In re. Autumn H. is a keystone case for termination of parental rights hearings and reinforces the statutory prong that a parental relationship/bond must be present and beneficial to the child.
Many parents who are facing a termination of parental rights hearing ask for the court to do a bonding study or a proceeding of such nature in a last effort to not have their rights severed. What parents are not aware of is that when looking for a" bond" during a bonding study, the court is looking for more than just a loving relationship between the parent and the child. The court is looking to see if that parent and child have a loving bond in which the parent cares for the child and demonstrates a strong "parental role" for said child. The parents may say my child and I have a strong bond, but when DCFS performs its social study, it may find otherwise.
In re. Autumn H . took place in 1994. In this case the father was contesting an order terminating his parental rights pursuant to Welf and Inst Code § 366.26. He contested on the grounds of § 366.26 (c) (1) (a) that the definition of "benefit" is unconstitutionally vague. The father also contends that a bond does exist between him and his child. The appellate court affirmed the trial court's order and provides in its brief, a more narrow definition of "benefit".
The father's children were taken into protective custody when he was alleged to have kicked his son and hit his daughter Autumn. The father had had one previous dependency case a year ago. The children were placed with relatives and foster homes. The father was ordered to drug counseling, DV classes, and parenting classes as part of his case plan.
The father was not able to participate in his services for several months due to his incarceration. Once released, he enrolled in his drug and alcohol classes. He began weekly supervised visits with his children. However, the social worker reported that the father had very limited understanding of his children's emotional and physical needs. The social worker reporter reported that he made progress but it was enough to sustain reunification. The social worker added that he dropped out of his mandated classes. The social worker opined that the father was not serious about reunification. When asked, the case worker reported that "[father] said he did not want to pursue reunification with Autumn because she was bonded with her foster family and would suffer if her placement were changed."
The case worker added that the agency had provided a step by step process for the father to move to expand his visitations, but reported that the father made no effort to expand his visits. The father stayed with his weekly visits. Social worker opined that Autumn was benefitting from her living situation. She showed proper development with walking, intense curiosity in her environment, and expanding vocabulary. The worker opined that the minor would benefit from the continuing stability that the foster home provided for her.
The court set a 366.26 hearing. During the hearing, the minor's CASA opined that she had observed the visits and witnessed the father lack of discipline. The CASA testified that he allowed her to go wherever she wanted even if it was dangerous. In one year he had only visited her 22 times. The CASA testified that she did not think there was a strong bond between father and child. The CASA classified the visits as ones with a "family friend".
The social worker testified stating he only visited her half of the time even though more visits were offered. The father did not ask about the minor and would address his personal issues with the foster parent. The foster parent voiced her intent to adopt Autumn.
Another social worker testified that she did not think that the father and Autumn had a beneficial parental relationship but rather one akin to a "friendly visitor". The worker opined that he did not have the capacity to learn how to be a parent.
The instant court terminated the father's rights over a finding by clear and convincing evidence that the father lacked of a beneficial parental/child bond with Autumn. The court found that it would not be a detriment to Autumn to severe the father's parental rights to his minor. The father filed a timely appeal.
The law mandates that if a parent chooses to appeal termination of parental rights, the burden of proof shifts to them to demonstrate that exceptional circumstances exist. Since compliance with the case plan is not an issue at a .26 hearing, the court relies on a two prong test for determining whether a parent's rights should be terminated. Since the sibling exception is rarely used, this will focus on the prong of parental/ child bond.
The prong of parental/child bond can be summarized by the legislature:
The four situations to forego adoption and retain parental rights are where the court finds that termination would be detrimental to the minor due to one of the following circumstances:
“(A) The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.
“(B) A minor 12 years of age or older objects to termination of parental rights.
“(C) The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.
“(D) The minor is living with a relative or foster parent who is unable or unwilling to adopt the minor because of exceptional circumstances, which do not include an unwillingness to accept legal responsibility for the minor, but who is willing and capable of providing the minor with a stable and permanent environment and the removal of the minor from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the minor.” (§ 366.26, subd. (c)(1).)
The court goes on to address vagueness:
“As a matter of due process, a law is void on its face if it is so vague that persons ‘of common intelligence must necessarily guess at its meaning and differ as to its application."
