IN RE: RICHARD S.

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Court of Appeal, Sixth District, California.

IN RE: RICHARD S., a Person Coming Under the Juvenile Court Law. Pedro R. SILVA, as Chief Probation Officer, etc., Plaintiff and Respondent, v. LORI S., Defendant and Appellant.

No. H005427.

Decided: June 13, 1990

Orozco & Willoughby and Margarita Lopez Orozco, for defendant and appellant. Steven M. Woodside, County Counsel, and Vanessa A. Zecher, Deputy County Counsel, Leo Himmelsbach, Dist. Atty. and Daniel A. Palmer, Deputy Dist. Atty., for plaintiff and respondent.

Lori S. appeals from an order declaring her nine-year-old son Richard a dependent of the juvenile court and placing him in the home of his father, Richard S., under the supervision of the Department of Social Services.  (Welf. & Inst.Code, § 300, subd. (a).) 1  Mother contends (1) the failure to comply with California Rules of Court, rule 244 renders void all orders made by the temporary judge;  (2) the evidence is insufficient to support the court's order of dependency;  (3) the court failed to make findings pursuant to section 361;  and (4) minor was deprived of the effective assistance of counsel.   Finding no error requiring reversal, we affirm.

Statement of Facts

Minor was born on September 20, 1978, about two years after his parents were married.   Following the separation of his parents in the summer of 1979, minor resided with mother while father visited on a weekly basis.

In August or September 1986, minor was referred to the Department of Social Services for physical abuse and neglect by mother.   At that time, father became more involved in the care of minor.   On April 1, 1987, mother was convicted of battery.

In February or May 1987, mother no longer allowed father to visit minor.   Father then filed for dissolution of the marriage and requested a visitation order.   In October 1987, the court granted mother temporary custody of minor with visitation to father.

After mother removed minor from school for a period of four to six weeks, father sought a change of custody.   At the hearing held on January 26, 1988, mother accused father of physically abusing minor.   Father allegedly pushed minor down a slope while they were hiking, struck him with a switch and kicked his knee.

On March 3, 1988, Sandra Clark of Family Court Services began a custody evaluation.   She interviewed both parents and minor.

On April 4, 1988, when minor returned from a visit with father, the Mountain View Police Department was contacted.   Officer Sato observed a 11/212″ bruise on minor's forehead.   The area was swollen but there was no sign of bleeding or discoloration.   Minor said father had struck him on the forehead and kicked him on the leg while he was on the ground.

On April 15, 1988, Sandra Clark informed both parents that she would be recommending that custody of minor be given to father.   Four days later, minor contacted the Mountain View Police Department and reported that father had been sexually molesting him.   Minor was placed in protective custody and a section 300 petition was filed.   The amended petition alleged the following:  “[o]n or about April 19, 1988, said minor was placed in protective custody because he states he was physically abused and sexually molested by his father;  an allegation his father denies;  further, said minor's parents are separated and are in conflict regarding custody of the minor;  further, said minor's mother was previously convicted of a misdemeanor battery on the minor on April 1, 1987, and further, said minor exhibits behavior symptomatic of severe emotional disturbances.”

At the jurisdiction hearing, three expert witnesses and the parents testified.   Dr. Bruce Bess, a clinical psychologist, was permitted to testify as an expert in the areas of abusive tendencies in parents, parent/child relationships, and the evaluation of the proper custodial parents.   He testified that he had interviewed both parents and that father was the more appropriate custodial parent.   He found no evidence indicating a risk of abusive behavior by father.   Dr. Bess expressed concerns about mother's ability to sustain an appropriate relationship with minor.   He stated that she had “a tendency towards isolation, difficulty establishing a rapport with other people and peculiarities in thought process or in communication which comes short of what you would find in somebody who was schizophrenic.  [¶] In other words, I'm not talking about delusions or profoundly disordered thinking, but loose or tangential thinking.”   He also found a greater risk of physical abuse if minor was placed with mother.

