Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. SWJ006769. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Amanda F. Benedict, under appointment by the Court of Appeal, for Minor.
OPINION
McKinster, J.
B.P. appeals from an order dismissing a juvenile dependency petition as to her daughter, D.T. We find that the order is not appealable, and we therefore dismiss the appeal.
FACTUAL AND PROCEDURAL HISTORY
B.P. was not married to the father of her daughter, D.T. A judgment of paternity entered on October 9, 1997, established that B.T. was D.T.’s biological father. The judgment awarded the parents joint legal and physical custody of D.T. D.T. lived with B.P. but visited with her father, both in California and at his residence in Georgia, after he moved there in 2005.
B.P. entered into a relationship with M.M., and had two children with him. B.P. and M.M. had a history of domestic violence, and M.M. had a history of drug abuse. On November 16, 2006, the Riverside County Department of Public Social Services (the department) responded to an emergency referral alleging emotional abuse and a risk of physical abuse for the three children, i.e., D.T. and her two half siblings. B.P. and M.M. agreed to a voluntary plan which required M.M. to move out of the house. On November 29, 2006, the social worker made an unannounced visit to the home and discovered that M.M. was present. The social worker immediately removed all three children from the home. A petition pursuant to Welfare and Institutions Code section 300 was filed as to all three minors. (All further statutory citations herein refer to the Welfare and Institutions Code.)
The day after the children were taken into protective custody, the social worker contacted B.T. in Georgia. He was unaware of the domestic violence. He informed the social worker that he had joint legal custody of D.T. and asked that she be returned to him. Before the detention hearing, the department returned D.T. to her father.
At the detention hearing on December 4, 2006, county counsel asked that the petition be dismissed as to D.T., on the ground that D.T. had been released to a nonoffending parent. The court granted the motion over B.P.’s objection that the court could not dismiss the petition without appointing counsel for D.T. and that the court lacked authority to release D.T. to a noncustodial parent prior to a disposition hearing. The court trailed the detention hearing to the following day in order to allow B.P. to provide the court with authority in support of her contentions. On December 5, 2006, the court heard further argument. It held that the social services department “has the ability to either dismiss or to file an amended petition.” It ordered the department’s amended petition, which removed all allegations pertaining to D.T., filed. It then proceeded with the detention hearing as to D.T.’s half siblings.
B.P. filed a timely notice of appeal from the order of dismissal as to D.T.
LEGAL ANALYSIS
THE ORDER OF DISMISSAL IS NOT AN APPEALABLE ORDER
The department contends that an order dismissing a dependency petition without prejudice is not an appealable order. We agree.
A judgment in a juvenile dependency proceeding “may be appealed in the same manner as any final judgment . . . .” (§ 395, subd. (a)(1).) If the juvenile court dismisses a dependency petition based on insufficiency of the evidence, the dismissal is a final judgment on the merits, with prejudice, and is thus appealable. (In re Lauren P. (1996) 44 Cal.App.4th 763, 767.) If, on the other hand, the court dismisses the petition without a hearing and without prejudice, there is no judgment on the merits and the order of dismissal is not appealable. (Id. at pp. 767-768; In re Tomi C. (1990) 218 Cal.App.3d 694, 697-698.) Here, the court dismissed the petition as to D.T., finding that the department had properly released D.T. to her nonoffending father. It made no determination as to the merits of the petition as to D.T. The order dismissing the petition was thus not on the merits and was without prejudice. Accordingly, the order is not appealable. (In re Lauren P., supra, at pp. 767-768.)
Even if the order were appealable, moreover, we would find B.P.’s arguments without merit. Section 309 provides that, except under specified circumstances, the social services agency must release a child who has been taken into temporary custody if it determines that the child has a parent or relative who can provide appropriate care for the child. If the child has a nonoffending parent who is willing and able to provide appropriate care, the social services agency must release the child unless there is evidence that one or more of the conditions provided for in section 309 exist. (In re Phoenix B. (1990) 218 Cal.App.3d 787, 791-792.) Here, D.T.’s father had joint legal and physical custody of D.T., and none of the conditions set forth in section 309 applied. Thus, the court had no basis to detain D.T. from her father and had no alternative but to dismiss the petition.
In pertinent part, section 309 provides:
Contrary to B.P.’s contentions in her supplemental brief, the court did not “place” D.T. with her father, and section 309 does not provide that custody reverts back to the parent who had custody before the child was taken into custody. Section 309 provides for dismissal of the petition because the release of the child to a nonoffending parent has obviated the need for the dependency proceeding. (In re Phoenix B., supra, 218 Cal.App.3d at p. 792.)
Finally, we cannot treat B.P.’s objection to dismissal of the petition as a petition for modification pursuant to section 388, as she requests. As the department points out, section 388 applies only after a child has been found to be a dependent child of the juvenile court. (§ 388, subd. (a).) D.T. was not found to be a dependent of the juvenile court, and section 388 does not apply.
DISPOSITION
The appeal is dismissed.
We concur: Ramirez, P.J., Gaut, J.
“(a) Upon delivery to the social worker of a child who has been taken into temporary custody under this article, the social worker shall immediately investigate the circumstances of the child and the facts surrounding the child’s being taken into custody and attempt to maintain the child with the child’s family through the provision of services. The social worker shall immediately release the child to the custody of the child’s parent, guardian, or responsible relative unless one or more of the following conditions exist:
(2) Continued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a responsible relative.
(1) The child has no parent, guardian, or responsible relative; or the child’s parent, guardian, or responsible relative is not willing to provide care for the child.
(3) There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court.
(4) The child has left a placement in which he or she was placed by the juvenile court.
(5) The parent or other person having lawful custody of the child voluntarily surrendered physical custody of the child pursuant to Section 1255.7 of the Health and Safety Code and did not reclaim the child within the 14-day period specified in subdivision (e) of that section.”