San Bernardino County Children & Family Services v. Kimberly L.
243 Cal. App. 4th 1220
| Cal. Ct. App. | 2016Background
- Children (A.A. and V.A.) were detained after mother, reportedly using methamphetamine and exhibiting psychotic behavior, attempted to take V.A. to juvenile hall; parents lived in paternal grandmother’s garage. CFS alleged neglect under Welf. & Inst. Code §300(b)(1).
- At continued jurisdiction hearing mother was absent; court found §300(b)(1) true, declared the children dependents, and placed them with the paternal grandmother; mother did not appeal the disposition.
- ICWA: mother reported possible Indian ancestry through her father; CFS sent notices to BIA and multiple tribes but omitted maternal grandfather’s birth date/place and mother’s birthplace; court found notice adequate.
- Six‑month review: mother had minimal contact and had not visited the children; court terminated reunification services and set a §366.26 permanency hearing; clerk mailed writ‑advisement forms to a last‑known 6th Street address; mail was returned “Not live here.”
- Permanency hearing: children and social worker favored adoption by the paternal grandmother; social worker noted grandmother was still married to an estranged husband, so spousal consent might be required for adoption. Court found children likely to be adopted, terminated parental rights, and selected adoption as permanent plan.
- Appeal: mother challenged jurisdictional findings, termination of reunification services, denial of continuance to file §388, adoptability findings, and adequacy of ICWA notice. Court affirmed in part, reversed in part, and remanded for ICWA compliance and reconsideration of legal impediments to adoption.
Issues
| Issue | Plaintiff's Argument (CFS) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether mother waived challenge to jurisdictional findings by not appealing disposition | Waiver rule bars attacking jurisdiction on later appeal from termination because mother did not appeal dispositional order | Mother argued she was not advised of appeal rights and therefore should not be bound by waiver | Waived: court held mother cannot challenge jurisdiction because she was not present at continued jurisdiction hearing and thus the court was not required to give appeal advisement under rule 5.590(a) |
| Whether mother’s failure to file extraordinary writ forecloses challenge to setting order (§366.26) | Failure to file writ precludes later appellate review | Mother argued she did not receive timely/adequate writ advisement mailed after setting; thus good cause exists to review | Good cause: court excused failure to file because clerk’s mailed notice was untimely and went to an address unlikely to reach mother; addressed setting‑order issues on appeal |
| Whether termination of reunification services at six months was an abuse of discretion | CFS: termination was appropriate due to mother’s lack of visits/contact | Mother: argued court erred by terminating services and not considering barriers | Affirmed: court found substantial evidence mother failed to visit/contact and termination was not an abuse of discretion |
| Whether children were likely to be adopted (adoptability) | CFS: children were adoptable and paternal grandmother was willing to adopt | Mother: court failed to consider legal impediment (grandmother’s need for spouse’s consent) and did not make general adoptability finding | Reversed on this ground: court failed to consider potential legal impediment to adoption by paternal grandmother; remand required to consider impediment and, if cleared, retry adoptability/termination |
| Whether ICWA notice was adequate | CFS conceded deficiencies | Mother: notice incomplete (missing birthplaces/dates) and insufficient for tribes to evaluate ICWA applicability | Reversed on ICWA: notice was inadequate; remand ordered for proper ICWA notice and court to determine sufficiency; if tribes assert membership proceedings follow ICWA |
Key Cases Cited
- In re Z.S., 235 Cal.App.4th 754 (discussing waiver rule when disposition not appealed)
- In re A.O., 242 Cal.App.4th 145 (failure to advise parent of appeal rights can excuse timely appeal requirement)
- In re Rashad B., 76 Cal.App.4th 442 (holding failure to provide adequate mailing address notice is not excused by homelessness)
- In re Cathina W., 68 Cal.App.4th 716 (good‑cause principles for addressing setting‑order errors when court fails to advise writ rights)
- In re A.H., 218 Cal.App.4th 337 (implementation of §366.26 writ requirement and rules governing writ advisement)
- In re Sarah M., 22 Cal.App.4th 1642 (legal impediments to adoption relevant to adoptability determination)
- In re Francisco W., 139 Cal.App.4th 695 (ICWA notice must contain meaningful, specific identifying information)
- In re Richard K., 25 Cal.App.4th 580 (effect of submitting on social worker’s report and what constitutes a contested hearing)