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DEPENDENCY UPDATE: 2000-2001 1

by Bradley A. Bristow, CCAP Staff Attorney

The Millennium of the Minors. In 2000 and 2001, amendments to the Welfare and Institutions Code greatly increased the power of minors in juvenile dependency proceedings by: 1) guaranteeing their independent representation by counsel in juvenile court (sec. 317); 2) requiring consideration by the juvenile court of their placement and or visitation with siblings (see, e.g., sec. 366.21, subd. (e)(3)); 3) creating an additional exception to termination of parental rights where there would be substantial interference with that child's sibling relationships (sec. 366.26, subd. (c)(1)(e); and, 4) in the event that the minors remain in foster placement until adulthood, requiring social services to help them transition to the adult world upon termination of jurisdiction. (Sec. 391.) 2

At the same time, the world suddenly became much more complicated for minor's counsel. In In re Clifton B. (2000) 81 Cal.App.4th 415, the Fourth District, Division 3 found that one or more of the siblings having conflicting wishes as to choice of permanent plans was deprived of effective assistance of counsel when counsel did not argue the position of the minor who wanted sibling visitation to continue. In In re Eileen A. (2000) 84 Cal.App.4th 1248, the same division accorded independence to minor's appellate counsel in choosing whether to advocate the same position as that taken by the minor's trial counsel, but scrutinized the positions taken by both trial appellate counsel and appellate counsel.

More recently in In re Zeth S. (2001) 90 Cal.App.4th 107 (review granted October 10, 2001; S099557), the same division again examined the position taken by the minor's trial counsel, and found, "....[I]t is the minor's counsel who function closest to a quasi-judicial capacity .... [r]eminicient of the court's own role in a so-called inquisitorial justice system...." The Fourth District also enunciated the method by which appellate counsel should inform the appellate court of new matters affecting the minor's well-being, while complying with California Rules of Court, rules 23 and 41. The California Supreme Court will likely provide guidance.

Finally, the minors gained some protection of confidential communications made to psychotherapists in the course of court-ordered therapy. In In re Kristine W. (2001) 94 Cal.App.4th 521, the First District, Division 3, held that although the minor's treating psychotherapist could share information with the Department reasonably necessary for the juvenile court to determine whether any further orders were needed for the benefit of the minor, the minor's confidential communications and the details of the therapy were protected.

However, the decisions in 2000 and 2001 have not been entirely bad for the parents. In areas such as their right to due process in court, the appellate decisions from 2000 and 2001 seemed more protective of the parents' procedural due process rights in juvenile court than those of the late ‘90's. It was thought that during the same time period, the curtailing of reunification services offered to parents would continue, as exemplified by the recent decision of the California Supreme Court in Renee J. v. Superior Court (2001) 26 Cal.4th 735. But legislative amendments last Fall showed this not to be the case by immediately overruling Renee J. Also, statutory changes provided a few helpful clarifications, and the parents may collaterally benefit from some of the rights now accorded to minors.

Jurisdictional Procedure. Hearsay and Lucero L. The California Supreme Court having announced its own child hearsay exception in In re Cindy L. (1997) 17 Cal.4th 15, examined the effect of the 1996 amendments to Welfare and Institutions Code section 355, in In re Lucero L. (2000) 22 Cal.4th 1227. The amendments permit the court to consider the hearsay statement of a minor under twelve years of age who is the subject of the proceeding reported in the jurisdictional social study. These statements may be sufficient evidence, standing alone, to support a jurisdictional finding when the statements are not made under circumstances indicating undue influence, notwithstanding the fact that the minor was found incompetent to testify,. The confrontational problems were raised by the parents in Lucero L., a case in which much of the evidence supporting jurisdiction were statements of a two-and-a-half year old child who could not be cross-examined in court. The Supreme Court decision, an affirmance, has no clear majority view because Justices Kennard and Brown found it unnecessary to reach the confrontational issue, and also did not join the concurring opinion of Justice Chin (joined by Justice Baxter) who seemed not to find a confrontation problem. The lead opinion of Justice Werdegar, joined by Chief Justice George and the late Justice Mosk, applied the confrontational analysis of Idaho v. Wright (1990) 497 U.S. 805. Perhaps a majority on the court would guarantee parents a due process right of confrontation analogous to those guaranteed defendants in criminal proceedings, an improvement over the decision of the Court of Appeal, Second District, in Lucero L. Recognizing this, the more recent decision of People v. Eccleston (2001) 89 Cal.App.4th 436, applies the reliability analysis of Idaho v. Wright and the Lucero L. plurality in a similar context.

