5429 Cahuenga Boulevard

N. Hollywood, CA 91601-2918

Tele: (818) 404-1170

Fax: (818) 508-1529

​Phillips@PhillipsFamilyLawyer.com

JUVENILE DEPENDENCY COURT AND FAMILY LAW


Both the Juvenile Court and Family Law Courts have jurisdiction over the issues of custody and visitation of children. 


If there is a Juvenile Court Dependency Proceeding pending as to the custody of a child, the Juvenile Court's order takes precedence over Family Court orders, and the Family Court proceedings as to custody and visitation will be stayed.  It is, therefore, important to understand the interaction between the two court systems and their effect on custody, paternity, and dissolution of marriage cases. 


The Family Code governs matters heard in Family Law Court. The Family Law court is not a separate court of the Superior Court System.  Family Court presumes it is in the best interests of children to have frequent and continuing contact with both parents and presumes parental fitness.  In family law matters, parents can stipulate and agree privately between themselves to resolve privately issues of custody, visitation and property. That is not possible in Juvenile Court. 

Juvenile Court is a separate Superior court and its Dependency Proceedings  are governed by Welfare and Institutions Code (“W&I Code”). The purposes of Juvenile Court in Dependency Proceedings is to protect the safety of children. It restricts parental behavior; removes children from unsafe homes; gives children a sense of permanence; provides active leadership in the community. Juvenile Courts do not assume parental fitness due to the very nature of circumstances surrounding dependency proceedings.   The Domestic Violence Prevention Act ("DVPA") applies to both Juvenile Court and Family Law matters.  Hearsay may be allowed in limited circumstances in Dependency proceedings,  but  hearsay would be excluded in Family Law hearings. The Juvenile Courts  have jurisdiction over custody and visitation, but not over support or division of property.  Support and property are handled exclusively by the family law courts pursuant to the Family Code. 

PRE-DEPENDENCY COURT FILING:  Children usually come into the dependency system  through the  Child Abuse Hotline:  1 (800) CHILD ABUSE, or are reported by relative friend or Mandated Reporter.  These calls are then screened by a Clinical Social Worker  to assess the risk and weed out inappropriate calls such as child custody disputes, parent/teenage conflict, headlice on child, pregnant teen, poverty/lack of emergency shelter.

The Clinical Social Worker ("CSW") will assess whether the child should be immediately removed or whether less drastic measures can be implemented to maintain the family while still protecting the child and includes a case plan for the parents.  Two such pre-removal methods are the “Voluntary Family Maintenance Contracts” (“VFM contracts”) and the “Voluntary Family Reunification Contract” (“VFR Contract”).  The VFMs are valid for 6 months and are renewable. The VFRs voluntarily places children with approved relative, family friend or foster care provider and are valid for up to 180 days. It is important to remember that both the VFMs and the VFR are contracts and they are not orders!  So, if there are family law orders in effect regarding custody, visitation, and restraining orders, the family law orders take precedence and must be followed.  As a practical matter, if a hearing is pending in the family law courts on custody or visitation and the judge learns that the Dept. of Child and Family Services ("DCFS") is investigating the matter, the judge will usually continue the hearing pending the outcome of the DCFS investigation.

The findings of the DCFS investigation are classified as follows:

  • SUBSTANTIATED– more likely than not that child abuse or neglect occurred. These are reported to the statewide reporting system CACI and may affect a person’s job.
  • INCONCLUSIVE or  UNSUBSTANTIATED – insufficient evidence to determine. This could be because parent can’t be located or some other reason. This doesn’t mean allegations  were not true or didn’t happen.
  • UNFOUNDED – False, improbable or accidental.  


 CACI is a database of suspected child abuse and severe neglect.  Under recent law only “SUBSTANTIATED”  reports are reported to  CACI.  CACI is available to 3rd parties: licensed agencies of the county, available for pre-employment background investigations and some out of state agencies.   If "UNFOUNDED" reports are reported to the statewide reporting system CACI , the parent will need to file a grievance to have parent’s name removed. Being listed on CACI can, in some circumstances, interfere with a person's employment opportunities.

