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Alicia T. v. Cty. of Los Angeles, 222 Cal. App. 3d 869, 881, 271 Cal. Rptr. 513, 518 (Ct. App. 1990), modified (Aug. 16, 1990)
Take great care in citing cases that are unpublished or depublished. It’s a fast road to sanctions and paying high fees. Take for example citing In re Zoey T., No. B276363, 2016 WL 7474034 (Cal. Ct. App. Dec. 29, 2016). This is a great case with a favourable fact for a no reasonable services contest at the .22 hearing. However, it remains unpublished despite an appeal to the Supreme Court. Because it remains unpublished, it is un citeable. However, some may go as far as to cite to the logic in Zoey T; however, counsel may also be sanctioned for citing to the logic. But what seems truly bizarre to outsiders is another California peculiarity: how our appellate opinions can vanish into thin air. As all know opinions not certified for publication "must not be cited or relied on by a court or a party in any other action." (Rule 8.1115(a).) The court may order depublication for the protection of the parties. Alicia T. v. County of Los Angeles (1990) is a dependency case where the family’s counsel was cited with unreasonable failure to comply with California Rules of Court as they relied on a n uncitable case. The court warned them of their error, but counsel did not desist in citing the opinion. Due to counsel’s failure to remove the offensive citation, the court awarded sanctions sanctions payable to the clerk of this court. Although counsel may have referred to the case as they deem the legal theory favourable, they are not allowed to cite to any part of the case. The opening brief does not contain any citations to the record on [222 Cal. App. 3d 885] appeal and, most glaringly, relies extensively on a case our Supreme Court has ordered not to be published in the official reports. Counsel when citing once more to the same case despite being ordered not to as the case was not published in the official reports, added a caveat that they were not relying solely on the case and that the allegations they were pleading were dehors the record. However, counsel cited the unpublished case eight times in the brief and discussed seriatim for four pages. The court reminded counsel that the proper case which covers the issue of whether a governmental agency are granted qualified immunity in dependency is in re Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 260 Cal.Rptr. 645. The court notes that in many circumstances errors in trial briefs have several remedies: (a) returned to counsel for correction and redeposited with the court within a specified time, (b) ordered stricken with leave to file a new brief within a specified time, or (c) considered as if properly prepare. However, given that counsel did not desist in their efforts to cite, the court opined that this warranted more severe punishment than California Rules of Court, rule 18 suggests and fined counsel $750 for their non compliance. The court noted that impositions of high sanctions does not occur in a haphazard or spontaneous manner but instead used to emphasize the substantial additional time required to craft an opinion when the court rules are ignored as flagrantly as they are herein. The court values its limited resources and wishes to discourage future conduct via high sanctions. Citing the unciteable case may be allowed if the legal issue at stake is going to be whether it affects another party who are similarly situated. This is a very strict definition that cannot be applied to any case. For example, when building a case for using an uncitable case counsel need be aware of any exceptions like “nonmutual offensive collateral estoppel is not available against a government entity”. In Alicia T. v. County of Los Angeles, the record that is available does not indicate that counsel proffered a solid exception for relying on an uncitable case nor did they produce one when the court rejected their use and ordered them to remove the offensive citation.
