Issues from '09 child protection cases

Here's the place to discuss how to win in juvenile courtrooms.

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Marina
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Issues from '09 child protection cases

Postby Marina » Tue Jan 05, 2010 10:27 am

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http://adoptionchildwelfarelaw.org/cases_list.php

Adoption and Child Welfare Lawsite



http://adoptionchildwelfarelaw.org/case ... php?id=746

CALIFORNIA: Burke v. County of Alameda
11.20.2009 | Child Protection

warrant
reasonable cause for removal
imminent danger
failure to protect
no notice to biological father before removal
training police on warrants

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Last edited by Marina on Wed Jan 06, 2010 5:08 pm, edited 1 time in total.

Marina
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Postby Marina » Tue Jan 05, 2010 10:33 am

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http://adoptionchildwelfarelaw.org/case ... php?id=750

NEVADA: Garcia v. Clark County
11.20.2009 | Child Protection

daughter died in foster care
failed to properly monitor the child
failed to allege sufficient facts
duty to protect

failed to offer any evidence... had “engaged in deliberate indifference”

not put forth any disputed evidence that the defendants had acted unreasonably in the child’s placement and supervision

Regarding the negligence claim,

the court found that the plaintiffs had not put forth sufficient evidence

to raise any genuine issue of material fact to support

that the defendant county and foster parents had breached their duty to care for the child

where there was clear evidence that the foster parents had taken appropriate steps to ensure that the child received the care she needed.

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Marina
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Postby Marina » Tue Jan 05, 2010 10:42 am

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http://adoptionchildwelfarelaw.org/case ... php?id=718

MASSACHUSETTS: Care and Protection of Zita
11.12.2009 | Child Protection / Adjudication

temporary custody... to the Department
court erred when it relied on “improperly considered facts.”

decision ... based on an unsworn petition that was not properly admitted into evidence

(based its decision ... ) on information the judge obtained from involvement in the mother’s previous care and protection proceeding regarding her two older children.

the department’s unsworn petition which was never introduced into evidence and did not conform to the statutory requirements regarding admitting reports into the record.

a judge may take judicial notice of the fact that he sat on a related case and also may take judicial notice of the docket entries in the prior case, he may not judicially notice ‘facts or evidence brought out at the prior hearing.’”

facts obtained during the mother’s prior case that were not offered by the department at the seventy-two hour hearing.

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Marina
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Postby Marina » Tue Jan 05, 2010 10:47 am

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Comment: Based on this case, if a child is being abused in foster care, why can't the biological parents file a petition of abuse directly with the court? Each new petition generates a new case.

http://adoptionchildwelfarelaw.org/case ... php?id=719

WEST VIRGINIA: In re Emily G.
11.12.2009 | Child Protection

The Supreme Court of Appeals ...vacated ...dismissal of ... grandparents’ abuse and/or neglect petition


http://www.state.wv.us/wvsca/docs/fall09/34752.htm

(a) If the department or a reputable person believes that a child is neglected or abused, the department or the person may present a petition...

[c]ircuit courts should appoint counsel for parents and custodians required to be named as respondents in abuse and neglect proceedings incident to the filing of each ...petition.


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Marina
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Postby Marina » Wed Jan 06, 2010 9:57 am

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http://adoptionchildwelfarelaw.org/case ... php?id=713

CALIFORNIA: In re Calvin P.
11.10.2009 | Child Protection

the juvenile court erred when it ordered that the mother receive family maintenance services rather than reunification services due to her children’s placement in their father’s custody.

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Marina
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Postby Marina » Wed Jan 06, 2010 10:10 am

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http://adoptionchildwelfarelaw.org/case ... php?id=703

TEXAS: In Re Northrop
10.29.2009 | Child Protection

writ of mandamus
petition to intervene
striking the petition because it was untimely

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Marina
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Postby Marina » Wed Jan 06, 2010 4:40 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=663

OREGON: In re T.P.
10.02.2009 | Child Protection




http://www.publications.ojd.state.or.us/A141483.htm

The state ... asserts that the state need not prove any culpability of mother in order to establish that child needs the protection of the juvenile court. We agree with the state.

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The standard for the exercise of jurisdiction ... under the totality of the circumstances, there is a reasonable likelihood of harm ...

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That conclusion, however, does not necessarily mean that child should not remain in mother's care. ORS 419B.331 allows the court, after taking dependency jurisdiction over a child, to place the child with the parent, subject to DHS supervision. The placement that serves a child's best interests is a separate question from whether the court should exercise jurisdiction over the child.

