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.