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In re Kristin H. - 46 Cal. App. 4th 1635, 54 Cal. Rptr. 2d 722 (1996)


At a dispositional hearing, the court's findings must be made on clear and convincing evidence. The court must find that the welfare of the child requires that she be removed from parental custody because of a substantial danger, or risk of danger, to her physical health if she is returned home and that there are no reasonable means to protect her without removing her. Cal Welf. & Inst. Code § 361(b)(1), Cal. R. Ct. 1456(c). On review, the appellate court employs the substantial evidence test, however bearing in mind the heightened burden of proof. 


A child was taken into protective custody when her mother, distraught over the recent death of a friend, became ill after she ingested either cocaine or methamphetamine. A dependency petition was filed, alleging failure to protect (Welf. & Inst. Code, § 300, subd. (b)) owing to the mother's history of mental illness and suicide attempts. Due to a number of delays, the child had been removed from her mother's custody for nine months before the jurisdictional hearing was concluded. The court sustained the petition and concluded that the evidence was clear and convincing that it would be detrimental to return the child to her mother. The mother appealed the court's orders, and also filed a petition for a writ of habeas corpus, in which she alleged that she did not receive effective representation because her counsel did not call witnesses on her behalf and did not submit an independent psychiatric evaluation that rebutted the psychiatric conclusions on which the court based its orders. 


In dependency proceedings, did the lower court err in refusing to return the child to the custody of her mother upon finding that that it would be detrimental to return the child to her mother?




The Court of Appeal of California affirmed the disposition orders, holding that there was substantial evidence that the mother's past behavior had placed the child at risk of substantial danger and was indicative that this risk would continue if the child was returned to her. The Court also issued a show cause order on appellant mother's writ of habeas corpus, which claimed ineffective assistance of counsel during the dependency proceedings. The Court held that appellant mother was entitled to assert a claim for ineffective assistance of counsel because the dependency proceedings were adversarial in nature and involved the risk of the severance of the parent child relationship. Finally, the Court held that the excluded testimony may have resulted in a favorable result for the mother and that its exclusion may have prejudiced her.

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