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Marina
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Postby Marina » Wed Jan 06, 2010 4:55 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=623

Texas: In re S.J.O.B.G.
07.31.2009 | Child Protection

International issue of residence

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Marina
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Postby Marina » Wed Jan 06, 2010 5:59 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=599

MINNESOTA: In re Child of S.S.W.
07.23.2009 | Child Protection / Adjudication

there must be proof that one of the listed child-protection grounds exists and that the child actually needs protection or services.

existence of one of the child protection grounds listed in the statute alone was insufficient.

child was receiving adequate care, and that there were no immediate safety concerns



http://www.lawlibrary.state.mn.us/archi ... 3-0707.pdf

page 1
A child does not meet the statutory definition of a “[c]hild in need of protection or services” under Minn. Stat. § 260C.007, subd. 6 (2008), unless one of the enumerated child-protection grounds exists and the child needs protection or services as a result.

page 2
erroneous interpretation of the statutory definition... vs. properly applied the law,

the evidence supports the district court‟s findings of fact, and the findings of fact support the district court‟s conclusions of law

page 6
S.S.W. argues that the district court must also find that the child actually needs protection or services as a result of the established child-protection ground. In other words, S.S.W. asserts that a child does not meet the statutory definition of a “[c]hild in need of protection or services” unless one of the enumerated child-protection grounds exists and the child needs protection or services as a result.

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An adjudication, or the withholding of an adjudication, is a dispositional decision that occurs after a child is proved to be in need of protection or services...

Here, the district court found that “[t]he facts alleged in the petition have not been prove[d]” and dismissed the CHIPS petition.

page 10
Thus, a child who was physically abused by a child-care provider in a licensed child-care facility technically falls within the plain language...

In this scenario, the child‟s parents in no way caused or knowingly contributed to the child‟s physical abuse. Nor did the parents fail to provide for the child‟s needs following the abuse. Even though one of the enumerated child-protection grounds is established, it would be unreasonable and absurd to conclude that this child is in need of protection or services given the particular facts of the case and the child‟s individual needs.
...

Absent evidence that the child actually needs protection or services as a result of the child‟s residence with the half-sibling, it would be absurd and unreasonable to conclude that this child is in need of protection or services.

page 12
The CHIPS petitioner must prove that the child meets the statutory definition of a “[c]hild in need of protection or services” by clear and convincing evidence.

page 17
“The dispositive issue here is whether the child in question is being abused or neglected or appears to be presently at risk.”

page 21
Despite its recognition that services would be beneficial, the district court concluded that it was compelled to hold petitioner to its burden of proof stating, “The fear that [S.S.W.‟s] history of child abuse might be repeated is not sufficient to meet [the department‟s] legal burden.” The district court based its conclusion on “direct evidence concerning [S.S.W.‟s] care of the child, her maintenance of her home and her interactions with the child.”
The district court‟s findings are supported by the evidence. The assigned caseworker of seven months observed nothing...

The district court also found that the assigned GAL...

S.S.W. always cooperated with the GAL...

page 22
The district court recognized that failure to adjudicate S.W. as a child in need of protection or services would end the services that had been put in place during the proceedings. But regardless of the benefits of those services to S.S.W. and S.W., the district court concluded that it was compelled to hold the department to its burden of proof. This statement is reasonably interpreted as a determination that services were beneficial, but not necessary...

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Marina
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Postby Marina » Wed Jan 06, 2010 6:07 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=602

CALIFORNIA: In re R.M.
07.23.2009 | Child Protection / Adjudication

evidence presented was insufficient to support the dependency allegation.

Issue of failure to protect
once the mother became aware of the children’s inappropriate sexual conduct she took steps to prevent its reoccurrence. In reaching its decision, the court found that there was no evidence indicating that the mother should have become aware of the inappropriate conduct ...

Issue of parent's problems
nor was there any evidence to support that mother’s physical or emotional problems interfered ...

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Marina
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Postby Marina » Wed Jan 06, 2010 6:10 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=579

ALABAMA: Ex parte Sumerlin
07.15.2009 | Child Protection


Immunity of Child Welfare employee in wrongful death case.

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Marina
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Postby Marina » Wed Jan 06, 2010 6:14 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=568

OREGON: State ex rel Dep’t. of Human Servs. v. N.S. (In re A.H.)
07.02.2009 | Child Protection / Disposition


juvenile court erred when it found that appellant’s alleged inability (of mother) to recognize the risk of harm posed by her brother, a convicted sex offender, prevented the child's return to the mother.

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Marina
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Postby Marina » Wed Jan 06, 2010 6:18 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=557

WASHINGTON: In re the Dependency of Tyler L.
06.26.2009 | Child Protection

visitation is crucial to the reunification of families

Here, while the children did experience extreme physical and emotional responses before and after visitation, such reactions are considered normal and appellant mother attended visits regularly, showed affection to the boys and interacted appropriately. The court held that the evidence did not support the trial court’s finding that restricted visitation was necessary to protect the children, nor did the department provide necessary services, such as therapeutic visitation, that would aid in the reunification process, and therefore, the dependency court’s restriction of visitation and denial of appellant mother’s request for therapeutic visitation was in error.

