Dependency Case Law

In re James C. (Dec. 17, 2002) 104 Cal.App.4th 470 [128 Cal.Rptr.2d 270]. Court of Appeal, Second District, Division 5.

The juvenile court ordered that the children be detained as dependents of the court and denied the father reunification services. The Los Angeles County Department of Children and Family Services (department) filed a Welfare and Institutions Code section 300 petition on behalf for the children, two of whom had the same father, alleging that the mother’s conduct created a detrimental home environment because the home was unsanitary and unsafe; the children were unkempt, dirty, and unsupervised; and a registered sex offender was allowed to live in the house. The father was not mentioned in the petition. The juvenile court ordered the children detained due to the mother’s neglect and directed the department to conduct a search for the children’s father. The department reported that the father was incarcerated pursuant to a felony conviction and was unable to care for his 2 children. The department then amended the petition and named both the mother and the father, alleging the same allegations with regards to the mother and indicating that with respect to the father the children were dependents of the court pursuant to section 300 (b) and (g). At the adjudication hearing, the juvenile court sustained the allegations of the department’s petition as it related to the father under section 300(b) and (g), finding that the father was unable to care for the children due to his incarceration. The father appealed the decision of the juvenile court, arguing that the allegations of the amended petition were insufficient to support findings of the juvenile court jurisdiction under section 300(b) and (g).

The Court of Appeal affirmed the decision of the juvenile court and held that (1) the father waived his right to challenge the petition to declare the children dependents of the court, (2) sufficient evidence supported the juvenile court’s jurisdictional findings that the children could suffer serious physical harm as a result of the father’s failure or inability to protect the children due to his incarceration, and (3) the father was not entitled to reunification services.

First, the appellate court held that since the father failed to challenge the sufficiency of the petition allegations by demurrer or other procedural mechanism, the issue was waived on appeal. The appellate court noted the split in authority on the issue of whether a parent waives the right to challenge the sufficiency of allegations in a dependency petition on appeal after failing to raise the issue by demurrer or some other procedural mechanism. The appellate court indicated that in the case of In re Alysha S. (1996) 51 Cal.App.4th 393, 397, it was concluded that no demurrer needed to be filed to raise the issue of the factual sufficiency on appeal. In the contrary ruling of In re Shelly J (1998) 68 Cal.App.4th 322, 328 the court concluded that demurrer was required or the factual sufficiency issue was waived on appeal. The appellate court found the ruling in Shelly J. persuasive and reasoned that dependency proceedings are governed by Penal Code section 1012 rather than the Code of Civil Procedure; Penal Code section 1012 indicates that objections to pleadings can only be taken by demurrer and failure to do so is deemed a waiver.

Second, the appellate court held that there was sufficient evidence by inference to support the juvenile court’s findings, under Welfare and Institutions Code section 300(b) and (g), that the father was unable to supervise the children due to his incarceration. The appellate court reasoned that the father presented no evidence that he made arrangements for the children’s care once he was aware of the unhealthy, unsafe conditions in which the children were being raised.

Third, the appellate court denied the father reunification services because Welfare and Institutions Code section 361.5(b)(12) states that reunification services need not be provided to a parent if the parent has been convicted of a violent felony. Therefore, the appellate court affirmed the juvenile court’s decision ordering the children to be dependents of the court and denying the father reunification services.