Dependency Case Law

In re I.S. (Nov. 26, 2002) 103 Cal.App.4th 1193 [127 Cal.Rptr.2d 398]. Court of Appeal, Third District.

The juvenile court terminated the mother’s parental rights to the child pursuant to Welfare and Institutions Code section 366.26. The Department of Health and Human Services (DHHS) filed a petition to terminate the mother’s parental rights, alleging among other things that both mother and child tested positive for cocaine when the child was born. At the detention hearing the judge ordered that the infant child be removed from the mother’s home and detained in the custody of DHHS. At the jurisdictional/dispositional hearing the referee found the allegations of the petition to be true and ordered reunification services for the mother. The referee found that there would be a substantial danger to the child’s physical health if returned to the mother’s care and, therefore, ordered the child committed to the care and custody of DHHS for placement. The mother did not appear at the section 366.26 hearing, and her counsel did not raise any notice issues. The juvenile court terminated the mother’s parental rights and found that the child was likely to be adopted. The mother appealed the juvenile court’s decision, arguing that the termination of her parental rights should be reversed because the referee’s order removing the child from the home, which she identified as the “dispositional order,” was never approved by a judge as required by Welfare and Institutions Code section 249.

The Court of Appeal affirmed the juvenile court’s decision and held that the judge’s detention order, rather than referee’s dispositional order, qualified as the order removing the child from home, and therefore, it was not necessary for a judge to approve the dispositional order. The appellate court stated that section 249 indicates that no order of a referee removing a child from his or her home shall become effective until expressly approved by a judge. The appellate court rejected the mother’s argument that only the dispositional order qualified as an order removing the child from his home according to section 249. The appellate court reasoned that section 249 applies to any hearing at which a child is removed from his or her home. The appellate court asserted that the first order removing the child from his home was the detention order, which was approved by a judge. The appellate court indicated that this earlier detention order actually removed the child from his home while the dispositional order continued the existing removal and prevented the child’s return to the mother’s custody. Therefore, the appellate court held that the finding in the referee’s dispositional order that the child should be committed to the care of DHHS for a suitable placement was not an order removing the child from his home and did not have to be approved by a juvenile court judge.