When Any Doesn't Mean Every

In 2016, Daughters (then ages 14 and 11) were the children of Mother [M] and Father [F], all American citizens but living in Tijuana, Mexico.

From an anonymous tip, the Mexican Department of Integrity of Families [DIF], began investigating the welfare of the girls. They found the girls living in an abandoned house without electricity or running water and overrun with cockroaches. The girls told DIF that F was an alcoholic and drug addict, and M slept all day and also used alcohol and drugs. Neither parent worked, and the girls only ate one meal per day. According to DIF, the girls looked emaciated.

DIF removed the girls from the home, placed them in a care shelter and advised the parents on how to reunify with their children. M and F never attempted reunification, nor even contacted the girls while they were in the shelter.

In March of 2017, DIF contacted the San Diego County Health and Human Services Agency [Agency] because the girls were American citizens. The Agency took the children to California and filed a dependency petition.

The girls were placed with their maternal grandmother. They thrived in their grandmother’s care. They attend school for the first time in a year and became healthy.

The case was investigated for the Agency by social worker Y. The girls told Y they did not want to return to their parents and be hungry again. Y also spoke with the girls’ brother. He told Y that the girls were subjected to unrelated men in the household, one attempting to molest the older girl.

Y also made numerous attempts to contact F and M regarding unification with their daughters. The attempts were unsuccessful for almost a year.

Finally, F contacted the Agency requesting the return of his daughters. Programs for reunification were scheduled, with the help of DIF, including drug testing, phone calls with the girls, etc., but neither F nor M complied with any of them. However, F and M did show up for the hearings.

At the first hearing, the court ordered attorneys to represent F, M, and the girls. The Agency was represented by its own attorney. F and M wanted reunification, but the girls’ attorney wanted permanent custody granted to the grandmother.

At a later hearing, Y requested the court dismiss the dependency petitions, stating: "Despite the Agency's concerns that the parents have not had communication with the Agency since 9/13/2017 and they have not followed through with four drug tests or any appointments with DIF for a home evaluation, there is no evidence that the children will be at any risk under the parents' care. Furthermore, the parents had previously communicated that they would like their children returned to their care and that the mother had expressed that she would have a plan to pick up the children from maternal grandmother.” She also stated the reason there was no evidence is because DIF failed to provide written documentation to the Agency. Therefore, there was no proof that the girls were living in deplorable conditions, nor that their parents were on drugs.

The children’s attorney argued that it was not in the girls’ best interests to be returned to their parents, and she requested an Allen hearing. (Under the Allen case, when a social services agency seeks to dismiss a dependency petition over the child's objection, the juvenile court must determine whether dismissal is in the interests of justice and the minor's welfare.)

The court agreed with the girls’ attorney that there was more than enough “proof” that returning the girls to their parents was not in the girl’s best interests.

However, relying on Welfare and Institutions Code Section 300g, the judge believed he had to return the girls to their parents. The code states in part, "[if the] child has been left without any provision for support ...Or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful." Since the grandmother was willing to provide for the children, this section did not apply, and the court dismissed the case and returned the children to their parents. The children’s attorney appealed.

The Appellate Court agreed with the girls’ attorney: “Grandmother's willingness to provide for minors' care, a relevant fact if dependency jurisdiction was sought under the last criteria, is not an exception to, and does not trump, a finding that the child has been left without provision for his or her support when dependency jurisdiction is asserted under the first clause of section 300(g).

The girls were ordered to remain with their grandmother.

Categories: Child Custody, Family Law
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