Dependency Case Law

In re Josiah S. (Sept. 25, 2002) 102 Cal.App.4th 403 [125 Cal.Rptr.2d 413]. Court of Appeal, Second District, Division 4.

The juvenile court denied a mother's request to contest continued long-term placement of her son pursuant to Welfare and Institutions Code section 366.3 at the six-month status review hearing. The mother had also raised the issue of visitation with her son, but the court again denied her a contested hearing. The juvenile court also summarily denied the mother's section 388 petition.

The minor was born in 1997 with severe cardiology and pulmonary problems. In 1998, the juvenile court sustained a section 300 petition pursuant to allegations by the Department of Children and Family Services (DCFS) that the mother had failed to obtain critical medical treatment for her son, had failed to cooperate with home nurse visits, and had demonstrated many emotional problems that limited her ability to care for the minor. The minor was removed from his mother's custody and reunification services were ordered. In 1999, reunification services were terminated and the minor was ordered into a permanent plan of long-term foster care. The Court of Appeal affirmed both decisions. In 2001, DCFS filed a status review report for a six-month review hearing and a motion to limit the mother's parental involvement in her son's education. The matter was set for contested hearing, but it did not occur.

At the review hearing on May 25, 2001, the mother informed the court that she had not received the report prepared by DCFS and requested an evidentiary hearing regarding its findings. Her request was denied. On May 30, the mother filed a section 388 petition seeking modification of the juvenile court's jurisdiction and disposition orders and requesting the return of her son to her custody. She also asked the court to make an order allowing her to have her own medical expert examine her son and to review all medical records from foster care. She argued that the report established that her son was continuing to have problems similar to when he was in her custody and that this was new evidence supporting her position that it was not her care, or lack thereof, that threatened her son. She asserted that other medical experts assessed her son's failure to thrive as organic in nature. On May 31, 2002, without giving any factual reason for its decision, the court summarily denied the mother's section 388 petition.

DCFS filed an interim review report for the hearing scheduled to take place on June 28, 2001. Based on factual information contained in the report regarding a visitation between the mother and son, DCFS recommended that the mother be allowed no more a one-hour monitored visitation per month. The mother filed a written objection to the report and recommendation and challenged the factual allegations. The mother's counsel also requested a contested hearing on the contents of the report. The court denied the request, stating that it intended to receive the mother's documents into evidence. When the juvenile court stated that it would continue the existing visitation order of one visit per month, the mother alleged that the DCFS had canceled her visits and had not complied with the visitation order. The court refused to change the order. The mother appealed the juvenile court's refusal to grant a contested hearing. The mother also appealed the denial of her section 388 petition, claiming that it denied her due process. The appellate court consolidated the cases on appeal.

The Court of Appeal concluded that the juvenile court erred in denying the mother's request for a contested hearing regarding findings in the status report. The appellate court further concluded that she also had a right to a contested hearing on the issue of visitation. Section 366.3(e) provides that a parent whose parental rights have not been terminated has the right to contest the issue of continued care and to demonstrate that further efforts at reunification are in the best interest of the child. In such a case, the court may order additional reunification services for the parent. (Welf. & Inst. Code, § 366.3(e).) The appellate court emphasized that the rights of parents to attempt to reestablish the parental relationship with a child is a critical aspect of our dependency system. Therefore, the appellate court held that the juvenile court erred by denying the mother's request for a contested hearing because she had made it clear that she wished to challenge the prior juvenile court findings and to contest portions of the DCLS report.
The appellate court also concluded that, because the mother's section 388 petition addressed issues similar to those raised at the May 25 hearing, the order summarily denying that petition should be set aside. Section 388(a) allows a parent of a dependent child to petition the court for a hearing to change, modify, or terminate an order of the court upon grounds of changed circumstances or new evidence. Section 388(c) allows the court to order a hearing if it feels that the proposed change of order or termination of jurisdiction is in the best interest of the child. The parent need only make a prima facie showing of facts that, if credited, will sustain a favorable decision. The court found that the mother's petition relied on statements of the nurse indicating that her son continued to have regular bouts of vomiting and trouble gaining weight even though he was receiving regular medical care. The mother also had submitted a doctor's report, previously rejected by the juvenile court, that concluded that the minor's failure to thrive was the result of organic causes, not the mother's abuse or neglect. Therefore, since the mother had provided evidence demonstrating that her son continued to have medical problems despite removal from her custody and her request for a contested hearing was denied, the court determined that the summary denial of the section 388 petition should be set aside as well. The case was remanded to the juvenile court to conduct the contested review hearing on continued long-term foster care, visitation, and the issues raised in the section 388 petition.