Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Madera County Nos. BJP016084, BJP016085, BJP016086 and BJP016087, Thomas L. Bender, Judge.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.
David A. Prentice, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Levy, J.
STATEMENT OF THE CASE
On or about July 20, 2007, the Madera County Department of Public Welfare (MCDPW) filed a juvenile dependency petition in superior court (Welf. & Inst. Code, § 300, subds. (b), (g)). The MCDPW alleged mother failed to protect her four minor children and their half-sibling (§ 300, subd. (b)) and failed to provide for their support (§ 300, subd. (g)). The MCDPW specifically alleged mother sold illegal drugs with other family members in the family home and had used illegal substances in the family home.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
On July 23, 2007, the court conducted a detention hearing, removed the minors from mother’s home, placed the minors in confidential foster care, and ordered child welfare services to facilitate mother’s reunification with the minors.
On September 18, 2007, the court conducted a contested jurisdictional hearing, sustained the allegations of the amended petition, and set an uncontested disposition hearing.
On October 11, 2007, the court conducted an uncontested disposition hearing, adjudged the minors dependent children of the superior court, awarded custody of the four full siblings to their father, granted father family maintenance services and mother reunification services, and ordered visitation between mother and the minors.
On or about December 11, 2007, the MCDPW filed a subsequent petition (§ 342) alleging father had been arrested on an outstanding warrant, was in Madera County Jail awaiting deportation proceedings, and had failed to provide for the minors’ support.
On December 13 and 14, 2007, the court conducted a detention hearing on the subsequent petition and removed the minors from father’s home and custody.
On January 15, 2008, the court conducted a continued detention hearing, vested temporary placement and care of the minors with the Madera County Department of Social Services (MCDSS), and ordered the provision of child welfare services to father.
On February 14, 2008, the court conducted a contested jurisdiction hearing, sustained the subsequent petition, and set an uncontested disposition hearing for March 18, 2008.
On March 14, 2008, the MCDSS filed a status review report as to the minors.
On March 17, 2008, MCDSS filed a disposition report noting that father had been transported to San Francisco to face deportation proceedings and was likely to be deported to the Republic of Mexico.
On March 18, 2008, the court granted child welfare services discretion to return the minors to the custody of mother.
On March 20, 2008, the court conducted an uncontested family reunification review hearing with respect to the original petition. The court continued the minors as dependent children of the juvenile court, terminated family maintenance services for father, and ordered such services for mother.
On the same date, the court conducted an uncontested family reunification review hearing with respect to the subsequent petition. The court continued the minors as dependent children of the juvenile court, directed that mother assume custody of the children subject to the supervision of the juvenile court, and directed the MCDSS to supervise the care, custody, control, and conduct of the minors.
On February 19, 2008, father filed a notice of appeal from the February 14, 2008, jurisdictional findings. On April 3, 2008, father filed an amended notice of appeal from the February 14, 2008, jurisdictional findings and from the March 20, 2008, dispositional order.
A dispositional order in a child dependency case is appealable. (In re Daniel K. (1998) 61 Cal.App.4th 661, 668.)
STATEMENT OF FACTS
Appellant A.V. is the father of four daughters with mother, N.G. N.G. had another daughter with E.V., who is also N.G.’s uncle. The five children were detained pursuant to a July 23, 2007, dependency petition. That petition alleged mother sold illegal drugs from the family home where she and the five children resided. The petition also alleged mother used illegal substances in the home and had failed to provide for the children’s support.
An August 14, 2007, jurisdictional report indicated A.V. had a criminal record consisting of two dismissed charges from 2001 and a 2006 drug arrest with no disposition. Father first appeared in the case on September 5, 2007. On September 18, 2007, father submitted on the jurisdictional report. The court found the section 300, subdivision (b) and (g) allegations to be true but dismissed the subdivision (g) allegation as to father, making him a “nonoffending” parent.
