Kimberly R. v. Superior Court

In Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, the mother of the minor child had abused drugs and alcohol in the past and suffered from mental disorders; the agency filed a dependency petition and the child was declared a dependent, though maintained in the mother's custody. (Id. at p. 1071.) The mother hospitalized herself in an effort to gain stability. The juvenile court sustained a first supplemental petition at the time of the mother's hospitalization, to the effect that she was presently unable to care for the minor child. (Ibid.) Over the next period of months, the mother benefitted from treatment and was eventually able to regain custody, although the child was continued as a dependent. (Ibid.) Then, the agency filed a second supplemental petition when the mother was delayed in picking up the child from school one day. The mother's therapist reported, however, that the mother was stable in her treatment and presented as a caring mother. The medical examination did not indicate the mother was abusing drugs. The agency requested dismissal of the second supplemental petition, over the objection of the minor's counsel. (Kimberly R., supra, 96 Cal.App.4th at pp. 1071-1072.) At a contested hearing, the agency stated that it could not prove the facts alleged in the second supplemental petition and requested dismissal. The trial court put the burden on the minor's counsel to show why the petition should not be dismissed. (Kimberly R., supra, 96 Cal.App.4th at p. 1072.) The court heard witnesses and decided that "'something fishy'" had gone on, found the second supplemental petition true, removed the minor child from the mother's custody, and terminated her services. (Id. at p. 1075.) The mother appealed, arguing that the agency should have a right to dismiss its petition if it determined that the evidence which led it to file the petition was unreliable or insufficient. (Id. at p. 1076.) The trial court had put the burden on the wrong party; it was the agency's petition to support or not, and it bore the burden. Its admission that it could not sustain its burden, the mother argued, should have put an end to the matter. (Ibid.) The appellate court noted that, although an agency has discretion whether to initiate a dependency proceeding by filing a petition, it did not have the absolute right to dismiss an original petition. (Kimberly R., supra, 96 Cal.App.4th at p. 1076, citing Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, 1073.) Unlike an original petition, however, a supplemental petition does not affect the jurisdiction of the court. The court has already taken jurisdiction of a dependent child before the supplemental petition is filed. "If an agency asks the court to remove a dependent child from a parent by supplemental petition and then changes its position, upon objection by minor's counsel the agency should be required to show what evidence its investigation revealed before dismissal. Section 350 provides that at any hearing at which the agency bears the burden of proof, the agency and minor's counsel will present evidence before it determines if the burden of proof has been met. As in Allen M., the court should decide if dismissing a supplemental petition is in the interest of justice and welfare of the child. (Allen M., supra, 6 Cal.App.4th at p. 1074.) We conclude the court . . . should have required the Agency to show cause why the supplemental petition should be dismissed." (Id. at pp. 1077-1078.) The appellate court found any error harmless, however, because all the evidence had been presented and there was no due process violation of the mother's or the agency's rights. (Id. at p. 1078.)