THE JUVENILE COURT DEPENDENCY SYSTEM:
There are a number of hearings in Dependency matters which include, in this order:  Filing of the Petition; Detention Hearing, Jurisdictional Hearing, Dispositional Hearing, 6 month review hearing, 12 month permanency hearing, 24 month permanency hearing, W&IC 366.26 hearing, and Review of Permanent Order.

CONFIDENTIALITY: Dependency Court records are confidential.  Recent changes in the law give family law and probate courts,  judicial officers, parents and their legal counsel and Registered Domestic Partners (“RDPs”) access to  Juvenile Court records, BUT access means right to view, THESE DOCUMENTS ARE NEVER TO BE ATTACHED TO A FAMILY LAW PLEADING. Doing so is a major breach of confidentiality and may subject the person disclosing such documents to sanctions or civil liability. 

1.  PETITION AND DETENTION HEARING: The petition is the legal document on which the court bases its jurisdiction.


The Detention hearing is the first hearing.  The standard of proof is very low because not much is known about the case at this point. The County bears burden to establish a prima facie case, plus evidence of RISK OF HARM. County must prove child falls within W&IC 300(a)-(j). Everyone gets a lawyer, including the child.  If a parent cannot afford a lawyer, one is appointed free of charge.

  • This detention hearing is referred to an ARRAIGNMENT where parties are informed of allegations and rights.  If jurisdiction is proper, DCFS must place child w a relative, non-relative extended family or foster home.

  • The court will determine if a father is an alleged father or a presumed father.  
  • PLACEMENT WITH A RELATIVE: If child not already w a relative, but a relative is available, Ct will consider moral character of relative, including criminal convictions (some can be waived); ability of relative to provide for child’s safety and well-being; siblings.
  • ​Court will inquire if the child are American Indian and fall under the INDIAN CHILD WELFARE ACT (ICWA).
    • There are currently 567 Federally identified eligible tribes.
    • Establishes minimum federal standards for the placement of American Indian children 
    • If tribal membership is verified, the case will be transferred to a special court.  ICWA supersedes CA law and a case may even be transferred to the Tribal Court. When that happens, the California Juvenile Court loses jurisdiction over the case and can make no orders regarding the child. 
    • ICWA cases require a higher level of proof of placement in foster care and termination of parental right
  • Any visitation orders issued must be in the best interest of the child and be specific to child’s needs and age.
  • Options for visitation available are: monitored (how many, what days, how long); monitored visits in neutral setting; unmonitored/reasonable visits; weekend/overnight visits.


2.  JURISDICTIONAL HEARING – This will be the next hearing and is held 30 days from the date of filing the Petition. 

  • It is important to note that Juvenile Courts have jurisdiction over CHILDREN (not parents) who satisfy requirements of W&IC 300( a) – (j).   
  • Will determine whether allegations under W&I C 300 are true or not by a preponderance of evidence
  • Will consider social study reports and testimony of parties


The Juvenile Court must have jurisdiction under Welfare & Institutions Code 300 (a) through (j)it has no power to issue orders regarding the child:  The following is a brief synopsis of W&I C 300(a) - (j):

