Metropolitan News-Enterprise


Wednesday, August 24, 2022


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C.A. Says DCFS Violated Due-Process Rights of Mother by Failing to Give Notice


By a MetNews Staff Writer


The Court of Appeal for this district yesterday laced into the Los Angeles County Department of Children and Family Services (“DCFS”) for dereliction in failing to make any meaningful effort to give notice to a mother that parental ties with her son were about to be judicially severed.

DCFS has, through the years, faced repeated allegations of mismanagement and, of recent, has been under fire by courts of appeal for its persistent failure to investigate whether children who are the subject of dependency proceedings come under the Indian Child Welfare Act (“ICWA”).

Yesterday’s opinion, which reverses an order by Los Angeles Superior Court Commissioner Terry T. Truong severing parental rights of both parents to their son, was authored by Justice Helen I. Bendix of Div. One. She wrote:

“The Fourteenth Amendment to the United States Constitution provides that ‘[n]o State shall. . . deprive any person of life, liberty, or property, without due process of law....’…Except in emergent circumstances, this provision guarantees reasonable notice and a meaningful opportunity to be heard before the state may deprive a person of a protected liberty or property interest….Because parents have a fundamental liberty interest m the companionship, care, custody, and management of their children, the due process clause requires child welfare agencies to exercise reasonable diligence in attempting to locate and notify them of dependency proceedings….This is no idle command. It requires a thorough and systematic investigation to protect a parent’s fundamental liberty interest.”

Textbook Example

Bendix opined that the case “presents a textbook example of a due process violation.”

She related that DCFS instituted dependency proceedings based on the father’s alleged physical abuse of the minor; the father advised the agency at the outset that the mother had abandoned the child when he was about 18 months old, returning to her native El Salvador; the DCFS made no effort to locate the mother in that nation; when she contacted the DCFS and provided contact information, it still failed to provide notice of proceedings.

The case was in the unusual procedural posture of the father appealing based on the deprivation of the mother’s due-process right. Adopting an uncommon if not unprecedented approach, Bendix said:

“We conclude that father has standing to assert DCFS’s violation of mother’s due process rights. Under the unique circumstances of this case, we exercise our broad remedial discretion to reverse the order terminating both parents’ rights based on this due process claim, thereby conferring standing on father to maintain this appeal. First, father’s appeal is the only practicable means by which the agency’s contravention of mother’s due process rights can be remedied. Second, affording mother proper notice and a reasonable opportunity to be heard (a) allows mother to seek reunification with her son, and (b) promotes participation of all relevant parties, thus providing the juvenile court with a full picture of the relevant facts.”

She continued:

“Third, allowing J.R.’s interest in permanency and stability to bar father from raising mother’s constitutional claim would turn the dependency scheme on its head by rewarding DCFS’s failure to provide mother with any meaningful opportunity to protect her rights. In sum, we conclude that granting father standing to raise mother’s due process claim by conditionally reversing the termination order as to both parents effectuates the underlying purposes of the juvenile dependency scheme.”

Not Harmless Error

Addressing the merits, Bendix declared:

“[W]e conclude the agency’s violation of mother’s right to due process was not harmless beyond a reasonable doubt. Furthermore, the child’s interest in permanency and stability counsels in favor of a conditional reversal of the termination order as to both parents to avoid any undue delay in his permanent placement. Upon remand, DCFS shall exercise reasonable diligence to locate and properly serve mother. If mother does not appear within a reasonable period of time, then the juvenile court shall reinstate the termination order as to both parents.”

The case is In re J.R., 2022 S.O.S. 4010.

Three unpublished opinions were filed yesterday by Court of Appeal divisions in this district dealing with the DCFS’s investigations under the ICWA.

Div. Five, in In re W.R., B317699, conditionally reversed an order by Los Angeles Superior Court Commissioner Stephanie M. Davis terminating parental rights. Justice Dorothy Kim explained:

“[W]e agree with the parties that this case involves reversible error because the Department failed to comply with the inquiry requirements of ICWA and related California provisions, and the juvenile court failed to ensure the Department’s compliance.”

In In re E.L., B318026, Kim wrote, in conditionally affirming an order an order by Los Angeles Superior Court Commissioner Ashley Price and remanding for a new determination under the ICWA:

“This case involves reversible error because the parties agree, and we concur, there was noncompliance with the inquiry requirements of ICWA and related California provisions.”

However, Div. Three, in an opinion by Los Angeles Superior Court Judge Adams, sitting on assignment, said in In re B.H., B315803, affirming orders by Los Angeles Superior Court Commissioner Gabriela H. Shapiro, that “any error in DCFS’s failure to interview additional extended relatives is harmless and does not warrant reversal.”


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