Review the most recent legal developments in dependency case law. Our talented in-house Writ Team provides an in-depth analysis on In re F.V., In re P.L., F.K. v. Sup. Ct., In re Ca.M,
In re F.V.—published 3/5/2024; Second Dist., Div. One
Docket No. B329192; 100 Cal.App.5th 219
Link to Case: https://www.courts.ca.gov/opinions/documents/B329192.PDF
PREVIOUS ACTS OF NEGLIGENCE, STANDING ALONE, DO NOT
ESTABLISH SUBSTANTIAL RISK OF HARM PURSUANT TO SECTION
300, SUBDIVISION (B); THERE MUST BE SOME REASON BEYOND
MERE SPECULATION TO BELIEVE THEY WILL REOCCUR.
F.V., a 10-year-old child, entered the United States alone from Honduras.
Initially, she was traveling with her father, but they were unable to cross
together. After crossing alone, she was apprehended by immigration
authorities and placed with her maternal uncle in California. Mother
consented to the placement. Father entered the United States at a later date
but resided in Texas. During a video call, F.V. told mother the maternal uncle
had sexually abused her. Mother called another relative in California and
asked her to call the police. Due to the reported sexual abuse, a section 300,
subdivision (b) and (d) petition was filed on behalf of F.V. Mother and father
were alleged to have, “placed the child in a detrimental and endangering
situation by allowing the child to come to the United States from Honduras
unaccompanied … [resulting in the child being sexually abused].” Mother
denied being aware of the sexual abuse until F.V. told her. Father was
unaware of the sexual abuse until dependency proceedings were initiated.
Mother wanted F.V. to be returned to her in Honduras. Father preferred the
child be returned to mother but was also willing to have F.V. placed with him
in Texas. F.V. expressed wanting to return to mother but did not want to be
placed with father. The juvenile court sustained the section 300, subdivision
(b), allegation and dismissed the section 300, subdivision (d), allegation.
Reunification services were offered to both parents and F.V. was removed and
suitably placed in foster care. Father timely appealed.
Reversed. Under section 300, subdivision (b), previous acts of neglect,
standing alone, do not establish a substantial risk of harm; there must be
some reason beyond mere speculation to believe they will reoccur. Whatever a
parent’s past mistakes, jurisdiction is proper only upon a showing of
substantial risk of future harm. There was no evidence that the harm F.V.
suffered following her entry into the United States would recur. At the time
of the jurisdiction hearing, F.V. was no longer in maternal uncle’s custody.
There was no indication mother or father would allow maternal uncle access
to F.V. in the future. Further, there was no indication either parent knew the
maternal uncle was a sexual abuser and, when F.V. disclosed the abuse,
mother took appropriate action to protect the child. There was also no
evidence to suggest the parents would send F.V. into the United States alone
again. Father resided in Texas and Mother wanted F.V. returned to her in
Honduras. (MO)
In re P.L.—published 3/7/24; Fourth Dist., Div. One
Docket Nos. D082723, D082853; 100 Cal.App.5th 406
Link to case: https://www.courts.ca.gov/opinions/documents/D082723.PDF
FATHER FORFEITED ANY CHALLENGE TO VISITATION ORDERS
MADE AT DETENTION AND DISPOSITION; REGARDLESS, THE TRIAL
COURT’S ORDER ALLOWING THE CHILDREN TO DECLINE
VISITATION WAS NOT AN ABUSE OF DISCRETION WHEN THE
ORDERS WERE TEMPORARY IN NATURE.
The agency filed a petition under subdivision (a) of section 300 alleging that
father punched P.L. in the eye. At the detention hearing, the court ordered
father to have supervised visitation but that the children P.L. and L.L.’s
wishes be taken into consideration on whether the visits would go forward.
Father did not object. Over the next three hearings, including the
jurisdiction and disposition trial, father raised no issue with the visitation
order or the lack of visits. At disposition, the court ordered father to have
supervised visitation and gave the agency the discretion to liberalize the
visitation with the concurrence of minors’ counsel; the minors continued to
refuse to visit. At a special hearing after disposition, the court granted
mother’s request to move to Texas with the children. Father objected to the
mother moving to Texas but did not make any objection to the existing
visitation order. Father appealed from both the disposition and the special
hearing allowing mother to move. The Court of Appeal consolidated father’s
appeals.
Affirmed. By failing to object to the visitation orders in the juvenile court,
father forfeited any challenge on appeal. A reviewing court will ordinarily
not consider a challenge to an order if an objection was not made in the trial
court. Father failed to raise an issue with visitation at any of the hearings at
which he appeared, forfeiting his ability to challenge the visitation orders.
Even if father had preserved his objections, the trial court did not abuse its
discretion in allowing the children’s wishes to be considered regarding
visitation. At detention, the situation is fluid, all the facts are not known,
and the orders are temporary. If the father was unhappy because the
children still refused visitation after disposition, it was incumbent upon
father to raise the issue with the court; the court does not have a sua sponte
burden to address the issue of the children refusing to visit. (DS)
F.K. v. Sup. Ct.—published 3/18/24; Second Dist., Div. Six
Docket No. B333788; 100 Cal.App.5th 928
Link to case: https://www.courts.ca.gov/opinions/documents/B333788.PDF
AT A SECTION 366.21(E) HEARING CONCERNING A CHILD UNDER
THE AGE OF THREE, CONSIDERATION OF THE FACTORS UNDER
SECTION 366.21(G) IS IMPROPER AS THE JUVENILE COURT SHOULD
TAKE INTO ACCOUNT ALL EVIDENCE IN DETERMINING WHETHER
IT HAS THE DISCRETION TO EXTEND REUNIFICATION SERVICES
FOR AN ADDITIONAL SIX MONTHS.