  • W&IC 300 (a) INTENTIONAL HARM – child suffered or is a substantial risk that they will suffer serious physical harm inflicted non-accidently
    • ​Will consider: Past injuries inflicted by parent or guardian that were not serious enough for jurisdiction; history of repeated infliction of injury; domestic violence that places child in situation with a substantial risk of harm
  • ​W&IC 300 (b) – NEGLIGENT HARM: has suffered, or substantial risk will suffer serious physical harm or illness as a result of:
    • Inadequate supervision
    • Failure to protect child from conduct of a custodian (Domestic Violence, sexual abuse, one parent using drugs and other parent knows about it)
    • Failure to provide adequate food, shelter, or medical treatment
    • Inability to provide care for mental illness, developmental disabilities, or substance abuse.
    • DOMESTIC VIOLENCE: 
      • If child heard or see Domestic Violence, that is enough for a W&I C 300(b)
      • Physical violence between parents may support jurisdiction under subdivision 300(b), But only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm. 
    • Examples of a W&I C 300(b) case:  
      • IN RE DAVID M. Fact that parent is mentally ill not sufficient to sustain jurisdiction under W&IC 300(b) UNLESS can be shown how child will be harmed. 
      • A continuing drug problem will NOT support jurisdiction UNLESS it poses a substantial risk to child’s well-being. Ex Dad uses medical marijuana, but becomes violent when using.
      • Failure to ensure regular school attendance is INSUFFICIENT basis for jurisdiction.
  • W&IC 300( c) SEVERE EMOTIONAL ABUSE. 
    • The Juvenile Court in Dependency Proceedings has no jurisdiction where a child just has an aversion to a parent or the parents can't work together. These would be issues that to be dealt with in the Family Law courts. 
    • The Juvenile Court in Dependency Proceedings will have jurisdiction where  the child has severe emotional damage; child used as weapon; parents turn blind eye to risk of emotional damage.
    • Example: IN RE CHRISTOPHER C. was a  W&I C 300 (c) case.  This was a really bad case where parents were psychologically in "alternate universe" to the extend that the child didn’t know what was true and what was not true.
    • Evidenced by severe anxiety, depression, withdrawal, or aggressive behavior towards self or others 
  • W&IC 300 (d) SEXUAL ABUSE  -  sexual abuse is defined in the Penal Code:
    • Child has been sexually abused or there is substantial risk of sexual abuse by his or her parent, guardian, or a member of the household, OR
    • Child’s parent or guardian failed to adequately protect the child from sexual abuse when they knew or reasonably should have known that the child was in danger of sexual abuse.
  • W&IC 300(e) CHILD UNDER 5:  Child under 5 suffered severe physical or sexual abuse by parent, guardian, or other person known by the parent, if the parent s/have known of the physical abuse. If allegations true, court MUST deny reunification services, UNLESS the denial would be detrimental to the child.
  • W&IC 300(f) CAUSED DEATH: statute no longer says “has been convicted of.” Juvenile Court  standard of proof for this section preponderance of evidence.
    • ​Parent has caused death of another child through abuse or neglect
    • Doesn’t have to be criminally convicted but merely caused the death
    • Puts the Juvenile court in the position of conducting murder trial, but under the lower standard of proof of preponderance of the evidence. 
    • The court can deny reunification services.
  • W&IC 300(g) ABANDONMENT
    • Child left without any provision or support or parent has been incarcerated or institutionalized and cannot arrange for the care of the child or whereabouts of parents are unknown and reasonable efforts to locate them have proven unsuccessful or parent voluntarily surrendered their child within 72 hours of birth.
  • ​W&IC 300(H) FREED FOR ADOPTION – rarely comes up
    • Child has been freed for adoption by one or both parents for 12 months, relinquishment, termination of parental rights. This may arise where a child was freed for adoption, but the adoption petition was not granted
  • W&IC 300(i) CRUELTY:  Severe cruelty that shocks the conscience, maltreatment, torture by parent, guardian, household member.  Intentional acts needlessly inflicting extreme pain or distress or failed to protect child from that act of cruelty
  • W&IC 300(j): CHILD’S SIBLING has been abused as in (a), (b), (d), (e)  or (i) and substantial risk the child will be abused or neglected as defined in those sections. Ct will consider age and gender of abused sibling.


HEARSAY: Hearsay is allowed  in Juvenile Court Dependency Proceedings in very limited circumstances.  

