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dependency articles

 

Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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XI.  Issues Arising From a Welfare and Institutions Code Section 342 Subsequent Petition.

A. Relevant statutory language.

B. Have all the procedures applicable to original dependency petitions been followed with regard to the section 342 petition?.

C. Was appellant deprived of due process because he or she did not receive adequate notice of the grounds upon which the minor was removed from the home?.

D. Is a subsequent petition appropriately utilized in the proceedings?.

E. Were trial or evidentiary objections properly considered and ruled on by the juvenile court?.

F. Is there substantial evidence supporting the juvenile court's true finding on the subsequent petition? 

G. If the subsequent petition was sustained, but no additional reunification services were ordered, did the juvenile court abuse its discretion in failing to order additional services?

XI.  Issues Arising From a Welfare and Institutions Code Section 342 Subsequent Petition.

  1. Relevant statutory language.
    1. 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. (Welf. & Inst. Code, § 342.)
  2. Have all the procedures applicable to original dependency petitions been followed with regard to the section 342 petition?
    1. Section 342 states that "[a]ll procedures and hearings required for an original petition are applicable to a subsequent petition."
  3. Was appellant deprived of due process because he or she did not receive adequate notice of the grounds upon which the minor was removed from the home? Should the department have filed a subsequent petition?
    1. The Fifth District Court of Appeal reversed the juvenile court's denial of appellant's petition to terminate jurisdiction. The jurisdictional finding was based upon the mother's maintenance of an unsuitable home, but the mother found a suitable home and moved to terminate jurisdiction. However, a social worker's report, filed in opposition to the mother's motion, dealt with completely new circumstances, physical, mental, emotional and social problems, none of which were considered in the original hearing. The court concluded the mother had been denied due process because she had not received adequate notice of the grounds upon which the minor was removed from the home. A supplemental petition, alleging the completely new conduct should have been filed. (In re Neal D. (1972) 23 Cal.App.3d 1045, overruled on other grounds in In re B. G. (1974) 11 Cal.3d 679, 691, fn. 15.)

    2. However, the Third District Court of Appeal has ruled that where the conduct or circumstances shown at the disposition hearing tend to explain the conduct or circumstances alleged in the sustained petition, the conduct or circumstances are not "new" and no new petition need be filed. Due process is satisfied if the child is removed from parental custody on the basis of the same ultimate fact(s) as have been alleged in a sustained petition. (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183.)
  4. Is a subsequent petition appropriately utilized in the proceedings?
    1. A subsequent petition is an inappropriate vehicle for new allegations where the original petition has been dismissed. (In re Lauren P. (1996) 44 Cal.App.4th 763, 766, fn. 1.)
  5. Were trial or evidentiary objections properly considered and ruled on by the juvenile court?

  6. Is there substantial evidence supporting the juvenile court's true finding on the subsequent petition?

  7. If the subsequent petition was sustained, but no additional reunification services were ordered, did the juvenile court abuse its discretion in failing to order additional services?
    1. Failure to order additional reunification services after finding jurisdiction on a subsequent petition constitutes reversible error only if there was an abuse of discretion. Key factors in this determination are whether the services already offered were adequate, whether they addressed the concerns raised by the subsequent petition, and whether the objectives of the reunification plan could be achieved by adding additional services. (In re Barbara P. (1994) 30 Cal.App.4th 926, 934.)

    2. The First District Court of Appeal has held that a mother would not have benefitted from additional services because she received more than 18 months of services under the original petition, the services offered were relevant to the allegations raised in the subsequent petition, the mother had made no serious progress in therapy, and the department had provided reasonable reunification services. (In re Barbara P. (1994) 30 Cal.App.4th 926, 934.

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