CONSTANCE K. v. Superior Court

I. Introduction

In this dependency extraordinary writ proceeding brought pursuant to rule 39.IB of the California Rules of Court, we confront the recurring and sometimes difficult issue of what is the appropriate ruling at a hearing pursuant to Welfare and Institutions Code section 366.22, subdivision (a) 1 when a parent has largely complied with the reunification plan yet nonconclusory reports prepared by responsible professionals indicate the return of a minor, or as in this case three minors, would create a substantial risk of detriment to the children. Because the reports in the present case are not merely written in a conclusory fashion and they are corroborated by specific acts of conduct on the part of the mother indicative of her inability to parent and protect the children, we conclude the present petition must be denied. In so concluding, we address the difference between the present proceeding and two types of cases discussed by other divisions of the Court of Appeal. In so ruling, we conclude the present proceeding is different from the “extreme” cases synthesized by Associate Justice Elizabeth A. Baron in the decision of *693 In re Brequia Y. (1997) 57…

I respectfully dissent. The record contains no substantial evidence that, as of the date of the Welfare and Institutions Code section 366.22 hearing on August 26, 1997, the return of the minors to their mother would constitute a substantial risk of detriment to their physical or emotional well-being. I would therefore grant the mandate petition.

The majority begins its analysis with the statement: “We agree with the mother that there is evidence there would be no risk of substantial detriment if the children were returned to her.” (Maj. opn., ante, at p. 708.) The majority decides the case, however, on “the countervailing revelations in the various reports,” finding that these countervailing revelations “constituted substantial evidence of the risk of requisite detriment if the three children were returned to their mother.” (Ibid.)

The “countervailing revelations” for the finding of risk of substantial detriment are the following: (1) petitioner has never had custody of any of her eight children “on a full time basis and been drug free” (maj. opn., ante, at p. 708); (2) all eight of petitioner’s children are currently subject to dependency court jurisdiction or have been…

De Witt W. Clinton, County Counsel, Jill Regal and Kim D. Kedeshian for Real Party in Interest.

OPINION

TURNER, P.J. —

In this dependency extraordinary writ proceeding brought pursuant to rule 39.1B of the California Rules of Court, we confront the recurring and sometimes difficult issue of what is the appropriate ruling at a hearing pursuant to Welfare and Institutions Code section 366.22, subdivision (a) [1] when a parent has largely complied with the reunification plan yet nonconclusory reports prepared by responsible professionals indicate the return of a minor, or as in this case three minors, would create a substantial risk of detriment to the children. Because the reports in the present case are not merely written in a conclusory fashion and they are corroborated by specific acts of conduct on the part of the mother indicative of her inability to parent and protect the children, we conclude the present petition must be denied. In so concluding, we address the difference between the present proceeding and two types of cases discussed by other divisions of the Court of Appeal. In so ruling, we conclude the present proceeding is different from the "extreme" cases…