What should be remembered about Lucero L. is that hearsay remains admissible, but that the goal is to show that the evidence is insufficient standing alone to support jurisdiction because the evidence is unreliable under section 355. Even though parent's counsel knows that the child's statement will often be found admissible, the hearsay objection is expressly required to challenge the sufficiency of the evidence. Confrontational challenges should also be considered when the minor is found incompetent to testify.

Notice to Parents under Arlyne A. The due diligence requirements for social workers attempting to locate parents were strengthened in In re Arlyne A. (2000) 85 Cal.App.4th 591, a case from the Second District, Division 1. Here, the jurisdictional proceedings were heard in the absence of the father, who was not notified of the hearing. The social worker's due diligence showing consisted of consulting many sources, but ignored an address in Rialto provided in the original police report and by the parent and his attorney at the outset of the dependency proceedings. The appellate court ordered new jurisdictional and dispositional hearings on the grounds that the social workers had not used the means most likely to find the father.

Right to Be Present -- Imprisoned Parent. Penal Code section 2625 accords rights to prisoners in custody proceedings. In In re Axana S. (2000) 78 Cal.App.4th 262, the father was held by the Los Angeles County Sheriff who refused to comply with the court order to produce him pursuant to section 2625. After several continuances of the hearing, the court proceeded in his absence, eventually entering an order denying services. As the Fifth District's rationale for affirming was that the parent had not attempted to compel the sheriff to bring the parent to court, this case does not necessarily dispense with the parent's personal presence, but it imposes responsibilities on the parent to seek sanctions against the custodial agency. Although recent cases have documented the ways that parents' rights can be protected without ordering their personal presence (see, e.g., Hoversten v. Superior Court (1999) 74 Cal.App.4th 636), counsel should insist on the parent's personal presence and stress why that is necessary for a fair hearing.

Right to Be Present – Prosecutor. Do prosecutors have the right to be present at a dependency hearing when they do not represent a party? The answer is, "No," according to In re Dennis H. (2001) 88 Cal.App.4th 94. The interest in garnering evidence for a criminal prosecution is not enough because the prosecutor's presence at the hearing is not authorized.

Joinder of Third Parties. An amendment to Welfare and Institutions Code section 362 effective January 1, 2001, permits the juvenile court to join as parties private service providers as well as public agencies. But a recent case holds that a third party agency may not be joined unless it is alleged that it is not performing its legal responsibility. (Southard v. Superior Court (2000) 82 Cal.App.4th 729.)

Jurisdiction - Sufficiency of Evidence. Emotional Climate Cases. In In re Brison C. (2000) 81 Cal.App.4th 1373, a case arising out of an acrimonious divorce, the Fifth District stated that the juvenile court is not the appropriate forum for typical child custody disputes. During the divorce, the child became alienated toward the father and expressed suicidal ideation when it was suggested that he visit his father. The father admitted making negative remarks about the mother, which he later admitted were inappropriate. The Fifth District held that these facts alone were not enough to meet the jurisdictional standard of severe anxiety, depression, etc., or substantial probability of emotional harm set forth in In re Alexander K. (1993) 14 Cal.App.4th 549, for jurisdiction under Welfare and Institutions Code section 300, subdivision (c), where the minor showed no other symptoms of emotional distress. Later, in In re Rubisela E. (2000) 85 Cal.App.4th 177, the minor's suicidal ideation was found to satisfy the Alexander K. standard where the parents denied wrongdoing in a sexual abuse case. By comparison, the parents in Brison C. showed they had the ability to change their conduct.

Failure to Protect Cases. Similarly, in In re Nicholas B. (2001) 88 Cal.App.4th 1126, the Sixth District found that the pleading of under Welfare and Institutions Code, section 300, subdivision (b) was insufficient where a serious risk of present or future harm was neither alleged nor exemplified in the pleadings, and the link of causality was not shown (following In re Alysha S. (1996) 51 Cal.App.4th 393). Similarly, in In re Janet T. (2001) 93 Cal.App.4th 377, the Second District, Division Two, found insufficient pleading and proof to establish a substantial risk that the children would suffer serious emotional harm merely because the children had experienced some emotional problems and were not attending school.

