Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK62616, Steven Berman, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, for Plaintiff and Respondent.
CROSKEY, J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), Stacy V., the mother of minor children Ean U. and J.F. (Mother, Ean and J., respectively), challenges an order of the dependency court that (1) vacated a previous order of the court and (2) terminated jurisdiction over the minors. The previous order had dismissed the section 300 petition that commenced this case.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
The Los Angeles County Department of Children and Family Services (the Department) challenged the dismissal of the petition. The Department asserted that termination of jurisdiction rather than dismissal was the proper final order. The trial court agreed, reinstated the petition, and terminated jurisdiction over the minors. We find that termination of the court’s jurisdiction over the minors was proper under section 350 and we affirm the court’s order.
BACKGROUND OF THE CASE
Ean and J. came to the attention of the Department when they were removed from Mother’s car by the police after Mother had left them alone in the car for several hours. That occurred on March 3, 2006. Ean, born in May 1999, was six years old at the time. J., who was born in August 2005, was six months old. The children were detained by the Department and placed in a foster home. The dependency petition was filed on March 8, 2006.
Mother’s then-15-year-old daughter was also initially named in the section 300 petition but was later dismissed from the case.
Mother told the Department social worker that she is a certified nursing assistant who works nights and who is trying to go to school to become a licensed vocational nurse. Mother stated that she left the minors in the car because she wanted to observe a class and observing it could present the opportunity to enroll in it. She stated she took the minors with her to the school where the class was held and left them in the car because she could not afford to pay for day care for them. She stated she arrived at the location of the class around 10:30 a.m. and she left the minors in the car with the windows rolled half way down. She stated Ean had lunch and J. had her diaper bag. When the class broke at 12:30, Mother went to the car to check on the children and then went back to the class. At 3 p.m., when the class was over, she returned to the car and found the children were gone and there was a note from the police on the car. She stated she had never left the children in the car like that before. She stated her mother could not watch the children because she works during the day, a friend who sometimes helps watch the children was not able to do so, and Ean would normally have been in school but he had a doctor’s appointment that morning.
Ean told the social worker Mother had gone to school, she had never left him and his sister alone before, he knew how to take care of his sister if she cried, the sister had her bottle, and he was not scared in the car. He stated that if there had been an emergency he would call the police, but he did not know where he could use a telephone. Ean stated he loves Mother and is not afraid of her, she usually disciplines him by giving him a spanking, and he feels safe at home. There were no visible marks or bruises on either minor.
The officers who responded to the child endangerment call told the social worker the minors were sitting in the back seat of Mother’s car, the windows were rolled half way down, and there was a diaper bag on the floor containing bottles with formula, diapers and clothing. One witness at the scene told the police that it had been raining and the rain came into the car through the open windows. Whereas Mother had told the social worker that she parked her car at around 10:30 a.m. to go to the class, that witness stated he saw the car parked at the location at 9:30. He gave Ean some crackers to eat. Another witness told the social worker that J. was covered with a blanket, Ean had his jacket on, and both children were in their seatbelts. That witness had spoken with another witness before the police arrived and the other witness stated that J. had been crying. Mother told the police she knew it was wrong to leave the children alone.
A Department team decision meeting (TDM) was held on March 6, 2006. Attending were Mother, the maternal grandmother (MGM) with whom Mother and the children reside, two family friends, the social worker, the supervising social worker, and the TDM facilitator. Mother stated that on the day of the incident, when she went to check on the children she was there for 30 minutes, she took food to Ean and she fed J. The MGM stated Mother works 12-hour shifts, usually on weekends, and works through a registry.
At the March 6, 2006 detention hearing, the court stated it was “hard to believe [that Mother leaving the children unattended was just] an anomaly. It’s such a coincidence that you get caught the first time something happens.” The children were detained by the court and temporary custody was given to the Department. The Department was ordered to release the minors to any appropriate relative upon a finding of a clean record and an appropriate home, and to assess the home and the record of the MGM within 48 hours. The court ordered a 26-week parenting program for Mother as well as individual counseling. Mother was given unmonitored visitation with the children in their placement and monitored visits outside of their placement. The Department was given authority to liberalize the visits. The record shows that by March 24, 2006, the minors had been released to the MGM, with Mother living in the home.
A jurisdiction/disposition report from the Department states the minors continued to reside in the home of the MGM and Mother, under the supervision of the Department. Mother had reported to the social worker on April 7 that she was attending parenting classes on Friday evenings. She told the social worker that on June 7 she was provided with referrals for individual counseling but had not yet enrolled in a counseling program. The Department recommended that Ean and J. be declared dependents and remain in Mother’s care.