Dr. Dyane Sherwood, a psychologist, testified as an expert in the areas of the diagnosis and treatment of emotional and mental disorders in children, parent/child relationships and the evaluation of the proper custodial parent.   She testified she had examined minor and that he was functioning at a psychotic level.   In her opinion, minor had not been sexually or physically abused by father.   She explained that minor did not imitate sexual behaviors in his play, did not make references to sexual behavior, was not fearful of father and did not associate violence with father.   Moreover, when she observed him with father, he was calmer and functioned better.   In her opinion, minor was prompted by mother to make the allegations against father so mother would not lose custody of minor.   Dr. Sherwood concluded father was the more appropriate custodial parent.

Jill Winchester, a probation officer, testified as an expert in the area of investigation of dependency matters.   She also testified father was the more appropriate custodial parent.

Additional facts will be included as they relate to the issues presented.2

Discussion

I. Stipulation as to Temporary Judge

 Mother first contends the parties did not stipulate the matter could be heard by a temporary judge and thus all orders made by the temporary judge must be vacated.

“On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.”  (Cal.Const., art. VI, § 21.)   California Rules of Court, rule 244 provides that the stipulation that the matter may be heard by a temporary judge shall be in writing, and shall set out in full the name and office address of the attorney agreed upon, and that the stipulation shall be submitted to the presiding judge for approval.3

In the instant case, a stipulation empowering the temporary judge to act was signed by three of the four litigants, including mother, on May 20, 1988.   The stipulation was not followed by order of a judge of the superior court.   Another stipulation dated November 10, 1988 was signed by three of the four litigants, including mother, and was approved by a judge of the superior court.   Both stipulations included an oath of office by the temporary judge.

Several recent cases have considered the effect of the failure to comply with rule 244.   One line of cases holds that failure to comply with rule 224 deprives the temporary judge of jurisdiction while another reasons that as long as the constitutional requirements are met a party may waive the statutory requirements.

In In re Damian V. (1988) 197 Cal.App.3d 933, 243 Cal.Rptr. 185, when the mother failed to appear at a hearing to contest a petition to declare her two minor children free from parental custody and control, a temporary judge sustained the petition.   At this hearing, neither the mother nor the minors was represented by counsel.   After the father appeared at this same hearing and objected to the petition, the temporary judge appointed counsel for him and continued the matter to a later date.   Following a hearing on the merits, a superior court judge declared the minors free from the father's custody and control.   The mother and the minors then appealed, contending reversal of the order was required where they did not stipulate to a temporary judge presiding at the hearing.   The reviewing court expressed concern over this failure and also noted there was nothing in the record to indicate the temporary judge had subscribed to the oath of office.   The court held the error was jurisdictional and reversed.   However, as to the father, the court found no prejudice, observing that the father stipulated to the temporary judge at the initial hearing and the petition to terminate his rights was heard by a superior court judge.

In In re Heather P. (1988) 203 Cal.App.3d 1214, 250 Cal.Rptr. 468, the parties orally stipulated that the matter could be heard by a temporary judge.   Relying on Damian V., supra, the court held that where the parties have not entered into a written stipulation that an attorney could act as a temporary judge, there has been no approval of the stipulation by a presiding judge, and the temporary judge has not taken an oath of office, the orders of the temporary judge are void.  (Id. at p. 1225, 250 Cal.Rptr. 468.)   The court further held that the error was not harmless since the substantial rights of the parties were affected.  (Id. at pp. 1225–1226, 250 Cal.Rptr. 468.)