Sexual Abuse Cases. Rubisela C., discussed above, also resolved a question under subdivisions (d) and (j) of whether the sexual abuse of one female child by the father provided a basis for jurisdiction as to all of the children in the home, including the male children. The appellate court noted that in a situation where the molest was shown to harm to the family dynamics as a whole, there would be grounds for jurisdiction as to all of the minors. Here, however, there was no specific evidence of that, so the evidence was found insufficient to support jurisdiction under a sexual abuse theory.

A related development is the recent expansion of the presumption under section 355.1 that a child is in need of dependency jurisdiction when a person who must register as a sexual offender under Penal Code section 290 resides with or has custody rights of that child. In In re John S. (2001) 88 Cal.App.4th 1140, the Third District interpreted this provision to include situations in which a section 290 registrant has visitation rights with the child.

Abandonment/Unavailability of Parent. New legislation effective January 1, 2001, addresses the situation where a person leaves an infant child at a hospital, reducing the sanctions out of the hope that infants will be left at a hospital rather than a less safe place. Under the new Health and Safety Code section 1255.7 the person taking custody of the infant must either grant a request for return of the infant or report the matter to Child Protective Services. And CPS must return the child within 14 days if no other conditions exist justifying juvenile court jurisdiction. This change is tracked by amendments to Welfare and Institutions Code sections 300, subdivision (g) and 361.5, subdivision (b), so that jurisdiction or denial of services will not be found based on these facts standing alone.

Disposition - Evidence Insufficient to Remove Children. In two recent decisions juvenile court orders placing children out of their parents' home were reversed for insufficient evidence of a risk of harm. In In re Jasmine G. (2000) 82 Cal.App.4th 282, jurisdiction was sustained due to the parents' use of corporal punishment, but the Fourth District, Division Three, found unsupported the social worker's opinion that the teenage daughter would be unsafe if returned to her parents' care merely because they had not completely disavowed corporal punishment. In response to the worker's statement that the parents seemed not to know what to do with a teenager, the court said, "Excuse us – but what parent doesn't that describe?" Like in Brison C., discussed above, the facts that the parents had attended parenting classes and the child did not fear the parents were determinative.

In the second case, In re Savannah B. (2000) 81 Cal.App.4th 158, the Sixth District followed the Third District's decision in In re Damonte A. (1997) 57 Cal.App.4th 894, that a juvenile court may not simultaneously remove children from their parents and place them back in the home on a trial placement, as that is inconsistent.

Disposition - Denial of Reunification Services. Services previously offered. Section 361.5, subdivision (b) continues to be a major area for litgation. The Legislature's recent listing of additional situations in which services need not be offered is often cited as a statement of legislative intent not to offer services in close or ambiguous situations. For example, the California Supreme Court construed then-existing subdivision (b)(10)(A)(previous reunification failure), in Renee J. v. Superior Court (2001) 26 Cal.4th 735, not to permit consideration of the parent's recent efforts at compliance. ("Consistent with this aim, we find it probable that the Legislature did not intend, in the case of a minor whose parent in connection with a prior dependency proceeding has already demonstrated an inability to benefit from services, to impose for denial of services an additional and arguably redundant requirement that the parent has made no reasonable effort to treat the underlying problem."). But, a few weeks later, the Legislature overruled Renee J. by rewriting subdivisions (b)(10) and (11) so that the parent's recent efforts can be considered by the court. This amendment was part of urgency legislation, so it took effect immediately on October 10, 2001, and may or may not control all non-final cases. (See, e.g., In re Marriage of Bouquet (1976) 16 Cal.3d 583.)

Prior rehabilitation resistance or failure. But the trend of the courts to disallow services continued in In re Brian M. (2000) 82 Cal.App.4th 1398, where subdivision (b)(12)(prior resistance to or failure in substance abuse treatment) was construed broadly to include the parent's prior failure to complete a 90-day drug rehabilitation program ordered as a condition of a grant of probation in a criminal case. This was "resistance to treatment" justifying a denial of services because the probation order was held to be the equivalent of a reunification order requiring the parent to enroll in a drug program.

Mental disability. But, surprisingly, the largest number of denial of services cases are decided under one of the oldest provisions, section 361.5, subdivision (b)(2), concerning parents who cannot benefit from services due to mental disability or disease. The Third District held in Curtis F. v. Superior Court (2000) 84 Cal.App.4th 872, a split decision, that although the opinions of two qualifying mental health professionals are needed before denying services to a parent on grounds of the parent's mental disease or disability, a juvenile court may deny services without both experts opining that the parent would not be able to benefit from the services. In other words, under Curtis F., a court can deny services to a parent under subdivision (b)(2) even though not even one mental health professional anywhere in the world is willing to say the person is unable to benefit, as long as there is some indication on the record that would support an expert so concluding. In my view, Curtis F. is vulnerable for the reasons stated in the dissent by Justice Sims: the requirement of two experts is a requirement that the experts render two opinions that the parent cannot benefit from services.

