Juvenile Law Perspective

Note:All articles in this edition refer to the Guest Editor’s column found here.

It is a virtual certainty, given this factual scenario, that the county’s child protective services agency (“CPS”) has determined to commence juvenile dependency court proceedings. First, a Juvenile Dependency Petition would be filed, alleging jurisdiction over both Miles and Whitney on several different grounds. Specifically, the bureau would allege facts which if found true would allow the court to find that each of them either has suffered, or is at risk of suffering, abuse or neglect by a parent, either by means of abuse inflicted non-accidentally by a parent (Stefan upon Miles), the inability of parent to protect both children from abuse by the other parent (Elaine), or the inability of the parent to provide proper care of the children due to the parent’s substance abuse (Elaine). It is also a near certainty, that CPS already has detained (taken custody of) both children from the home of their parents, given the severity of the injury inflicted upon Miles by Stefan, and the evidence of potential substance abuse and failure to protect on Elaine’s part.

The law governing juvenile dependency court proceedings in California is set forth in Welfare and Institutions Code sections 300, et seq., and the California Rules of Court (Title V, rule 5.500, et seq.) If the juvenile court determines, based on the evidence presented at a hearing or by admission or no contest plea by the parent, that the child is a person described by any one or more of the provisions set forth in section 300, subdivisions (a) through (j), then the court is required to assume jurisdiction over the child, and to conduct further proceedings and issue orders to ensure that the child’s health and safety are protected.

Juvenile dependency courts typically preside over matters formally alleging, by way of a petition filed in the juvenile court by a social worker, that a child has suffered abuse or neglect, or is at substantial risk of suffering abuse or neglect, either as a result of (a) serious physical harm or injury inflicted non-accidentally by the child’s parent or parents parent(s), (b) the inability of the parent or parents to supervise or protect the child adequately from serious harm or illness, or (c) the inability of the parents to provide proper care of the child due to the parent or parents substance abuse. A dependency case normally commences when someone (e.g., the child, a health care professional, a school teacher) reports to the police or a social worker that a child is being abused or neglected. An investigation ensues, after which the social worker will determine to do one of the following, based on results of the investigation:

1. Take no action, if there the evidence is insufficient to establish the alleged abuse or neglect;
2. Offer the parent a program of voluntary services (e.g. parenting classes, counseling) designed to help the parent properly care for the child;
3. Determine that the child can safely remain in the parent’s care and custody, and file a petition in the juvenile court formally alleging that the child has suffered, or is at substantial risk of suffering, abuse or neglect because the evidence is sufficient for the juvenile court to assume jurisdiction in order to protect the child’s health and safety; or
4. Remove the child, at least temporarily, from the parent’s custody (and, at least temporarily, place the child with an approved relative or licensed foster home), and file a petition in the juvenile court alleging that the parent has abused or neglected the child.

As his dependency attorney I would advise Stefan as follows:

First, he should expect to be charged in criminal court with child abuse (either misdemeanor or felony, depending on the district attorney’s review and charging decision); Miles suffered a broken leg in the family home, while in his parents’ custody, and Stefan admitted to the police that he caused the injury (albeit not intentionally). Accordingly, I would advise Stefan to immediately consult with a criminal defense attorney, and I would further advise him not to discuss or make any more statements to anyone, particularly the police or social workers, about how Miles’ injury occurred or the surrounding circumstances that led to Stefan’s conduct, as these statements could be used against him in the impending criminal prosecution. I would tell Stefan that I will contact his criminal defense so that the attorneys can exchange updates on the status of the proceedings in the dependency and criminal matters.

Second, as to the juvenile court dependency case itself, at the initial dependency court hearing, CPS (represented by county counsel) will ask to issue an order detaining Miles and Whitney from his and Elaine’s custody, based on the allegations in the petitions and review the social worker’s detention/jurisdiction report, which sets forth the evidence in support of the allegations. The court very likely will order the children detained, since only “prima facie” evidence is needed for the court to find that the children come within dependency court jurisdiction and that there are no reasonable means to protect their health and safety, at this early stage of the proceedings, other than by removing them from parental custody.

Third, I would strongly advise Stefan to move out of the family home, at least for the near future, to convince CPS, and, if necessary, the court, that it is safe to place the children back in the home, in Elaine’s custody, because the father and alleged perpetrator of the physical abuse, is no longer in the home. In the event that CPS does not agree to return the children to Elaine’s custody after he has moved out, I would advise Stefan to immediately provide CPS with the name(s) and contact information of a relative or relatives (the children’s grandparents, aunts or uncles) with whom the children could be placed, so that the children would not remain in foster care.

Fourth, Stefan should immediately engage in services designed to address the conduct and problems that led to CPS and court intervention. The court will likely order him to comply with a family reunification case plan, submitted by CPS, setting forth things he must do if he expects to reunify with his children and return to the family home. Accordingly, he should immediately enroll in an anger management counseling (or even a certified child-abuse prevention program that works with alleged perpetrators) and a parenting education class. If he candidly admits that he has a problem with alcohol or illegal drugs, he should voluntarily submit to random testing for alcohol and drug use, and/or attend AA or NA meetings, or, at a minimum, agree to undergo an assessment by a specialist to determine whether he has a substance abuse problem.

Fifth, he should visit his children regularly while they remain out of parental custody, whether these visits are supervised or unsupervised, and that the visits will likely remain supervised until he demonstrates his active and successful engagement in services.

Sixth, in light of the evidence that Elaine may have a drinking problem, he should encourage her to engage in services immediately, including parenting education, counseling, and alcohol abuse treatment and/or an assessment regarding whether she has a substance abuse problem.

Finally, I would candidly inform Stefan that barring unforeseen circumstances pointing to his lack of responsibility for the infliction of Miles’ fractured femur, he can expect that the court will take jurisdiction over his children, and ultimately adjudge them as dependents of the juvenile court. The law requires that, absent statutory exceptions not applicable in this case, he is entitled to receive 12 months of reunification services designed to minimize or eliminate the circumstances that gave rise to the intervention of the juvenile court (i.e. his anger and his physical abuse of Miles). If he successfully engages in services and follows the court’s orders, he should be optimistic about the likelihood of reunifying with his children and his wife, and living at home together with them.

If he fails to comply with his services case plan or otherwise fail to adhere to the court’s orders, the court, after a hearing, likely would terminate reunification services as to him and Elaine, if she also fails to comply with her own case plan and court orders, and proceed by scheduling a hearing (under W&I Code section 366.26) to determine a long-term plan for the children, in their best interests, that could result in the court ordering termination of parental rights.