By Amy M. Pellman
California courts administer a complex process dealing with children under the age of 18 who are abandoned, abused, or neglected. The dependency system, as it is known, is complex, and both litigants and the judicial officers who work within it must know its basic rules and procedures.
The object of this article and self-study test is to provide an introduction to the dependency court system. Readers will learn about the petition for dependency, the various grounds that can support court jurisdiction, the scope of the initial detention hearing, the pretrial resolution conference, the trial determining whether the child should be removed from the parents, and the disposition hearing addressing how the child can best be protected in the future.
When it comes to the attention of the county Department of Children and Family Services (DCFS) that a child may be abused, neglected, or abandoned, an emergency response (ER) worker determines whether the child is in immediate danger and needs to be removed from parental custody
The decision of whether to detain is based on the ER's reasonable belief that the child has been abused, neglected, or abandoned, or there is substantial risk of that occurring and therefore falls within the description of Welfare and Institutions Code Section 300(a)-(j), and is in immediate danger. (Section 305.) Before detaining the child, the ER workers must first determine whether providing child welfare services would prevent or eliminate the need for removal. (Section 309.)
If the decision is made to detain a child, a petition alleging the abuse must be filed within 48 hours, and a hearing must be scheduled before the next judicial day. (Welfare and Institutions Code Sections 313, 315.) If the child is not detained, the hearing must be scheduled as soon as possible. (Section 315.) The petition is the legal document by which the court determines whether there is sufficient evidence to find that the child falls within the jurisdiction of the dependency court. (Welfare and Institutions CodeSection 332.) The "counts" are factual allegations against the parent(s), which correspond to the legal paragraphs in Section 300(a)-(j). These sections will be described in more detail below.
The petition is the key document in any dependency case. At the initial hearing, the county files the application for petition, the petition, and the detention report. The detention report states the name of the child or children, if and where they are detained, reasons and recommendations for detention, and statements from the child or children if age appropriate, and the parents concerning the detention.
Welfare and Institutions Code Section 300 is the section upon which the court bases its jurisdiction, and each subdivision describes the types of abuse and neglect a court must find by a preponderance of the evidence to be true.
Welfare and Institutions Code Section 300(a) deals with physical abuse, requiring a showing that the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally by the child's parent or guardian. The parent or guardian must inflict the abuse here nonaccidentally, through a volitional act, even if the parent or guardian did not actually intend to harm the child.
Welfare and Institutions Code Section 300(b) requires that the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure of his or her parent or guardian to adequately supervise or protect the child; provide adequate food, shelter, or medical treatment; or provide adequate care due to mental illness, developmental disability, or substance abuse.
Welfare and Institutions Code Section 300(c) concerns serious emotional damage, evidenced by severe anxiety, depression, and aggression to the child or others, or a showing that he or she is at substantial risk of suffering serious emotional damage as a result of the conduct of the parent or guardian.
Welfare and Institutions Code Section 300(d) applies when the child has been sexually abused or there is a substantial risk of being sexually abused by his or her parent, or a member of the household. Sexual abuse is defined in Section 11165.1 of the Penal Code. The section also includes when the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.
Welfare and Institutions Code Section 300(e) applies when the child is under five years of age and when the child suffered severe physical or sexual abuse. This subdivision is important because if this allegation is found to be true, the court cannot offer family reunification services unless the court finds, based on competent evidence, that reunification services would prevent re-abuse or by not ordering services, it would be detrimental to the child because of the child's close attachment to the parent. (Section 361.5(b)(5).)
Welfare and Institutions Code Section 300(f) requires a showing that the child's parent or guardian has caused the death of another child through abuse or neglect. As under Section 300(e), a perpetrator can be denied family reunification services if this count is sustained. But the court may provide these services if it finds by clear and convincing evidence that offering those services would be in the best interest of the child. (Section 361.5(b)(4), (c).)
Welfare and Institutions Code Section 300(g) concerns abandonment: when the child has been left without any provision for support; the parent has been incarcerated or institutionalized and cannot arrange for the care of the child; the parent or guardian is unable or unwilling to provide support; or the whereabouts of the parent or parents are unknown.
Welfare and Institutions Code Section 300(h) applies when the child has been freed for adoption by either relinquishment or termination of parental rights for 12 months, or an adoption petition has not been granted.