Two cases upheld denial of services under subdivision (b)(2) against procedural due process challenges. In the first case, Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, it was held acceptable for the social services agency to pursue, under a theory of newly discovered evidence, a section 388 petition asking the court to modify the dispositional order by denying services. Services had originally been ordered and it was later determined through evaluations of the parent that she would not benefit.

Similarly, in In re Diamond H. (2000) 82 Cal.App.4th 1127, the court held that it was acceptable for the court not to order services under (b)(2) even though the parents were notified at the detention hearing that there were time limitations on services (from which they may have implied that they would be receiving services) because they were informed prior to the jurisdiction that the proposed resolution of the case would not include services. [But neither Sheila S. nor Diamond H. should be interpreted as supporting social service departments in telling the parents at the jurisdictional hearing that they will be offered services and then reneging at the time of disposition -- this can and should be challenged as a violation of the parent's due process.]

Diamond H. also held that none of the protections under Americans with Disabilities Act (ADA), 42 U.S.C. 12101, were available to parents who were not being offered services on account of mental disability or disease.

Prisoners. Finally, the provision permitting discretionary denial of services to prisoners under (e)(1) was construed in Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, to apply to pre-trial detainees, as well as to sentenced prisoners.

Review Hearings - Right to Contested Hearing. Where opinions seemed increasingly to recognize the parents' rights to due process was in the right to demand a contested hearing at the time of a review hearing under Welfare and Institutions Code section 366.21. Following a similar decision issued the previous year in Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, the Third District in In re James Q. (2000) 81 Cal.App.4th 255, required a hearing without an offer of proof. The court held that since critical issues such as the termination of services are resolved on this occasion, a hearing is both constitutionally and statutorily mandated.

Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67, is inconsistent with James Q. in not requiring a contested review hearing on the mother's application for return of the children to her care. The Fourth District, Division One concluded that since services had been denied the mother at a previous hearing, she should be required to file a modification petition in order to obtain return of the children. However, the case was still in reunification as to the father, so the mother was not trying to change the case plan from permanency to reunification. Return of the children to the care of the parent is a critical issue at every review hearing pursuant to section 366.21. The Department's burden is to show why the children should not be returned. Although appellate counsel for parents should argue that James Q. rather than Kimberly H. is correct, and a hearing is required, trial counsel may conclude, out of an abundance of caution that it is best to pursue the section 388 petition.

Review Hearings - Termination of Jurisdiction. Not surprisingly, In re Jean B. (2000) 84 Cal.App.4th 1443, holds that a juvenile court may not terminate jurisdiction merely because a parent has wrongfully left the jurisdiction with the dependent child and warrants have not secured return of the child. In that situation, grounds for jurisdiction continue to exist.

Also effective in 2001 was an amendment to section 302, subdivision (d) providing that a family court may not modify a juvenile court "exit order" except upon making a finding of change of circumstances.

Review Hearings - Scheduling. In In re Christina A. (2001) 91 Cal.App.4th 1153, the Third District held that the hearing pursuant to section 366.21, subdivision (e) (the maximum presumptive time limit for services in cases of younger minors) is to be set within six months of the jurisdictional hearing held within 60 days of detention, and not six months from the date of disposition. As in Renee J., the ambiguity was resolved by the stated legislative preference for permanency in such cases.

Review Hearings - Visitation Pending section 366.26 hearing. The Third District held in In re Manolito L. (2001) 90 Cal.App.4th 753, that pending the section 366.26 hearing, parent child-visitation is to be ordered unless it is shown to be detrimental to the child, but the standard on that showing is a preponderance, not clear and convincing evidence. This standard meets federal due process standards and applies regardless of the type of hearing which set the section 366.26 hearing -- hearings under section 366.21, subdivision (h), 366.22, subdivision (c), or a hearing on a petition to modify under section 388.

