions Code1 section 300, subdivision (b)(1), and ordered I.R. removed from Father and released to Mother. On appeal, both Father and I.R. challenge the removal of I.R. from Father. We conclude the evidence does not support either of the findings necessary to justify removal under section 361, subdivision (c)(1). Specifically, the record does not contain substantial evidence that I.R. would be in “substantial danger” in Father’s care, nor does it contain substantial evidence that there were no “reasonable means” to protect I.R. other than removing her from Father. (§ 361, subd. (c)(1).)
I.R. further challenges the dispositional order to the extent it requires Mother, who is not a party to this appeal, to submit to drug testing only upon reasonable suspicion of drug use. Given the lack of any connection between drug use and the domestic violence underlying the petition, we conclude the court was acting within its discretion in denying I.R.’s request that Mother submit to more extensive drug testing. Accordingly, we reverse the dispositional order to the extent it removes I.R. from Father.
In re J.N.
In re J.N. (Cal. Ct. App., Apr. 2, 2021, No. B308879) 2021 WL 1232439: In this case, the Second District partially reversed a Los Angeles County temporary judge’s
jurisdictional finding as to Father in dependency proceedings regarding his now seven-year-old son, J.N., as well as the court’s dispositional order removing J.N. from Father’s custody and denying Father reunification services. Father contends the challenged jurisdictional finding and removal order are solely based on Father’s incarceration and criminal record, and that such evidence is insufficient to support either jurisdiction or removal. On the record before us, we agree. Accordingly, we vacate the juvenile court’s jurisdictional finding as to Father and reverse the dispositional order removing J.N. from Father’s custody.
Father further argues the trial court erred in denying him reunification services based on a detriment finding under Welfare and Institutions Code section 361.5, subdivision (e).1 We conclude section 361.5 is inapplicable and that Father was not entitled to reunification services, regardless of any potential detriment to J.N. therefrom. We nevertheless vacate the court’s detriment finding, because it could prejudice Father in future dependency proceedings.
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Here, the sole evidentiary basis for the jurisdictional finding as to Father is his incarceration and criminal record. Father argues substantial evidence does not support an actual nexus between this criminal history and any specifically identified, substantial, current risk of serious physical harm to J.N. We agree.
DCFS presented evidence that Father’s record includes convictions for violent crimes and convictions for crimes committed while Father was already on probation. This evidence supports a reasonable inference that there is a substantial risk Father will commit crimes—even violent crimes—in the future. But that is not the same as a substantial risk J.N. will be harmed. Although it is possible that evidence of a parent’s violent criminal record could support a reasonable inference of risk to the parent’s child, the evidence in this record does not. Nothing in the record suggests any of Father’s crimes were against children or involved children. The record also does not support that Father’s criminal conduct ever placed J.N. in danger during the approximately two years he appears to have been involved in J.N.’s life. And although DCFS may be correct that Father exposing J.N. to his criminal ways could put J.N. at risk, the record does not provide any nonspeculative basis for the court to conclude that Father is likely to do so. ….
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The mere fact of a parent’s incarceration is not sufficient evidence to provide a basis for a juvenile court’s assertion of jurisdiction. (In re S. D. (2002) 99 Cal.App.4th 1068, 1077 [“[t]here is no ‘Go to jail, lose your child’ rule in California”].) Under certain circumstances, an incarcerated parent’s failure to ensure that a child is protected from an abusive situation of which the incarcerated parent knew or should have known, and/or a parent’s inability to make proper arrangements for the care of a child during the parent’s incarceration, may provide a basis for jurisdiction. (See In re James C. (2002) 104 Cal.App.4th 470, 483–484; see also § 300, subd. (g).) Neither such situation is alleged in the petition or reflected in the record in this case.
In re A.R.
In re A.R. (Cal., Apr. 5, 2021) 21 Cal. Daily Op. Serv. 3031, 2021 WL 1245027: In this case, a unanimous California Supreme Court reversed the judgment of the First District in an Alameda County juvenile case.