  • The Clinical Social Worker's  social study report is admissible even though contains hearsay and multiple hearsay as long as social worker who created the report is available for cross examination. The DCFS Clinical Social Worker is independent investigator and parents have opportunity to cross examine her and subpoena hearsay declarants.   If party objects to evidence in social study report, evidence still admissible but cannot provide the sole basis for finding jurisdiction.  There is also an exception if made by mandated reporter, and declarant is available to testify, or if the hearsay statement falls  within another hearsay exception. 
  •  There is a special judicially created child hearsay exception, called the “child dependency hearsay” exception:
    • Allows hearsay from child under 12 and subject to the court's  jurisdiction will be admitted and can be sole basis for finding jurisdiction UNLESS there is some demonstration of fraud, deceit, undue influence.
    • Admission of hearsay from incompetent child doesn’t violate due process rights.
    • Must be special indicia of reliability.


AT THIS POINT, IF JURISDICTION IS PROPER UNDER W&I C 300,  THEN THE JUVENILE COURT WILL HAVE EXCLUSIVE  JURISDICTION OVER ALL MATTERS PERTAINING TO THE FOLLOWING MATTERS:

  • Custody and visitation 
  • Paternity determinations 
  • Non-criminal restraining orders 
  • Juvenile custody orders 


At this point, all litigation in family court concerning the custody and visitation of the child is STAYED!

3.  DISPOSITIONAL HEARING

The third hearing in a Dependency Proceeding is the Dispositional Hearing. The court makes a legal finding of whether child is dependent of the Juvenile court.  The County has burden of proof by

  • Preponderance of the evidence on this issue IF CHILD IS AT HOME
  • By clear and convincing evidence IF CHILD HAS BEEN REMOVED FROM THE HOME


A Case Plan will also be formulated and ordered at this hearing.   A Family Maintenance Services, Plan may include ​Counseling services for child and parents, substance abuse programs. any measures to rectify issues that brought the child within jurisdiction of the court.   If the child is  returned to the home, a Family Reunification Services  Plan may include counseling, substance abuse programs, visitation plans.   Plans are for 6 months of services if child is under age 3 (from date of detention), and 12 months if over age of 3 (from date removed). 


PLACEMENT IF CHILD REMOVED FROM HOME: 

  • W&IC 361.2( e): Placement Considerations. Ct may place a child with any of the following: noncustodial parent, relative, nonrelative extended family member, foster home, licensed community care facility, foster family agency
  • W&IC 361.2(a): Placement with Noncustodial Parent.  
  • ​If child is removed from one parent, child may be placed with noncustodial parent AND the court may:
    • Award legal and physical custody to the parent and terminate jurisdiction
    • Award custody to that parent, subject to the Court’s jurisdiction and home visit within 3 months
    • Award custody to that parent, subject to the Court’s supervision and order reunification services for one or both parents.
    • This is not automatic: must consider the facts
    • ​VISITATION ORDERS (W&IC 362.1) – As part of the Family Reunification Order, court will order visitation between child and parent and/or sibling as frequent as possible consistent with “well-being of child.”  
    • Ct can’t order siblings not subject to the court's  jurisdiction to visit a dependent child.  IN RE A.R. (2012)
    • Emotional detriment, not just physical, is sufficient to stop visitation. Can remove child where parents were extremely emotionally abusive of child.


The court may deny Family Reunification Services and there are 16 grounds for denial of such services, such as  a child under age 5 been severely abused, parent has two times failed or refused to participate in Juvenile court ordered treatment plan despite services to implement the plan being both available and accessible.


If Family Reunification services have been denied, a parent can ask for a contested hearing. The burden of proof shifts from the County to the parent and the standard of proof of clear and convincing evidence that Family Reunification is in the best interests of the child. 