In relation to dependency the court addresses the issue of vagueness and defines a beneficial relationship as one where the well being of the child is promoted in the current relationship and outweighs the benefit the child would receive in another living situation. The court emphasizes that in a relationship if severing the bond would disrupt the child's substantial positive emotional attachment to that parental figure, then adoption is overruled.
Daily visits by nature will bestow some beneficial relationship to the child, but this bond alone is not enough. The court is looking for a bond where the parent and the child have a meaningful and appropriate bond. When parents ask for bonding studies, sometimes the bonding study may show a relationship or a bond, but not an appropriate one and that bonding study may be used against the parent.
The father contested that the definition of benefit was too vague and allowed the trial judge too much discretion in making a ruling. He argued that such a limited definition opened the doors to arbitrary and capricious decisions.
The court contends that the definition is not too vague and when placed in context of the testimony, the trial court did not err in its decision. When using this in the context of the case, the court draws from the testimony of the social workers. The social workers discussed the relationship as one between friends. The father lacked boundaries with his daughter. Even though the father knew that he should have implemented those boundaries, he was unable to do so as he wanted to preserve the bond and have fun with his daughter. The social workers opined that because of all of the testimony, the father's relationship with the minor did not pose as a beneficial one where the proper parent/ child dynamics were in place. As a result, the court found that the father did not meet his burden of proof and terminated parental rights freeing the child for adoption.
This case does beg some interesting points as to whether the court's definition of "beneficial " was substantial enough. The court relies on more common sense that dictates that a parental "bond" is clearly in the eyes of the public one where the parent is able to care for and direct their child in ways that would positively support the child's development. However, the court did not lay out specific guidelines to what may be considered proof of "beneficial" bonding. The court states that it is unnecessary and a waste of time. This appears that it is a more common sense knowledge and does not need clarification. Yet this does invite some speculation as the judge may be the one to interpret the quality of negative bonding there is. During visitation where notes are being recorded, the child may interact differently due to the pressure and foreignness of being in a small supervised setting. The parent may seem confused and unsure of how to parent as they are now under the scrutiny of the agency, and this may carry over in their parenting technique. Although the court does look at the larger picture judges are human after all and may give weight to certain evidence over other when making their ruling. Although the father in this case was a pretty clear picture of someone who did not know how to effectively parent, there are always exceptions. Add in the fact that the standard of proof is lower than criminal cases as a means to safeguard the child's best interest, and the decision becomes more complicated. Finally, with the culture of dependency court, with judges ruling on the overly safe side, some parents may find that their rights are terminated over not clearly defined "beneficial bond". To summarize in most cases, yes, it is clear the difference between a quality parental bond and one that lacks structure; however, there are those few cases where it may be very difficult to make a call. But in those cases that is why we have appellate judges. If there are more updates to in re. Autumn H they will be posted later.
Appellant father sought review of a decision of the Superior Court of San Diego County (California), which, at the request of respondent San Diego County Department of Social Services, changed the permanent plan of appellant's dependent daughter from long-term foster care to adoption and terminated appellant's parental rights under Cal. Welf. & Inst. Code § 366.26.
Appellant father's children were taken into protective custody after appellant kicked one of them, causing injuries. The children were then declared dependents of the trial court for the second time and were placed with their grandparents or in foster homes. Appellant was incarcerated during most of the first six months of reunification and upon release entered a residential alcohol rehabilitation facility. He visited the children on a weekly basis. The trial court continued appellant's reunification services for a time, but ultimately found that the youngest daughter was adoptable, severed appellant's parental rights, and referred the daughter for adoptive placement. Appellant sought review of the decision. The court affirmed the trial court's order. The court held that the statutory exception to placement for adoption where a benefit from continuing the parent/child relationship was found, under Cal. Welf. & Inst. Code § 366.26(c)(1)(A), was clear and not violative of appellant's right to due process and that substantial evidence supported the order terminating appellant's parental rights and freeing the daughter for adoption.
The court affirmed the trial court's order terminating appellant father's parental rights and changing his daughter's permanent plan from long-term foster care to adoption because substantial evidence supported the order and because a statutory exception providing that adoptive placement be foregone where there was a benefit to the child from continuing the parent/child relationship was not unconstitutionally vague.
In re Lucero L. /In re I.C.