When the juvenile court terminated M.B.’s parental rights to her minor child, M.B. promptly directed her court-appointed attorney to appeal. The attorney mistakenly filed the notice of appeal four days late, however, and the Court of Appeal dismissed M.B.’s appeal as untimely. The question presented is whether, as a result of her attorney’s mistake, M.B. has irrevocably lost her right to appeal the termination of her parental rights. We conclude the answer is no. By statute, every parent facing the termination of parental rights is entitled to the assistance of competent counsel (Welf. & Inst. Code, §§ 317, 317.5, 366.26, subd. (f)(2)), as well as the right to appeal an adverse ruling (id., § 366.26, subd. (i)(1)). When an attorney fails to file a timely appeal in accordance with a client’s instructions, the parent may seek relief based on the attorney’s failure to provide competent representation. Because time is of the essence in matters affecting children’s long-term placement, whether relief is granted will depend on the parent’s promptness and diligence in pursuing the appeal.
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We granted review, directing the parties to address two issues: (1) whether a parent has the right to challenge her counsel’s failure to file a timely notice of appeal from an order terminating her parental rights, and (2) if she has such a right, the proper procedures for raising such a claim.
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The central point of dispute between the parties concerns whether the right to seek relief for incompetent representation lapses with the jurisdictional deadline for filing a notice of appeal from the parental rights termination order — even when counsel’s incompetence is the very reason no filing has been made by that deadline. The Agency and A.R. contend that, no matter the reasons for the delayed filing, the passage of the deadline marks the point at which the child’s interest in avoiding unnecessary delay definitively overcomes any countervailing interests the parent may have.
We emphatically agree that dependent children have a critical interest in avoiding unnecessary delays to their long-term placement. (See, e.g., In re Sade C., supra, 13 Cal.4th at p. 993 [describing the “pointed and concrete harm” a child may suffer from protracted custody proceedings]; Lehman v. Lycoming County Children’s Services (1982) 458 U.S. 502, 512 (Lehman) [referencing the “exceptional need for finality in child-custody disputes”].) But it does not follow that parents must automatically lose the ability to seek redress for incompetent representation as soon as the time for filing the notice of appeal has passed. Certainly nothing in the statute says so. While the statute makes an order terminating parental rights “conclusive and binding,” it does so expressly subject to the parent’s right of appeal. (§ 366.26, subd. (i)(1) [“nothing in this section shall be construed to limit the right to appeal the [termination] order”].) And to underscore the point, the statute further provides that the child may not be adopted until “the appellate rights of the natural parents have been exhausted.” (Id., subd. (j).) The statute does not purport to deny appellate rights to a parent whose appeal has been untimely filed because of counsel’s mistakes.
And while finality is a critically important interest in termination proceedings, it is not the only interest at stake. Children and parents alike also have an interest in ensuring that the parent-child relationship is not erroneously abridged. (Kristin H., supra, 46 Cal.App.4th at p. 1664.) The Legislature sought to protect this interest in accuracy by affording parents a right to competent counsel, as well as a right of appellate review. (§§ 317, 317.5, 366.26, subd. (i).) When parents raise a timely claim that the deprivation of the first right has worked to undermine the other, the logical remedy is to afford them the appeal to which they are statutorily entitled, and thus to ensure the decision to terminate parental rights has been made accurately before it is made final.
Dawn Gray is a Certified Specialist in Family Law. Since 1994, her practice has been dedicated to research and writing projects for family law and civil attorneys. She works with many family law attorneys throughout the state on their cases, doing research, drafting pleadings and appellate briefs. She is a past president of ACFLS and is currently on its Amicus committee. She is also a past member of FLEXCOM, serving as the Executive Editor of the Family Law News. She gives frequent presentations and continuing education classes on family law issues. Dawn is also the principal author of the 11-volume series “Complex Issues in California Family Law.” She is a member of the editorial board of the California Family Law Monthly and a frequent contributor to family law publications throughout the state.