February 2018 Update
Assessment of Relative and Nonrelative Extended Family Member (NREFM)
In 2017, the legislature continued with its ongoing effort to streamline the approval process for all families seeking to care for a child, and made further technical, clarifying, and conforming changes to the resource family approval program (RFA) (Welf & I C §§16519.5–16519.62). A five-county pilot that provides upfront training and assessment of families seeking to parent children was expanded statewide. A resource family can be an emergency, temporary, and/or permanent family for a youth.
Emergency placements require an assessment under Welf & I C §361.4, as amended by Stats 2017, ch 733, §3.2, whether predisposition (see Welf & I C §309(d)(1)), i.e., pending the detention hearing or after the detention hearing and pending the dispositional hearing, or at the detention hearing (see Welf & I C §319(f)); post-disposition (see Welf & I C §361.45(a)); or at disposition (see Welf & I C §361.3(a)(8)(A)).
Under Welf & I C §361.4, the social worker is required to run both a criminal records check and conduct a check of allegations of prior child abuse before the child may be placed with a relative or NREFM. See §§2.28, 2.80, 2.81, 12.29, 14.85.
Following emergency placement, the county welfare department must evaluate the home according to Welf & I C §16519.5 (resource family approval process) and initiate the home environment assessments no later than 5 business days after the placement. Welf & I C §§309(d)(2), 361.45(b), 361.3(a)(5). The relative or NREFM must submit an application for approval as a resource family. See §§5.37A, 5.40.
At disposition, a child cannot be placed with a relative if the relative or any individual residing in the relative’s home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect, unless the county has granted a criminal record exemption. Welf & I C §§361.3(a)(5), 16519.5(d)(2). See §§5.38, 5.40, 9.28. An exemption may be granted on “substantial and convincing evidence to support a reasonable belief that the applicant or the person convicted of the crime if other than the applicant, is of present good character necessary to justify the granting of an exemption.” Health & S C §1522(g)(2)(B); Welf & I C §16519.5(d)(2)(A)(iv). See §5.41.
Relatives who are given preferential consideration for the placement of the child are the persons listed in Welf & I C §361.3(c)(2), as amended by Stats 2017, ch 732, §47; i.e., an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words “great,” “great-great,” or “grand,” or the spouse of any of these persons even if the marriage was terminated by death or dissolution. The former limitation to give preferential consideration only to grandparents, aunt, uncle, or sibling has been eliminated. See §5.37.
Appeals and Writs
Trial court’s failure to give oral writ advisement as required by Cal Rules of Ct 5.590(b)(1) did not render the advisement invalid; the oral advisement requirement was directory only. In re Hannah D. (2017) 9 CA5th 662, 681. See §§8.4, 8.20, 10.6.
A “Judge’s Perspective” has been added to warn about a common mistake in filing the writ to preserve the appeal before all parents’ reunification services are terminated. Sometimes the court terminates one parent’s reunification services and continues to order reunification services to another parent. In this instance, it is premature to file the writ. See Cal Rules of Ct 8.450(f). See §§8.4, 8.20.
The California Supreme Court has held that the continuing nature of the juvenile court’s duty to inquire into a child’s Indian status means that the court has a present duty to inquire, even when it has previously found that the Indian Child Welfare Act of 1978 (ICWA) does not apply. In re Isaiah W. (2016) 1 C5th 1, 14. Thus, the parent’s inaction does not constitute a waiver or otherwise preclude appellate review. See §10.34. See also §§9.12, 9.47.
California Rules of Court 8.70–8.79, amended effective January 1, 2017, mandate electronic filing or electronic submission of documents. As of October 30, 2017, all appellate courts require electronic filing of all documents unless an exemption is ordered. See §§10.103, 10.117.
If a child did not reside with parents at the time petition was initiated, a dependent child shall not be taken from the physical custody of the child’s parents with whom the child did not reside at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent to live with the child or otherwise exercise the parent’s right to physical custody, and there are no reasonable means by which the child’s physical and emotional health can be protected without removing the child from the child’s parent’s physical custody. New Welf & I C §361(d), added by Stats 2017, ch 829, §4.5. See §5.32.