Modification Petitions. Along with the usual large number of cases finding an insufficient showing made by parents for hearings on modification petitions seeking return of their children to their custody or reinstatement of reunification services 3, there were two decisions finding that the parents made an adequate showing for a hearing. The mother in In re Aljami D. (2000) 84 Cal.App.4th 424, had regularly participated in services and visited with her children, but failed to complete her reunification plan, and her children were placed in long term foster care in 1998. In 1999, she filed a petition for modification to permit two of the children to have a 60- day trial visit in her home. Her petition stated that she had completed the five programs that had been in her case plan. The petition was denied twice, the second time because there had not been enough change. The Second District held the denial of the petition was error in light of: 1) the parent's completion of the five courses; and 2) the children's express wishes to return home.

Similarly, in In re Daijah T. (2000) 83 Cal.App.4th 666, services had been terminated as to the one- and two-year-old children, but the mother had obtained return of three older children to her care. Her petition for modification also referred to her completion of a drug rehabilitation program, and mentioned the bonds between the five children. The juvenile court found there was an inadequate showing of changed circumstances and the best interests of the children. The
order was reversed on the grounds that the mother's successful completion of the program and the return of the other three children constituted a showing of a change of circumstances, unlike the situation in In re Baby Boy L. (1994) 24 Cal.App.4th 596, where the parent had only started drug rehabilitation. The strong sibling bonds among the children was enough of a showing of the best interests of the children to require a hearing. The author, Justice Sims, decried a tendency of Sacramento referees to erroneously deny parents a contested hearing, and commented, "This has got to stop.... Dependency proceedings are not simply a conveyor belt leading to permanency."

Finally, in In re Clifton V. (2001) the Second District, Division 7, held that the petition of the mother and the conflicting declarations of the caretakers created a credibility contest requiring a hearing. The court could not resolve this based upon the written documents.

Permanency Planning - Due Process Notice. There were several reversals of parental rights termination orders on the basis that the parents had been deprived of due process. One of the least controversial of these decisions was the decision to reverse the order terminating the parental rights of the mother in In re DeJohn B. (2000) 84 Cal.App.4th 100. Much like in Arlyne A., discussed earlier, the social services department had not made any real attempts to notify the mother of the hearing at which the section 366.26 hearing was set. Therefore, the court should have granted rehearing of the matter when so requested at the section 366.26. Therefore, the orders at both hearings were reversed.

Similarly, in In re Steven H. (2001) 86 Cal.App.4th 1023, a case in which the parents had not participated, the termination of parental rights was reversed for failure to notify the grandparents, as required by Welfare and Institutions Code section 366.23, subdivision (b)(5)(B), where the parent was served only by certified mail. The error was found prejudicial in light of the fact that the mother, herself a dependent and a teenager, had an ongoing relationship with the grandparent -- her mother.

Permanency Planning - Ineffective Assistance of Counsel. In In re Eileen A., a case previously mentioned in the section on minor's counsel, the Fourth District, Division Three, reversed an order terminating parental rights on the grounds that mother's counsel should have filed a petition under Welfare and Institutions Code, section 388 to modify by giving the mother services. She was originally denied services under section 361.5, subdivision (b)(5) due to the serious abuse of the five-year-old minor by the father. After disposition, the mother initiated divorce proceedings, attended parenting classes and Al-Anon, and began therapy. She took time off from work to attend the child's medical appointments. The bond between mother and child was strong; the foster parent did not want to adopt. In light of this evidence known to counsel, there was no possible tactical reason for not filing the section 388 petition; and the issue could be reached on direct appeal (distinguishing People v. Mendoza Tello (1997) 15 Cal.App.4th 264).
In In re Carrie M. (2001) 90 Cal.App.4th 530, the Second District held that the issue of ineffective assistance of counsel at the section 366.26 hearing was appropriately raised by a petition for writ of habeas corpus filed concurrently with the appeal from that hearing. In the unpublished portion the writ was denied on the merits.

Permanency Planning- Right to Self-Representation. The Third District held in In re Angel W. (2001) 93 Cal.App.4th 1174, that Welfare and Institutions Code section 317 guarantees a parent the statutory right of self-representation in a dependency case, but found the error harmless under the standard of People v. Watson (1956) 46 Cal.2d 818

Permanency Plans - Adoption. The sole reversal of a parental rights termination in the past two years for insufficient evidence of adoptability occurred in In re Jerome D. (2000) 84 Cal.App.4th 1200, a decision from the Fourth District, Division One. First, the fact that the adoption assessment failed to recognize the otherwise established facts that the mother and son had a firmly established relationship (e.g, she had alternating unsupervised and supervised visits right up to the date of the section 366.26 hearing) and that the child had a prosthetic eye showed that it did not provide clear and convincing support for the adoptability finding. Second, the absence of a "continuing relationship" exception (sec. 366.26, subd. (c)(1)(A)) was not established by clear and convincing evidence where the mother and child had lived together for six years, including the two months immediately prior to the hearing. A psychologist stated that the two had almost established a "primary bond." By contrast, the social worker's testimony that the mother was less than ideal was suspect in that it excused identical conduct by the caretaker 4.

