March 2020 Update
The Family First Prevention Services Act of 2018 (Pub L 115–123)
The Family First Prevention Services Act (FFPSA) of 2018 is a major development in federal child welfare law. The Act is contained in Title VII of the Bipartisan Budget Act of 2018 (Pub L 115–123, §§50701–50782, 132 Stat 64). The FFPSA is a wide-ranging statute, but two major provisions stand out as particularly important reforms: (1) funding for prevention services and (2) limits on congregate care placements. States have the option to delay implementation for up to 2 years—until October 30, 2021. At the time of this writing, it is not clear if or when California will “opt in” to these two major provisions of the FFPSA. See new section §1.7B.
Temporary restraining orders
The court in In re Bruno M. (2018) 28 CA5th 990, 997, held that Welf & I C §§213.5, as amended, authorized a restraining order to include children when the evidence showed that the father “disturbed the peace” of the children by his assaults on their mother in their presence. See §2.34.
Legal sufficiency of dependency petition
In In re G.B. (2019) 28 CA5th 475, 488, the court held that the juvenile court lacks authority to initiate dependency proceedings against a parent on its own motion, citing Cal Rules of Ct 5.520(a). See §3.2.
In that same case (28 CA5th at 486), the court held that the juvenile court had no statutory authority to amend the petition to assert allegations against the father based on factual and legal theory that were not at issue in the original petition after the court found the original allegations unsubstantiated. See §§3.7, 3.25.
Note that the presumption of parental fitness that underlies custody cases in family law does not apply in juvenile dependency cases. Hence, a determination that a child is not at a substantial risk of detriment in a parent’s custody in a dependency proceeding does not confer a finding of parental fitness on an offending parent and does not automatically terminate a dependency. In re J.P. (2019) 37 CA5th 1111, 1121. See §6.7.
Placement with relative
The directive to give preferential consideration to a request by a relative of the child for placement does not apply to a postpermanency request for placement, even assuming the agency did not properly consider that request during the reunification period. In re Maria Q. (2018) 28 CA5th 577, 596. See §5.37.
On a motion under Welf & I C §388, the appellate court held that substantial evidence supported the juvenile court’s decision to remove the child from her de facto parents and place her with her sibling’s adoptive parents in a different state; because the standard of review is abuse of discretion, the appellate court will defer to the juvenile court’s decision when both home placement options are potentially beneficial. In re L.M. (2019) 39 CA5th 898, 915. Compare to In re M.H. (2018) 21 CA5th 1296, in which the court of appeal upheld the juvenile court’s decision denying the department’s request to move a one-year-old from his nonrelative foster home to the Minnesota home of a maternal great-aunt. The juvenile court did not abuse its discretion in deciding that a change in placement would not be in the child’s best interest. See §13.26.
Denial of reunification; standard of proof
Denial of reunification is mandated if juvenile court jurisdiction arose because of the parent’s conduct (Welf & I C §300(e)), unless the court finds that, “based on competent testimony” (Welf & I C §361.5(c)(3)), those services are likely to prevent reabuse or continued neglect, or the child is so closely and positively attached to the parent that nonreunification would be detrimental to the child. The appellate court held in In re A.E. (2019) 38 CA5th 1124 that the term “testimony” in Welf & I C §361.5(c)(3) “refers to in-court oral statements of live witnesses, not to other forms of evidence. ‘Testimony’ thus is not synonymous with ‘evidence.’” Hence, the court held that the necessary findings for an order for reunification services under Welf & C §361.5(c)(3) must be based on competent testimony, i.e., in-court oral statements of a live witness. See §5.55.
Placement preservation requirements (AB 2247)
Welfare and Institutions Code §16010.7 was added, effective January 1, 2019, by Stats 2018, ch 674, §1 (AB 2247) to prevent unnecessary or abrupt placement changes of dependent children. It requires child welfare agencies to make efforts to preserve a placement before making a placement change. Welf & I C §16010.7(a). The placement preservation strategy must be developed in consultation with the child and family team (CFT) for the child and documented in the case notes. Welf & I C §16010.7(b)–(c). See §12.26.
Effective January 1, 2020, the procedures and requirements under which a voluntary declaration of parentage may be established and challenged are modified. See Fam C §§7570–7581, operative January 1, 2020; Stats 2018, ch 876 (AB 876). See §§2.54, 2.55, 3.23, 11.36, 11.38, 12.28–12.29.
Previously, effective January 1, 2019, AB 2684 (Stats 2018, ch 876) updated and revised the Uniform Parentage Act (UPA) (1) to ensure that the parentage provisions of the Family Code, including the conclusive marital presumption of parentage in Fam C §7540, treat same-sex parents equally and, for parents who conceived children through assisted reproduction, to establish their parentage through a voluntary declaration of parentage; and (2) to update the genetic testing provisions to match current scientific requirements, apply gender neutrality, and codify case law regarding the relevance of genetic testing in cases involving multiple claims of parentage. See §11.34.
