Defending failure to protect counts (B) counts
In order to sustain a b count, the department must demonstrate by by a preponderance of the evidence that a minor has suffered or there is a substantial risk that the child will suffer serious physical harm or illness as a result of the parent’s failure or inability to adequately supervise and protect the child. There may also be a finding that the parent willfully or negligently failed to protect the child from an abusive caretaker.
First counsel needs to remember what factors go into a b count.
In determining negligence parent’s counsel will need to understand the three factors that go into making a finding of negligence. The first is (1) was there negligent conduct by the parent that (2) caused or resulted in (3) serious physical harm or illness to the minor.
These criteria are laid on in in re Rocco M., 1 Cal. App. 4th 814, 2 Cal. Rptr. 2d 429 (1991), modified (Dec. 19, 1991), and abrogated by In re R.T., 3 Cal. 5th 622, 399 P.3d 1 (2017)
BUT REMEMBER that this case is currently uncitable.
Remember that this is dependency court so the department will also be examining to determine whether there was a substantial risk posed by the parent’s negligence. The department likes to err on the safe side of things so they will often make the case for substantial risk and not wait for an actual event to happen to the child. They will create the nexus between two incidents be it mental illness or past drug use and it is incumbent on parent’s counsel to disprove the nexus.
Negligence brief overview
Negligence is doing something that an ordinary prudent person would not have done or not doing something that such a person would have done in a certain situation. If there was a traumatizing or harmful event that transpired to the child negligence via omission would be failure to provide therapy and medical care to the minor. Remember negligence can be an act or failure to act. Do not forget that omission carries equal weight as doing an act.
Defending on negligence cases.
In cases where the court looks at whether the parent acted in a manner to keep a minor safe from a dangerous person, counsel need be mindful of several issues. First, did the parent know that the other person was dangerous or has a pattern of acting in a way that would put the minor in danger. Demonstrating that parent did not have access to social media posts, text messages, or situations where they could see the person acting dangerously, will be key to proving that parent did not have an idea of the other caretaker’s ability to keep minor safe. In gathering this evidence make the nexus between the availability of this evidence and how accessible it would be for a reasonable person/parent to know. If there are secret conversations about how dangerous a relative may be but those conversations are never disclosed or made accessible for a reasonable parent to find then counsel has a strong case for the parent should they mistakenly place their child in the care of that person and the minor gets hurt later on.
In the same vein, consider foreseeability. If the parent may have known about the potential ability to put their child in danger, then would a reasonable parent have the ability to foresee the dangerous act and act on it. For example if the parent left the minor with a relative and then another family member tells the parent that that relative has a history of hitting or leaving the child at home alone, then the parent has the insight or foreseeability to know that there is an elevated risk of that caretaker hurting or allowing the child to become injured should they leave the minor in that relative’s care again. If the abuse happened and the parent learns about it later, the department and minor’s counsel will look to see, did the parent separate from that person. Did they go to DV classes if ordered to? Did they express an understanding of why return to that abusive person is bad for them and the minor? Initial denial may be forgivable as shock and disbelief is very common but persistent refusal or denial may be grounds to show that the parent is in denial that will set up the grounds for a finding that the FTP will happen again.
However, counsel need be mindful that isolated incidents are harder to prove foreseeability. Take for example if the parent leaves the minor home with their adult aunt and the aunt picks up an urgent work call and the child accidently touches the stove as the aunt is out of the room for five minutes, then parent’s counsel can make an argument that the parent did not that this one incident was going to happen and that they could not have prevented it. However, this argument is predicated on whether the aunt has a history with the family/parent of being reliable in the past. When it comes to daycares and babysitters although most parents check criminal history and other records, it is not legally incumbent on the parent to comb through the state’s register before sending the minor there. The risk of abuse occurring within the professional setting is not considered in determining the foreseeability of a reasonably prudent person/parent as the state has licensing boards to prevent just any person from supervising the minor.
Finally, should client act in a negligent manner once, parent’s counsel carries the burden to demonstrate that their client will (1) not fail to protect another time and (2) that there is not current risk at the day of the hearing. Given that the department usually conducts a CFT, some meetings, and create a safety plan with back up support persons before the Juri/Dispo hearing, counsel has time to prepare an argument to demonstrate that parent is remorseful and will not allow the FTP to happen again. Counsel should strive to enter into the record any therapy sessions, parenting class progress notes, and title 20’s that show the parent is making an active effort to learn and that the circumstances have changed. The court will look at these pieces of evidence and make a determination of whether there is no current risk or there still is a current risk to the minor despite the parent’s progress in addressing and redressing the risk factors that brought the minor to the attention of the juvenile court.
It is important to note that there are some acts of abuse considered so serious that the court will not consider any progress the parent has made. It should also be noted that minor’s counsel likes to mention emotional harm or the minor was sad. These are not jurisdictional as for b counts the court needs to see that the minor was placed at risk of serious physical harm or illness. The department will need to make a finding by a preponderance of the evidence that there is a risk of severe physical harm and that the acts will continue in the future.
Remember that the department must show that there is risk that the acts will continue in the future and that one bad incident does not warrant jurisdiction In re Nicholas B., 88 Cal. App. 4th 1126, 106 Cal. Rptr. 2d 465 (2001).
Again all of this is predicated on the fact pattern. If the fact pattern indicates clear failure to protect or certain life threatening serious injury to the minor, these defenses will not hold much weight. Use with proper discretion.
Juvenile Dependency and