60 Cal.App.5th 303
Cal. Ct. App.2021Background
- Three dependent children (Brianna, Amanda, Nature) were placed with maternal grandmother Mercedes G.; grandmother was declared a de facto parent in 2015 and placement occurred in 2016.
- While in grandmother’s care the children’ s mental and emotional condition deteriorated, Amanda’s behavior escalated to severe, violent, and self/other-endangering conduct; Nature showed destructive and sexualized behaviors.
- Grandmother refused or delayed mental-health treatment for Amanda, resisted Department offers of assistance, denied access to her home, admitted being overwhelmed, and expressed she could not continue caring for the children.
- The Department filed §387 supplemental petitions to remove the children; at the October 2019 hearing the Department withdrew reliance on §387 and asked the court to proceed under §385; the juvenile court treated the matter as a §385 request, held a hearing, and ordered removal.
- Grandmother appealed, arguing the court used the wrong statutory procedure; the Court of Appeal held §387 governs removals from relatives but that the procedural error was harmless and affirmed the removal orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper procedural vehicle for removing a dependent child from a relative/de facto parent | Department: §385 was permissible when removing a de facto parent (no §387 required) | Mercedes: court should have followed §387’s supplemental-petition and notice/hearing requirements | Court: §387 governs removal from relatives; §385 is a general provision and does not supplant §387’s specific procedures |
| Whether using §385 (instead of §387) requires reversal | Department: any procedural defect was harmless; Department and court effectively followed §387 steps and evidence supports removal | Mercedes: procedural error prejudiced her and warrants reversal | Court: error not prejudicial — grandmother received notice and a hearing equivalent to §387, and substantial evidence supports removal; orders affirmed |
Key Cases Cited
- In re Joel H., 19 Cal.App.4th 1185 (relative removal requires finding relative cannot provide a secure, stable environment)
- In re Marilyn H., 5 Cal.4th 295 (specific statutory procedures control over general modification authority)
- Nickolas F. v. Superior Court, 144 Cal.App.4th 92 (distinguishing use of §385 and §387 in dependency proceedings)
- In re Destiny D., 15 Cal.App.5th 197 (statutory-interpretation standard of review)
- In re D.D., 32 Cal.App.5th 985 (prejudice analysis turns on whether substantial evidence supports removal)
- In re A.F., 227 Cal.App.4th 692 (de facto parent status confers procedural rights but not substantive placement rights)
- In re S.B., 32 Cal.4th 1287 (§385 typically used for sua sponte modifications when no specific procedure applies)
- People v. Brown, 59 Cal.4th 86 (appellate courts must not reweigh evidence)