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123 Cal.App.4th 768 Court of Appeal, Fourth District, Division 3, California. DAVID B., Petitioner v. The SUPERIOR COURT of Orange County, Respondent; Orange County Social Services Agency et al., Real Parties in Interest. David B. v. Superior Ct., 123 Cal. App. 4th 768, 789, 20 Cal. Rptr. 3d 336, 352 (2004) This case is the case parent’s counsel frequently refers to when they are making a case at the .22 hearing. Like Constance K, the court will be looking at factors beyond substantial compliance with the case plan. The ____ of this case takes from the angle of family preservation unlike Constance K which focused on the child’s need for permanency and safety. Although this remains the overruling basis for dependency jurisdiction, the David B. court focused on that the “first priority when child dependency proceedings are commenced; reunification services implement the law's strong preference for maintaining the family relationships if at all possible”. The David B. court noted importantly that after the disposition hearing, there is a statutory presumption that the child will be returned to parental custody, and the juvenile court must return the child home of parent unless it determines there would be a risk of detriment. Additionally, the court clarifies that this standard does not refer to a parent who is less than ideal. The court clarified that this did not mean that if a parent did not benefit from the reunification services as much as might have been hoped, or seemed less capable than the foster parent, they were deemed a risk of detriment. The court wished to impress that risk of detriment meant serious incapacity in a core aspect of parenting and safety. Like the Constance K. court, the David B. court weighed many of the same criteria. Each will be discussed seriatim. When considering whether to terminate services based on a lack of parenting skills, the court looks to the parent’s understanding and implementation of the most important parenting concepts, such as security, important nutrition, safety from domestic violence, proper hygiene, attendance to vital healthcare, and education. The court does not consider whether a child's preference for minor aspects of their life such as clothes or food preferences. The father in this case understood the basic needs of having clean diapers, balanced diet, and safety of the home. However, since he was a new father and did not have much time to bond with the minor, he frequently asked questions of the foster parent such as what was the minor’s food preference. Sometimes the father would also “seek guidance whenever a problem arises, the social worker acknowledged that “[i]t's not a regular thing” and agreed that “[s]eeking advice is always a positive thing”. Unlike Constance K. where the father frequently asked questions and was unable to finish the visit because he was unable to manage the children in his home for extended periods of time, David B asked questions so he could better understand the minor’s preferences and provided logical reasoning for his actions as he cited that the foster parents knew the minor far better than he did at the time. When considering whether the parent benefitted from his services, the father in this case engaged in his services and went beyond to ask questions relevant to his child’s care. So he “took the teacher aside and asked her, **345 ‘Okay, I've got ... a two-year old. What should I do?’ ” She advised him to “listen to the child, and watch what she does and watch every movement she does. And pick up what she's doing a learn from it.” He also learned “to be there for [Susan], and love her and try to teach her what I know to the best of my knowledge.” He also participated in his DV services and took the lessons he learned from them and separated himself from the perpetrators of domestic violence in his life. Unlike Constance K. who did participate in the services but did not effectuate the necessary changes the court was looking to in determining whether the minor was safe. The services need not to be perfect, but substantial enough for the parent to make the change to eliminate the risk factors to the minor. Another smaller fact but important none the less was whether father understood the importance of medical care. The father at the time did not have medical insurance for the minor and had to rely on the foster parent for communication about the minor’s medical care. When asked the father opined that if there were an emergency he had a specific plan as to access care for the minor. Although there is not more in the record about the father’s specific plans for care, this appeared to satisfy the appellate court. Finally, as with the Constance K court, the trial court examined the importance of the bond between the father and the minor. The minor in David B was not as closely bonded to the father given that the minor was in placement from a very young age. The appellate court contends that the father was not granted enough time to bond with the minor through no fault of his own. He participated in his services and made substantial effort to bond with the minor during the visits. This case should be differentiated from Constance K. where the court was examining whether severing the bond the minor had with the foster parents was detrimental to the minor’s health. In this case, the court emphasized that since the focus of these series of review hearings focus on the sufficiency of services provided. When providing reunification services, the preference for maintaining family relationships did not depend upon father's ability to make two-year-old daughter feel bonded to him especially when he had never had the opportunity to parent her on a day-to-day basis. The issue rather was whether placing child in her father's care represented some danger to her physical or emotional well-being. It is after the termination of services and the setting of the .26 hearing date that the court considers the bond between parent and child as they weight the Autumn H factors. In totality the court is examining the facts in the record to determine whether the parent’s compliance with