Juvenile Courts & the Dependency System

Juvenile Courts & the Dependency System

Hon. Amy M. Pellman

Family Court vs. Juvenile Court

Juvenile Courts & the Dependency System

Family Court vs. Juvenile Court

In re Chantal S. (1996) 13 Cal.4th 196

Family Court

Part of the Superior Court System

Not a separate court

Litigation under the Family Code

Purposes of the Family Court

Provides parents with a forum for legal issues governed by the Family Code

Allows parents to resolve private issues relating to their family

oCustody

oVisitation

oProperty

oSupport (Child & Spousal)

Chantal S. (cont’d)

Juvenile Court

A Superior Court exercising limited jurisdiction under juvenile law

Separate from the general Superior Court System

oHandles dependency proceedings

oGoverned by the Welfare and Institutions Code (W&I C)

Chantal S. (cont’d)

Purposes of Juvenile Court

Protection and safety of children

Parens patriae

oRestrict parental behavior

oRemove children from unsafe homes

oGive children a sense of permanence

oProvide active leadership in the community

Juvenile Court

Some Overlap

Pre-Dependency

Juvenile Courts & the Dependency System

Pre-Dependency

Referrals

Child Abuse Hotline: 1-800-4-A-CHILD

Relative

Family friend

Mandated reporter

Emergency Response

Calls go to a child abuse hotline CSW

Assess the safety risk

Weed out inappropriate calls

Child custody

Parent/teenage conflict

Head lice on child

Pregnant teen

Poverty/lack of emergency shelter

Pre-Removal Responsibilities

Reasonable efforts to prevent removal

Conduct a formal investigation

Voluntary agreements

Child abuse based on Penal Code not Welfare and Institutions Code definitions

Voluntary Family Maintenance (VFM) Contracts

Voluntary contracts

Child is safe at home with services

Valid for 6 months but renewable

Includes a case plan for parents

See W&I C 16507.3 et seq.

Voluntary Family Reunification (VFR) Contracts

Children are voluntarily placed with approved relative, family friend, or foster care provider

Valid for up to 180 days

Includes a case plan for parents with reunification services

See W&I C 16507.3 et seq.

Classifications of Allegations

PC 11165.12

Substantiated

oMore likely than not that child abuse or neglect occurred

Inconclusive or unsubstantiated

oInsufficient evidence to determine abuse or neglect

Unfounded

oFalse, improbable, or accidental

Child Abuse Central Index (CACI)

Database of reports of suspected child abuse and severe neglect as defined by PC 11170(a)(2)

Handled by the DSS for the DOJ

DCFS will submit all substantiated reports

Parents must be cautious about submitting to jurisdiction of Juvenile Court

Consequences of CACI

Child Abuse and Neglect Reporting Act: Information is available to a variety of third parties

DSS or any county licensing agency that has contracted with the state

Available for pre-employment background investigations

Some out of state agencies

The Dependency System

Juvenile Courts & the Dependency System

Stages of Dependency: Part I

Stages of Dependency: Part II

W&I C 827.10: Confidentiality

Dependency records and proceedings are confidential

Who has access to the files?

Family and Probate Courts

Judicial officers

Parents and their legal counsel

Tribes, under W&I C 827(f)

RDPs under Fam C 297.5(a), (d)

Petition and Detention

The petition is a legal document by which the court bases it jurisdiction

Detention hearing

In the petition the County must establish prima facie case plus evidence of risk of harm

All parties are entitled to legal representation

Detentions (cont'd)

Parties are advised of allegations and rights

If jurisdiction is proper

DCFS must place the child with a relative, non-relative extended family member, or foster home

NEW LAW requires the court to consider placing child with parent who is in a certified substance abuse program that allows children [W&I C 319]

In re Nicholas E. (2015) 236 Cal.App.4th 458

Placement With a Relative

If child is not already placed with a relative, but a relative is available, the court will consider

The moral character of the relative, including criminal convictions

Certain criminal convictions may be exempted and others may not

The ability of the relative to provide for the child's safety and well-being

Siblings

In re Isabella G. (2016)246 Cal.App.4th 708

Indian Child Welfare Act (ICWA)

Establishes minimum federal standards for the placement of American Indian children

Child must be member or have a parent who is a member of a federally recognized tribe and also be eligible

Requires a higher level of proof for placement in foster care and the termination of parental rights