On August 1, 2006, after a mediation, Mother submitted on the petition. The mediation agreement states in part that the parties would request the court to (1) sustain the petition on its section 300, subdivision (b) count concerning Mother’s leaving the minors alone in the car, (2) issue a home of parent order (Mother) for Ean and J., (3) order Mother to complete a parenting class and engage in individual counseling to address case related issues, (4) order Mother to ensure that the minors have appropriate child care when they are not under her direct supervision, (5) order services pursuant to section 360, subdivision (b), and (6) order a review of the case in six months with the Department to submit a report for such review “and recommendations regarding dismissal pursuant to WIC 360(b).” Mother also agreed to cooperate with family preservation services if such services were ordered.
Section 360, subdivision (b) states: “If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the child’s parent or guardian under the supervision of the social worker for a time period consistent with Section 301.”
At the August 2, 2006 adjudication/disposition hearing, the court sustained the petition as to Ean and J., finding them to be persons described by subdivision (b) of section 300. It did not declare the minors dependents but rather, under section 360, subdivision (b), released them to Mother pending a further court order. The case was continued to January 30, 2007 for a section 360, subdivision (b) “disposition.”
Rule 5.695 of the California Rules of Court compiles a dependency court’s disposition/judgment options that are set out in various statutes. The options include dismissing the petition filed by the child welfare services agency; placing the minor under a program of supervision by the child welfare services agency with family maintenance services (such as occurred here); appointment of a legal guardian without declaring the minor a dependent child of the court; appointment of a legal guardian and declaring the minor a dependent child; declaring a dependency while permitting the minor to remain at home and providing for family maintenance services; and declaring dependency coupled with removing the minor from the parent’s custody, and placing the minor with the noncustodial parent or with a foster parent.
By continuing the case for a “disposition” under section 360, subdivision (b), the court was differentiating between a disposition order that constitutes a judgment (see fn. 4, ante), and a “disposition” under subdivision (b) of section 360 whereby the court would consider, at a six-month review hearing, whether the informal supervision of the minors and Mother by the Department was successful such that the case itself could be disposed of.
According to a January 27, 2007 progress report submitted to the Department by Robert Allen, M.F.T., Mother attended 26 parenting classes between March 2006 and December 27, 2006, and she received a certificate of completion. Allen stated he facilitated the classes and at some of them, Mother had Ean and/or J. with her and the minors were “well behaved and patiently cared for.” Also, Mr. Allen stated that Mother had been receiving individual counseling from him since January 5, 2007 and had attended three sessions. Allen opined that Mother had “consistently proven herself to be conscientious and focused on being a responsible mother willing to revisit how her past choices resulted in poor decisions regarding the safety of her children.” He also stated Mother had “continue[d] to mature as a person and a parent, and at this time she presents her children with an example of a more aware and loving parent.” Allen opined that it is in the children’s best interest to remain in Mother’s custody.
The social worker reported that on all of her visits to the family home the children appeared happy, healthy and well groomed. Regarding the fact that Mother had only recently commenced the individual counseling that the court ordered in March 2006, and that Mother agreed to at the August 2006 mediation, Mother told the social worker that she felt it necessary to complete the parenting classes before she began the counseling, and Mother said that was because of time constraints, finances, and the fact that she did not really want to participate in individual counseling. Mother stated that because she developed a good relationship with Mr. Allen through the parenting classes she became interested in counseling with him. The social worker opined that prior to termination of jurisdiction over the minors, it is important for Mother to complete individual counseling so that she can “better integrate” the lessons of her parenting classes with her own personal needs and expectations so that the same or similar behavior that brought Mother to the attention of the Department does not reoccur. The Department recommended that the court continue the matter for six months for Mother to complete individual counseling.
Based on the Department’s recommendation that the case be continued for another six months, Mother’s attorney, at the January 30, 2007 six-month review hearing, asked for a contested hearing. The attorney stated that Mother’s therapist had indicated to the attorney that very morning that there are no child safety issues and Mother is only in therapy for issues related to her self-esteem, specifically, her weight. The court indicated that while it “almost always demand[s] that parties finish the programs that were ordered just as a matter of course,” here, the only cause stated in the Department’s report for continuing the case was the fact that Mother had not completed the counseling, and the court stated that was not a sufficient reason to retain jurisdiction. The matter was continued to February 22, 2007 for a contested hearing.
The Department’s report for the February 22, 2007 hearing states the minors’ emotional and physical needs are being “well met” in the home of Mother, and the minors are thriving. Mother was described as attentive and nurturing to the minors. Mother was found to have a positive outlook concerning herself and her family’s future, was attending school to further her nursing education, and indicated an intent to complete individual counseling with Robert Allen. The Department opined that the minors were no longer as risk of harm in being cared for by Mother, and it recommended that the court terminate jurisdiction over the children.
At the February 22, 2007 hearing, Mother asked that the dependency petition be dismissed, and the Department countered that instead, jurisdiction should be terminated so that there is a record that a petition was sustained against Mother “in case she ever comes back.” The court dismissed the petition, saying there were no grounds for terminating jurisdiction. The court appeared to confuse the new petitions that are addressed in subdivision (c) of section 360, with the original petition that commenced this case. The court stated that under section 360, the only options were for the Department to file a new petition, or the court to dismiss the original petition.