Electronic Filing and Service; Electronic Notice
The legislature added Welf & I C §212.5 to gather in one place how a document in a juvenile court matter may be filed and served electronically. Stats 2017, ch 319, §108. A party who consents to electronic service according to Welf & I C §212.5 must designate for the court the party’s electronic service address. Welf & I C §316.1(b). The court must advise each party who has consented to electronic service according to Welf & I C §212.5 that the designated electronic service address will be used by the court and the social services agency for purposes of providing notice pursuant to Welf & I C §§291, 292, 293, 294, 295, 297, and 342, unless and until the party notifies the court or the social services agency of a new electronic service address in writing or unless the party withdraws consent to electronic service. Welf & I C §316.1(b). See §4.10. See also §§3.21, 8.16, 14.60, 14.49.
Written notice of the detention or initial hearing may not be served by e-mail. Welf & I C §§290.1(f), 290.2(c)(3).
If the court has reason to know that an Indian child is involved, notice must be given in accordance with Welf & I C §224.2, which also does not provide for service by electronic mail. Welf & I C §§290.1(g), 290.2(e). See §§2.32, 3.19, 8.16, 9.17.
Electronic service of notice of jurisdictional hearing may be possible under Welf & I C §212.5, as discussed in §3.21. See also §3.30.
If the parents are present when the court sets the Welf & I C §366.26 hearing, the court must order them to appear for the §366.26 hearing and direct that the parent be notified thereafter only by first-class mail to the parents’ usual place of residence or business or by electronic service according to Welf & I C §212.5. See §§6.27, 8.16, 14.66.
If the notice is for a hearing at which the social worker will recommend termination of parental rights, electronic service may be used only in addition to service of the notice by first-class mail. Welf & I C §§294(m), 366.26(l)(3)(A)(ii). See §§8.16, 10.97.
Notice of continuances of a Welf & I C §366.26 selection and implementation hearing may be by first-class mail to the person’s last known address, or electronic service according to Welf & I C §212.5. See §8.18.
Notice and copy of supplemental report can be done by first-class mail to the last known address of the person to be served notice, by personal service, or by electronic service according to Welf & I C §212.5. Welf & I C §366.21. See §6.5.
A subsequent petition filed according to Welf & I C §342 must be served according to Welf & I C §§290.1 and 290.2, except that service of notice may be delivered by electronic service according to Welf & I C §212.5. Welf & I C §297(a). See §6.5.
On the filing of a supplemental petition, the social worker must give notice to the persons and in the manner described in Welf & I C §§290.1, 290.2, and 291, except that service may be delivered by electronic service according to Welf & I C §212.5. Welf & I C §§297(b), 387(d). See §7.14.
Service of notice of the 6-month review hearing by first-class mail to the person’s “last known address” is sufficient, as is personal service or electronic service according to Welf & I C §212.5. See §6.5.
The Bureau of Indian Affairs (BIA) regulations (25 CFR §§23.101–23.144) became effective on December 12, 2016. The regulations apply to any child custody proceeding initiated on or after December 12, 2016, even if the child has already undergone child custody proceedings prior to that date to which the regulation did not apply. See §9.1. In December 2016, the BIA also issued revised Guidelines for Implementing the Child Welfare Act (Dec. 2016). The 2016 guidelines replace the 1979 and 2015 versions of the BIA’s guidelines. See §9.4. Chapter 9 has been updated throughout to reflect both these developments. For example, a qualified expert witness “should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe.” 25 CFR §23.122(a). BIA Guidelines G.2 states: “Congress wanted to make sure that Indian child-welfare determinations are not based on ‘a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.’” See §9.44.
The California Supreme Court has held that the continuing nature of the juvenile court’s duty to inquire into a child’s Indian status means that the court has a present duty to inquire, even when it has previously found that ICWA does not apply. In re Isaiah W. (2016) 1 C5th 1. Thus, the parent’s inaction does not constitute a waiver or otherwise preclude appellate review. See §10.34. See also §§9.12, 9.47.
If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court must treat the child as an Indian child unless and until it makes a determination on the record that the child does meet the definition of an Indian child. 25 CFR §23.107(b)(2). See §9.12. See, for example:
In re Michael V. (2016) 3 CA5th 225 (department made no effort to locate maternal grandmother after mother reported grandmother was full-blooded Indian); see §9.12.
In re J.L. (2017) 10 CA5th 913 (when mother did not know whether she had American Indian heritage of any kind, could not name relatives who might have such heritage, and had heard only “general or vague” reference to possible heritage, further inquiry deemed unnecessary); see §9.12.
New cases discussing ICWA notice include
In re O.C. (2017) 5 CA5th 1173 (noncompliance with ICWA notice requirements when notice was sent to only two of 22 Pomo-affiliated tribes); see §9.16.