On October 11, 2007, the social worker submitted a disposition social study, in which father said he lived with mother at the time of conception and birth of the four children and held them out as his own. Based on this information, the social worker concluded A.V. was the presumed father of the four V. children. Father told the social worker he started drinking during high school but was not an alcoholic and never used illegal drugs. He admitted purchasing methamphetamine in 2006 but said it was for a friend. At that time, he was sentenced to a Penal Code section 1000 program. He initially did not comply with the program due to his employment. However, a bench warrant had been issued for his arrest and he had made an appointment with his probation officer to remedy the problem.
Father advised the social worker he had recently moved in with his sister, J.V., and planned for the children to live with him there. Father said his family members would provide him support while he cared for the children. He indicated his sister would prepare meals and meet the needs of the children while he was at work. Father expressed a willingness to cooperate with the MCDSS and offered to care for his children’s half-sibling, the baby of N.G. and her uncle.
The social worker assessed father’s home for placement of the children. His sister, J.V., rented the home and lived there with her husband, F.M., and their two children. The home had enough room for father’s four daughters, including a separate bathroom for their use. Father said J.V. was a stay-at-home mother who was able to provide childcare during the day while father worked. Father also said the children’s paternal grandmother, V.B., could pick up the older children from school and care for them until father returned from work. Father said he was working as a forklift operator and was capable of supporting the family. Father also indicated he had another sister in Madera who could provide backup for the family.
Father’s probation officer said there was no bench warrant out for father but noted he had been excluded from the Penal Code section 1000 program. The probation officer said father would likely be sentenced to a Proposition 36 program at his next court hearing, set for November 5, 2007. Father tested negative for drugs on September 27, 2007.
The social worker recommended the placement of the children with father because mother had exposed the minors to illegal drug activities and still faced criminal charges. Mother had no source of income and was being supported by her family. On October 11, 2007, the court conducted a disposition hearing, found father to be the presumed father of the V. children, declared them dependent children of the court, and ordered father, as noncustodial parent, to assume custody subject to juvenile court supervision. The court also ordered provision of family maintenance services to father.
On December 13, 2007, the MCDSS filed a subsequent petition alleging the minors had been left without any provision for support because father had been arrested on an outstanding warrant on November 23, 2007, and was currently incarcerated awaiting deportation proceedings. The children were placed together in a certified foster family agency home in Delhi, Stanislaus County, California. A detention report indicated J.V. went to the social worker’s office on December 6, 2007, and revealed father’s November 23, 2007, arrest. J.V. said father was facing deportation and the children had been left in her care. When J.V. asked what might happen to the minors, the social worker said they might be removed and placed in foster care. The social worker suggested that J.V. initiate the process to become a relative caregiver and J.V. agreed to do so.
On December 10, 2007, the social worker met with her supervisor and they decided the children would be detained again and placed in foster care because father was noncompliant, had been arrested and incarcerated, and was facing deportation. The social worker learned father had been arrested on November 23, 2007, for driving without a license and proof of insurance and for possession of a controlled substance.
On February 14, 2008, the court conducted a contested adjudication hearing. Father testified that upon his arrest, he had arranged for his sister, J.V., to care for his children, since the family had been living with her from the time the children were placed with him. At the time of his arrest, he told his sister to take care of the children. He noted she was already caring for them when he was at work. J.V. testified she cared for the children while her brother was at work. She took the children to school, dressed and changed them, did their hair, cooked for them, and did everything a mother should do. At the time of father’s arrest, he told her to take care of the children “like if they were yours.” J.V. said she was willing to take care of them. J.V. said she did not report to the MCDSS until weeks after father’s arrest because she finally realized he was not going to be released. Father did not give J.V. any guardianship paperwork or powers of attorney for the children at the time of his arrest.
After hearing the arguments of counsel, the court acknowledged that father may have made arrangements for temporary care of the children but did not make long-term arrangements. The court concluded father did not go far enough in terms of support and sustained the subsequent petition under section 300, subdivision (g). On March 18, 2007, the social worker submitted a section 366.21, subdivision (e) report on behalf of all the children. The report recommended that all five children be returned to mother, that family maintenance services be provided to her, and that services be terminated for both fathers.
