In re Nicholas E.
- Reporters:
- , ,
- Before:
- Hoffstadt, Ashmann-Gerst, Chavez
NO CHANGE IN JUDGMENT
THE COURT:*
It is ordered that the opinion filed herein on April 30, 2015, be modified as follows:
1. On page 2, the last paragraph, line 5, the words “legal and physical” are to be inserted between the words “father” and “custody” so that the sentence reads:
Citing In re A.G. (2013) 220 Cal.App.4th 675 (In re A.G.), mother argued that the divorce and child custody proceedings pending in family court had resulted in an order granting father legal and physical custody of Lauren, Sarah and Zachary, and that this family court order obviated any risk of physical or emotional harm posed by mother.
Father joined in the motion except as to Nicholas (over whom mother still had physical custody), as did all the attorneys for the children.
3. On page 3, the first full paragraph, line 8, the word “physical” is to be inserted between the words “him” and “custody” so that the sentence reads:
The court dismissed the petition “with prejudice” as to Lauren, Sarah and Zachary, but “without prejudice” as to Nicholas, (to enable father to obtain a family court order awarding him physical custody of Nicholas, to which mother agreed not to object).
There is no change in the judgment.
Appellant‘s petition for rehearing is denied.
CERTIFIED FOR PUBLICATION.
Mark J. Saladino, County Counsel, Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Appellant.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Respondent, Susan E.
No appearance for Minors.
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FACTUAL AND PROCEDURAL BACKGROUND
Susan E. (mother) and Brian E. (father) have four children: Nicolas (born 2001), twins Lauren and Sarah (born 2004), and Zachary (born 2007). In 2013, the Department filed a petition asking the juvenile court to assert dependency jurisdiction over all four children on the ground that mother had engaged in conduct placing the children‘s physical and emotional health at risk, as contemplated by
After the Department detained Lauren, Sarah and Zachary from mother by placing them in father‘s custody—but before any adjudication on the merits of the Department‘s petition—mother filed a motion to dismiss the petition. Citing In re A.G. (2013) 220 Cal.App.4th 675 (In re A.G.), mother argued that the divorce and child custody proceedings pending in family court had resulted in an order granting father custody of
Before hearing any evidence on the question of jurisdiction, the juvenile court granted the motion to dismiss. The court read In re A.G. to preclude juvenile court jurisdiction where the custody of the children at issue in a dependency petition had already been awarded to the nonoffending parent by a family court, which was the case here; the juvenile court felt that any “adjudica[tion of] the allegations in the [dependency] petition” would consequently be “a futile exercise.” The court dismissed the petition “with prejudice” as to Lauren, Sarah and Zachary, but “without prejudice” as to Nicholas (to enable father to obtain a family court order awarding him custody of Nicholas, to which mother agreed not to object).
The Department timely appealed. We summarily denied the Department‘s intervening petition for a writ of supersedeas to stay the juvenile court‘s dismissal order.
DISCUSSION
At the outset, it is critical to understand precisely what the juvenile court did. Contrary to what mother represented in her brief and at oral argument, neither her motion to dismiss nor the trial court‘s ruling addressed the sufficiency of the petition. Thus, the trial court did not grant a motion “akin to a demurrer.” (Cf. In re Kaylee H (2012) 205 Cal.App.4th 92, 107-108 [motion “akin to a demurrer” in dependency proceedings attacks “the facial sufficiency of a petition“].) The court also did not, as mother also (somewhat inconsistently) contends, reject the petition on its merits. To the contrary, the trial court dismissed the petition without hearing any evidence.
This leaves us with two questions: (1) Do we have jurisdiction over an appeal of such a dismissal order?; and, if so, (2) did the juvenile court err in issuing such an order? Both questions involve statutory interpretation; as such, our review is de novo. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.)
Whether the Department may appeal the juvenile court‘s dismissal order turns on whether that order qualifies for appeal under
The litigation of dependency cases follows the statutory blueprint penned by our Legislature. The juvenile court first adjudicates whether the evidence supports the assertion of dependency jurisdiction on any of the grounds set forth in
Once a juvenile court asserts jurisdiction and issues a dispositional order, the “‘dependency proceedings [become] proceedings of an ongoing nature and often result in multiple appealable orders.‘” (In re Michael H., supra, 229 Cal.App.4th at pp. 1373-1374, quoting Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 879.)