4.  W&IC 366: REVIEW HEARING:  Held every 6 mo from date of original dispositional hearing.  The court will issue findings regarding: 

  • Continuing need and appropriateness of placement
  • Whether DCFS is making reasonable efforts to return child to the home or permanently place the child
  • MUST order return of child unless DCFS can show by preponderance of evidence that return would create a SUBSTANTIAL RISK OF DETRIMENT to the child’s safety, protection, emotional well-being
  • Court will terminate Family Reunification services, absent exceptional circumstances
  • Non-compliance with the case plan is prima facie evidence of detriment


5.  REVIEW HEARINGS: TIME LINE:

  • W&IC 366.21( e): 6 mo after dispositional hearing.
  • Will review for children under age 3 or part of sibling group where 1 child under 3
  • W&IC 366.21(f)  12 month permanency hearing (If not reunified, GAME OVER.)  The court may continue case if SUBSTANTIAL PROBABILITY child will be returned to physical custody of parent. 
  • W&IC 366.22 18 month hearing – this is the end of the line and is from date of removal. 
  • W&IC 366.22 24 month permanency hearing:  24 mo from date of removal ONLY IF 
    • Parent recently released from prison, institutionalization, detention (immigration/deportation) substance abuse treatment  AND THERE IS
      • SUBSTANTIAL probability child will be returned
      • It would be in best interest of child
      • Or Reasonable services have not been provided


6.  MOTION TO MODIFY COURT ORDER (W&IC 388)  

A  W&I C  388 motion is very powerful and can be filed by anyone, including a nonparty.  Must demonstrate a CHANGE OF CIRCUMSTANCES by preponderance of evidence AND that modification of the court's current order is in the best interest of the child.  This motion can be FILED AT ANY TIME.  The motion is filed with the court and then the Court determines if the motion will be heard.  If so, will be set for hearing in 30 days

7.  W&IC 366.26: SELECTION & IMPLEMENTATION HEARING:  Parental rights can be terminated at this hearing. 

  • Disposition hearing if no reunification
  • Parents fail to reunify at review hearings
  • 120 days – different social worker assigned to determine
  • Adoption, legal guardianship, permanent placement living arrangement (“PPLA”)


8.  REVIEW OF PERMANENT PLAN (RPP) will occur every 6 mo, or until jurisdiction is terminated, child turns 18, or graduates from high school. The purpose of the review is to determine if the permanent plan is being implemented in a timely fashion, and can plan be upgraded to a more stable, permanent plan,  or for return to home of parent, or for legal guardianship, or adoption.  Since 2012, the law now allows  a child to stay in foster care until age 21.

NEGATIVE OUTCOMES OF DEPENDENCY SYSTEM (CA)
46% don’t complete HS compared to 16% of general population
Fewer than 10% of foster youth who graduate from HS go to college and
Fewer than 2% of those will receive a college degree
Youth homelessness and poverty
65% leave system w/o stable place to live – that is why the new 2012 law was passed to keep kids in until 21 if they chose
51% unemployed within 2 – 4 yrs of emancipation (aging out of foster care)
Crime: 70% of all state penitentiary inmates have spent time in foster care

POSITIVE OUTCOMES OF DEPENDENCY SYSTEM – DEPENDENCY IS A REHABILITATION COURT
Parents are empowered through resources and services.
Children who were previously living in horrendous circumstances are placed in safe environments.
Parents are forced to take responsibility for their circumstances and become productive members of society.
Children who are in desperate situations are given access to resources and an opportunity to grow and succeed.


HOPE FOR THE FUTURE:  The 2012 change in the law allowing children to choose to remain in the system until they are 21 will, hopefully, give children a better chance at completing their high school and college educations, as well as secure job training and employment. 

JUVENILE CUSTODY ORDERS are not family law orders or exit orders. Juvenile court orders must be filed in any existing and active family law custody case. Juvenile Court orders can be used as SOLE BASIS to open a file if no custody proceeding has been filed in Family Law court.  The Juvenile Court, because its is governed by the Juvenile Code, has authority to make orders that extend beyond what the Family Law court could make.   For instance, Family Code 3190 limits counseling orders for parents to no longer than 1 yr.  The Juvenile court can order a parent to submit to counseling for indefinite period of time to eliminate the conditions that brought the child within  the Juvenile Court’s jurisdiction.   The Juvenile Court's orders   will then be transferred to an existing Family Court file on termination of  the Juvenile Court case, OR be the basis on which to file in Family Court.


