San Joaquin County Department of Human Services v. Edward S.

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, [U as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately[,] . . . [U 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.”

The typed “supporting facts” are as follows:

“Prior to July 1994, while the minor was an infant and toddler, the mother observed the father to touch the minor on the buttocks and vaginal area in a way that seemed to her inappropriate. The father denies having any sexual intent, but is willing to attend counseling and parenting education to learn appropriate physical interactions between a father and daughter.

“The father was physically abusive and violent to the mother and was arrested and incarcerated for domestic violence against the mother in July of 1994.

“The mother initially obtained a restraining order against the father, however in November 1994 she had the restraining order dropped in spite of advice by Child Protective Services not to do so, and resumed living with the father.”