The MCDSS also filed a disposition report with respect to the subsequent petition. In this report, the social worker maintained father was awaiting deportation in San Francisco and was unavailable to provide for the safety and protection of the children. The social worker noted mother had completed her family reunification case plan objectives and was ready to have her daughters returned to her care without substantial risk to their safety. On March 20, 2008, the court conducted a continued disposition hearing and six-month review. In father’s absence, father’s counsel submitted on the status review and disposition reports. The court noted that father had not made significant progress toward alleviating or mitigating the causes necessitating placement in foster care. The court further observed that mother had made significant progress toward alleviating or mitigating the causes necessitating placement in foster care. The court gave custody of the V. children to mother, subject to the supervision of the juvenile court.
DISCUSSION
In the instant case, appellant father contends the juvenile court erroneously sustained the subsequent petition under section 300, subdivision (g) because he had made appropriate arrangements with his sister for the care of his daughters when he became incarcerated. Before we can even consider the juvenile court’s handling of the adjudicatory phase, however, we must consider (a) whether the county employed the proper procedural device in the instant case and (b) the impact of an incorrect procedural device on the disposition in the instant case.
A. General Law
The purpose of dependency proceedings is to protect children. Dependency proceedings are civil in nature and are designed to protect the child, not to punish the parent. Therefore, the court takes jurisdiction over children; it does not take jurisdiction over parents. Moreover, the court has jurisdiction over the children if the actions of either parent bring the child within one of the statutory definitions in section 300. The court gains jurisdiction over a parent when the parent is properly noticed. Section 387 petitions are appropriate when the department of social services seeks to modify a previous order placing a child with a parent. A necessary prerequisite to filing a section 387 modification petition is jurisdiction over the children. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202-203.)
The basic pleading device in a dependency case is a petition. The petition may be (a) an original petition (§ 332); (b) a subsequent petition for children who are already dependents when there are new facts or circumstances that bring them within a category of section 300 other than those under which the original petition was sustained (§ 342); or a supplemental petition when there are facts indicating a previous disposition is not appropriate (§ 387). (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1035.)
Welfare and Institutions Code section 387 states in relevant part:
“(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition.
“(b) The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3.”
A section 387 petition is used where a child adjudicated dependent, who has been living with a relative, is later placed in out-of-home custody. If the juvenile court sustains a section 387 supplemental petition, the appropriate disposition is to move the child from parental to out-of-home custody. Unlike subsequent petitions, no new jurisdictional facts are alleged in a section 387 petition and no different or additional grounds for the dependency are urged. Section 387 petitions concern only changes in the level of placement for a child already adjudicated dependent. (In re John V. (1992) 5 Cal.App.4th 1201, 1210-1211.)
The issue at the adjudication hearing on a supplemental petition is limited to the question whether the previous disposition is effective in the rehabilitation or protection of the child. Under California Rules of Court, rule 1431, a hearing under section 387 must be bifurcated into (1) an adjudicatory hearing on the merits of the allegations in the petition and (2) a disposition hearing on the need for removal of the child from his or her current level of placement. At the conclusion of the adjudicatory hearing, the court shall make findings that the factual allegations are or are not true and the allegation that the previous disposition has not been effective is or is not true. The standard for removal from parental custody under section 361, subdivision (c)(1) is relevant only in a disposition hearing after the court has made true findings under rule 1431(d)(1). (In re Javier G. (2006) 137 Cal.App.4th 453, 460-461.)
Subsequent petitions (such as the one filed in the instant case) and supplemental petitions are different. A subsequent petition is filed when new, independent allegations of dependency can be made after the court has initially declared a minor to be a dependent child (§ 342). A supplemental petition is filed, among other things, when a dependent child has been placed with a parent but the department of social services now seeks to remove the child, effectively requesting the court to modify its previous placement order (§ 387, subd. (a)). (In re Barbara P. (1994) 30 Cal.App.4th 926, 933.)
B. The Proper Procedural Device
The parties initially brief the instant appeal under the assumption that a section 342 subsequent petition was the appropriate procedural device in this factual setting.
