Family reunification bypass provision. Denial of FR
This will be a multi part post.
There are instances where the court will order that the parents not be provided reunification and that the court move to a selection and implementation hearing. Bypass provision discussed this part will be bypass for parents who have previously had TFR or TPR. There are other bypass provisions which will be discussed at a later time.
To begin the department will prima facie required to provide reunification services to a parent In re Mary M. (1999) 71 Cal.App.4th 483, 487. However, there are instances where the department can recommend that FR services are not in the best interest of the child and move to permanency planning. We will be examining this prong of the FR bypass provision:
The child or a sibling was previously found to be a dependent because of physical or sexual abuse, was returned to the parent after a period of removal under section 361 and has once again been removed because of additional physical or sexual abuse.
Once the court finds the above to be true by clear and convincing evidence, reunification services may not be ordered unless the court also finds by clear and convincing evidence that reunification is in the best interest of the child. (§ 361.5(c).)
In addition, analysis of the surviving child’s best interest must include not only the parent’s efforts to ameliorate the causes of the dependency action, the gravity of all the problems that led to court intervention, the child’s need for stability and continuity, and the strength of the bonds between the child and the parent
When considering and preparing for a possible no FR recommendation, counsel must first look to see if there has been a history of prior child welfare cases, conflict of interest, previous no FR recommendation, and or previous termination of services or parental rights. Counsel can search JCATS for this information or discuss with county counsel.
Counsel should remember that if county counsel fails to take note of possible FR bypass it can still be pursued at a later *date.
Regardless, parents are ALWAYS ENTITLED TO NOTICE.
When considering that there may be a pending no FR rec, counsel should advise their parents to enroll in which ever relevant programs and gathering evidence of their participation in these programs. It is upon the parents to demonstrate that they are engaged in the programs and proffer the evidence even though it is the department’s burden to demonstrate that FR is not in the best interest of the child.
Now to actually examine the code.
Welf & I C § 361.5 (C) looks for three factors in determining whether FR bypass is required:
First there must be a prior § 300 petition on a child due to physical or sexual abuse. The child must have been removed. The child or a sibling must have been removed again for the same counts. The court must make a finding by clear and convincing evidence that these factors are in place and that unless FR is in the best interest of the child FR bypass be recommended.
FR bypass recs are not limited to a new case or a petition on an already open case. Also, counsel should remember that denial of services may occur on same day as TFR. Thus some courts may count this as giving “notice”.
When it comes to looking at prior TFR, the parent needs to make showing that they did make reasonable efforts to reduce the conditions leading to removal.
When considering prior TFR the court weighs whether during that past TFR proceeding did the parent make reasonable efforts reduce the conditions that lead to the initial removal. The court also considers whether participation in services actually brings about change and positive benefit as in did the parent benefit and learn something from the services or did they just go through the motions. It is on the parent to show evidence of participation in services and the nexus between their participation and changed behaviours that will prevent the child from becoming a dependent again. The court can deny FR unless there is clear and convincing evidence that the best interest standard applies. Counsel should remember to prepare the parents by having them submit their proof of enrollment and meaningful participation in services. In re A.G., 207 Cal. App. 4th 276, 143 Cal. Rptr. 3d 33 (2012) is an example of this issue. Once a finding that one of the prongs of the reunification bypass statute applies, the goal of reunification is replaced by a legislative assumption that FR would be an unwise use of resources, and the burden is on the parent to show that reunification would serve the best interests of the child. The father engaged in programs but failed to raise to the burden of proof required to show the best interest standard; clear and convincing evidence. Father however, did not testify about what he learned in his programs and what changes he made. Therefore, the court found that the severity of the removal counts and past history overrode the current evidence on record about the father’s progress and ordered FR bypass. The appellate upheld the trial court’s decision. This case demonstrates that counsel should strive to have the parents testify and ensure that all possible documentation be submitted into evidence to ensure that the parent meets the burden of proof for the best interest standard. With this case it was an example of a (D) and (J) count on the record (J not sustained) this shows that even with engagement in services the severity of the abuse was so great that the trial court found that there was not a likelihood that reunification services will succeed in protecting the child.
More to come soon.....
Juvenile Dependency and