Latest First District Victories
March 23, 2018
Attorney: Seth Gorman
Categories: Dependency ICWA Jurisdiction
In this appeal from jurisdictional and dispositional findings, the Court of Appeal found ICWA errors due to the Bureau’s failure to notice all federally recognized Apache tribes, not just the Mescalero tribe. With respect to its duty of inquiry, the Court stated the Agency should conduct a meaningful investigation of maternal grandmother’s purported Indian ancestry, making genuine efforts to locate family members who have more information. The Court agreed with mother that the record did not contain evidence beyond a reasonable doubt to support the subdivision (b) allegation based on mother’s alleged chronic untreated mental health condition. Even though other jurisdictional allegations were sustained, the Court reversed as to the subdivision (b) finding because it could have consequences for mother beyond jurisdiction. The Court also struck the references to untreated mental health in the section 300, subdivision (j) allegations. The Court agreed that the juvenile court did not give mother the required advisements or obtain a personal waiver from her but found that the error was harmless beyond a reasonable doubt.
March 21, 2018
Attorney: Gino De Solenni
Categories: Dependency ICWA
On an appeal from the termination of parental rights, the Court of Appeal conditionally reversed and remanded the matter for compliance with the ICWA. Mother and father argued that the Department did not comply with the notice requirements of the Indian Child Welfare Act. The Court of Appeal found that the Department had sent notice to the Apache tribes but had violated the ICWA in failing to send notice to the Cherokee tribes and Karuk tribe referenced by mother. The Department argued that it had contacted grandfather after the jurisdiction pretrial hearing to inquire about his Indian ancestry. However, the Court of Appeal stated that there was nothing in the record to support the Department’s claim that it inquired about grandfather’s potential Indian ancestry.
March 21, 2018
Attorney: Amy Grigsby
Categories: Dependency ICWA
On appeal from the order of the juvenile court terminating his parental rights, father argued that the juvenile court failed to comply with the inquiry and notice requirements of the ICWA. The Court concluded that the information about father’s Indian ancestry was sufficient to trigger a duty of further inquiry. The Court emphasized that the duty of ICWA inquiry was affirmative and continuing. Even though the Department had access to multiple members of the minor’s extended family who could have been questioned about father’s claim of Indian ancestry, the Department relied solely on its initial failure to obtain additional information for its conclusion that the ICWA did not apply in this case.
February 28, 2018
Attorney: Jessica Ronco
Categories: Dependency Disposition
Court of Appeal reversed the juvenile court’s dispositional order bypassing father for reunification services pursuant to WIC section 361.5, subdivision (b)(10) and (11). Application of these bypass provisions required a 2-part analysis: 1) that the parent failed to reunify with a sibling of the child, and 2) the parent subsequently failed to make reasonable efforts to correct the problems leading to the removal of the sibling. The Court agreed with father that there must be an overlap of issues between the current and prior dependency matters when applying section 361.5 (b)(10) and (11) to bypass a parent for reunification services
February 15, 2018
Attorney: Robert Bryzman
Categories: Criminal Sentencing
The Court of Appeal reversed the denial of appellant’s petition for resentencing under Proposition 36, finding that the trial court erred in holding that a conviction for being a felon in possession of a firearm is equivalent to being armed with a firearm, which would be a Proposition 36 disqualifier. The Court of Appeal agreed with “every court to consider the issue” that a felon who possesses a firearm is “armed” only if he has the firearm available for offensive or defensive use. The court further noted that the people bear the burden of proving a defendant is disqualified based on 1170.126, subd. (e) factors. (People v. Frierson (2017) 4 Cal.5th 225.)
February 9, 2018
Attorney: Jeremy Price
Categories: Credits Criminal Probation, Parole, PRCS, and Mandatory Supervision
After reducing one of multiple felonies to a misdemeanor pursuant at a Proposition 47 resentencing, custody credits exceeded the newly imposed term of imprisonment. The trial court applied the excess credits to reduce his period of postrelease community supervision (PRCS). In a published decision, the Court construed language recently added to Penal Code section 1170(a)(3) to provide that excess custody credits apply to reduce a period of PRCS. Three prior published decisions had reached the opposite conclusion in the Proposition 36 context.
January 29, 2018
Attorney: Mara Bernstein
Categories: Dependency Disposition ICWA
Mother appealed from the juvenile court’s dispositional order changing the child’s placement, reducing mother’s visitation, and deficiencies in ICWA notice and inquiry. The Court of Appeal reversed the visitation order finding that mother was not given notice that a change in the visitation was sought. The Court agreed that mother’s due process rights were abrogated by the failure to provide her with notice of the request and an opportunity to present evidence and cross-examine witnesses. The Court also remanded for the Department to comply with notice provisions of the ICWA.
January 19, 2018
Attorney: Patricia Saucier
Categories: Dependency Jurisdiction
Mother appealed the juvenile court’s decision removing her two children from her custody, awarding sole custody to their previously noncustodial father, and terminating jurisdiction. Finding a lack of evidence in the record concerning the father’s circumstances and the juvenile court’s failure to explain its decision to immediately terminate jurisdiction, the Court of Appeal reversed and remanded the matter for further proceedings. The Court stated that father’s desire to assume custody, the children’s young age, or the fact that father had cared for one of the children on his own for perhaps two months, was not sufficient to show that continued supervision was unnecessary. The juvenile court may not terminate jurisdiction until it analyzed whether ongoing supervision of the child was necessary.
January 18, 2018
Attorney: Amy Seff
Categories: Dependency Disposition
Mother appealed from the dispositional order removing her four daughters from her custody and ordering supervised visitation. Mother had requested that the children be returned to her care with family maintenance services, or in the alternative, increased visitation. The Court of Appeal found that the evidence before the court provided absolutely no basis for a finding, much less a finding based on clear and convincing evidence, that there was a substantial risk of harm to the children if returned to their home, or that there were no reasonable means of protecting them without removal. The children may not be removed from their home because the Bureau was “curious” how the relationship between mother and father would play out or for an observation period to test the Department’s speculation.
September 7, 2017
Attorney: Jacob Olson
Categories: Dependency Permanency Planning (Section 366.26)
Mother appealed from the denial of her section 388 petition for modification and the termination of her parental rights. The Court of Appeal reversed the juvenile court’s order terminating mother’s parental rights and identifying adoption with paternal grandparents in Denmark as the permanent plan for the minor. The Court agreed with mother that she had established the applicability of the beneficial-relationship exception under WIC 366.26, subd. (c)(1)(B)(i). The Court found that due to the undisputed strong bond between mother and the minor, an exceptional situation existed which overcame the Legislature’s preference for adoption. The Court stated that in light of its conclusion that the juvenile court erred in terminating mother’s parental rights, it would be appropriate to remand the entire case so the court could take into consideration any new evidence or changed circumstances so that it may consider the current best interests of the minor.