The court in In re Robert S. (1988) 197 Cal.App.3d 1260, 243 Cal.Rptr. 459, took another approach.   In that case, the defendants appealed a judgment declaring their minor child free from their parental custody and control.   They contended their stipulation to a hearing by a temporary judge was invalid because it was not in writing as required by rule 244.   The reviewing court first noted that since cases interpreting article VI, section 21 of the California Constitution have implied valid stipulations from the parties' conduct, an express, although oral, stipulation would meet the constitutional requirement.  (Id. at p. 1264, 243 Cal.Rptr. 459.)   The court also observed that the amendment of article VI, section 21 eliminating the requirement that the selection of a temporary judge be subject to Judicial Council rules was another indication that compliance with rule 244 was not required by the Constitution before a temporary judge was empowered to act.  (Id. at p. 1265, 243 Cal.Rptr. 459.)   Having concluded the court had jurisdiction despite noncompliance with rule 244, the reviewing court found the defendants waived the issue on appeal by their failure to object and their express consent to the proceedings.

In In re P.I. (1989) 207 Cal.App.3d 316, 254 Cal.Rptr. 774, the parties agreed in writing that a temporary judge could conduct the jurisdiction hearing.   The temporary judge then presided at both the jurisdiction and disposition hearings.   On appeal, the minor sought reversal on the ground that he did not agree to have a temporary judge at the disposition hearing.   Relying on Robert S., the appellate court concluded the parties waived any objection that a temporary judge would preside at both hearings by their failure to object and their participation in the hearings.

We are persuaded the analysis articulated in Robert S. and P.I. more fully addresses the issue presented in the instant case.   Here, unlike in Damian V., all parties were represented by counsel and the record reflects the temporary judge took an oath of office.   Moreover, three of the four litigants, including mother, stipulated in writing that a temporary judge could preside at the hearing.   Although counsel for minor did not join in the stipulation, minor participated fully in the hearing and raised no objection to the court's jurisdiction at either the hearing or on appeal.   As the courts in Robert S. and P.I. stated, “ ‘ “ ‘It would seem ․ intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceeding to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’ ” ' ”  (In re Robert S., supra, 197 Cal.App.3d at 1265, 243 Cal.Rptr. 459;  In re P.I., supra, 207 Cal.App.3d at 322, 254 Cal.Rptr. 774, citing People v. Oaxaca (1974) 39 Cal.App.3d 153, 164, 114 Cal.Rptr. 178.)   Thus, we conclude the constitutional requirements have been met in the instant case and any failure to comply with rule 244 has been waived.

 Mother also contends orders made prior to the written stipulation of May 20, 1988 are invalid.   The April 22, 1988 order detained minor, appointed counsel and made findings that reasonable efforts had been made to prevent or eliminate the need for removal of minor from the home.   The May 13, 1988 order continued the matter until May 20, 1988.   Mother argues that since no attempt was made to comply with the constitutional and statutory requirements regarding appointment of a temporary judge prior to May 20, 1988, the invalidity of the April 22 and May 13 orders renders all subsequent orders invalid.   The record is silent as to whether the parties orally stipulated to hearings by a temporary judge on these dates.   However, as noted by the court in Robert S., valid stipulations may be implied by the parties' conduct.   Thus, by failing to object and by participating in the hearings, mother has waived the issue on appeal.

II. Sufficiency of the Evidence

Mother contends the evidence is insufficient to sustain the finding under section 300, subdivision (a).   She claims minor was adjudicated a dependent based solely on her epileptic condition.   We disagree.

Section 300, subdivision (a), provided:  “Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:  [¶] (a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising care or control, or has no parent, guardian, or custodian actually exercising care or control.”  (Stats. 1986, ch. 1122, § 2, p. 3976.)

“[T]he dual purpose of dependency proceedings is to protect the welfare of the minor and to safeguard parents' right to properly raise their own child.”   (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599, 157 Cal.Rptr. 280.)   Where the parents of a minor live apart, the Department of Social Services need not prove section 300 petitions against each parent at a dependency hearing.  (Ibid.)  Thus, if the Department proves one parent is incapable of caring for the child at a jurisdiction hearing, the other parent may still gain custody of the child at the disposition hearing upon an adequate showing that he or she can provide parental care or control.  (Id. at p. 600, 157 Cal.Rptr. 280)

 A present showing of the unfitness of a parent to care for a child must be made prior to a court exercising jurisdiction over the child.  (In re Melissa H. (1974) 38 Cal.App.3d 173, 175, 113 Cal.Rptr. 139.)   However, past conditions may be considered to determine whether the present condition exists at the time of the hearing.  (Ibid.)