Case may be transferred to Tribal Court

InreAbbigailA. (2016)1 Cal.5th 83

Inre Isaiah W. (2016)1 Cal.5th 1

Visitation Orders

If the child is detained, multiple options for parental visitation are available if they are in the child's best interest

Monitored visits

Monitored visits in a neutral setting

Unmonitored/reasonable visits

Weekend/overnight visits

Jurisdictional Hearing

Juvenile Courts have jurisdiction over children who satisfy the requirements under W&I C 300 (a)-(j)

30 days after the filing of the first petition

Will determine whether the allegations under W&I C 300 are true

Preponderance of the evidence

Consider social study reports, and testimony of parties

W&I C 300(a): Intentional Harm

Child suffered, or there is a substantial risk that they will suffer, serious physical harm inflicted non accidentally

Will consider

Past injuries inflicted by the parent or guardian that were not serious enough for jurisdiction

History of repeated inflictions of injury

Domestic violence that places child in a situation with a substantial risk of harm

W&I C 300(b): Negligent Harm

Child has suffered, or there is a substantial risk that they will suffer, serious physical harm or illness as a result of inadequate supervision

Failure to protect the child from the conduct of a custodian

Failure to provide adequate food, shelter, or medical treatment

Inability to provide care for mental illness, developmental disability, or substance abuse

W&I C 300(b): Negligent Harm (cont’d)

Domestic Violence

Physical violence between parents may support jurisdiction under subdivision (b)

But only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm

In re T.V. (2013) 217 Cal.App.4th 126

In re John M. (2013) 217 Cal.App.4th 410

W&I C 300 (b): Incorrigible Child

Unfitness: Whether a parent is able to protect the welfare of the child?

W&I C 300(b)(2): Commercially Sexually Exploited Children

A child who is sexually trafficked, sexually exploited, or receives food, shelter, or payment in exchange for commercial sexual acts or acts described in PC 11165.1 and whose parent or guardian failed or is unable to protect the child

 Commercial sexual act: Sexual conduct in exchange for anything of value

See also, PC 236.1 (human trafficking) and PC 11165.1 (sexual abuse, sexual assault, and sexual exploitation defined)

In re Drake M. (2012) 211 Cal.App.4th 754 (CA-2(3))

Drake M. made an attempt to differentiate between drug abuse and drug use

Used the DSM IV and a medical professional opinion as a basis for finding drug abuse

Later cases clarify

Drake M. is only a starting point

There is no horizontal stare decisis

In re Rebecca C. (2014) 228 Cal.App.4th 720

In re Christopher R. (2014) 225 Cal.App.4th 1210

In re A.F.(2016)3 Cal.App.5th 283



Jurisdiction Under W&I C 300(b) based on Substantial Risk

W&I C 300(c) Jurisdiction in Custody Battles

W&I C 300(c): Emotional Abuse

The child is suffering serious emotional damage or is at risk of suffering serious emotional damage as a result of the parent or guardian

Evidenced by severe anxiety, depression, withdrawal, or aggressive behavior towards self or others

Christopher C. (2010) 182 Cal.App.4th 73

In re D.P.(2015) 237 Cal.App.4th 911

W&I C 300(d): Sexual Abuse

The child has been sexually abused or exploited, or there is a substantial risk of sexual abuse or exploitation by his or her parent, guardian, or a member of the household -OR-

The child’s parent or guardian failed to adequately protect the child from sexual abuse or exploitation when they knew or reasonably should have known that the child was in danger of sexual abuse or exploitation.

In re I.J. (2013) 56 Cal.4th 766

W&I C 300(e): Child Under 5

Child under age of 5 has suffered severe physical or sexual abuse by the parent, guardian, or a person known by the parent, if the parent should have known of the physical abuse

If allegations are true, the court must deny reunification services, unless the denial would be detrimental to the child

W&I C 300(f): Caused Death

Parent or guardian has caused the death of another child through abuse or neglect

Does not have to be criminally convicted, but merely caused the death

Puts Juvenile Courts in the position of conducting murder trials

With a lesser burden of proof

Court can deny reunification services

In re Mia Z. (2016) 246 Cal.App.4th 883

In re Carl H.(2017) 7 Cal.App.5th 1019

W&I C 300(g): Abandonment

The child has been left without any provision or support, or

The parent has been incarcerated or institutionalized and cannot arrange for the care of the child, or

The whereabouts of the parents are unknown and reasonable efforts to locate them have proven unsuccessful, or