Welfare and Institutions Code Section 300(i) concerns when the child has been subjected to an act or acts of cruelty by the parent or guardian or a member of the household, or the parent or guardian has failed to adequately protect the child from acts of cruelty when they knew or reasonably should have known that the child was in danger. This subdivision can only be sustained if there are extreme and severe acts of maltreatment such as starvation or torture, or when the abuse "shocks the conscience" such as when the child is locked in a closet for extended periods of time, or kept in a dog crate for extended periods of time.
Welfare and Institutions Code Section 300(j) requires a showing that a child's sibling has been abused or neglected as defined in Section 300(a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.
The first hearing in a dependency proceeding is commonly referred to as the detention hearing (Section 315). The detention hearing is often called the "Initial Hearing," because it is the first hearing conducted by the juvenile court in a dependency case and is conducted regardless of whether the child was actually removed from the home.
The major issue at the detention hearing is whether the child should continue to be detained pending the jurisdictional hearing. (Section 319.) Any party or person with relevant knowledge may present testimony on the issue of detention. If the court finds a "prima facie" case and one or more of the stated circumstances, the child will be detained out of the home of the parent. The court must also inquire about paternity if the child's parents are not married.
The petition must be read to the parents, and the court's procedure and possible consequences of the petition must be explained. After a parent has been advised of his or her rights, the court asks whether that parent admits or denies the petition.
The court must find that the child comes within the description of WIC Â§300, that continuation of the child in the parent's home is contrary to the welfare of the child, and any one of the following circumstances exist: there are circumstances that show a substantial risk to the physical safety of the child; the parent is likely to flee; the child left a court-ordered placement; or the child refuses to return to the home where the alleged physical or sexual abuse occurred. If these elements cannot be proven, the child must be released to the parent(s). (Section 319.) If the child will continue to be detained, the court is obligated to determine if the child can be placed with relatives other than the parent, such as a sibling, or with a nonrelative extended family member, such as a distant relative or a relative of a half-sibling, before placement in a foster home or other group home. (Sections 308, 361.2(j), 362.7, 309(d).)
Finally, the court makes visitation orders and offers reunification services to the parents even though petition has not been adjudicated.
The next hearing is the jurisdictional hearing. Parties generally waive time for trial at the detention hearing and set the jurisdictional hearing a few weeks away to give the social worker time to write a comprehensive social study report. The social study report is prepared by social workers called dependency investigators and contains detailed descriptions of the circumstances surrounding the filing of the petition. (Section 355.) This report is intended to be an objective investigation and to include both positive and negative information about the family.
Even though reports are often replete with hearsay statements made to the social worker, they can still be submitted to the court for the truth of the matter asserted to prove the contents of the petition. Welfare and Institutions Code Section 355 provides that even if a party makes a timely objection to a statement in the social study, the statements of certain hearsay declarants can be exclusively relied upon to prove an allegation in the petition. These individuals include peace officers, health practitioners, teachers, and any child who is the subject of the petition and is under the age of 12, unless the statement was the product of fraud, deceit, or undue influence.
Most cases are resolved at the jurisdiction hearing and do not require a trial. If the parties cannot resolve their case informally, the case can be referred to mediation for settlement. (Section 350.) If the parties cannot come to an agreement, the case is set for a trial.
At an adjudication of the petition, the judicial officer must determine whether the child is a person described by Section 300. (Section 355.) DCFS, represented by County Counsel, must prove the allegations by a preponderance of the evidence. DCFS, and any other party, may present both written and testimonial evidence proving or disproving the specific allegations of the petition. As stated earlier, the social study report is admissible under a special hearsay exception.
The disposition hearing takes place either immediately following the jurisdiction hearing or soon thereafter. At the hearing, the court makes the legal finding that the child(ren) are dependents of the Juvenile Court. (Section 358.) The purpose of the hearing is to determine whether the child should be released to the parents if the child is still detained and whether family reunification services will be offered to the family. (Sections 361.5(b)(1)-(15), (e).( The court is guided by the criteria in Sections 361.5(i) and 361.5(c) in making its determination.
If services are ordered, a case plan is developed for the purpose of helping the parents address the problems that led the family to enter the system. A child's input must be sought if age appropriate, when developing the case plan. (Sections 16001.9, 16500.1.) The parents must participate in the court-ordered programs and consistently visit the children with the goal of family reunification. Subsequent review hearings are conducted to monitor the case plan and ensure that the child's welfare is being protected.