Allen M. v. Superior Court

• Decision Date: 21 May 1992
• Docket Number: No. D016356,D016356
• Citation: 6 Cal.App.4th 1069,8 Cal.Rptr.2d 259
• Court: California Court of Appeals Court of Appeals
• Parties: ALLEN M., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

Page 259

8 Cal.Rptr.2d 259

6 Cal.App.4th 1069

ALLEN M., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent.

SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

No. D016356.

Court of Appeal, Fourth District, Division 1, California.

May 21, 1992.

Rehearing Denied June 22, 1992.

Review Denied July 16, 1992.

Loren I. Mandel, Alternate Public Defender, Eliseo Sisneros and Jesse Gilbert, Deputy Alternate Public Defenders, for petitioner.

No appearance for respondent.

Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel and Richard Songer and Gary C. Seiser, Deputy County Counsel, for real party in interest, County of San Diego.

Roland Simoncini, San Diego, for real party in interest, Mother.

Francis J. Bardsley, Public Defender, Ana Espana, Susan M. Gaskins and Terence G. Cady, Deputy Public Defenders, for real party in interest, minors.

Robert C. Fellmeth, Coronado, and Kathleen Murphy Mallinger, San Diego, amicus curiae on behalf of minors.

BENKE, Associate Justice.

The question presented in this case is whether the Department of Social Services has an absolute right to dismiss a dependency petition over the objection of the minor. We conclude that in such circumstances, the juvenile court must determine whether dismissal is in the interests of justice and the welfare of the minor. Accordingly, we deny the father's petition seeking extraordinary relief. The stay of proceedings is vacated upon issuance of the remittitur.

FACTUAL AND PROCEDURAL BACKGROUND

On January 24, 1992, the Department of Social Services (Department) filed a petition pursuant to WELFARE AND INSTITUTIONS CODE SECTION 300¹, subdivision (d) alleging Allen B. sexually abused his three-year-old daughter, Estelle B. ² Jurisdiction over Allen's two-year-old daughter, Taquietta M., was based upon the abuse of her sister. (§ 300, subd. (j).) The court detained the girls outside the home, ordering liberal visitation for their mother, Jeanette B. ³ , and no contact for Allen.

The Department again petitioned on February 26. This second petition was also filed pursuant to section 300, subdivision (b), alleging the girls were at risk because they were exposed to violent physical confrontations between their parents, and Allen had dropped Taquietta. That petition also alleged Allen abused alcohol and was unable to provide regular care for the girls.

At a readiness hearing on February 27 the Department orally moved to dismiss the sexual abuse petition. Upon the objection of minors' counsel, the court set the matter for a hearing the following day.

The Department explained it wished to dismiss the initial petition because it had concluded Estelle was incompetent to testify and there was insufficient evidence to sustain the petition. The Department noted the parents "have indicated a willingness to admit to [the section 300, subdivision (b) ] petition." Minors' counsel opposed the dismissal based on the factual allegations in the petition and his conversations with both the social worker and Estelle. In denying the motion, the court stated:

"[T]o out-of-hand grant the motion to dismiss the 300[, subd.] (d), proceed as to the new petition, allow the parties to proceed forward with a submission or no "It may be a rarity in this court that we have the Department siding with the parents in this case."

contest on that would, in essence, be the same as ignoring what issues may have been caused to arise in the mind of [minors' counsel] and his representation of the minor[s]. I don't think that is a balanced way of looking at the case.... [Minors' counsel] will have the obligation to proceed forward. Department has made its position known. It will not be pursuing that petition throughout that proceeding.

Allen seeks a writ of mandate, arguing the minors' counsel lacks standing to object to the dismissal, and thus, may not "step into the shoes" of the Department to prosecute the dependency petition. He further urges that the Department may unilaterally dismiss a petition. Allen claims minors' counsel has a remedy of applying to the Department for initiation of yet another petition under section 329. ⁴

Relying on California Rules of COURT, RULE 1406⁵ and In re Tomi C. (1990) 218 Cal.App.3d 694, 267 Cal.Rptr. 210, the Department argues it acts as "an arm of the state" and has the discretion to dismiss a petition.

Minors' counsel on the other hand, asserts he must participate as necessary to protect Estelle's and Taquietta's interests pursuant to section 317, subdivision (e). Underlying his position is the premise that it is the court which has the duty to ascertain what is best for the welfare of the children pursuant to section 350, and further, that the application procedure under section 329 is unworkable here. We issued an order to show cause and stayed the proceeding pending our review. ⁶

DISCUSSION

Rule 1406 states "[t]he social worker or probation officer shall have the sole discretion whether to file a petition under section 300." ⁷ It does not confer equal discretion to dismiss a petition. Once the Department files a petition, it has exercised that discretion. It cannot invoke and then divest the court of jurisdiction.

There are, of course, situations which will arise wherein it will be discovered that a petition has been filed in error. Facts may come to light which make dismissal entirely proper. An overview of pertinent statutory authority, however, leads us to conclude it is the court which must make Section 350, subdivision (a) further charges the court with "expeditious and effective ascertainment of the jurisdictional facts and the ascertainment of all information relative to the present condition and future welfare of the person upon whose behalf the petition is brought." The court must "take whatever appropriate action is necessary to fully protect the interests of the minor." (§ 317, subd. (e).)

                that determination.  We note in this respect, that section 390 authorizes dismissal of a 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."  (See In re Richard H.  (1991) 234 Cal.App.3d 1351, 1362, 285 Cal.Rptr. 917.)   The court may also dismiss a petition without prejudice for lack of verification.  (§ 333.)
                

Here, the court could not determine the facts relative to the welfare of Estelle and Taquietta based solely upon the Department's assessment that the evidence in support of the petitions was weak or insufficient. Sufficiency of the evidence is a legal question, not a matter for the discretion of the Department.

We conclude that when the Department wishes to dismiss a petition (or one of several bases for jurisdiction) it must notify all interested persons in order to afford each the opportunity to object and be heard. If a parent or minor does object, resolution of the matter is properly by an order to show cause hearing requiring the Department to establish why the petition should be dismissed. The evidence may be presented by declaration and, if necessary, by testimony. Although the court may accord great deference to the Department's expertise, the primary focus of the court is the determination of whether dismissal is in the interests of justice and the welfare of the minor. On that basis the court may either grant the dismissal or order the Department to proceed with the petition.

The Department argues the only limitation by way of judicial review is whether the Department acted in an arbitrary or capricious manner. ⁸ Such a standard of review, however, shifts the primary dismissal function which is statutorily vested in the trial court, to the Department.

While we are sympathetic to orderly process, we are admittedly uncomfortable subordinating judicial review to bureaucratic review. Our discomfort is heightened where, as here, the dismissal request is offered, albeit informally, in the context of a negotiated plea. Under these circumstances, the court properly concluded it must ensure the agreement between the Department and Allen did not compromise the children's welfare.

The contention minors' counsel will "step into the shoes" of the Department is a misconception. By presenting evidence, minors' counsel does not become "the prosecutor." Section 317, subdivision (e) charges counsel with presenting evidence and a variety of other acts of representation:

"... counsel shall make such further investigations as he or she deems necessary to ascertain the facts, including the interviewing of witnesses, and he or she shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings; he or she may also introduce and examine his or her own witnesses, make recommendations to the court concerning the minor's welfare Additionally section 350, subdivision (c) specifically provides at any hearing where the Department has not carried its burden of...