These two cases present a very interesting issue as to Welfare and Inst Code § 355 and the Issue around Indicia of reliability. These cases highlight the conflict of issue of whether statements made by a truth incompetent child under 12 are admissible and if so can they be the sole basis of jurisdiction. In the case of Lucero L. the minor had made statements that were considered admissible under Welf and Inst Code § 355 even though the child was found to be truth incompetent. Although this begs the question of how can hearsay statements be admitted but not used in rendering a judgment. The court answers by stating that minor’s statements could not be the sole basis of jurisdiction unless sufficient indicia of reliability is established.
Which brings us to what is indicia of reliability?
Indicia of reliability is used as a kind of catchall when normal hearsay exceptions do not apply. It is most commonly applied for truth incompetent minors. There are several criteria for indicia of reliability. In Lucero L. the court applies the following:
Mental state of declarant
Use of terminology unexpected
Lack of motive
Any other factors
Spontaneity and repetition refer to when and how often did the minor declarant make these statements. Did the declarant make the statements soon after the incident or did the declarant have a lengthy period of time before making a statement? Spontaneity refers to how often did the declarant say these statements. Did they say it once or did they say it many times to several persons? Mental state of declarant simply means did the declarant suffer from a mental illness that might have influenced their statement. Motive refers to whether there was an underlying issue that might have compelled the declarant to make such statements. Did the declarant use terminology that was above their understanding which could point toward coaching or influence in their answers. Now with this basis how does in re Lucero L. fit into all of this? When applying these factors for indicia of reliability the court found that in re Lucero L. the minor did meet the criteria for indicia of reliability. The minor did make her statements soon after the incident. She repeated her statements several times to social worker, forensics, and health care professionals. In regards to the mental state of the declarant, she did not have any mental health history. When considering whether the declarant used age appropriate language, the court was surprised about her knowledge about penis and vagina but found it appropriate once the mother testified she has taught the minor about these terms. There was no motive at the time so the court found that the minor was not coached in her responses. However, a personal note was that there was a history of coached statements from the siblings in the past.
Because of this the court found that pursuant to welfare and intuitions code § 355 hearsay statements by children under 12 were allowed in unless they were a product of fraud or undue. According to the exception where indicia of reliability is met, Lucero’s statements were allowed and the original 300 petition was sustained by the appellate court.
Now to tie in re I.C. with in re. Lucero L., the I.C. court ruled that establishing indicia of reliability alone is not enough. The court made clear that admissibility and substantially are two very different things. Even if evidence is admissible under WIC 355 and indicia of reliability, it must be substantial enough and not create a risk of prejudice to be the basis for jurisdiction. In the case of I.C., the court found that even though the indicia of reliability was partially met, there was not enough standing for the department’s 300 petition to be granted.
Now to In re I.C.
In the case of I.C. the minor child had first made complaints of sexual penetration by a neighborhood minor friend. When asked by the mother I.C. maintained the same stance. Later on, I.C. changed her statement to that her father had molested her. When corrected by her mother, she asserted the father culpability. During investigations, DCFS found that the minor did not know the difference between a truth or lie or establishing her as a truth incompetent minor. The forensic exam leads to inconclusive results regarding sex abuse. During the oral filmed interview, I.C. she promised that she would tell the truth. The oral evidence proffered was specific but does not corroborate with other statements. She made quite a few detailed about the incident but she said nonsensical things such as a train is the same thing as a penis and that she was molested in the same room as the interview. When asked R.J. (her sibling) testified that their dad had never touched her. The trial court sustained the initial 300 (d) petition. On appeal, the court of appeal affirmed trial court ruling and the father asked for supreme court review. It is important to note that the father on appeal did not challenge admissibility due to the WIC 355 legislature but challenged that the trial and appellate court misapplied misapplied Lucero L. because the indicia of reliability was NOT met. The supreme court decided to review the case and provided the following analysis.
