Welfare and Institutions Code Section 726 - Case Law

Welfare and Institutions Code Section 726 provides, in relevant part, as follows: "(a) No ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon hearing the court finds one of the following facts: (1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. (2) That the minor has been tried on probation while in custody and has failed to reform. (3) That the welfare of the minor requires that custody be taken from the minor's parent or guardian." In In re Kenneth H. (1983) 33 Cal.3d 616, the probation department's recommendations were read into the record. The juvenile court said it would order the recommendations be followed. It signed a disposition order on a form that recited the Welfare and Institutions Code section 726 facts, with a box next to one of them checked. The Supreme Court held this justified a commitment order. (In re Kenneth H., supra, 33 Cal.3d at pp. 620-621.) In re John S. (1978) 83 Cal.App.3d 285 held the trial court found in substance that the welfare of the minor required removal from custody when it said it wanted the minor to '"see what the inside of a custodial place looks like and to know what is in store for him,'" that commitment would be "'definitely therapeutic,'" and "'that one of the things that the minor is going to have to learn as far as his probation and his rehabilitation is the responsibility that he is going to have to take for his activity.'" (In re John S., supra, 83 Cal.App.3d at p. 293.) In In re Ricardo M. (1975) 52 Cal.App. 3d 744 a minor was on probation for possession of marijuana when a second wardship petition was filed that charged him with three burglaries. He admitted to one of them. He was continued on probation, with one condition being spending 5 to 20 days in juvenile hall. The reason given by the juvenile court was "he has a prior record, has been in trouble with the law before, and I think something has to be done to impress him with the seriousness of the offense . . . ." (In re Ricardo M., supra, 52 Cal.App.3d at pp. 747-748.) The court held this satisfied section 726: "The juvenile court judge noted that the prior record was the reason for imposing the condition of probation . . . . That notation satisfied the substance of a finding that Ricardo failed on probation and that continued interrupted physical custody of Ricardo by his parent would be detrimental to him." (Id. at p. 750.) Finally, in In re Clyde H. (1979) 92 Cal.App.3d 338 the probation report stated neither the minor's mother, nor his guardian, could discipline him effectively, saying "'it would not be possible to rehabilitate appellant at home'" and that appellant needed a more structured and secure setting." (In re Clyde H., supra, 92 Cal.App.3d at p. 347.) The court held this sufficed as a finding that the parent or guardian was incapable of providing proper training, or had failed to do so. It reasoned that had the juvenile court been aware of the need to make a finding prior to commitment, "it is not reasonably probable that the finding would have been favorable to appellant." (Ibid.)