In re Breanna S. (2017) 8 CA5th 636 (not harmless error when agency violated requirements of federal and state law regarding content of ICWA notice by omitting information regarding relative who had affirmatively been identified as Yaqui Indian); see §9.21.
Initiation of Dependency Proceedings; Sufficiency of Petition
For a juvenile court to obtain dependency jurisdiction over a minor, it is not sufficient for the dependency petition to be filed before the minor’s 18th birthday; the jurisdictional hearing must occur before that date. In re David B. (2017) 12 CA5th 633. See §§3.20, 4.1, 4.4.
In In re R.T. (2017) 3 C5th 622, the California Supreme Court held that Welf & I C §300(b)(1), first clause (failure or inability to adequately supervise and protect the child), could be used to find dependency over a child “without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child.” 3 C5th at 624. This holding overturned the precedent established by a 2010 Court of Appeal ruling in In re Precious D. (2010) 189 CA4th 1251, which came to the opposite conclusion on due process grounds regarding the same section. See §3.9. See also §§1.3, 3.1, 11.57.
In In re Alexander P. (2016) 4 CA5th 475, 486, the appellate court set aside the dependency court’s order designating three men as presumed fathers as to one man because the trial court had relied on a void family court order issued after the dependency petition was filed, vesting dependency court with exclusive jurisdiction under Welf & I C §316.2 over all issues regarding parentage. However, the court’s finding of detriment under Fam C §7612 as to the third presumed father was upheld. See §2.55.
In In re L.L. (2017) 13 CA5th 1302, the appellate held that the trial court misapplied the detriment standard when it found it would not be detrimental for the child to add a third parent. See §11.40.
In County of Orange v Cole (2017) 14 CA5th 504, the appellate court addressed the interplay between Fam C §§7611(d) and 7613 (legal responsibilities of sperm donor) and held, based on the evidence in the case, that a sperm donor was a presumed parent. See §11.38.
Several appellate cases addressed under which circumstances the denial of reunification services was reasonable:
In re Korbin Z. (2016) 3 CA5th 511 (father whose whereabouts did not become known until 20 months after minor’s removal from mother was not entitled to reunification services and had no right to visitation); see §§5.51, 5.78.
In re Z.G. (2016) 5 CA5th 705 (insufficient evidence to support finding reunification was in best interests of siblings after death of infant); see §5.54.
In re A.G. (2017) 12 CA5th 994 (father’s arrest and deportation alone do not render agency’s failure to provide court-ordered reunification services reasonable); see §§5.70, 6.23.
In re T.W.-1 (2017) 9 CA5th 339 (no reasonable services when case plan failed to identify any service providers and placed burden on father to locate services); see §6.10.
Jennifer S. v Superior Court of San Francisco (2017) 15 CA5th 1113 (appellate court gives some directions on what social worker report should include for “bypass” cases when there was prior termination of reunification services or parental rights for siblings: Child welfare workers must focus on facts underlying previous dependency action and its resolution, as well as on any efforts made by parent since sibling removal); see §14.52.
In re T.M. (2017) 4 CA5th 1214 (Welf & I C §362.1 authorizes denial of visitation on finding of threat to minor’s emotional well-being, noting split of authority; In re Matthew C. (2017) 9 CA5th 1090, citing reasoning in In re T.M. to affirm order requiring mother show progress on issues before allowing visitation with traumatized infant); see §§5.77, 6.11.
M.C. v Superior Court (2016) 3 CA5th 838 (trial court did not have discretion to terminate services at 6-month reunification hearing; 6- and 12-month reunification periods are mandatory and can be cut short only by procedure set out in Welf & I C §388 or findings made under Welf & I C §361.5(a)(2)); see §6.21.
N.M. v Superior Court (2016) 5 CA5th 796 (1991 amendment to Welf & I C §366.22 deleted requirement of reasonable services finding as a precondition to a court’s setting a Welf & I C §366.26 hearing); see §6.25.
A noticed hearing is required for removal of child. See In re C.M. (Sept. 15, 2017, D072056) 2017 Cal App Lexis 798 (juvenile court erred when it issued conditional removal order—to immediately remove child from mother’s care if there was any evidence that child had been exposed to stepfather—due process required supplemental petition for removal order). See §§7.9, 7.12.
Termination of parental rights: Sibling exception
In In re J.S. (2017) 10 CA5th 1071, the appellate case held that due process principles were violated when the mother was prevented from testifying about the minor’s relationship with a sibling. See §8.37.