“In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.   All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.   Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.  [Citation.]”  (In re Katrina C. (1988) 201 Cal.App.3d 540, 547, 247 Cal.Rptr. 784.)

 Applying these principles to the instant case, the evidence was sufficient to support the jurisdiction findings of the juvenile court.   The evidence unequivocably established that minor had psychological problems.   At issue was whether, given minor's condition, mother as the custodial parent was capable of exercising proper parental care or control.   Dr. Bess evaluated both parents and concluded mother had “schizotypo” tendencies, that is, “a tendency towards isolation, difficulty establishing a rapport with other people and peculiarities in thought process or in communication․”   He stated that as a result of living with mother, minor was at risk of living an isolated life and he would assume “too big of a role in her life that could create some blurring of boundaries in which she might depend on him too much to meet her own needs rather than, you know, developing a social life.”   Dr. Bess also testified there was a greater risk of physical abuse by mother than by father.

Dr. Sherwood testified that she had examined minor and diagnosed him as psychotic.   She observed that minor functioned better with father.   She also found no evidence father physically or sexually abused minor.   In Dr. Sherwood's opinion, mother prompted minor to make false accusations against father.   Thus, the evidence supports the court's assumption of jurisdiction over minor under section 300, subdivision (a).

We also note that contrary to mother's contention, she was not deprived of custody of minor due to her epileptic condition.   The issue of her condition arose only in the context of Dr. Sherwood's identification of the organic nature of minor's emotional problems.   Dr. Sherwood testified that minor's symptoms were consistent with “dilantin syndrome” and that mother had taken dilantin during her pregnancy for epileptic seizures.   There was no evidence presented at the hearing that mother was an unfit parent due to her seizure disorder.

III. Section 361 Findings

Mother next contends the court erred in failing to make adequate findings to support the removal of minor from her home.

Section 361 states in relevant part:  “(b) No dependent child shall be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of any of the following:  ․ [¶] (3) The minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian․ [¶] (c) The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home․   The court shall state the facts on which the decision to remove the minor is based.”  (See also Cal. Rules of Court, rule 1377(c).) 4

In In re Katrina C., supra, 201 Cal.App.3d 540, 247 Cal.Rptr. 784, the court held that the clear and convincing standard of proof required by section 361 applies in situations where the court shifts custody between parents.   The court construed sections 361 and 361.2 together to reach its conclusion.   (Id. at p. 549, 247 Cal.Rptr. 784.)   Section 361.2 provides in relevant part:  “When a court orders removal of a minor pursuant to Section 361, the court shall first determine whether there is a parent of the minor, with whom the minor was not residing ․ who desires to assume custody of the minor.”   The court reversed the disposition order in that case, noting that the applicable standard of proof had previously been unclear, the proceedings took place shortly after the more stringent standard of proof was required, and the record affirmatively indicated the court was unaware of another procedural change which was instituted by a companion statute.  (Id. at pp. 549–550, 247 Cal.Rptr. 784.)

