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5/8/2021

Statement of Facts and removal- In Re. D.P

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In Re. D.P- failure to state the facts supporting removal was not harmless error
Court of Appeal, Second District, Division 3, California.
IN RE D.P.,

Filed 1/8/2020

Cal.App. 2 Dist. 
Cal. Rptr.3d 313
 
This case covers a new issue of removing children without stating the facts supporting an emergency removal. The mother appeals on the grounds that the department removed the children without consideration of alternative means as under Welf & I C  § 361 (e). She contends that if the trial court had appropriately applied the law then it would have discovered a less restrictive alternative than removal and that withholding the facts that lead to removal was not a harmless error. The court of appeal reversed the trial court’s order removing the children but did sustain the order ordering that the mother participate in services and have visits modified in needed.
 
The mother was suffering from mental health issues and medication noncompliance around the time the petition was filed. When approached by the social worker she demonstrated aggressive behaviour and was verbally abusive. The father opined that when she did not take her medication she was more aggressive and broke things in the house. The son endorsed the father’s statements and cited that she hit the father and tried to kill him. The mother addressed these concerns by stating that she was the victim of DV and that the father was the one to start the fights. Also the mother denied substance use, but did have alcohol use problems. The father soon sought a restraining order against the mother. In the same vein the mother sought one against the father. Because of the two orders, the department ordered that the child live with the paternal grandparents. ordered that a restraining order be filed and that the two parents live separately.
 
 
Soon after, the Department filed a nondetention dependency petition. The petition cited that both parents had a history of domestic violence that the minors at risk Welf & I C § 300, (a), (b)), there was moderate substance abuse, and that the mother had mental disorders that posed a serious risk of detriment to the minors. The juvenile court ordered the minor to stay in the father’s care. The court
 
 
The trial court offered the reasoning for removal:
 “pursuant to Dependency Court Order 415, the terms of which are contained in the minute order” and “release[ ] [him to] home of father.”
 
“It is reasonable and necessary to remove the child from the mother, as such removal is defined in 45 CFR 1356.21(k)(1)(ii), and the care, custody, and control of the parent(s)/legal guardian(s) from whom the child is are [sic] being removed because there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being”
 
 
“and there are no reasonable means by which the child’s physical health can be protected, without removing the child from the home and the care, custody, and control of that or those parent(s)”
The court then ordered that the mother participate in alcohol treatment, a 12-step program, mental health services and medication compliance, a DV program, and counseling.
 
The mother filed a timely appeal. The following opinion was issued by the appellate court partially affirming the trial court’s orders and ordering reversal of the removal order.
 
Mother contends the juvenile court’s rubber stamp decision and reference to Dependency Court Order 415 violated Welf & I C § 361(e), which mandates that “[t]he court shall state the facts on which the decision to remove the minor is based.” The appellate court agreed with the mother and offered its reasoning.
 
The appellate court cites in re Ashly F. (2014) 225 Cal.App.4th 803, 810, “The requirement for a discussion by the child welfare agency of its reasonable efforts to prevent removal, and a statement by the court of the facts supporting removal, play important role” in preventing the department from unilaterally deciding to remove a child without providing sufficient cause.
 
Although the courts can use Dependency order 415, the appellate court reminded the court that such an order should not a replacement or rubber stamp in lieu of a statement of the facts supporting the court’s decision for removal. Dependency Court Order 415 serves as a legal basis for removal but there must be a statement of facts supporting removal.
 
In response to the department’s objections that even if the error was made, it passes the harmless error test as the mother’s history and noncompliance proved detriment to the child. The appellate court dissented providing the following reasoning:
 
“removing [the] offending parent [mother] . . . from the home” was sufficient to keep the minor safe.
 
The trial court relies on Michael S which stated that “even if removing a parent from the home [can be done it may not be] necessarily be sufficient to protect the child in all cases even if ordered.” Michael S., supra, 3 Cal.App.5th at p. 984.
 
The appellate court believes that the trial court misconstrued Michael S and stated that this case doe not rely on an abstract possibility of harm but has solid evidence that the child would benefit from placement with father.
 
The appellate court deemed that if the juvenile court had made a factual finding about the reasonable alternatives to removal, then it would have probably found an alternative result more favorable to the mother.
 
In regards to visitation and services the court found that the trial court did properly exercise its judgement. The appellate court reversed the decision removing the child and affirmed the judgement ordering the mother to comply with services.




IN RE D.P., a Person Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
v.
J.P., Defendant and Appellant.
B295780
Filed 1/8/2020
SynopsisBackground: Child dependency proceeding was commenced. Following combined jurisdiction and disposition hearing, the Superior Court, Los Angeles County, No. 18CCJP07818B, D. Brett Bianco, J., removed child from his mother's physical custody and returned him home to father's custody. Mother appealed.
Holdings: The Court of Appeal, Egerton, J., held that:
1 court's error in removing child from mother's custody without stating the facts supporting removal was not harmless;
2 court could restrict mother's visits with dependent child to monitored visits;
3 evidence was sufficient to support order that mother participate in a full drug and alcohol program; and
4 evidence was sufficient to support order requiring mother to participate in a domestic violence program.
Affirmed in part and reversed in part
 

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  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • LPS Conservatorship Court Overview >
      • Public Conservator >
        • Los Angeles Public Guardian
        • CONSERVATORSHIP INVESTIGATION REPORT
        • CAREER >
          • Continuing Education
          • Public Conservator County Numbers '16
          • San Diego Public Conservator '19
        • LPS Conservatorship for Dependent Parents and Minors
      • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
      • Court of Appeals >
        • In re Ben C- Wende Brief no issue writ
      • Trial Court Transcript
      • Conservatorship Legal Documents
      • INITIAL INVOLUNTARY PROCEEDINGS >
        • Grave Disability >
          • Present Grave Disability
        • Venue
        • Conservator's Bond
        • When the Conservatee Goes AWOL
        • Involuntary Commitment
        • Conservatorship Factors
        • Riese Hearing >
          • Riese Hearing
        • Supplemental Security Income/ SSI >
          • Applying for SSI
          • Documents for SSI
          • Process and Appeal
          • Award Letter
          • Rep Payee
          • SSI Amounts 2018/2019
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LIFETIME PROHIBITOR WELF & INST CODE § 8103 SUBD. (F)(1)(B) 18 U.S.C. § 922 (G) (4)
    • CA MHRS >
      • Armed and Prohibited Person System
    • National Instant Criminal Background Check System (NICS)
    • Registration
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose