Opinion
Opinion on pages 614-621 omitted.
HEARING GRANTED
Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Acting Head, Appellate Div., Dirk L. Hudson, Deputy Dist. Atty., for the People of the State of California, real party in interest.
W. Kenneth Rice, Gerald Blank, Ernest L. Aubry, Philip L. Goar, Los Angeles, for appellant.
No appearance for Respondent.
COMPTON, Associate Justice.
On the basis of petitions filed by the Department of Public Social Services (DPSS) the Superior Court of Los Angeles County sitting as a juvenile court on July 10, 1969, found that Raymond G., four years old, Raphael G., two years old, and Angelica G., four months old, were dependent children within the provisions of section 600 of the Welfare and Institutions Code and declared them to be wards of the court.
In a subsequent order entered March 13, 1970, the children were removed from the physical custody of the mother (appellant) and placed in foster homes. On December 22, 1970, a fourth child, Rose Lynn G., three months old, was also found to be a dependent child and was removed from the custody of the mother.
[110 Cal.Rptr. 83]Pursuant to Welfare and Institutions Code, section 729 the dependency status of the children was periodically reviewed and the jurisdiction of the court was continued along with the placement orders. The latest of these periodic reviews was held on November 22, 1972 at which time the appellant appeared with counsel and agreed to continuation of the children's dependency status but sought to have physical custody restored. She has appealed from the order of the court which continued the placement order in full force and effect.
Understanding of the issues presented by this appeal requires a review of the content of the original and supplemental petitions which resulted in the orders that were under review in the November 22, 1972 hearing.
As to Raymond, Raphael and Angelica, the original petitions filed June 17, 1969 were identical, alleging that each was without proper parental control and was in an unfit home by reason of the mother's neglect. The specific factual allegations were that on June 15, 1969, the children were left alone in the home which was in a dirty and vermin-infested condition. On the basis of these petitions the court declared the children to be wards but left them in the physical custody of the mother.
The supplemental petitions which led to the foster home placement alleged that the children had on several occasions been left without supervision and were not provided with adequate food, clothing or housing.
The original petition relating to Rose Lynn G. set forth that this three month old baby was found in an automobile parked on the public street. She had been there for three days without food. The vehicle contained dirty pots, urine-soaked diapers and unwashed bottles.
The status renewal hearing of November 22, 1972, which produced the order appealed from, consisted of the court reading both the social worker's report and an attorney's report filed by appellant and taking the testimony of the social worker and the appellant.
Appellant contends that in readjudicating the children's status the court erroneously relied on circumstances which were 'new' and 'different' from those on which the original jurisdiction was based and that a supplemental petition should have been filed pursuant to Welfare and Institutions Code section 777. Further, she contends that she offered uncontroverted evidence that the original jurisdictional facts no longer existed and on that basis custody of the children should have been restored to her.
Welfare and Institutions Code section 777 requires in pertinent part that: 'An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative or friend and directing placement in a foster home, . . . shall be made only after noticed hearing upon a supplemental petition.'
On the other hand, respondent contends that the annual renewal hearing is limited to an examination of the need for continued jurisdiction, i. e., maintaining the dependency [110 Cal.Rptr. 84] status of the child and since appellant conceded that need, she could not, without filing a petition pursuant to Welfare and Institutions Code section 778, seek modification of any subsidiary orders such as the one for foster home placement.
Appellant mounts a two-pronged attack on the order of the juvenile court. Relying on language contained in In re Neal D., 23 Cal.App.3d 1045, 100 Cal.Rptr. 706, she claims a denial of procedural due process in the failure to give her notice of the 'new' and 'different' circumstances relied on by the court as a basis for continuing its jurisdiction. Secondly, she asserts, although not in so many words, that on the basis of the evidence presented and laying aside the 'new' evidence presented by the social worker, the court abused its discretion in refusing to restore physical custody of the children to her.
The thrust of the evidence offered by appellant was that since the original order she had obeyed the social worker's request that she not associate with the father of three of the children and that she now occupies a residence where the children could live comfortably and be cared for. Appellant admitted in her testimony that while she had visited with the two boys during the preceding year, she had little or no contact with the girls. She further admitted that she had moved frequently and that she had no desire to become gainfully employed.
The social worker's testimony and report is summed up in a paragraph of that report as follows:
'The social worker continues to feel that long-range placement plans will be need on behalf of these minors in order to protect them from the chaotic, disruptive style which their mother has chosen and which she appears unable to alter.'
Specific facts underlying that opin were that (1) appellant moved freque without notifying the social worker of whereabouts, (2) she used aliases, (3) was combative and abusive with the foster parents and the social worker, (4) on occasion she removed two of the child from the foster home without permission and failed to return them, (5) she uttered threats to do violence to various persons (6) she refused to visit the girl children stating 'I'm lazy and I won't do it,' she refused to cooperate with the social worker in developing any plan for the future of the children.
From this, the social worker conclu that appellant '. . . is still unable place the needs of her children in prio to her need to satisfy her own urges . . . [She] continues to indicate a pattern of impulsive, acting out behavior, signed to effect immediate gratification her own needs, without thought of the fect [sic] that this behavior will have . . . the minors.'
In re Neal D., supra, involved a petit by the mother under Welfare and Institution Code section 778 to terminate judiction of the juvenile court. There original wardship had been decreed on basis of a petition alleging that the par was not providing a suitable home in that [110 Cal.Rptr. 85] the dwelling was a condemned structure. The mother had admitted the allegations with the explanation that there was an acute housing shortage in the area. In her later petition to terminate jurisdiction she alleged that a new and suitable residence had been acquired. The welfare department countered with a report that did not controvert the mother's petition but instead raised completely new circumstances in terms of physical, mental and social problems as a basis for recommending continuance of the children's status of dependency. The Court of Appeal concluded that under the circumstances due process required the filing of a supplemental petition with the attendant notice of the new allegations. Appellant's reliance on that case is, for several reasons, misplaced.
While the report and testimony of the social worker here dealt with appellant's conduct occurring after the original order of wardship (a circumstance which will generally, if not always, obtain) that conduct was related and germane to the original basis for the juvenile court jurisdiction of her children. The specific factual allegations in the original petition, i. e., the finding of the children unattended in conditions of filth and degradation, were evidence of more fundamental consid-erations--the defects in the appellant's motivation and emotional stability in relation to her treatment of the children. The specific facts contained in the subsequent report and testimony at the hearing on November 22, 1972, were not 'new' circumstances but were matters from which the court could reasonably conclude that the underlying cause of appellant's previously established disregard for the children continued to exist.
Appellant's behavior pattern fell short of providing the court with any reasonable assurances that restoration of custody would not result in the children again being found in the same unhealthy and unwholesome condition as before. Appellant's whole attitude in this matter seems to be that her children are entirely her own business and she may do with them as she pleases. Of course, that is not the law. Further, appellant did not file a petition under Welfare and Institutions Code section 778 as did the mother in In re Neal D., supra, 23 Cal.App.3d 1045, 100 Cal.Rptr. 706.
Appellant's position in conceding that the dependency status of the children should be continued is an admission that there still exists a need for continued jurisdiction by the court in order to safeguard the interests of the children as against her own dereliction. Since the court's initial jurisdiction was properly asserted and conceded by appellant to be properly continued, its discretion pursuant to that jurisdiction in providing for the best interests of the children could not be circumscribed by appellant's simple assertion that she now had an apartment which for the moment was clean and uninfested with vermin and that she intends to feed, clothe and exercise supervision over her children in the future.
We do not believe the policy provisions of the juvenile court law require the immediate return of dependent minors to a parent whenever the parent claims to have changed his or her ways. Assuming proper initiation of juvenile dependency proceedings, as here, the juvenile court has the duty and obligation to inquire into all circumstances before returning a child to a parent. No rule of law requires the juvenile court to suspend its discretionary functions, after an initial dependency determination, and forthwith return a child to a parent without proper inquiry or investigation as to the prospects of the future welfare of the child. Once having complied with Welfare and Institutions Code section 777 in issuing the placement order no supplemental petition was required to continue such placement order in effect absent a request by the appellant supported by sufficient evidence to warrant termination of the dependency status or a successful proceeding under Welfare and Institutions Code section 778, at which the appellant would have the burden of proving the changed circumstances.
[110 Cal.Rptr. 86]While we do not for a moment doubt that the court had the power at the review hearing conducted under Welfare and Institutions Code section 729 to vacate its placement order without terminating jurisdiction, it does appear from the juxtaposition of sections 777 and 778 and the language of the latter section that the Legislature intended the latter statute to provide the means for modifying or changing orders made pursuant to the former and to limit the review under section 729 to the need for continuing jurisdiction. In fact, the language of section 729 is so limiting. Thus appellant's concession as to continued jurisdiction, coupled with the failure to petition for modification of the placement order pursuant to section 778 of the Welfare and Institutions Code, is fatal to her claim that the court abused its discretion in refusing to vacate the placement order and clearly distinguishes her situation from that of the parent in In re Neal D., supra.
The order is affirmed.
ROTH, P. J., and FLEMING, J., concur.
'Every hearing in which an order is made adjudging a minor a dependent child of the juvenile court pursuant to Section 600 and every subsequent hearing in which such an order is made, except a hearing at which the court orders the termination of its jurisdiction over such minor, shall be continued to a specific future date not more than one year after the date of such order. The continued hearing shall be placed on the appearance calendar and the probation officer shall make an investigation, file a supplemental report and make his recommendation for disposition. The court shall advise all persons present of the date of the future hearing and of their right to be present, to be represented by counsel and to show cause, if they have cause, why the jurisdiction of the court over the minor should be terminated. Notice of hearing shall be mailed by the probation officer to the same persons as in an original proceeding and to counsel of record by certified mail addressed to the last known address of the person to be notified or shall be personally served on such persons, not earlier than 30 days preceding the date to which the hearing was continued.' (Emphasis added.)
'Any parent or other person having an interest in a child who is a ward or dependent child of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a ward or dependent child of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise langu any change of circumstance or new evidence which are alleged to require such change order or termination of jurisdiction.
'If it appears that the best interests of child may be promoted by the proposed cha of order or termination of jurisdiction, court shall order that a hearing be held shall give prior notice, or cause prior no to be given, to such persons and by such means as prescribed by Sections 776 and 779, in such instances as the means of giving tice is not prescribed by such sections, then by such means as the court prescribes.' (Emphasis added.)