Permanent Plans - Guardianship - Assessments. In In re Dakota S. (2000) 85 Cal.App.4th 494, the Third District found that an assessment had not been prepared as required by section 366.22, but also found that error harmless in light of the presence of other information in the record. The problem with this decision is its willingness to simply presume under the Evidence Code section 664 that all duties had been performed by the social worker in making the guardian aware of the legal and financial responsibilities where the appellate court at the same time found that legal duties had not been performed in preparing an assessment to that effect. Why even require preparation of an assessment, if all of its contents can simply be implied?

Paternity. Two recent decisions help biological fathers who take active roles in parenting and who act quickly to establish paternity 5. In Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, the Fourth District, Division Three reversed a summary paternity judgement arrived at by using Evidence Code section 621 conclusive marital cohabitation presumption. The court held that the unwed father had a due process liberty interest in parenting because he had an existing parent-child relationship at the time the paternity judgment was sought, a factor not present in Michael H. v. Gerald D. (1989) 491 U.S. 110, a case finding that the father had no due process interest.

Similarly, the Fourth District, Division 1, held in In re Liam L. (2000) 84 Cal.App.4th 786, that a father who signs a declaration of paternity at the time the child is born, as provided for in Family Code section 7570, gains presumed father status. The Legislature provided the declaration as a way for a parent to demonstrate that he is taking an active part in his child's life.

But a biological father, who fulfills the criteria of a presumed father, will not necessarily defeat the claim of a competing non-biological father who also qualifies for presumed father status. (In re Kiana A. (2001) 93 Cal.App.4th 1109.) The court weighs policy considerations.

Indian Child Welfare Act. Many attorneys believed that the Legislature's adoption of Welfare and Institutions Code section 360.6 in 1998 would resolve the debate in the courts over the "Existing Indian Family Doctrine" which only requires application of the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901, in cases in which the Indian Child has lived in an Indian home. There was a virtual even split in the courts exemplified by the recent decision of the Second District, Division Three applying the doctrine in In re Bridget R. (1996) 41 Cal.App.4th 1483, and the Fifth District rejecting it in In re Alicia S. (1998) 65 Cal.App.4th 79.

Section 360.6 essentially abolished the Doctrine. But, in In re Santos S. (2001) 92 Cal.App.4th 1274, the Second District, Division Two held -- much as had Bridget R -- that ICWA was unconstitutional as applied -- and added that section 360.6, was unconstitutional as well, making the Existing Indian Family Doctrine a strong candidate for high court review.

The courts are also split as to whether a failure to raise an objection to ICWA non-compliance waives the issue for purposes of appeal. In In re Marinna J. (2001) 90 Cal.App.4th 735, the Third District reversed a parental rights decision on the grounds that the family had mentioned Cherokee heritage of the child, and the social services department had not notified the three Cherokee tribes listed in the Federal Register, thereby failing to comply with the notice requirements of ICWA. The Third District noted that the amount of information provided was more than the vague information found not to invoke the notice requirements the previous year in In re Levi U. (2000) 78 Cal.App.4th 1991. The Third District also held that the party's failure to object below did not waive application of ICWA because the act was intended to protect the tribe's interests, not just the interests of the parties to the litigation. In so doing the Third District rejected In re Pedro N. (1995) 35 Cal.App.4th 183, holding to the contrary.

In two other cases, California courts refused to strictly enforce the language of ICWA. In re Letitia V. (2000) 81 Cal.App.4th 1009, holds that the reunification measures of ICWA did not require services in situations in which they were deemed futile under California law as set forth in subdivisions (b)(10) and (b)(12) of section 361.5. And, In re Matthew Z. (2000) 80 Cal.App.4th 545, holds that ICWA does not require a finding beyond a reasonable doubt of substantial risk of harm in returning the child to the parent where that finding had been made at the hearing in which the permanency planning hearing had been set.