The agency filed a petition concerning 18-month-old A.R. and older sibling
B.T. due to mother F.K.’s chronic alcohol use, ongoing domestic violence
between mother and A.R.’s father, and mother’s physical abuse of B.T. B.T.’s
case closed at Disposition after the juvenile court placed B.T. with her father.
However, the juvenile court removed A.R. from mother and ordered family
reunification services. For the six-month review hearing pursuant to section
366.21(e), the agency reported mother was consistent with her monitored
visits, had completed a domestic violence program, and was enrolled in and
consistently attending a substance abuse program and individual counseling.
Both the director of the domestic violence program and mother’s therapist
stated mother had demonstrated insight and understanding with regard to
her issues. Mother also had multiple negative drug tests during this period,
although she also had one diluted sample and two missed tests. For the two
missed tests, she tested the next day, testing negative. However, agency
social workers reported when mother spoke to them, mother denied having
an alcohol problem, could not articulate how her children were harmed by her
actions, and refused to discuss a relapse plan. At the section 366.21(e)
hearing, mother testified that she drank to cope with her grief after A.R.’s
twin sister passed away shortly after birth and acknowledged that her
children were removed because of her alcohol abuse. Mother also testified
she spoke with her sponsor every day, was now employed full time, and had
secured housing for herself and A.R. The juvenile court terminated mother’s
reunification services and set a section 366.26 hearing. The court found
mother’s admission of an alcohol problem was a “hail mary at this late stage”
and the court did not have discretion to grant more services because mother
had not demonstrated substantial compliance with the case plan pursuant to
the factors enumerated in section 366.21(g). Mother, representing herself in
pro per, appealed through a petition for extraordinary writ.
Mother’s petition for extraordinary writ is granted; the juvenile court’s order
setting a section 366.26 hearing is vacated and the juvenile court is
instructed to conduct a new hearing pursuant to section 366.21(e). The
juvenile court erred in terminating mother’s reunification services at the sixmonth hearing because when a child is under the age of three, section
366.21(e) expressly places discretion with the juvenile court in determining
whether to set a section 366.26 hearing even if a parent has not complied
with their court-ordered treatment plan. This differs substantially from the
juvenile court’s ability to extend reunification services at the 12-month
permanency hearing. At a 12-month hearing, the juvenile court can only
extend reunification services if it finds a substantial probability exists that
the child will be returned to a parent. Section 366.21(g) states the trial court
must make three factual findings in order to find substantial probability at
the 12-month hearing: the parent has (1) “consistently and regularly
contacted and visited with the child,” (2) “made significant progress in
resolving problems that led to the child’s removal from the home,” and (3)
“demonstrated the capacity and ability both to complete the objectives of
their treatment plan” and provide for the child’s needs. However, the
juvenile court in this case erroneously believed its discretion to extend
reunification services for mother was limited by section 366.21(g). The
agency may have also contributed to this error by stating in the report that
the juvenile court was required to consider the factors in section 366.21(g).
Instead, the juvenile court should have weighed all available evidence in
determining whether to exercise its discretion to extend services. This error
was also not harmless as mother did “virtually everything she was ordered to
do.” Mother’s isolated incidents of alcohol use and missed tests do not
constitute clear and convincing evidence of a lack of progress by her.
Reunification services should be terminated at the six-month review hearing
only if parental unfitness is well established. (SW)
In re Ca.M.—filed 03/18/2024; Second Appellate Dist., Div. Five
Docket No. B326320; 100 Cal.App.5th 938
Link to Case: https://www.courts.ca.gov/opinions/documents/B326320.PDF
SO LONG AS ANY ONE OF THE JURISDICTIONAL FINDINGS AGAINST
A PARENT IS SUPPORTED BY SUFFICIENT EVIDENCE – WHETHER
CHALLENGED BY THE PARENT OR NOT, THE OTHER FINDINGS
AGAINST THAT PARENT NEED NOT BE CONSIDERED AND
JURISDICTION CAN BE AFFIRMED.
The agency removed minors (ages 8, 5, 3, 2, and 4 months) from parents,
after father punched mother in the face while driving under the influence
with mother and four minors in the car. The petition alleged multiple counts,
including parents’ history of violent altercations and mother’s failure to
protect the children and father driving under the influence and mother’s
failure to protect. In the agency’s report, Ca.M. stated that he had seen father
hit mother multiple times, and he had seen father drive drunk on multiple
occasions. Ca.M. and Ch.M. stated that father scared them, especially when
he was drunk. Mother admitted that she knew father had previously been
arrested for driving under the influence. At the jurisdiction hearing, the court
accepted father’s no contest plea to the allegations. After argument, the court
sustained all counts against mother. The court ordered minors removed from
parents. Mother appealed, challenging only the finding that mother failed to
protect minors from father’s acts of domestic violence and the removal order.
Affirmed. The court agrees with In re I.J. (2013) 56 Cal.4th 766 in which the
Supreme Court explained, “When a dependency petition alleges multiple
grounds for its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s finding of
jurisdiction over the minor if any one of the statutory bases for jurisdiction
that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the
other alleged statutory grounds for jurisdiction are supported by the
evidence.”’ (Id. at 773.) Here, there is ample evidence to support the finding
that mother failed to protect minors from father’s alcohol abuse, including his
driving under the influence. Ca.M. described seeing father drive drunk on
multiple occasions, and Ch.M. reported that father drank beer all day long.
Father had previously been arrested for driving under the influence, of which
mother was aware. Mother smelled alcohol on father before she and minors
got in the car with him. Because sufficient evidence supports the finding that
mother failed to protect from father’s alcohol abuse, the court need not
discuss mother’s challenge to the domestic violence count. The orders are
affirmed. (AMC)