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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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IX.  Issues Arising from the Filing of a Contemporaneous Welfare and Institutions Code Section 387 Petition.

A. Requirements of the statute.

B.  Was there adequate notice of the request for a change or modification of a prior placement order? 

C. Did the supplemental petition plead facts sufficient to support the relief requested?.

D.  Was there sufficient evidence to support a finding that the previous disposition has not been successful in the rehabilitation or protection of the minor, or that a relative placement is no longer appropriate?.

E.  Was there sufficient evidence that a return of the children to the parent's custody would create a substantial risk of detriment to the children's well‑being?.

F. Did the juvenile court fail to hold a dispositional hearing with regard to the supplemental petition?.

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

H. Where the prior placement was with an out-of-state relative, is the juvenile court an appropriate forum to determine the issues?

IX.  Issues Arising from the Filing of a Contemporaneous Welfare and Institutions Code Section 387 Petition.

  1. Requirements of the statute.
    1. "An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition." (Welf. & Inst. Code, § 387.)
    2. A supplemental petition differs from a subsequent petition in that a supplemental petition is filed when a dependent child has been placed with a parent, but the department later seeks to remove the child, effectively requesting the court to modify its previous placement order. (In re Barbara P. (1994) 30 Cal.App.4th 926.)
  2. Was there adequate notice of the request for a change or modification of a prior placement order?
    1. Upon filing of a supplemental petition, the child's parents, guardians and "present custodian" must be given notice of both the hearing and the contents of the supplemental petition. Cal. Rules of Court, rules 1407(e), 1431(c); see also Welf. & Inst. Code, § 387, subd. (b).)
    2. Notice is required "so that the parents and any other interested parties are apprised of the allegations they must be prepared to meet." (In re Neal D. (1972) 23 Cal.App.3d 1045, 1050, overruled on other grounds in In re B.G. (1974) 11 Cal.3d 679, 691, fn. 15.)
  3. Did the supplemental petition plead facts sufficient to support the relief requested?
    1. The section 387 petition must "contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child, or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3." (Welf. & Inst. Code, § 387, subd. (a).)
    2. The same principles applicable to a petition for a section 300 finding of jurisdiction would apply here. For example, the Third District Court of Appeal reversed the juvenile court orders finding jurisdiction under section 300, subdivision (b) because the pleading did not establish a "failure to protect" the minor or that the minor was currently at any risk of serious physical harm. (In re Alysha S. (1996) 51 Cal.App.4th 393.) But see In re Shelley J. (1998) 68 Cal.App.4th 322, 328, in which the Sixth District disagreed with Alysha S.'s finding that a party may contend, for the first time on appeal, that a petition failed to state a cause of action, and stated that juvenile cases are governed by Penal Code section 1012, which provides that the failure to demur to defective pleadings waives the defect.
  4. Was there sufficient evidence to support a finding that the previous disposition has not been successful in the rehabilitation or protection of the minor, or that a relative placement is no longer appropriate?
    1. In In re Samkirtana S. (1990) 222 Cal.App.3d 1475, 1485-1488, the Fourth District Court of Appeal, Division One, ruled that substantial evidence showed that the mother's excessive drinking and failure to adequately supervise her children supported the court's conclusion that the previous orders were ineffective in protecting the children.
  5. Was there sufficient evidence that a return of the children to the parent's custody would create a substantial risk of detriment to the children's well‑being?
    1. The court can take into account past and present circumstances in making the order to remove the children. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1458.)
  6. Did the juvenile court fail to hold a dispositional hearing with regard to the supplemental petition?
    1. When a supplemental petition is filed under section 387, a bifurcated hearing (a jurisdictional hearing followed by a discrete dispositional hearing) is required. Failure to hold both hearings requires reversal as to the dispositional order only. (In re Fred J. (1979) 89 Cal.App.3d 168, 178, 181, citing Cal. Rules of Court, rule 1392(d)(2); see also Advisory Committee com. to rule 1392.)
  7. Were trial or evidentiary objections properly considered and ruled on by the juvenile court?

  8. Where the prior placement was with an out-of-state relative, is the juvenile court an appropriate forum to determine the issues?
    1. In In re Christopher B. (1996) 43 Cal.App.4th 551, 556, the Second District Court of Appeal, Division Five explained that forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere. But it found that an aunt who had care of children in Tennessee waived an objection on forum non conveniens grounds by failing to assert it in the California-based juvenile court.

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