their case plan along with the above factors demonstrate amelioration of the risk of detriment. The court is not seeking 100% change. Rather, they are looking for substantial effort and changes to warrant HOP. The court is not looking to judge the parents at the same level that they would someone born with the privilege of wealth and stable intergenerational wealth. The court covers this as counsel may fall into the trap of judging the parent against their own personal historical standards. The court summarizes their sentiments: We do not get ideal parents in the dependency system. But the fact of the matter is that we do not get ideal parents anywhere. The State of California is not in the business of evaluating parents and redistributing their offspring based upon perceived merit. The parents who come through the dependency system are more in need of help than most. If we are lucky, they are parents who can learn to overcome the problems which landed their children in the system, and who can demonstrate the dedication and ability to provide for their children's needs in an appropriate manner. They will not turn into superstars, and they will not win the lottery and move into a beachfront condo two blocks from a perfect school. David B. v. Superior Ct., 123 Cal. App. 4th 768, 789, 20 Cal. Rptr. 3d 336, 352 (2004) Based on the appellate court’s closing editorialization, it ordered that the petition for extraordinary relief is granted and that the trial court issue a new order based on two scenarios. First it must either show that the services provided to father during the final six-month reunification period were inadequate, and require the department to offer additional reunification services. If, after the provision of such services, the father is still unable to provide minor with a suitable living condition, the court may reissue the order terminating services and schedule the permanency hearing. Court of Appeal, Fourth District, Division 3, California. DAVID B., Petitioner v. The SUPERIOR COURT of Orange County, Respondent; Orange County Social Services Agency et al., Real Parties in Interest. No. G033918. Oct. 28, 2004. Synopsis Background: In child dependency proceedings, the Superior Court of Orange County, No. DP007141, Richard E. Behn, J., entered order setting permanency planning hearing after finding that low-income father's two-year-old daughter could not be safely released to his custody. Father petitioned for writ of mandate. Holdings: The Court of Appeal, Bedsworth, J., held that: 1 reunification services addressing father's alleged housing problems were inadequate, and 2 trial court improperly relied on supervising agency's discretion in deciding housing issue. CONSTANCE K., Petitioner, v. The SUPERIOR COURT of Los Angeles County,
Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. This case is the general case that the department relies on when making their case against continuation of reunification services. Parent’s counsel tends to rely on In re David B. [ (1979) 91 Cal.App.3d 184 and the Agency; Constance K. v. Superior Ct., 61 Cal. App. 4th 689, 71 Cal. Rptr. 2d 780 (1998). It is important to understand the language of both cases. The case in chief in Constance K is that compliance with reunification plan alone cannot guarantee return to home of parent. The court must also consider other factors such as progress in programs and 730 evaluations in deciding whether HOP is in the minor’s best interest. It is important to note when the department pleads its case using Constance K there remains a great deal of open language and vagueness to remember to find case law that answers the vague arguments raised in Constance K. When analyzing this case, all parties must bear in mind the overriding goal of dependency court and its laws. “The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time”. This is the foundation for the department’s decision to not continue providing reunification services to the mother. However, the law also stipulates that the parent’s rights and “interest in the care, custody and companionship of [their] child is a liberty interest that may not be interfered with in the absence of a compelling state interest”; the best interest of the minor. The mother had reached the *generally penultimate deadline in reunification, the 18 month, 366.22 subdivision (a) hearing. Barring certain exceptions, the court at this date must make the decision to either return the minor children to the parent or terminate services and set a date for the selection and implementation hearing (120 days out from the date of termination of services). At this date the court will examine several key markers. First the court will consider whether the mother had made substantial progress in her case plan. The court will review all of the evidence and reports submitted via counsel and the department to assess the degree of compliance with the case plan. More importantly the court will review the evidence and .22 report to determine whether the parent made meaningful progress in that they learned and applied the lessons taught in the therapy and parenting classes. Participation alone is not enough if the parent is unable to demonstrate that they learned and applied the lessons provided in these services. The other key factor is that completion of the case plan alone will not be enough to justify return and overcome the legal standard of best interest of the child. Additionally, the court will be looking at the title 20s and reports that demonstrate that the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent. Simply put it is not the number of services completed, but whether the counseling, therapy or parenting classes help the parent. The parent will need to proffer additional statements and reports from providers opining that the parent has benefitted and implemented the lessons they are taught into their parenting style. Additionally, the court may consider psychological evaluations which may indicate return to a parent would be detrimental, any difficulties a minor has in dealing with other persons in their family, whether the parent has limited awareness of the emotional and physical needs