Abducting Children Will Not Stop a Dependency Hearing

In 2017, Mother [M] and Father [F] had two children, a three-year-old son [S] and two-year-old daughter [D].  The Los Angeles County Department of Children and Family Services [DCFS] received numerous referrals stating that M and F were selling and abusing drugs, physically fighting each other, and cursing at their children.  A social worker and public health nurse visited M’s residence to investigate.  F was asked if he would submit to an interview, but he ignored them and left.  (He did not live at the residence.)  During M’s interview, she denied fighting with F, and admitted yelling – but not cursing at the children.  She also admitted to only smoking marijuana, but not in the presence of the children.  She also stated that S had asthma and D had a heart murmur, so she had to be careful about smoking.

F was contacted a few days later at work.  He screamed at the social worker, and asked what he had to do with anything.  He lived in his car, not with M and the children.  He also admitted that he was on criminal probation for five years for domestic violence.  He also needed to complete his domestic violence prevention classes.

DCFS continued to investigate and evaluate F and M.  During further interviews with M, she screamed at the social worker, refused to be tested for drugs, and said the allegations by her neighbors were misunderstandings.

In September of 2017, DCFS believed it had enough evidence for a dependency hearing against M alleging the children (under California’s Welfare and Institutions Code section 300) were at substantial risk of serious physical harm inflicted non-accidentally by a parent and/or at substantial risk of serious physical harm from M’s failure or inability to adequately supervise or protect her children. (By this time F was back in prison for parole violations.)

At the original detention hearing, the children were released to M on condition she submit to drug tests.  She missed the first test, but submitted for the second one.  There she tested positive for amphetamine, methamphetamine, cannabinoids, and cocaine metabolite, and DCFS sought a removal order.  A removal order was issued on November 1, 2017, but before the order could be given to M, she had absconded with the children.  Protective custody warrants were issued.  DCFS began searching for M and her children, but it wasn’t until August of 2018, that they were found and the children were placed in foster care.

In October of 2018, DCFS presented its updated evidence against M at a dependency hearing showing that M had failed to appear for three drug tests, failed the fourth in October of 2017, and missed four drug tests since her arrest in August of 2018.  Neither F (who was still in prison) nor M appeared for the hearing.  DCFS argued that it had enough evidence for the court to retain custody of S and D, but the court believed the evidence was too old.  The judge stated, “I can’t sustain it under the law.  I need current risk.  I need a nexus to the care of the children.  Unfortunately, if it were more recent violence and we had evidence that there was ongoing violence, perhaps it would be sustainable, but I don’t have that evidence.  The Mother’s drug use, the one positive test, is a year ago.  I really don’t know what the situation is with her.  Just because she has not been cooperative with the Department does not create any kind of presumption that she is currently using drugs…”

DCFS appealed her decision.  The Appellate Court reversed the juvenile court stating:

“We reject [M] and [F’s] argument that the delay in holding the jurisdiction hearing means the evidence of risk of harm (most from the fall of 2017) was stale and did not warrant jurisdiction by the time of the jurisdiction hearing in October 2018.  Indeed, the position the parents take strikes us as a bit rich.  The reason why there was not more recent evidence is because [M] absconded with the children so the dependency proceedings could not continue.  Whatever the merits of the “at the time of the hearing” rule for assuming jurisdiction in a mine-run dependency case, we are convinced that rule should not apply to frustrate dependency jurisdiction when a parent’s wrongful conduct is the cause of the delay.  The rationale the juvenile court accepted would encourage parents to defy court orders and resist [DCFS] efforts to monitor the welfare of children knowing, if they are able to delay long enough, the ‘at the time of the hearing’ rule will forestall a jurisdiction finding that otherwise would have been wholly proper.  That is not how the law works.  Rather, the juvenile court’s obligation in a case like this is to assess whether the evidence that is before it—without any consideration of the passage of time attributable to Mother’s misconduct—warrants dependency jurisdiction…”

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