The Juvenile Court can also make orders which terminate its  jurisdiction and determine supervision of the Juvenile Court is no longer necessary, yet condition visitation on completion of programs that are designed to minimize or eliminate the danger that subjected the child to the same risks that led to dependency.  It is important to note that the child, not the parent, is under the jurisdiction of the Juvenile Court. 


When compared to family law custody orders, Juvenile Court orders are akin to PERMANENT custody orders (Montenegro Orders); NOT temporary orders. 

MODIFICATION: In order to modify a Juvenile Court order, there must be a change in circumstances that demonstrate that the original Juvenile Court order is no longer in best interest of the child.  Pursuant to W&IC 302(d) Juvenile custody orders CANNOT be modified by family law proceeding without SIGNIFICANT change of circumstances that show that modification is in best interest of child.

JUVENILE PROTECTIVE ORDERS:  The Juvenile Courts may issue protective orders to either parent:

  • Enjoining specific acts of abuse
  • Excluding a person from dwelling
  • Enjoining other specific behaviors
  • Since 2012, these orders are more consistent with the requirements of the Domestic Violence Prevention Act, which is also applicable to the family law courts.  


PROBATE COURT AND DEPENDENCY COURT GUARDIANSHIPS

Only two courts have the jurisdiction (power) to grant guardianships: the Juvenile Court and the Probate Court.  Guardianships are to protect minors whose parents are still living. Guardianships are common for orphaned children, prevention of abuse or neglect, child has bonded with  a nonparent or relative. 


THE MAJOR DIFFERENCES BETWEEN THE GUARDIANSHIPS ISSUED BY THE PROBATE AND THE JUVENILE COURT IN DEPENDENCY PROCEEDINGS ARE: 


PROBATE COURT GUARDIANSHIPS: 

  • Reunification is not a priority, cases not govered by mandatory timelines
  • Parties have NO RIGHT TO COUNSEL (ct may appoint counsel for child
  • No case management or social worker
  • Proposed guardians (Prob C 1516(a)) don’t have to meet foster parenting licensing standards
  • No automatic disqualification for criminal history
  • Probate court will be abated while Juvenile Court continues
  • Can be filed by any relative on behalf of the child
  • if over 12, child can be petitioner
  • One petition can be used for multiple siblings
  • Can consolidate any pending proceedings that may affect the guardianship
  • May have intent to accept physical custody of child with intent to adopt
  • The standard of proof for a Probate Guardianship is  “as appears necessary or convenient”
  • To appoint a nonparent over the objections of a parent,  the court must find by clear and convincing evidence that parental custody would be detrimental to the child
  • An annual report is required from legally appointed guardianships.  


JUVENILE COURT GUARDIANSHIPS: 

  • Primary focus is on parent reunification
  • Timelines for court determinations
  • All parties entitled to legal representation
  • Takes precedence over probate proceedings
  • Guardians must meet foster care license requirements
  • No criminal exemptions problems
  • Child must fall within jurisdiction (W&IC 300)
  • Parent must not be interested in Family Maintenance or Family Reunification services. Parent can waive this and consent to the guardianship.
  • Must be in best interest of child
  • Court must assess the guardian


Once a guardianship is granted, the child cannot returned to the custody of a parent unless a proper petition for termination is granted   Return to a parent must be in child’s best interest when balanced with the need for stability. 