While it may appear anomalous to require a greater standard of proof in juvenile court for an inter-parent transfer of custody where the lesser preponderance of evidence standard applies in family law court for a similar transfer (Evid.Code, § 115), we have no occasion to disagree with the holding of Katrina C., as respondents suggest.   The record discloses the trial court found the evidence on the issue clear and convincing.   In our own view the evidence is hardly susceptible of any other conclusion.   At the disposition hearing the court stated:  “And I would like to state first of all, that it's probably the only case that I've heard that where there is such a unanimity of recommendations on the part of the professionals that were dealing with the case․  [¶] In making my decision, I listened to the substance of the evaluations and to what each individual stated as the basis for their opinion, Dr. Sherwood, Dr. Bess, the probation officer also testified.  [¶] I listened to the description of Richie's behavior and noted the description of Richie's behavior that I could find throughout the entire case and all of the evidence that was presented to me.   And I also listened to the testimony of both parents, I observed the demeanor of both parents during the course of the entire trial and I observed the demeanor of the parents while they were testifying during the course of the trial.   And also I did meet with Richie․  [¶] It is my decision that Richie's best interest would be served by placement with his father at this time.   I believe that that placement gives this severely emotionally disturbed child the best chance of recovery from that emotional disturbance and the best chance of having in the long run a satisfying and close relationship with both his father and his mother․   I think it's clear that his relationship with his father is more relaxed and productive one at this point than his relationship with his mother.   And I'm hoping that over the course of time that the relationship with his mother will be—will develop to be as relaxed and productive for him as his relationship with his father is at this time․   He is clearly a severely emotionally fragile child․   He looks to be a difficult child to deal with and demonstrates even to a lay person a great deal of emotional disturbance.”  (Emphasis added.)

 Here the court discussed in great length the factual basis for its determination that minor should be removed from mother's home.   However, the court did not state facts indicating whether reasonable efforts were made to prevent or to eliminate the need for removal of minor from the home.   Any error is harmless.   The evidence established that minor was psychotic and parents were engaged in a custody dispute.   In the opinion of one expert witness mother prompted minor to make allegations against father to ensure she would retain custody.   Another expert witness questioned the ability of mother to sustain an appropriate relationship with minor due to her own psychological needs.   More importantly, mother discontinued counseling despite a court order requiring her to receive counseling as a condition of probation.   Thus, the evidence established that efforts had been made to eliminate the need for removal of minor from mother's home and these efforts had failed.

IV. Effectiveness of Counsel

 Mother also contends minor was deprived of the effective assistance of counsel.5

There is a split of authority whether the concept of ineffective counsel applies in juvenile dependency hearings.  (Compare In re Ammanda G. (1986) 186 Cal.App.3d 1075, 231 Cal.Rptr. 372 (right to counsel in § 300 proceedings is statutory, not constitutional;  ineffective counsel therefore not cognizable) with In re Christina H. (1986) 182 Cal.App.3d 47, 227 Cal.Rptr. 41 (a due process right).)   Where the ineffective assistance concept is applied in dependency proceedings the appellant must meet the standards set forth in People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 and Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.  (In re Dawn L. (1988) 201 Cal.App.3d 35, 37, 246 Cal.Rptr. 766.)   First, there must be a showing that “counsel's representation fell below an objective standard of reasonableness ․ under prevailing professional norms.”  (Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. at p. 2065;  accord, Pope, supra, 23 Cal.3d at pp. 423–425, 152 Cal.Rptr. 732, 590 P.2d 859.)   Second, there must be a showing of prejudice, that is, “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  (Strickland, supra, 466 U.S. at p. 694, 104 S.Ct. at p. 2068.)   “In some cases ․ the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged.   In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.”   (Pope, supra, 23 Cal.3d at p. 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

 In the instant case, even assuming the effective assistance of counsel concept is applicable, we conclude mother has failed to meet the Pope/ Strickland standard.   Mother observes that the record does not reflect whether minor's counsel reviewed the record, interviewed minor, made contact with minor's parents, or requested independent medical or psychological assessments of minor.   She next points out counsel called no witnesses, did not engage in extensive cross-examination, did not address allegations of father's alcohol abuse, stipulated that minor could meet with the court with no court reporter present, did not object to the introduction into evidence of a report prepared by a probation officer who was unavailable to testify, and did not request findings of fact.   Mother also notes that counsel never raised the issues of the validity of minor's detention, whether the temporary judge was acting with the necessary authority, whether minor's detention hearing was held in a timely manner, or the sufficiency of the evidence.   For all that appears on this record, counsel had tactical reasons for choosing to pursue the matter as he did.   However, even assuming counsel had performed in the manner mother now contends he should have, mother has failed to show the result of the proceedings would have been more favorable to minor or to her for that matter.