of their minor children, how long the minor has lived with the parent before the time of removal, how the parent had comported himself or herself before a § 300 petition was initiated. These factors would be considered weighed under the analysis test of the totality of the circumstances rather than a bright-line rule. To better define this, the court notes that the evidence proffered must be sufficient to support the court's finding. The evidence must be “reasonable in nature, credible, and of solid value; it must actually be ‘substantial ’ proof of the essentials which the law requires in a particular case”. Isolated incidents and random “bad days” cannot serve as the basis for decision to terminate. The appellate court justifies this reliance on outside reports: “[w]ithout the testimony of psychologists, in many juvenile dependency and child custody cases superior courts and juvenile courts would have little or no evidence, and would be reduced to arbitrary decisions based upon the emotional response of the court”. A note: These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent. An unpublished case but very important none the less is in re Zoey T is an example where the providers working with the father frequently had personal disagreements but the father served as exemplary parental role model. Unfortunately, due to the the personality, character and attitudes the court based these reports of such as grounds that the parent did not benefit from the services in the case plan. Finally at the .22 hearing, the trial judge may also consider whether changing custody back to HOP will be detrimental to the minor as it may severe a positive beneficial relationship with their current foster family will cause serious, long-term emotional harm. In this case, the mother had never had custody of all her children at one time. She always had some of her children in the custody of the department at any given time. Additionally, the psychologist reviewing her case opined that despite her efforts “the mother would be unable to cope with the return of the three minors at present”. The professionals agreed that the child would suffer severe psychological harm if “returned” to the home of the parent. These professionals included the psychologist and the department's social worker, who both concluded that the mother should not now have custody of the minors. The therapist recommended termination of parental rights. The court notes that each of these evaluations reflected non-conclusory and professional opinion based on the evidence in the record so far. They opined that due to the mother’s inability to parent all the children at once was indicative of a substantial risk of detriment. Because of these opinions, the court heavily relied on their extensive expertise in these matters and based their decision on these report. In response to the argument about speculation, the court summarizes it: “this evidence… was not too speculative, because it was ‘expert opinion testimony, based on psychological testing and clinical evaluation”. Additionally, the department noted that the mother failed to benefit from her therapy services as she continued to maintain contact with the fathers whom have perpetuated domestic violence. Despite services, she has yet to keep the father away nor be able to control his behaviour and had the minor children in the presence of the father multiple times. Therapy sessions offered by the department serve to educate the mother about the seriousness of domestic violence and cycle of abuse. Based on this education, the therapist and the department expect to see the mother sever her ties with domestic violence perpetrators unless there is a countervailing court order. In considering the mother’s quality of the visits, the mother was often unable to keep the minors for even a full weekend. Because she could not control the minors during the weekend visits, the mother would call the foster mother for help. Again the title 20s and the contact narratives reflect the mother’s inability to parent her children without substantial assistance from third parties. Additionally, the mother had been unable to care for her children properly for any lengthy amount of time before the § 300 petition. Finally, the trial court took into consideration the damage the minor[s] may suffer if their bond with their foster placement were severed. The court noted HOP would terminate the loving and stable relationship the minors had developed over a two year period in the foster home. Compounded with the fact that the mother had yet to provide a stable placement for the minors historically and currently, the court opined that the minors were entitled to stability, something that had developed in the foster home and the mother had failed to develop within the time frame offered by the juvenile court. When considering how the trial court weighs all of these factors and makes its judgement, the appellate court notes that the trial court’s discretionary power is inherently granted by the judge and challenging that wide discretion will generally not prevail unless there is a showing that the court abused its discretion in an arbitrary, capricious or absurd manner that will lead to prejudicial error. The appellate court found that there was no risk of prejudicial error and denied the mother’s writ of mandate. 61 Cal.App.4th 689 Court of Appeal, Second District, Division 5, California. CONSTANCE K., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. Feb. 18, 1998.Review Denied April 29, 1998. Synopsis Mother petitioned for writ of mandate after superior court, No. J975092, Emily A. Stevens, J., decided not to return children to mother. The Court of Appeal, Turner, P.J., held that although there was evidence there would be no risk of substantial detriment if children were returned to mother, countervailing revelations in reports constituted substantial evidence of risk of requisite detriment if children were returned to mother and justified decision to not return children to mother. Petition denied. |
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Juvenile Dependency and
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