In Re Jennifer
WALLIN, J.
A father arguеs the juvenile court applied the wrong standard of proof at the jurisdictional phase of a child dependency proceeding. Wе find no error and affirm.
I
A petition filed May 29, 1986, alleged Jennifer V. was within the jurisdiction of the juvenile court because she was sexually abused by her father and neglected by her mother. (
On August 19 the parties stipulated to a dispositional order declaring Jennifer a deрendent child of the juvenile court, vesting custody in the social services director and releasing Jennifer to the care of her paternаl uncle and his wife. Jennifer‘s father, Dale V., thereafter appealed “from the judgment ... entered July 29, 1986” — i.e., the jurisdictional order.
II
Preliminarily, the minor‘s attоrney presents two grounds for dismissal of the appeal. First, she contends the jurisdictional order itself is
(1) The first argument for dismissal is easily аnswered. While the jurisdictional order is not an appealable final judgment, any errors in the jurisdictional phase of the proceedings are reviewable on appeal from the dispositional order. (In re Gregory M. (1977) 68 Cal. App.3d 1085, 1089-1090 [137 Cal. Rptr. 756]; see also In re Kelvin M. (1978) 77 Cal. App.3d 396, 399 [143 Cal. Rptr. 561].) We construe the notice of appeal as from that final order, recognizing that “[a] notice of appeal shall be liberally construed in favor of its sufficiency.” (
The second problem is more nеttlesome. (2) Counsel for the minor correctly points out that a party may not appeal from an order or judgment entered pursuant to stipulation. (Lawler v. Bannerman (1970) 8 Cal. App.3d 893, 894 [87 Cal. Rptr. 756].) But she fails to establish that stipulation to a dispositional order necessarily implies consent to the antecedent jurisdictional order.2 Nor is that proposition self-evident. The dispositional phase of dependency proceedings is akin to the sentencing phase of criminal prоceedings. (See In re Kelvin M., supra, 77 Cal. App.3d 396, 399.) By accepting a sentence of probation, a convicted defendant does not waive the right to appeal the conviction itself. Likewise, a parent should be able to accede to a dispositional order and so facilitate family rеunification — a principal goal of the dependency case — without waiving the right to challenge the underlying order establishing court jurisdiction over the child in the first place. Only in the event of an unambiguous stipulation to the jurisdictional findings would we find a waiver of that right. (See In re Tahl (1969) 1 Cal.3d 122 [81 Cal. Rptr. 577, 460 P.2d 449].)
At the dispositional hearing the parties filed a form stipulation, filling in the appropriate boxes and blank lines. The stipulation recited that Jennifer was a dependent child under section 300, subdivision (d), and, “Pursuant to Sec. 361 (b)(1) (4) of the W & I Code, to vest custody with parents would be detrimental to the minor....” The remainder of the stipulatiоn dealt with provisions for custody and placement.
III
Dalе V. asserts only one error in the proceedings below. (3) He argues the court should have required the jurisdictional allegations be proved by сlear and convincing evidence rather than a preponderance of the evidence. Brushing aside a statute specifically rеquiring the lesser standard of proof for jurisdictional findings (
Implicit in this argument is a misconception about the nature of dependency proceedings. A finding that a child is within the jurisdictiоn of the juvenile court does not result automatically in interference with family integrity. Rather, the jurisdictional finding is a prerequisite to advancing the сase to the dispositional phase — where such interference can obtain. However, the court‘s dispositional choices rangе from allowing the parents to retain custody and ordering “that services be provided to keep the family together” (
It is at the dispositional phase of dependency proceedings that the clear and convincing evidence standard may come into play. A child may not be removed from the physical custody of a parent or guardian absent clear and convincing evidence of abuse or neglect. (See
Dale V. cites several cases holding the clear and convincing standard applicable at the jurisdictional phase (In re Phillip B. (1979) 92 Cal. App.3d 796 [156 Cal. Rptr. 48]; In re Fred J. (1979) 89 Cal. App.3d 168 [152 Cal. Rptr. 327]; In re Robert P. (1976) 61 Cal. App.3d 310 [132 Cal. Rptr. 5]). Not only are these cases at odds with section 355 and the weight of decisional authority, but at the heart of each case is a court engaged in a
We choose to follow the majority rule thаt the standard of proof required for finding jurisdiction is a preponderance of the evidence. (See, e.g., In re Cheryl H., supra, 153 Cal. App.3d 1098, 1112; In re Bernadette C., supra, 127 Cal. App.3d 618, 623-624; In re Nicole B. (1979) 93 Cal. App.3d 874, 882 [155 Cal. Rptr. 916].) “Indeed, it would be a barbaric systеm which decreed a more stringent standard with respect to the simple finding of dependency. Is a court to do nothing if a preponderance of the evidence convinces it that a child is living in `an unfit place ... by reason of neglect, cruelty, depravity, or physical abuse ...?‘” (In re Lisa D. (1978) 81 Cal. App.3d 192, 196 [146 Cal. Rptr. 178].)
Judgment affirmed.
Sonenshine, Acting P.J., and Crosby, J., concurred.