The order is affirmed.

I concur with the majority opinion affirming the order of the trial court.   However, I respectfully disagree with its application of Welfare and Institutions Code section 361 to a transfer of custody between parents.

In In re Katrina C. (1988) 201 Cal.App.3d 540, 247 Cal.Rptr. 784, our colleagues in Division 4 of the First Appellate District went to great lengths to analyze 1986 legislative changes to section 361, which resulted in upgrading the burden of proof in juvenile court disputes from preponderance of the evidence test to clear and convincing.  (Id. at pp. 548–549, 247 Cal.Rptr. 784.)

The pertinent portion of section 361 provides:  “(b) No dependent child shall be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of the following․”  (Emphasis added.)

The Katrina court acknowledges that the phrase “physical custody of his or her parents” is “at least ‘arguably ambiguous' in that it is difficult to tell [whether the remainder of] the phrase ‘with whom the minor resides at the time the petition was initiated’ modifies ‘parents' as well as ‘guardian or guardians.’ ”  (201 Cal.App.3d at p. 549, 247 Cal.Rptr. 784.)   However, the court went on to construe sections 361 and 361.2 together 1 and concluded “․ the Legislature clearly intended that the ‘clear and convincing’ language of section 361 apply to shifts in custody between parents, such as we have in this case.”  (Ibid.)

I respectfully disagree with Katrina's conclusion in this respect, and do not agree with my colleagues' tacit approval thereof in the majority opinion.   What is missing in the respective analyses is the practical effect of this ruling.   The strong evidence in support of the juvenile court's findings, with which I concur without reservation, masks the potential for procedural tactics that are now made available to the potential “loser” in the custody battles in family court.

This juvenile court case commenced when the mother was advised by a custody mediator in family court that the custody recommendation in the parents' pending dissolution would favor the child's father.   According to the evidence supporting the trial court's determination, the mother coached her child into allegations of sexual abuse, a phenomenon unfortunately recurring in family and juvenile courts in recent years with almost monotonous regularity.

The Welfare and Institutions Code section 300, subdivision (a) petition alleged to the juvenile court:  “On or about April 19, 1988, said minor was placed in protective custody because he states he was physically abused and sexually molested by his father;  an allegation his father denies;  further, said minor's parents are separated and are in conflict regarding custody of the minor;  further, said minor's mother was previously convicted of a misdemeanor battery on the minor on April 1, 1987, and further, said minor exhibits behavior symptomatic of severe emotional disturbances.”

Shortly thereafter, a clinical psychologist concluded:  “The results of the evaluation did not support in any way the allegations that Richard's father abused him either physically or sexually.   The timing of the charges, coming just as Richard was about to be placed into his father's custody by the Family Court, are suggestive of coaching or prompting of this very suggestible child by his mother.”

It is comfortable for a court to say under the facts of this case that a just result was reached.   Indeed, once the child's custody was settled with the father pursuant to the court's authority under Welfare and Institutions Code section 362.4,2 the juvenile court ostensibly had calmed the roiled waters of this family dispute.   Except for the following:

1. Because of the stricter burden of proof of section 361, the prevailing parent in this internecine struggle now has a motivation to encourage the juvenile court to retain jurisdiction indefinitely if possible to frustrate the out-of-custody spouse in future efforts to modify custody, expand and regulate visitation, and otherwise get on with the new separated family status.   To add to the problems, a social worker or permanent court representative is virtually attached to the family constellation.3

2. If, however, the juvenile court in its wisdom recognizes that it is not well-equipped to function as an adjunct of the family court, then it is free to dismiss the Welfare and Institutions Code section 300 petition and allow the parties to resolve their future differences in family court, where the balance of the dissolution action remains permanently ensconced in that court's continuous jurisdiction.4

This, of course, permits the out-of-custody spouse to immediately move to modify the custody status of the child.