A very important difference between the two courts is that Probate Code 1513( c) requires referral of Probate Guardianships to DCFS whenever a parent is accused of unfitness because  the Juvenile Court's Dependency safeguards  do NOT extend to PROBATE. This referral is mandated to protect a child at risk.  The Juvenile Court is better able to protect a child because it has access to investigations by the DCFS, parties and child are appointed counsel, and the Juvenile court has access to reunification and other services to offer the child and his family. 


CONSENT TO PROBATE GUARDIANSHIP: Under Prob C 1513( c) referral to Child Protective Services not necessary when parent consents to guardianship .   No finding of parental unfitness is required when parents consent.   No deprivation of due process when parents stipulate to guardianship. 

DEPENDENCY GUARDIANSHIPS: W&IC 366.26:   If reunification fails, the Court will develop a permanent plan for the child.  Guardianship suspends parental rights.   Court must order visitation for parents, unless  the court finds by clear and convincing evidence that the visit would be detrimental to child’s well-being.  The order for visitation need not have specific days and times. The order can allow the guardian determine when visitation will take place,  but the order must state whether the visitation will be monitored or not. 

TEMPORARY GUARDIANSHIP
Probate guardianship can be temproary, if there is urgency and good cause.  Notice must be given 5 court days before petition hearing. They are terminated according to PC 2257(a) when a permanent guardianship  is appointed or 30 days. 

EX PARTE TEMPORARY PROBATE GUARDIANSHIPS:
These can be issued without notice if there is good cause, such as parent threatens to abscond with child or there is Domestic Violence.  These must be reconsidered by the court within 30 days. 


TERMINATION OF GUARDIANSHIPS:
Terminates automatically at minor’s death, upon reaching 18, adoption, marriage or emancipation, or by court order.  May be terminated if the court determines the guardianship is no longer in child’s best interest.  In terminating a Guardianship, the court must consider effect on removing child from guardian, whether it is in the child's best interest to remove him from a long term stable environment. 

PROBATE  COURT AND DEPENDENCY COURT TERMINATION OF PARENTAL RIGHTS:
Parental rights may be terminated where: 

  • 1 or both parents do not have legal custody
  • Child out of parent’s custody for 2 years
  • Child would benefit from adoption by guardian
  • The "unfitness" standard is falling out of favor with the courts and is being replaced with the "best interests of the child" standard under the Family Code. 
  • Recent case has held that only some showing of unfitness is necessary and that can be a PAST unfitness.  Held unfitness is not as appropriate test  "best interests of the child" because "unfitness" 
    • Does not account for child’s interest in stability and permanency
    • Does not account for guardian’s substantial interest
  • Due process requires a finding of unfitness and DETRIMENT (in both Probate and Juvenile courts) by clear and convincing evidence before parental rights may be terminated.
    • At the Juvenile Court's dispositional hearing, a finding that there exists a SUBSTANTIAL danger to the children unless removed from offending parent – is a finding of DETRIMENT. 
    • Thus, a non-offending parent who has never been found to be unfit by the Ct may NOT have his/her parental rights terminated in Dependency Proceedings.  Example:  Father who was homeless and so didn’t ask for child, was not unfit nor was he a detriment to the child. 


W&IC 366.26 hearing is to determine permanent placement plan for the child and can be filed by a parent.  If court determines child is likely to be adopted, child is “freed” and parental rights are terminated  To prevail at this hearing, there are 5 exceptional circumstances that must be proven by a parent: 

  • Beneficial relationship between child and parent so strong it outweighs the adoption. Very high standard of proof
  • Regular visits and contact
  • Attachment
  • Parent/child relationship that would benefit child more than stability of adoption
  • Sibling who is going to be adopted can urge sibling exception


REINSTATEMENT OF PARENTAL RIGHTS:
Termination of parental rights is binding after the 60 day appeal period has lapsed 
If child has not been adopted within 3 years, the child can petition for reinstatement of parental rights under W&IC 366.26. This must be in the best interests of the child and be established by clear and convincing evidence. 


           LAW OFFICES 
KATHRYN IRENE PHILLIPS