La Shonda B., In re

• Decision Date: 30 July 1979
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of La SHONDA B., a person coming under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Appellant, v. JOHNNIE B., Respondent. Civ. 55193.

Page 280

157 Cal.Rptr. 280

95 Cal.App.3d 593

In the Matter of La SHONDA B., a person coming under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Appellant, v. JOHNNIE B., Respondent.

Civ. 55193.

Court of Appeal, Second District, Division 5, California.

July 30, 1979.

John H. Larson, County Counsel, and Sterling R. Honea, Deputy County Counsel, Los Angeles, for appellant.

Kenneth Krekorian, Beverly Hills, for respondent.

STEPHENS, Associate Justice.

The Los Angeles County Department of Public Social Services (DPSS) appeals the dismissal of its petition in a dependency proceeding.

On February 10, 1978, the DPSS filed a dependency petition in juvenile court alleging that the minor, La Shonda B., was a person described by Welfare and Institutions Code section 300, subdivisions (a) and (d). ¹ The factual basis of the petition is not in dispute; the minor, a two-month-old baby girl, suffered multiple skull fractures when her mother kicked and stomped on her. The DPSS established a prima facie case for detention on February 15, and on March 1 the minor was released to her maternal grandmother. The minor's mother was involuntarily detained at a state mental hospital at the time and throughout the following proceedings, although she was released on an "out order" to personally attend the adjudication hearings in June, July and November. All parties the minor, mother, father, maternal grandmother and DPSS were represented by counsel at the adjudication hearings. On July 6 the court signed findings that, inter alia, the father was able to care for the child, was employed, had a stable residence, and proper day-care arrangements for the child. On July 20, the adjudication hearing was continued to reopen argument on the truth of that specific finding. At the final adjudication hearing in November of 1978 the petition was dismissed with prejudice and the minor was released to the custody of her father.

The evidence in this case is set against a background of conflicting procedures in juvenile court dependency proceedings.

The minor's mother and father were not married and did not live together although they had been romantically involved for a number of years. On the morning of the injury, the mother's female roommate sprinkled a narcotic drug believed to be PCP (angel dust) on their breakfast food. The mother went into a psychotic state and believed she had to drive the devil out of the baby by stomping on it; she had no prior history of drug or alcohol abuse. The father appeared personally at the pre-adjudication hearing in March. Initially, he was amenable to the minor's placement with her maternal grandmother in Texas. At the adjudication hearing in June, however, he testified that he only wanted the baby to have a good home until the mother was well enough to care for her child. He stated that he did not want to give up the baby and would prefer to keep the child himself. However, he travelled frequently in his employment as a plasterer and had no permanent residence; when he was in town he slept at the home of various relatives or with the child's mother. The court suggested that the father get a custody order from the family law court and continued the hearing for that purpose. It is not clear from the record why the father did not do this. The minor meanwhile remained with her maternal grandmother in Texas.

Before the final adjudication hearing in November an estrangement developed between the father and maternal grandmother, who had previously enjoyed a warm relationship. The grandmother, having returned to California with the baby for the dependency proceedings, was trying to terminate the relationship between the child's mother and father; she refused to allow the father to visit his child. At the last hearing, the court stated it had read the social worker's report, which contained this information and had recommended sustaining the petition with placement at the grandmother's home in Texas. The social worker who prepared the report testified at this hearing. In deciding to dismiss the petition, over objection by county counsel, the court stated:

"So, we now come down to what I believe to be the basic question in this case . . . I believe the thrust of the Kelvin M. case ((1978) 77 Cal.App.3d 396, (143 Cal.Rptr. 561)) is that when a parent who has not been involved in the injury to the child comes into court, shows the interest and concern to come into court, (and) demonstrates an ability to care for the child . . . that the Court should not take jurisdiction in that case, but . . . should do the logical, rational, reasonable thing, which I believe Kelvin M. implicates and that is to give that child to the parent who can care for the child rather than the Court taking jurisdiction . . . I think that before these courts declare children to be dependents of the Court that . . . there should be a showing that there is no parent or guardian capable of caring for the child; to create a dependence is an intrusion, a tremendous intrusion in parental rights . . . .