The parent voluntarily surrendered their child within 72 hours of birth

W&I C 300(h): Freed for Adoption

The child has been freed for adoption by one or both parents for twelve months

Relinquishment

Termination of parental rights

Adoption petition that was not granted

W&I C 300(i): Cruelty

The child has been subjected to acts of cruelty by a parent, guardian, or a member of the household, or

A parent or guardian failed to adequately protect the child from an act of cruelty

Intentional acts that needlessly inflict extreme pain or distress

Acts that shock the conscience or

Severe maltreatment, starvation, or torture

W&I C 300(j): Child’s Sibling

The child’s sibling has been abused or neglected as defined by subsections (a), (b), (d), (e), or (i) and there is a substantial risk that the child will be abused or neglected as defined in those sections

Court will consider the age and gender of the abused sibling

In re Francisco D. (2014) 230 Cal.App.4th 73

In re Malinda S. (1990) 51 Cal.3rd 368

W&I C 355

If a party objects to evidence in the social study report

The evidence is still admissible

But cannot provide sole basis for finding jurisdiction

oExceptions

If made by mandated reporter

If declarant is available to testify

If falls under another hearsay exception

In re Lucero L. (2000) 22 Cal.4th 1227

Hearsay from child under age of 12 and subject of jurisdiction will be admitted (and can be the sole basis of finding jurisdiction) unless

Fraud

Deceit

Undue influence

ALSO, Judicially created Child Hearsay exception

Admission of hearsay evidence from incompetent child does not violate due process rights

There must be a special indicia of reliability

In re I.C. (2015) 239 Cal.App.4th 304

Hearsay with Children: W&I C 355(c)(1)(B)

Scope of Jurisdiction

If jurisdiction is proper, Juvenile Court will have exclusive jurisdiction over all matters pertaining to

Custody and visitation (W&I C 304)

Paternity determinations (W&I C 316.2; W&I C 726.5; CRC Rule 5.534)

Non-criminal restraining orders (W&I C 213.5; CRC Rule 5.620)

Juvenile custody orders (W&I C 362.4; CRC Rule 5.620)

Dispositional Hearing

The court makes a legal finding of whether the children are dependents of the Juvenile Court

DCFS has the burden of proof

Preponderance of the evidence if the child is at home

Clear and convincing evidence if the child has been removed from the home

Case plan

W&I C 16501: Family Maintenance Services

If the child is returned to the home of parent, the court may issue a service plan

Counseling services for child and parents

Substance abuse programs

Any measures to rectify the issues that brought the child within the jurisdiction of the court



W&I C 361.5: Family Reunification Services

If the child cannot be returned to home of parent, the court may issue reunification plan

Counseling services for child and parents

Substance abuse programs

Visitation plan

6 months of services if child is under age 3

12 months if over age 3

W&I C 361.2(e):Placement Considerations

Court may place a child with any of the following

Noncustodial parent, regardless of the parent’s immigration status

A relative, regardless of the relative’s immigration status

A “nonrelative extended family member”

Foster home

Licensed community care facility

Foster family agency

In re Michael E. (2013) 213 Cal.App.4th 670

In re M.R. (2017) 7 Cal.App.5th 886

W&I C 361.2(a): Placement with Noncustodial Parent

If child is removed from one parent, he/she may be placed with noncustodial parent

In that case, the court may

Award legal and physical custody to that parent and terminate jurisdiction

Award custody to that parent, subject to the court’s jurisdiction and home visit w/in 3 months

Award custody to that parent, subject to the court’s supervision and order reunification services for one or both parents

The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parents is not, alone, prima facie evidence of detriment

In re Anthony Q. (2016) 5 Cal.App.5th 336

Visitation Orders (W&I C 362.1)

As part of family reunification plan, the court will order visitation between child and parent and/or sibling

As frequent as possible

Consistent with “well-being of the child”

In re Korbin Z. (2016) 3 Cal.App.5th 511

Visitation Orders (cont’d)

New law allows a court to order sibling visits with a child who is in the custody of the parent not under the jurisdiction of the Juvenile Court [W&I C 388 (b)(2)]

Emotional detriment to the child, not just physical detriment, is sufficient to stop visitation [In re Brittany C. (2011) 191 Cal.App.4th 1343]

In re T.M. (2016) 4Cal.App.5th 1214

Denial of FR Services

Under W&I C 361.5 (b)(1-17); (e)(1)