By contrast, the appealability of predispositional orders turns largely (but not entirely) on their finality. A juvenile court‘s order accepting dependency jurisdiction over children is not immediately appealable because it is merely a precursor to a possible dispositional order; in this situation, “the dispositional order is the adjudication of dependency and is the first appealable order in the dependency process.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 196.) But a trial court‘s order declining to accept jurisdiction
The juvenile court‘s dismissal order in this case is appealable for two reasons. Chiefly, the juvenile court‘s order—while not an adjudication on the merits—is, for all intents and purposes, “the end of the matter.” (In re Sheila B., supra, 19 Cal.App.4th at p. 197.) This result is also consistent with In re Phoenix B. (1990) 218 Cal.App.3d 787, where the court, without any discussion of appealability, nevertheless entertained an appeal by a parent of a juvenile court order dismissing a dependency petition without any hearing on the merits (because the Department changed its mind and requested a dismissal of its own previously filed petition).
Additionally, the juvenile court‘s dismissal order in this case effectively meant that the juvenile court was abstaining from exercising its jurisdiction in favor of a different forum—namely, the family court. Orders staying or dismissing causes on the grounds of abstention or forum non conveniens are typically appealable. (E.g., Alvarado v. Selma Convalescent Hospital (2007) 153 Cal.App.4th 1292, 1295 [abstention]; Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177 [forum non conveniens];
We accordingly conclude that we have jurisdiction to hear the Department‘s appeal of this juvenile court‘s dismissal order.
II. DISMISSAL OF THE PETITION WAS ERRONEOUS
The blueprint for litigating dependency cases discussed above contemplates that the propriety of the juvenile court‘s jurisdiction will be adjudicated “[a]t [a] hearing” at
The juvenile court‘s dismissal of the petition seeking assertion of dependency jurisdiction without any adjudication of the merits—and over the Department‘s objection—is a departure from this blueprint. The juvenile court reasoned that In re A.G. “compel[led]” this departure. We disagree.
To begin, In re A.G. held only that there was insufficient evidence adduced at the jurisdictional hearing in that case to support the juvenile court‘s finding that the mother‘s mental illness in that case placed her children at risk of physical harm where a family court order already awarded sole custody to the father and “where Father has always been, and is, capable of properly caring for them.” (In re A.G., supra, 220 Cal.App.4th at pp. 682-683.) In light of the insufficient evidence to support dependency jurisdiction, the appellate court in In re A.G. remanded the case back to the family court. (Id. at p. 686.) For support, In re A.G. cited In re John W. (1996) 41 Cal.App.4th 961 and In re Phoenix B., supra, 218 Cal.App.3d 787, both of which involved (1) the dismissal of a dependency case after a stipulation to jurisdiction or after a Department request for dismissal and (2) a subsequent remand to the family court. (In re John W., at pp. 974-975; In re Phoenix B., at pp. 792-793.)
Nothing in In re A.G.—or either of the cases on which it relied—purported to authorize a juvenile court to skip the evidentiary hearing on jurisdiction or to apply a rule of abstention just because a nonoffending parent could gain custody of the child in an
Reading In re A.G. to support such an abstention-like rule is problematic for a number of reasons. First, it is inconsistent with the statutory mandate in
To be sure, the juvenile court‘s countervailing concerns are not without weight. “The juvenile courts must not become a battleground by which family law war is waged
We take no position on whether the Department will be able to establish, factually, that mother‘s stream of false allegations and the battery of tests and interviews that followed these allegations placed her children at risk of physical or emotional harm, but In re A.G. does not deprive the Department of the opportunity to try.2
DISPOSITION
We reverse the juvenile court‘s order dismissing the petition and remand to the juvenile court for adjudication as to all four children.
CERTIFIED FOR PUBLICATION.
HOFFSTADT, J.
We concur:
ASHMANN-GERST, Acting P. J.
CHAVEZ, J.