The legislature eliminated the use of gendered pronouns in the Family Code (AB 1817 (Stats 2019, chap 115)) and made widespread changes in terminology in the Uniform Parentage Act (UPA) (Fam C §§7600–7730) to reflect gender neutrality. See AB 2684 (Stats 2018, ch 876); AB 1403 (Stats 2013, ch 510). Specifically, the legislature stated that the provisions of the UPA should be interpreted to provide equal treatment to same-sex parents, transgender parents, and their children. Stats 2018, ch 876, §1(c). See also, e.g., Fam C §7650 (insofar as practicable, provisions of Division 12 of Family Code (Fam C §§7500–7962) apply to determine existence or nonexistence of mother-child relationship). At the same time, the legislature noted that it is not the legislature’s intent to abrogate case law interpreting the laws amended in this Act that is consistent with the purposes of the Act, unless it is inconsistent with specific statutory language. Stats 2018, ch 876, §1(c). Although Welf & I C §316.2 still refers to “fathers” and “paternity” and Welf & I C §361.5(a) requires that services be offered to the “mother” and the “presumed father,” these provisions should be read as requiring the court to determine parentage of any person who may qualify as the child’s parent under the UPA and as authorizing services to persons of either gender who qualify as presumed parents. See §§11.34, 12.28.
In C.A. v C.P. (2018) 29 CA5th 27, the appellate court granted the biological father’s petition seeking legal confirmation of his paternal rights to the child born to a married woman, creating a three-parent family. See §§3.23, 11.34.
Child’s Fourth Amendment rights
In Mann v City of San Diego (9th Cir 2018) 907 F3d 1154, 1160, the Ninth Circuit held that a county’s practice of subjecting children to intrusive medical exams without the parents’ consent or court order violated the parents’ Fourteenth Amendment substantive due process rights and the children’s Fourth Amendment right to be secure from unreasonable searches and seizures. See §2.23. See also §14.29.
In Capp v County of San Diego (9th Cir, Oct. 4, 2019, No. 18–55119) 2019 US App Lexis 29928, the Ninth Circuit court held that there is no binding authority establishing that a social worker’s in-school interview violates the child’s Fourth Amendment rights because the Supreme Court’s vacatur in Greene II was to prevent Greene I from spawning any legal consequences. See also Salvi v City of San Diego (SD Cal, Apr. 17, 2019, No. 18cv1936 DMS (MDD)) 2019 US Dist Lexis 65826, *14 (granting defendants’ motion to dismiss on claims alleging Fourth Amendment violations involving interview of child at school and medical examinations performed without parental consent). See §11.32.
Representing children and parents
For a helpful resource, see Dependency Quick Guide, A Dogbook for Attorneys Representing Children and Parents (3d ed 2017), published by the Judicial Council of California, Operations and Programs Division, Center for Families, Children and the Courts. The Guide is intended to be used as a reference manual for attorneys representing parents and children in juvenile dependency proceedings. The Guide is sometimes colloquially referred to as “CALDOG” and available at https://www.courts.ca.gov/documents/dogbook.pdf. See §§10.19, 11.1, 12.1, 13.3.
Resource family approval (RFA) process
The resource family approval (RFA) process includes (Welf & I C §16519.5(d)(2)–(3)) (1) a home environment assessment and (2) a permanency assessment. As part of the permanency assessment, the social worker must perform a family evaluation, which must include the results of a risk assessment. Previously, a “psychosocial assessment of an applicant” was required.” Welf & I C §16519.5(d)(3). See §5.37A.
The permanency assessment and, effective January 1, 2019, also the written report described in Welf & I C §1§16519.5(g)(5), must be completed within 90 days of the child’s placement in the home, unless good cause exists based on the needs of the child. Welf & I C §16519.5(e)(1)(A). See §5.37A.
The 90-day time limit for the permanency assessment and the written report also applies when a child is placed on an emergency basis with a family who has successfully completed the home environment assessment. In emergency cases, the permanency assessment must be completed within 90 days of the application to become a resource family, unless good cause exists based on the needs of the child. Welf & I C §16519.5(d)(4)(A), (e)(2). Subsections (d)(4)(A) and (e)(2) were added by the legislature in 2018. See §5.37A.
ICWA held constitutional by Fifth Circuit. In October 2018, a district court in Texas declared the 40-year old Indian Child Welfare Act of 1978 (ICWA) (25 USC §§1901–1963) unconstitutional. Brackeen v Zinke (ND Tex, Oct. 4, 2018, Case 4:17-CV-00868) 2018 US Dist Lexis173115. First, the court held that ICWA’s mandatory placement preferences violate the equal protection clause, which requires all people to be treated equally under the law. Second, the court found that the Act violates the Tenth Amendment prohibition on federal overreach on a state’s right to address and process child dependency proceedings heard in state courts (ICWA provision requiring states to apply federal standards to state-created claims commandeered the states in violation of the Tenth Amendment). Several tribes intervened in the case and the federal government appealed the decision to the Fifth Circuit, which found the ICWA and the Bureau of Indian Affairs (BIA) ICWA regulations constitutional in August 2019. Brackeen v Bernhardt (5th Cir, Aug. 9, 2019, No. 18-11479) 2019 US App Lexis 23839. The decision could still be appealed, this time to the United States Supreme Court. See §9.1.
Tribally approved home. New subsection (r) of Welf & I C §224.1 adds the definition of “tribally approved home.” Stats 2019, ch 27, §17. Tribally approved homes do not have to go through the county’s approval process, but background checks as required by Health & S C §§1522 and 1522.1 for foster care or adoptive placement do apply to tribally approved homes. See §9.2.
Welfare and Institutions Code 391, relating to the termination of jurisdiction over nonminors, has been repealed and recast with new and more extensive duties for the county welfare departments, starting at an earlier age of the dependent child. Stats 2019, ch 438. The social worker’s duty to provide reports under Welf & I C §391 that the requisite information, documents, and services are being provided begins with the first regularly scheduled review hearing after the child has attained age 16 and continues through every regular scheduled review hearing after the child attains age 18 until the jurisdiction terminates. Welf & I C §391(a)–(c), (h). See §§6.15A, 12.33, 14.92A.