Family reunification services may be denied for 17 reasons including

A child under the age of 5 who has been severely abused

A parent who has failed or refused to participate in Juvenile Court-ordered treatment plan on at least 2 occasions despite services to implement the plan being both available and accessible

Denial of FR Services (W&I C 361.5(c))

GAME NOT OVER

Burden of proof shifts to parent

To prove by clear and convincing evidence that FR is in best interest of child

W&I C 366: Review Hearings

Court findings

Continuing need and appropriateness of placement

Whether DCFS is making reasonable efforts to return child to the home or permanently place the child

Review Hearings (cont’d)

Must order return unless Dept. can show by a preponderance of evidence that return would create substantial risk of detriment to child

Safety, protection, or emotional well-being

Court will terminate FR services, absent exceptional circumstances

Non-compliance with the case plan is prima facie evidence of detriment

‘Reasonable Services’

Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397

In re Tal. W. (2017) 9 Cal.App.5th 339

Review Hearings: Timelines

W&I C 366.21(e): 6 month hearing

Six months after dispositional hearing

Watch out for children under aged 3 or part of sibling group where one child is aged 3

W&I C 366.21(f): 12 month permanency hearing

Twelve months after child entered foster care

Court may continue case if there is a substantial probability that child will be returned to physical custody of parent

Review Hearings: Timelines (cont’d)

W&I C 366.22: 18 month hearing

18 months from date of removal

W&I C 366.25: 24 month permanency hearing – 24 months after from date of removal only if

oRecently released from incarceration, institutionalization, detention (from U.S. Customs/ Homeland Security), substance abuse treatment

Substantial probability that child will be returned, and

It would be in best interest of child

oOr reasonable services have not been provided

Motion to Modify Court Order (W&I C 388)

Any parent or person having an interest may petition the court to change, modify, or set aside any court order, or request to terminate jurisdiction upon grounds of a change in circumstances and best interest of the child

A sibling, or any person, may petition the court to assert a relationship and may request visitation with the dependent child

Can file at any time

W&I C 366.26: Selection & Implementation Hearing

Disposition hearing if no reunification is ordered

Parents fail to reunify at review hearings

180 days

Adoption, legal guardianship, permanent planned living arrangement

In re Breanna S. (2017) 8 Cal.App.5th 636

Review of Permanent Plan (RPP)

Will occur every 6 months, or until jurisdiction is terminated, child turns 18, or graduates from high school

Is permanent plan being implemented in a timely fashion?

Can plan be upgraded to a more stable permanent plan

Return to home of parent, guardianship, adoption

2012 – ability to stay in foster care till age 21

Negative Outcomes of Dependency System (CA)

Lack of education

46% of teens leaving foster care system have NOT completed high school, versus 16% of the general population

Fewer than 10% of foster youth who graduate high school go on to college; fewer than 2% of those receive a college degree

Negative Outcomes of Dependency System (CA) (cont’d)

Youth homelessness and poverty

65% leave the system without a stable place to live

51% of youth unemployed within 2-4 years of emancipation

Crime

Over 70% of all state penitentiary inmates have spent time in the foster care system

Positive Outcomes of Dependency System

Parents are empowered through resources and services

Children who were previously living in horrendous circumstances are placed in safe environments

Parents are forced to take responsibility for their circumstances and become productive members of society

Children who are in desperate situations are given access to resources and an opportunity to grow and succeed

Juvenile Custody Issues

Juvenile Courts & the Dependency System

Juvenile Custody Orders

Not family law orders or exit orders

JUVENILE CUSTODY ORDERS

Must be filed in existing action

Can be used as sole basis to open a file if no custody proceeding has been filed

CRC Rule 5.700

In re Cole Y. (2015) 233 Cal.App.4th 1444

W&I C 362.4

If a there is an existing Family Court order

The Juvenile Court is authorized to make orders determining custody and visitation

Custody and visitation orders become part of the Family Court file and shall not be disturbed until terminated or modified by the Family Court

If there is no existing Family Court order

Juvenile custody order may be used as sole basis for opening a file in the Family Court

Heidi S. v. David H.(2016) 1 Cal. App. 5th 1150

Montenegro v. Diaz(2001) 26 Cal.4th 249

Juvenile custody orders are akin to permanent custody orders

Not pendente lite orders

In order to modify a Juvenile pendente custody order, there must be a SIGNIFICANT change in circumstances that demonstrate that the original order is no longer in best interest of the child [W&I C 302(d)]

Juvenile Protective Orders