Dependency Case Law

In re S.O. (Nov. 1, 2002) 103 Cal.App.4th 453 [126 Cal.Rptr.2d 554]. Court of Appeal, Fourth District, Division 1.

The juvenile court adjudged the child a dependent under Welfare and Institutions Code section 300(b) and allowed the mother to retain custody. In December 2000, the mother’s six children were declared dependents due to exposure to violent confrontations in the home between the mother and presumed father of five of the children (§ 300 (b)) and his sexual abuse of the eldest girl (who was not his daughter) (§ 300(d), (j)). The children were placed in foster care and the presumed father was ordered to have no contact with the eldest girl and was granted supervised visitation with the other children. The mother was granted supervised visitation with all six children. The presumed father moved out of the house, but in 2001 the mother allowed him to see the children while the mother was visiting them at the park despite the court’s prohibition against unsupervised visitation for the father.

The mother gave birth to a seventh child in January 2002. The presumed father attempted to drive the mother and newborn home from the hospital until the social worker informed the mother that such unsupervised contact was not allowed by the case plan. The following month the San Diego County Health and Human Services Agency (the agency) filed a dependency petition in regard to the newborn child alleging that: (1) he was at risk of exposure to violent confrontations in the family home based on past violence and the presumed father’s failure to attend the required domestic violence classes, anger management classes, and individual therapy (§ 300(j)); and (2) the presumed father had sexually abused the child’s sibling (Ibid.) The child was detained with the mother, and the court ordered that the presumed father’s visits be supervised by someone other than the mother.

By the time the child’s jurisdictional dispositional hearing took place, the mother had completed therapy, a parenting class, and a domestic violence course in compliance with the case plan of the older children’s dependencies. Her therapist believed her behavior did not pose a risk to the youngest child as long as she stayed away from the presumed father. However, the social worker believed that the youngest child was still at risk of harm if not supervised by the agency because of the mother’s inability to keep the presumed father out of visitations in the past. The mother testified that she would call the police if the presumed father came to the home. However, she was unsure about whether she would reunite with the presumed father and admitted that she did not have a plan for arranging visitation between the presumed father and the youngest child without the agency’s involvement.

The juvenile court declared the youngest child a dependent under section 300(b) and dismissed the section 300(j) allegation. On appeal, the mother contended that the allegations of the dependency petition failed to state a cause of action and that there was no substantial evidence supporting the jurisdictional finding under section 300(b).

The Court of Appeal held that the mother had waived her right to contest the sufficiency of the petition by failing to do so at the juvenile court level. Although the mother cited In re Alysha S. (1996) 51 Cal.App.4th 393, 397 as holding that a petition’s failure to state a cause of action can be raised for the first time on appeal, the appellate court found that the better view was presented in In re Shelley J. (1998) 68 Cal.App.4th 322, 328-29, which held that the sufficiency of a petition cannot be challenged for the first time on appeal. The appellate court noted that even if she were permitted to challenge the sufficiency of the petition at the appellate level, the mother was incorrect in asserting that the petition was deficient.

The Court of Appeal further concluded that there was substantial evidence to support the juvenile court’s jurisdictional findings. Section 300(b) allows a finding of dependency where a child is at a substantial risk of suffering serious physical harm as a result of the parent’s failure or inability to adequately supervise or protect the child. The mother argued that, at the time of the hearing, the youngest child was not at substantial risk; the allegation of domestic violence was a year prior, the mother was no longer living with the presumed father, and she was not allowing unsupervised visits with the father. She claimed that the finding was based solely on speculation that she might allow the presumed father unsupervised contact without the agency’s supervision. However, the appellate court concluded that the youngest child was still at risk for exposure to violent confrontations between the parents based on past episodes of violence, the mother’s allowance of unsupervised contact with the older children in spite of a prohibition against such contact, her indecisiveness about whether she planned to reunite with the presumed father, and her lack of a plan for arranging visits without the agency’s assistance. The appellate court declared that the question under section 300 is whether circumstances at the time of the hearing subject the child to harm and pointed out that past conduct may be probative of what will happen in the future. Therefore, although the appellate court noted that the evidence was not overwhelming, it found that there was enough evidence to defer to the juvenile court’s jurisdictional findings.