Authorization to Return Children to Parental Home After Custody Removal
As the court stated in In re Damonte A. (1997):
"Nowhere in the statutes or rules is there authorization for the court to declare a dependency, order the dependent child removed from the physical custody of its parents, order the care, custody, control and conduct of the minor to be under the supervision of the probation officer and then direct the probation officer to temporarily place the minor back into the home from which he or she was removed.
The statutes contemplate that removal of the child from the physical custody of the parents will result in some other person or entity having physical custody of the child and that the child will be placed in an appropriate home other than that of the parent who had custody at the time the petition was filed. . . . the order permits Children and Family Services to circumvent the requirement of section 361, subdivision (b) that removal from the parent's physical custody can be made only on a showing by clear and convincing evidence that removal is necessary to avert a substantial danger to the physical health or well-being of the minor." (In re Damonte A., supra, 57 Cal. App. 4th at p. 899.)
In n re Andres G. (1998) it was similarly said:
"The trial court's act of finding it necessary to remove physical custody from the parents, place custody with Department and then immediately return the children to the parental home was an act not authorized by the Welfare and Institutions Code and was in excess of the trial court's jurisdiction.
That act, which Department and the juvenile court routinely employ, whether consented to, sought by, or happily accepted by the parties and the juvenile court, systematically contravenes a comprehensive statutory scheme operating in an area of special social interest and has the effect of reconfiguring the responsibilities of the court and Department in a manner not contemplated by the Legislature.
While we accept the good faith of all involved, such a routine and fundamental readjustment of a law with such important social implications cannot be undertaken simply because the parties believe it expedient or even useful to the overall goal of the legislative scheme." (In re Andres G., supra, 64 Cal. App. 4th at p. 483.)
"Not only does such a procedure entail an unseemly inconsistency, its effect is to either remove children from the home under circumstances the Legislature did not authorize or to place children in a dangerous setting." (Id. at p. 481.)