The court did find that the child’s statement met WIC 355 and indicia of reliability criteria. However, upon close analysis of the oral statements by minor and relatives the court found that due to the inconsistencies, indicia of reliability cannot be met just because some of the evidence corroborates. The court stated that it is important that the record must be looked at as a whole to render a proper judgement. The court found that applying reliability tests and indicia of reliability are not designed to be overly stringent to prevent protection nor are they an empty formality. The courts must consider each as a balancing act to analyze each piece individually to determine whether the minor is telling the truth. Because of this the court shows how indicia of reliability is partially met and as a result the 300 petition cannot be sustained. In regards to the spontaneity of the minor’s statements, the court found that the statements were made too far off of the date of the incident. The minor did repeat her statements but each one varied between mother, social worker, and forensics. The minor made statements that were disjunctive or lies. I.C. at the time did not have a mental illness but the court noted that she did not clearly understand the difference between fantasy and reality. Her statements at times reflected living in a fantasy world and this impacted the validity of her statements. Her use of terminology was expected for a child of her age but there was a small difference between when she used penis and other words for penis. Minor did not have a cognizable motive that would have impacted her statements. The court did again note her loose connection with reality.
After analyzing I.C.’s statements and whether they fit the indicia of reliability, the court found that truth incompetency is a factor in a jurisdictional finding but it was alone is not dispositive. The court made it clear that truth incompetency is a threshold issue that needs to be address piece by piece. DCFS argued to give more weight to social worker testimony and the oral tape, but the court said that even though the weight of the evidence was in those two sources, the actual evidence within was not consistent enough. The court says that entire record needs to be viewed as a whole not one piece to determine that the finding of dependency was substantial.
The 300 petition was overturned by the supreme court as a result.
So now that in re Lucero L. and in re I.C. have been compared how do they affect future cases and implementing indicia of reliability? In re Lucero L. lays down the foundation for determining whether a truth incompetent child’s statements can be relevant using indicia of reliability. In re I.C. shows that implying indicia of reliability alone does not meet burden of proof for sustaining a 300 petition. This will prevent courts from immediately jumping to in re Lucero L. when trying to base their 300 petition solely on a truth incompetent child’s hearsay statements admitted through WIC 355.
During bench hearings and bench trials, the social worker's testimony and reports will be heavily used for rendering a judgement. When the social worker goes up on the stand it is important to be mindful of several common errors that counsel and sometimes the judge allows. By spotting these parent's counsel can be better advocates for the parents.
The next part is the reports filled out by the expert witness. Believe it not, there are many reports that appear all the same even though they were done by an expert witness who is supposed to have a special relationship and understanding to the case. I have read many reports that are filled with boilerplate language. The report often contains information that is very similar and generally pulled from a template. Out of say 20 pages of a report, only two pages or so may contain very unique information about the client. The information that fills the other pages may be directly lifted from social worker's report or just general procedural issues. It is counsel's job to really scan these reports and find inconsistencies or vague terms that do not really clarify the issue at hand. The report may read as that the patient suffers from delusions or has anxiety but does not spell out how the patient manifests those symptoms or how they impact their ability to parent. Just like LPS conservatorship, a specialist may incorrectly draw a correlation between the parent's mental illness and ability to parent.
The larger issue is how the court will treat the social worker on the stand. Many times, county counsel will call the social worker up to the stand and the social worker will start spouting opinions as if they were an expert witness. The worker may say that because I say x y or z then this must mean the child is suffering from this unique condition. Many times the court will most likely take the case worker’s testimony at prima facie expert witness testimony. However, can parent’s counsel during cross establish that the social worker is a lay person and does not qualify as an expert witness. The social worker’s testimony should be focused around scheduling, observations, and case planning. The social worker reports should be observations only. The report for the visitations, status report, and review should consist on the social worker’s behalf be only observations. If there is information in the report that renders a judgement or opinion, then should that opinion be rendered by an expert such as a psychologist or DV specialist. If the social worker starts to make statements that reach beyond the scope of their expertise then it is counsel's job to acknowledge that. they are making an opinion to which they lack the credibility.
It will be important to establish the difference between lay witnesses and expert witnesses. Through proper cross counsel can break apart the social worker's expert testimony and credentials. Counsel may be able to ask to voir dire the case worker. Counsel can demonstrate that the social worker's credentials lie in child care and maybe administration. They have not obtained a PhD in psychology or undergone DV counselor training. What tenders an expert as a witness is either their background education or years of experience. Without either of those the social worker is not considered an expert.
Ensure that the social worker keeps to restatement of observations. There should not be conclusions about DV or mental health. If the social worker says I see [this event] then this expert opinion/judgement must follow. Should that not be considered to be overstepping her area of expert witness. If the social worker says that the department believes that this opinion is truth and the social worker is conveying the department’s recommendation, ask “If the department believes that then am I not speaking to the expert who rendered this opinion. Is there an expert whom I should be talking to?” The social worker is not an expert witness so they should not be making an expert witness assumption.