Finally, in In re Laura F. (2000) 83 Cal.App.4th 583, Fifth District affirmed a juvenile court decision refusing to accord full faith and credit to a tribal resolution. So, although the ICWA has been in effect since 1978, its application is unclear in many respects.

Placement Issues. The Third District, encountering yet another conflict between state dependency law on placements and the provisions of the ICWA, attempted to reconcile them in In re Julian B. (2000) 82 Cal.App.4th 1337. Under Welfare and Institutions Code section 361.4, subdivision (d)(3) and Health and Safety Code section 1522, subdivision (g), the social services agency may not place a child with an unlicensed relative or guardian who has ever been convicted of a crime, except when a waiver has been obtained from the State Department of Social Services. As the relative in this ICWA case only had a 30-year-old conviction for driving under the influence, the Third District reversed the juvenile court's decision denying placement of the child with that relative, when the record did not show good cause for not applying for a waiver.

In other cases, it may be more difficult to obtain a placement with an unlicensed relative or guardian, as shown by Los Angeles Co. D.S.S. v. Superior Court (2001) 87 Cal.App.4th 1161, granting writ relief setting aside a placement with a relative. The relative had several substance abuse convictions and a recent conviction for driving under the influence, which justified the agency in not seeking a waiver.

The restrictions on placement do not prevent the court from ordering visitation with an unlicensed relative. (In re Emmanuel R. (2001) 94 Cal.App.4th 452.)

Guardians Ad Litem. This issue was litigated frequently in 2001. In In re Sarah D. (2001) 87 Cal.App.4th 661, the Fifth District held that before a guardian may be appointed to control the parent's dependency defense, the party must either be granted an informal hearing on whether the person understands the proceedings and can assist the court-appointed counsel for the parent, or there must be a consent to the appointment of the guardian ad litem. At a minimum, this requires an inquiry be made by the court when a request is made for appointment of a guardian ad litem. The Sixth District followed Sarah D. in In re Jessica G. (2001) 93 Cal.App.4th 1180, and noted that such a defect is not waived because in this context such a finding of waiver would violate the parent's due process.

Juvenile Court Records. The courts ruled on dissemination of juvenile court records in two recent cases. In re R.G. (2000) 79 Cal.App.4th 1408, was an application under Welfare and Institutions Code section 827 by a school district to disclose to the Commission on Teacher Credentialing records of a dependency case in which it was alleged that an elementary school teacher had sexually abused his daughters. In affirming the release of these records, the court found most important the fact that minors were represented by counsel and did not object, unlike In re Kiesha T. (1995) 38 Cal.App.4th 220, where the minors objected to disclosure of their case to the press.

In In re A.C. (2000) 80 Cal.App.4th 994, the petitions of a dependent child and two former dependent children under section 826.1 to delete their names from the file of another child, Shannon, who was still a dependent, were denied in light of the absence of notice to Shannon, and for good cause - their names were needed to make any sense of Shannon's file. Also, due to the conflict of interest of the applicant's attorney – their father – the juvenile court was barred from even considering the applications while the conflict existed.

Appeal/Writ Procedures. Final/Appealable Orders. A decision terminating parental rights is appealable immediately notwithstanding the court's purported stay of the order. The 60 day time limit for filing notice of appeal is not tolled during the stay. (In re Melvin A. (2000) 82 Cal.App.4th 1243.)

And, once the time period to appeal has run, the trial court is without jurisdiction to reinstate parental rights. (Los Angeles County Department of Children & Fam. Services v. Superior Court (2000) 83 Cal.App.4th 947.)

Notices of Appeal. As noted in the section on permanency planning hearings, In re Stephen H. holds that when the client did not receive notice of the permanency planning hearing, the attorney may file the notice of appeal from the hearing without any written authority from the client even though the client did not appear.

Parties to Appeal. The alleged biological father may not appeal an order terminating his parental rights unless he has first established his paternity. (In re Joseph G. (2000) 83 Cal.App.4th 712 [construing rule 1435(b)].)

Disentitlement. If the parent absconds with the child and remains in disobedience of a protective custody warrant, this may cause dismissal of an existing appeal. (In re Kamelia S. (2000) 82 Cal.App.4th 1224.

But, note that the mere act of absconding with a child does not abrogate all of the parent's rights. The juvenile court may not discharge counsel merely because the parent has absconded. This may constitute an improper deprivation of counsel where counsel is needed. (Katheryn S. v. Superior Court (2000) 82 Cal.App.4th 958.)

Standing. Under In re Caitlin B. (2000) 78 Cal.App.4th 1190, one parent does not have standing to assert the lack of notice to another parent because this does not effect the parent's own rights. Even though rule 1463(a) requires that rights of all possible parents be determined in a single proceeding, the lack of notice to one parent does create a remedy for the other. More recently, in In re Vincent S. (2001) 92 Cal.App.4th 1090, error under rule 1463 was found harmless as to the parent whose parental rights were first terminated.

The result was different in In re DeJohn B., discussed above as a reversal of a parental rights termination order as to the mother because she was not notifed of the six month review hearing. The court also reversed as to the father, who had not even participated in the case, distinguishing Caitlin B. on the ground that here the review hearing orders were reversed, greatly increasing the scope of the reversal. There was no reason to leave the children without a father.

Also, In re Clifton B., discussed above in the section on minors, restated the rule that the parent has standing to contest the effective assistance of the minor's counsel.

Mootness. As discussed above in the section on review hearings, the Third District resolved in In re Christina A. the question of when the six-month review hearing should be set even though that date had passed by the time the appeal was resolved. This was decided as one of "continuing public importance."

But the far more typical result occurred in In re Jessica K. (2000) 79 Cal.App.4th 1313, where the mother's appeal of the denial of a section 388 petition was dismissed after she had failed to timely appeal the termination of her parental rights. Although the record does not indicate why there was no appeal in this case, Jessica K. serves as a reminder of two important things that should be done to avoid mootness: 1) expedite the current appeal or writ; and 2) ensure continued objections and appeals from subsequent orders.

Waiver/Failure to Object/Failure to File rule 39.1B Writ. Waiver is often a bar to raising issues on appeal. (In re Jesse W. (2001) 93 Cal.App.4th 349.) However, when there has been a deprivation of effective assistance of counsel or a lack of due process notice at the section 366.26 hearing or the setting hearing, there may be a remedy, as discussed in the cases discussed above, including Katheryn S., Clifton B., DeJohn B., Eileen A., and Jessica G.

Taking Evidence on Appeal. Previously most requests that I have seen were made under provisions of Code of Civil Procedure section 909. Now, under Zeth S., the declarations of minor's counsel under rules 23 and 41 will likely become more common.

Stipulations. In re Rashad H. (2000) 85 Cal.App.4th 376, discusses the contents of stipulated reversals mandated by Code of Civil Procedure section 128.5. The parties must set forth the strong public interest that will be fostered by the reversal.

Use of Habeas Corpus as a Remedy. In Katheryn S., the court deemed an untimely filed rule 39.1B writ constituted a petition for writ of habeas corpus and granted relief.

Also, in In re Carrie M., previously discussed in the permanency planning section, the Second District permitted the filing of petition for writ of habeas corpus concurrently with the filing of the notice of appeal from the section 366.26 hearing to challenge the effective assistance of trial counsel for the parent at the section 366.26 hearing. The Second District reconciled its opinion with that of the Fifth District opinion in In re Meranda P. (1997) 56 Cal.App.4th 1143, by noting that this petition challenged the activity of counsel at the section 366.26 hearing which hearing was also the subject of a non-final judgment, unlike the contentions made in Meranda P., which concerned final orders made in previous hearings that were no longer subject to appeal.

1 This article attempts to summarize the dependency cases from January 1, 2000, to December 31, 2001, but some of the more recent cases may have evaded capture. Also, counsel are advised to check the finality of all opinions cited.

2 The amendments to section 366.26 took effect on January 1, 2002. Unless otherwise stated, all other enactments mentioned in this article took effect on January 1, 2001.

3 Hearings were held to have been properly denied in In re Zachary G. (1999) 77 Cal.App.4th 799; In re Clifton B. (2000) 81 Cal.App.4th 415; and In re Anthony W. (2001) 87 Cal.App.4th 246.

4 Standard section 366.26 affirmances included In re Zachary G. (1999) 77 Cal.App.4th 799 [accepting the juvenile court's decision to give more weight to the testimony of the social worker than that of the psychiatrist]; In re Clifton B., supra; In re Lukas B., supra.

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On the other hand, fathers who did not bring children into their home or otherwise act to protect their rights did not fare well. (See, e.g., Glen C. v. Superior Court (2000) 78 Cal.App.4th 570; In re Aaron H. (2000) 84 Cal.App.4th 786.)

 

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