On February 26, 2007, the Department filed a motion with the court, asking that the February 22, 2007 order dismissing the petition be vacated and replaced with an order terminating dependency jurisdiction over the minors. Filed with the request were points and authorities in which the Department argued that when subdivision (c) of section 360 provides for dismissal of a petition, the petition of which it speaks is the subsequent petition filed by a social worker when the social worker believes that a court’s section 360, subdivision (b) disposition order for supervision by the Department has been ineffective to ameliorate the situation that required child welfare services. Also cited by the Department was section 385, which permits the juvenile court to change, modify or set aside “[a]ny order made by the court in the case of any person subject to its jurisdiction.”
The Department’s motion was heard on March 13, 2007. Mother’s attorney argued that if the motion were granted and the petition reinstated, that would “show up on [Mother’s] record” and Mother would not be able to pursue the career she was working towards—pediatric nursing. The court responded that Mother and the minors can “get this thing sealed.” The court granted the Department’s motion, vacated the dismissal of the case, and terminated jurisdiction. This timely appeal followed.
DISCUSSION
There are several statutes that address termination of jurisdiction in dependency cases. Section 388 provides that a petition may be filed with the dependency court to, among other things, terminate jurisdiction. However, section 388, by its own terms, only pertains to children who have been declared dependents of the court. Here, the court did not declare Ean and J. dependents. Rather, it placed them under the Department’s supervision, under the provisions of section 360, subdivision (b). (See fn. 3, ante.)
Section 364 addresses termination of jurisdiction over children who are not removed from the parent’s physical custody. However, section 364 pertains to children who are placed under the supervision of the court. Thus, it is not applicable here.
Section 391 addresses termination of jurisdiction over dependent children who have reached the age of majority. Neither of those conditions apply here. Section 362.4 addresses terminating jurisdiction over dependent children when there is a family law case pending in the superior court. Thus, it also is not applicable here.
Mother argues that because the Legislature provided for termination of jurisdiction in cases where a child is declared a dependent of the court but did not make specific provisions for termination of jurisdiction with respect to section 360, subdivision (b) cases where the supervision of the Department and the family maintenance services are successful, that must mean that the Legislature intended the supervision and services in such cases to be ended by dismissal of the petition under section 390 rather than by termination of jurisdiction.
Section 390 states: “A judge of the juvenile court in which a petition was filed, at any time before the minor reaches the age of 21years, may dismiss the petition or may set aside the findings and dismiss the petition if the court finds that the interests of justice and the welfare of the minor require the dismissal, and that the parent or guardian of the minor is not in need of treatment or rehabilitation.” (Italics added.) We can reject application of section 390 here on the ground that when the trial court dismissed this case it never made all of the findings associated with dismissal under section 390. The court simply stated that Mother and the minors were “doing great.” However, an even more compelling reason exists for not applying section 390 here. Section 350 provides for termination of jurisdiction in this case.
Section 350, subdivision (c) states: “At any hearing in which the probation department bears the burden of proof, after the presentation of evidence on behalf of the probation department and the minor has been closed, the court, on motion of the minor, parent, or guardian, or on its own motion, shall order whatever action the law requires of it if the court, upon weighing all of the evidence then before it, finds that the burden of proof has not been met. That action includes, but is not limited to, the dismissal of the petition and release of the minor at a jurisdictional hearing, the return of the minor at an out-of-home review held prior to the permanency planning hearing, or the termination of jurisdiction at an in-home review. . . .” (Italics added.) Here, the case proceeded with the minors living in the home of Mother. At the six-month review hearing on February 22, 2007, the Department would have had the burden of proof if it had filed a section 360, subdivision (c) petition and requested a subdivision (d) disposition hearing, or had requested that Department supervision over the minors be continued for another six months. Thus, when there was no proof presented of the need for continued supervision or a subdivision (d) disposition hearing, the trial court properly terminated jurisdiction over the minors, and we will affirm that order of termination.
DISPOSITION
The order from which Mother has appealed is affirmed.
We Concur: KLEIN, P. J., KITCHING, J.
Section 301 does not provide for specific time periods but rather refers to sections 16506 and 16507.3, which provide for six months of family maintenance services and child welfare services, except for stated instances in which additional services may be provided after the expiration of that initial six-month period.
Subdivision (c) of section 360 provides that if, when a section 360, subdivision (b) order is made, “the family subsequently is unable or unwilling to cooperate with the services being provided, the social worker may file a petition with the juvenile court pursuant to Section 332 alleging that a previous petition has been sustained and that disposition pursuant to subdivision (b) has been ineffective in ameliorating the situation requiring the child welfare services. Upon hearing the petition, the court shall order either that the petition shall be dismissed or that a new disposition hearing shall be held pursuant to subdivision (d).” Subdivision (d) of section 360 states: “If the court finds that the child is a person described by Section 300, it may order and adjudge the child to be a dependent child of the court.”