The next point is to see if the social worker can give more descriptive explanations. See if the social worker can give testimony that is not just yes or no but rather shows a picture of the bigger story. Focus on the quality of interaction. Show the judge that prior visits together were not just safe but that there was real bonding. Let the judge feel the impression of the visit through tone and eliciting emotions. Simple but humanizing the visit will help the judge as they are only human too.
Each case is different but in the case that I attended one key theory was showing that DV classes were unnecessary by laying the foundation for discrediting the expert witness in this case, a therapist.
The first thing counsel did was to lay the foundation of improper credibility or at least very limited credibility. Counsel asked questions that lead the expert witness down the desired path whether she wanted to or not. The key during this case was that counsel took his him speaking to the witness and having her reveal that her information was heavily biased toward county counsel/ the department's reports and she had failed to conduct her own independent research. Counsel built the case by asking if she spoke to any of the witnesses on the night of the incident. Did she ask what their version of the facts were? He asked if she based her expert opinion upon independent verified research or document prep during discovery. Through his cross he demonstrated that she had very limited scope and time. Her report was made under little time and based mostly on the department's recommendations. He showed that she did lacked personal investigation into the matter. He revealed how most of the opinion was provided by county counsel/ the department. He showed the court that most of the court documents were prepared by CC/ the department. Through further doc review he showed that the department overstepped its credentials and wrote expert opinions in the reports when they constitute as laypersons. Remember that expert witnesses are credible through education or experience. The department does not have either. By making a show that her research was biased, counsel demonstrated that her research was heavily biased and did not suffice to meet the criteria for independent research and opinion.
A sampling of the questions he asked during cross that led her down the path he desired:
Question 1: take your time to ask: [name of expert witness] would you agree that the opinion that you shared with the judge is only as accurate as the facts that you based that opinion on?
Question 2: And would you agree that the facts that you based your opinion on… if those facts are wrong isn’t it true that that might affect the validity/accuracy of your opinion.
Question 2a: So that I understand it the opinion you shared concerning the need for DV therapy is premised upon jurisdiction report/ detention report/ and status review report. After each one he asked yes or no to make it clear. He ended the list with "is that a fair statement?" By pausing and letting each document sink into the mind of the judge he maintained control over the path and speed her lead her down. By the time she realized where it was going she could not control the flow any more and counsel had done his job proving what he sought.
Counsel expected the expert to say yes. If she had not the court would have seen that the expert was more interested in saying what he is paid to say not what she believes. This line of questioning showed that the information that she based her opinion was heavily influenced by CC/ the department. If there had been an objection asked and answered, he could have rephrased. If the expert witness had chosen to cites their time as an expert witness years then this would have shown that they are only a professional court expert witness and not focusing on their speciality.
Question 3: Would you agree [name of expert witness] that if the facts that you were provided and based your opinion on; if those facts are wrong isn’t it true that that might affect the accuracy or validity of your expert opinion.
Counsel proceeded to ask the expert to interpret the facts of the case as presented and viewed by the defendant. At this point counsel is showing that the expert opinion may differ should there not be bias in the reports and evidence provided to her.
Question 4: Now, [name of expert witness] do something for me. In this case the father testified that the DV incident was a single incident. That the mother did nothing wrong. Having shared those facts with you do you feel that based on those facts assuming that those facts are accurate do you feel that the department’s recommendation for DV therapy is excessive and inappropriate?
Counsel is asking a question that should be a yes or no question.
Question 5: Let’s assume just for a minute that those are the facts and not the ones provided by CC. Having shared those facts with you do you feel that the situation assuming that the facts are true and accurate that this incident would have constituted a need for DV treatment? It is a yes or no question
The expert witness said something to the effect of:
If the facts are just as you described them to me then yes the agency’s decision to order DV therapy would be inappropriate and excessive.
Counsel ended with:
Thank you and please consider this for cross. I know DLSS has not had much time for discovery.
This hearing demonstrated that with effective witness control, he lead her down a path that he desired. He controlled her statements without making it obvious and most importantly he showed that her evidence was biased and lacked independent study. Cross examination does not need to be extra complicated or loud. It needs an element of calm and control and most importantly a plan of action.
Juvenile Dependency and