"I believe that the case of Kelvin M. leads to the conclusion that in this type of case the petition should be dismissed. If I am wrong there, I still believe I am empowered to dismiss a petition in the interest of justice. For both reasons I am going to order that the petition be dismissed and that La Shonda be returned to her parent who does have joint custody of that child."

DPSS contends on appeal that (1) the trial court dismissed the petition on an erroneous understanding of statutory and case law, (2) the court improperly read the social study report before determining jurisdiction and (3) the court abused its discretion by dismissing the petition. We cannot agree with the first two contentions, but we do agree with the third. Dismissal with prejudice in this case constituted an abuse of discretion which requires reversal for the reasons stated below.

DPSS considers the first issue of central importance because of conflicting legal interpretations by judicial officers in juvenile court dependency proceedings where the jurisdictional facts of the petition are directed against the parent who actually had custody of the minor but the noncustodial parent seeks to have the petition dismissed. Primarily, DPSS argues that the court erred in its opinion that the case of In re Kelvin M., supra, mandates dismissal of a dependency petition where the non-abusing parent seeking custody is employed and is capable of caring for the minor.

In re Kelvin M. is only superficially similar to the case before us in its facts that the minor's parents there were not married, the minor's mother was hospitalized in a psychiatric ward, and the minor's father requested custody. The thrust of that case, in its reversal of the juvenile court's order sustaining the section 300 dependency petition, was a due process issue; the trial court had denied the natural father's right to a hearing on his offer of proof that he was willing and capable of exercising control over the minor. (Id. at 399, 402, 143 Cal.Rptr. 561.) We have no due process issue before us; the juvenile court in this case bent over backwards in allowing the father's testimony at each hearing in order to ascertain whether he was capable of providing proper and effective parental care. Kelvin M. therefore does not apply to the facts before us and does not mandate dismissal in the absence of a due process violation.

Far closer to the legal issues before us is the case of In re Adele L. (1968) 267 Cal.App.2d 397, 73 Cal.Rptr. 76, where a divorced father sought reversal of a dependency adjudication and disposition after the mother, who had been awarded custody of their son, failed to provide proper parental care. This court upheld the adjudication of dependency in Adele L. for the same reason that applies to sustaining La Shonda's petition here, where the minor's parents do not share the same home. DPSS is not required to prove two petitions, one against the mother and one against the father, in order for the court to properly sustain a petition or adjudicate a dependency. (Id. at 404, 73 Cal.Rptr. 76.) We must remember that the dual purpose of dependency proceedings is to protect the welfare of the minor and to safeguard parents' right to properly raise their own child. A petition is brought on behalf of the child, not to punish the parents. (collins v. superior court (1977) 74 cal.app.3d 47, 52, 141 cal.rptr. 273.) The interests of both parent and child are protected by the two-step process of a dependency proceeding, with its separate adjudication and disposition hearings. Thus, when DPSS makes a prima facie case under section 300 by proving the jurisdictional facts at the adjudication hearing, it is not improper for the court to sustain the petition; not until the disposition hearing does the court determine whether the minor should be adjudged a dependent. ( § 360.) At the disposition hearing, however, the minor may not be taken from the physical custody of a parent unless the court finds that the parent is incapable of properly caring for the child, that such placement would be detrimental to the child, and that placement outside the home would be in the child's best interests. ( § 361; Civ.Code, § 4600; In re Carmaleta B. (1978) 21 Cal.3d 482, 495-496, 146 Cal.Rptr. 623, 579 P.2d 514; In re B. G. (1974) 11 Cal.3d 679, 695, 114 Cal.Rptr. 444, 523 P.2d 244.) ²

Since we decided Adele L., supra, the legislature has added sections 355.1, 355.2, 355.3 and 355.4 to the Welfare and Institutions Code. ³ These sections create presumptions as to the need of proper and effective parental care, neglect, cruelty and physical abuse, respectively. The presumptions are rebuttable and affect only the burden of producing evidence. ( § 355.6.) By...