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Marina
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Postby Marina » Wed Jan 06, 2010 6:23 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=534

CALIFORNIA: In re S. B. v. Sharyl S.
06.18.2009 | Child Protection / Disposition

trial court’s order to search for an adoptive family constituted a judgment under §395 as it effectively precluded long-term foster care as a permanency plan for mother’s children leaving only adoption and legal guardianship as available dispositions.

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Marina
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Postby Marina » Wed Jan 06, 2010 6:25 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=536

MARYLAND: In re Najasha B.
06.18.2009 | Child Protection / Adjudication

juvenile court erred when it held that the Department of Social Services (DSS) has a unilateral right dismiss a CINA petition over the subject child’s objection.

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Marina
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Postby Marina » Wed Jan 06, 2010 6:30 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=537

CALIFORNIA: Brandon S. v. California
06.18.2009 | Child Protection / Foster Care

damages
(Fund) was not liable

the child’s negligent supervision claim, resulting from his sexual molestation by the biological child of the foster mother, fell within an exception to the statute which provides that the Fund is not liable for claims arising from a criminal act,


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Marina
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Postby Marina » Wed Jan 06, 2010 6:36 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=520

NEBRASKA: In re Interest of Spencer O.
05.28.2009 | Child Protection

nothing in statute that exempted children who are in foster care because of delinquency from the permanency hearing requirement.

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Marina
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Postby Marina » Wed Jan 06, 2010 6:40 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=522

CALIFORNIA: In re E.B.
05.28.2009 | Child Protection

affirmed the superior court’s order removing the children from the custody of appellant maternal great aunt, holding that appellant, as a mere relative and short term caretaker, did not have standing to appeal the order as she had no legally recognized interest in the children

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Marina
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Postby Marina » Wed Jan 06, 2010 6:50 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=525

TENNESSEE: Mullins v. State
05.28.2009 | Child Protection

child was under the care, custody and control of the State when initially removed ... and placed in the relative’s care, ...

DCS’s negligence in its investigation of the home prior to the child’s placement.

as the child was no longer in the State’s custody after custody was granted to the relative.

recovery is barred on a negligence claim because DCS’s action or inaction was not the proximate cause of the child’s death by a third party.

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Marina
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Postby Marina » Wed Jan 06, 2010 6:53 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=494

ALABAMA: Ex Parte Summerlin
05.07.2009 | Child Protection

was entitled to state-agent immunity in a wrongful-death action.

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Marina
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Postby Marina » Wed Jan 06, 2010 6:57 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=474

ARIZONA: Egan v. Fridlund-Horne
04.30.2009 | Child Protection

the lower court erred by failing to utilize procedural and evidentiary safeguards in order to protect the overarching interests of the legal parent by awarding the nonparent partner in a same-sex relationship equal visitation rights and not taking into account the fundamental rights of a fit legal parent to determine what is in the best interest of the child.

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Marina
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Postby Marina » Wed Jan 06, 2010 7:09 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=476

INDIANA: In re T.S.
04.30.2009 | Child Protection / Disposition

allowing a child, who had been removed from his mother’s care to remain with the child’s foster parents until the end of the school year

expedited appeal process for modifying dispositional decrees regarding child placement where the juvenile court does not follow DCS’s recommendation - in this case to return the child to his mother’s custody-- noting that where the juvenile court finds that a recommendation was unreasonable or contrary to the best interest of the child, the court need not accept the recommendation (of the Department), and the appellate standard of review of the juvenile court’s decision is for clear error.

Marina
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Postby Marina » Wed Jan 06, 2010 7:15 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=477

CALIFORNIA: In re Holly B.
04.30.2009 | Child Protection / Foster Care

appellant father lacked standing to challenge the order.

The court held that a parent may not appeal an order that does not affect the parent’s own rights. Here, the psychological evaluation was requested so the department could assess the appropriate foster home placement for the child, which would have no affect on the father’s efforts towards reunification with the child.

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Marina
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Postby Marina » Wed Jan 06, 2010 7:18 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=464

NEW JERSEY: New Jersey Div. of Youth & Family Servs. v. G.M.
04.28.2009 | Child Protection / Notice Rights




mother’s due process rights had been infringed upon as a result of a transfer of custody to the non-custodial father


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Marina
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Postby Marina » Wed Jan 06, 2010 7:37 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=465

OHIO: State v. Silverman
04.28.2009 | Child Protection

an out-of-court statement made by a child under the age of twelve which describes a sexual act performed by, with, or on the child or any act of violence directed against the child, is not excluded as hearsay under Ohio Evidence Rule 807 and

the court is not required to make determination regarding the child’s competence to testify prior to admitting the statement.

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