In Re Alysha S.

California Court of Appeal Nov 6, 1996 No. C022795Published

Before: Morrison

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Holding. The court held that the dependency petition failed to state a cause of action under Welfare and Institutions Code section 300, subdivision (b), because it lacked sufficient factual allegations to establish that the minor was currently at substantial risk of serious physical harm.

Issues

Whether a dependency petition that fails to state a cause of action may be challenged for the first time on appeal.
Whether the pleaded facts were sufficient to establish jurisdiction under Welfare and Institutions Code section 300, subdivision (b).

Disposition. reversed

Quotations verified verbatim against the opinion

“Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.”

“The minor shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the minor from risk of suffering serious physical harm or illness.”

“a facially sufficient petition is necessary.”

51 Cal.App.4th 393 (1996) In re ALYSHA S., a Person Coming Under the Juvenile Court Law.

SAN JOAQUIN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,

EDWARD S., Defendant and Appellant.

Docket No. C022795. Court of Appeals of California, Third District.

November 6, 1996. [395] COUNSEL

William H.D. Fernholz, under appointment by the Court of Appeal, for Defendant and Appellant.

Terrence R. Dermody, County Counsel, David Wooten, Carol Dahle Stiles and Lawrence P. Meyers, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

MORRISON, J.

Edward S., the father of the minor, appeals from juvenile court orders declaring the minor to be a dependent child of the court and removing her from his custody. (Welf. & Inst. Code, §§ 360, 395; further section references are to the Welfare and Institutions Code.) The mother is not involved in this appeal. Father contends the allegations sustained at the jurisdiction hearing do not support the finding of jurisdiction. We agree.

On September 7, 1995, at a contested jurisdictional hearing, the parties agreed to amend the petition and submit jurisdiction on the reports. Contrary to a suggestion by the San Joaquin County Department of Human Services (the Department), this was not a concession of jurisdiction. (See In re Tommy E. (1992) 7 Cal. App.4th 1234 [9 Cal. Rptr.2d 402].) A typed copy of the [396] amended allegations was filed on October 19, 1995. This section 300 form petition (Judicial Council of Cal. form JV-121, eff. July 1, 1991) alleges the following.

The minor was born in February 1992, was detained in June 1995, and was now placed in a "Satellite Home." The form page for "failure to protect" under section 300, subdivision (b) was used. The form allegations are as follows: "The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, [¶] as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately[,] ...[¶] by the inability of the parent or legal guardian to provide regular care for the child due to the parent's or legal guardian's mental illness, developmental disability, or substance abuse."

In Re Alysha S.

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OPINION

MORRISON, J.

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DISPOSITION

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