Dependency Case Law

In re S.D. (June 27, 2002) 99 Cal.App.4th 1068 [121 Cal.Rptr.2d 518]. Court of Appeal, Fourth District, Division 3.

The juvenile court terminated the parental rights of a mother and father under Welfare and Institutions Code section 366.26. After the mother was arrested and incarcerated for credit card fraud, neither she nor the father was available to care for the minor. The father was also incarcerated at the time of the appeal. There were several relatives available and willing to care for the child. The juvenile court sustained a dependency petition and obtained jurisdiction over the child. There was neither an allegation nor evidence that the mother was unable to arrange for care for the child while she was incarcerated. The mother successfully completed her case plan, but the court terminated reunification services and set a section 366.26 hearing because the mother was not released on parole as anticipated. The mother contended on appeal that the juvenile court lacked a basis to take jurisdiction because she was able to arrange for care for the minor in the dependency petition and that she received ineffective assistance of counsel.

The Court of Appeal reversed the judgment of the juvenile court and remanded the case to the juvenile court with directions to give the social services agency an opportunity to cure the jurisdictional allegations deficiencies and prove that neither parent could currently arrange for care for the minor while they are incarcerated. Welfare and Institutions Code section 300(g) requires that an incarcerated parent not only be unable to care for the child but also be unable to arrange for care. The appellate court found that the fact that the mother had not already arranged for care by the time of her incarceration to be irrelevant because the issue was whether, at the time of the jurisdictional hearing, she could arrange for care. At the time of the jurisdictional hearing, the record demonstrated that there were several persons available to care for the child. The appellate court found that the mother's counsel was ineffective because he misunderstood the statute, conceding incorrectly that the statute applied to the case and thus failed to oppose the court's finding the child to be under its jurisdiction. The appellate court found that, absent any evidence that the mother herself had known of the issue, the mother had not waived it, and allowed her to raise it for the first time on appeal. The court found that to deny the mother the right to correct her counsel's "erroneous concession of the key legal issue" in spite of the fact that the law and the facts were on her side would be a deprivation of fundamental fairness and would violate due process. The appellate court, therefore, reversed the judgment terminating parental rights and remanded the case to the trial court to determine whether, at the time of remand, there is a basis for amending the dependency pleading and proving that neither parent is either available to take care of the child because of incarceration or is unable to arrange for his care for the remainder of the incarceration period.