Dependency Case Law

In re Victoria C. (July 24, 2002) 100 Cal.App.4th 536 [122 Cal.Rptr.2d 696]. Court of Appeal, Third District, Division 3.

After an evidentiary hearing at the 12-month review hearing and a section 388 petition filed by the father, the juvenile court ordered that the child remain a dependent child in the home of the mother and that visitation with the father resume only when it was appropriate. The child's parents, who never married or lived together, admitted a petition alleging that their daughter was a dependent child because of serious physical and emotional harm and because the mother, as custodial parent, had failed to protect the child from that harm (See Welf. & Inst. Code, § 300(a)- (c)). The court ordered that custody would remain with the mother, with the father having weekly monitored visitation, and that a psychological evaluation of the child be prepared. After the child became suicidal and appeared to be having hallucinations during a visit with her father, the father agreed to temporarily discontinue his visits. The social worker noted that the mother failed to bring the child's deteriorating mental condition to the attention of the agency. The court terminated the father's visitation rights and ordered an Evidence Code section 730 evaluation prepared, which found that if allowed to remain with the mother, the child would continue to have mental health problems. The evaluation recommended that she be placed in a highly structured group home. The agency prepared a supplemental petition under section 387. The petition was then dismissed upon the stipulation of all parties at the request of the agency. The order leaving custody with the mother, with visitation for the father terminated, remained in force. The father filed a section 388 petition before the 12-month review hearing seeking an order removing the child from the mother's custody and reinstating his visitation with his daughter. The court dismissed the father's request for removal as an unsuitable request to be made under a section 388 petition. The court then heard evidence on the father's request for resumed visitation and on the need for continued services. After an evidentiary hearing the court retained jurisdiction, ordered custody to remain with the mother under the supervision of the agency, and ordered that visitation with the father begin only when it was appropriate. The father appealed on the grounds that the summary dismissal of his request to remove his daughter from the mother's home was proper under section 388 and that his stipulation to the dismissal of the section 387 supplemental petition did not preclude him from raising the issue on appeal.

The Court of Appeal concluded that the father had not waived any issues on appeal by not making an objection to the dismissal of the section 387 supplemental petition, and that the juvenile court had erred in not entertaining the father's request for an order removing the child from the custody of her mother. The appellate court found the error harmless and affirmed the judgment. Once a court has taken jurisdiction over a dependent child, any person with standing in the court and having an interest in the child may petition the court to change, modify, or set aside any order of the court or to terminate jurisdiction. Custody and placement orders may be challenged in this way and changed by the court upon a showing of changed circumstances or new evidence. Upon a showing, by clear and convincing evidence, that there are grounds for removal of a child from a parental home or from a current placement to a more restrictive placement, the court may make such an order if it is requested in a section 388 supplemental petition. The father had not waived his right to appeal the issue by failing to object to the dismissal of the section 387 petition because he had stipulated to the dismissal based on his belief that no suitable group home placement existed and felt, appropriately, that the situation might quickly improve. When it did not improve, he filed his 388 petition.

The appellate court found no reason to reverse the juvenile court's judgment and order a second hearing. The juvenile court had conducted a contested review hearing and had admitted into evidence the declaration the father submitted with his 388 petition, the agency's report, the Evidence Code section 730 report, and testimony of witnesses. After hearing counsel's arguments, the juvenile court had reaffirmed its previous custody order. The appellate court stated that the juvenile court's mistaken belief that it lacked jurisdiction to change the custody order under a 388 petition did not prevent the father from presenting all evidence on the custody issue that he felt was relevant. The father was unable to show on appeal what evidence had not been introduced that would have justified an order granting a second hearing.