When a minor has been declared a dependent child and the department alleges new facts or circumstances sufficient to find that the minor should be found to be a dependent child, the department files a subsequent petition, alleging the new information. By statute, all procedures and hearing required for an original petition also apply to a subsequent petition (§ 342). (In re Barbara P., supra, 30 Cal.App.4th at p. 933.) The subsequent petition in the instant case alleged under section 300, subdivision (g):
“The child has been left without any provision for support; or the child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent is unknown, and reasonable efforts to locate the parent have been unsuccessful. [¶] ...
“… The children ... have been left without any provision for support. On November 23, 2007, the father ... was arrested on an outstanding warrant and is currently incarcerated at Madera County Jail awaiting deportation proceedings.”
Although the foregoing petition set forth new allegations of dependency, a supplemental petition should be filed when a dependent child has been placed with a parent, but now the department seeks to remove the child, effectively requesting the court to modify its previous placement order. (In re Barbara P., supra, 30 Cal.App.4th at pp. 933.) The questionable choice of pleading does not compel reversal here. The provisions of Code of Civil Procedure section 469 and companion sections (relating to variance and amendment of pleadings in civil actions) apply to juvenile dependency petitions and proceedings. (Welf. & Inst. Code, § 348.) Code of Civil Procedure section 475, one of those companion sections, provides in pertinent part:
“The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error … or defect, unless it shall appear from the record that such error … or defect was prejudicial, and also that by reason of such error … or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error … or defect had not occurred or existed….” (Italics added.)
In the instant case, the MCDSS was not required to file a supplemental petition under section 342 because the Department did not need new grounds for jurisdiction of the children. As stated above, the purpose of dependency proceedings to is protect children (§ 300.2) and not to punish the parent (In re Malinda S. (1990) 51 Cal.3d 368, 384.) The juvenile court takes jurisdiction over children and not over parents. The court has jurisdiction over the children if the actions of either parent bring the child within one of the statutory definitions in section 300. The court gains jurisdiction over a parent when the parent is properly noticed. (In re Joshua G., supra, 129 Cal.App.4th at p. 202.) Here, the court already had jurisdiction of the minors at the time the MCDPW filed the December 11, 2007 petition under section 342. This petition was unnecessary as the court already had jurisdiction of the minors, declared them dependents of the juvenile court, and removed them from parental custody and control. (In re Joshua G., supra, 129 Cal.App.4th at p. 202.)
As used in section 300 proceedings, the term “placement” connotes where the child shall live during his or her dependency. Section 361.2 is one of the statutes that guides the court and the human services agency in determining the child’s placement if the child has been removed from the custody of the parent with whom the child resided under section 361. After the court has removed a child from a custodial parent, the court must proceed under section 361.2 to first determine whether there is a parent with whom the child was not residing who desires to assume custody of the child. (§ 361.2, subd. (a).) Before the court can fashion a placement order under section 361.2, subdivision (b), it must first determine the predicate issues under section 361.2, subdivision (a)--whether the noncustodial parent is seeking custody of the child and, if so, whether placement with that parent would be detrimental to the health, safety, or physical or emotional well-being of the child. (In re V.F. (2007) 157 Cal.App.4th 962, 970-971.)
The issue here is one of placement of the minors and not one relating to jurisdictional findings. The original basis for jurisdiction was mother’s substance abuse and not father’s incarceration and potential deportation. Although the MCDSS should have filed under section 387 (supplemental petition) or, perhaps, section 388 (modification of order based upon change of circumstance), the filing of a section 342 petition by the MCDSS did not result in prejudice. At the time of filing, the children could no longer be placed with father as he was in custody and facing deportation by federal authorities. At the time of the hearing on the section 342 petition here, the trial court determined that mother’s circumstances no longer posed a substantial risk of detriment to the health, safety, or physical or emotional well-being of the children. In our view, the juvenile court properly exercised its broad discretion to decide the means to best serve the interest of the dependent children and to fashion its dispositional orders accordingly. (In re Corey A. (1991) 227 Cal.App.3d 339, 346.) The children were properly placed back with mother and reversal is not required.
DISPOSITION
The findings and orders of February 14, 2008, and March 20, 2008, are affirmed.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.