Although at this point the change of circumstances test and the best interests of the child control the hearing, the burden of proof for the moving party is a mere preponderance of evidence.   The possibility of incongruous and inconsistent results is manifestly clear.   What is worse, the family court judge is left to pick up the pieces of marital conflict exacerbated in large measure by the previously intruding juvenile court proceedings.

This scenario is not far fetched, but is played out regularly in our courts.   The Legislature to date has failed to recognize that there is presently a proliferation of judicial process which entails overlapping services and decision making.   Although these are well-meaning and benevolently motivated, the net effect is that families in strife are being exposed to sometimes numbing pressures by well-meaning public agencies and their employees.

I respectfully submit that reading Welfare and Institutions Code section 361 to apply to inter-parent custody struggles adds to the carnage.   The Legislature should clarify the confusion forthwith.

FOOTNOTES

1.   Unless otherwise noted, all further statutory references are to the Welfare & Institutions Code.

2.   Mother has brought a motion to strike portions of the Clerk's Transcript on appeal.   She seeks to strike the following:  pages 5–7 (Intensive Intervention Unit Report of Barbara Krzyczowska);  pages 37–41 (Probation Officer's Report of Daryl Auten);  pages 42–55 (Psychological Evaluation by Dyane Sherwood);  and pages 56–63 (Psychological Evaluation by Bruce Bess) on the ground these reports were not admitted in evidence.Respondent does not oppose the motion as to pages 5–7.   Accordingly, the motion is granted as to pages 5–7.   The motion is denied, however, as to the remaining reports.   Petitioner's exhibit 1 (Memorandum by Probation Officer Jill Winchester) incorporates by reference the Probation Officer's Report of Daryl Auten.   Daryl Auten's report included the Psychological Evaluations by Dyane Sherwood and Bruce Bess.   Accordingly, the reports were properly included in the Clerk's Transcript.  (See In re Tasman D. (1989) 210 Cal.App.3d 927, 258 Cal.Rptr. 716.)

3.   California Rules of Court, rule 244 provides in full:  “The stipulation of the parties litigant that a case may be tried by a temporary judge shall be in writing and shall state the name and office address of the member of the State Bar agreed upon.   It shall be submitted for approval to the presiding judge, or to the supervising judge of a branch court.   The order designating the temporary judge shall be endorsed upon the stipulation, which shall then be filed.   The temporary judge shall take and subscribe the oath of office, which shall be attached to the stipulation and order of designation, and the case shall then be assigned to the temporary judge for trial.   After the oath is filed, the temporary judge may proceed with the hearing, trial, and determination of the case.  [¶] A filed oath and order, until revoked, may be used in any case in which the parties stipulate to the designated temporary judge.   The stipulation shall specify the filing date of the oath and order.   This rule does not apply to the selection of a court commissioner to act as a temporary judge.”

4.   Rule 1377(c) provided in relevant part:  “No dependent child shall be taken from the physical custody of a parent ․ with whom the minor resided at the time the petition was filed unless the court finds that the probation department has made reasonable efforts to prevent or eliminate the need for removal of the minor from his or her home․”

5.   A parent has standing to assert the minor's right to adequate counsel in juvenile court proceedings.  (In re Ann S. (1982) 137 Cal.App.3d 148, 188 Cal.Rptr. 1.)   We will assume for purposes of this appeal that a parent has such standing in section 300 proceedings.

1.   Welfare and Institutions Code section 361 provides, in pertinent part:  “(b) No dependent child shall be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence of the following․”  (Emphasis added.)Welfare and Institutions Code section 361.2 provides, in pertinent part:  “(a) When a court orders removal of a minor pursuant to Section 361, the court shall first determine whether there is a parent of the minor, with whom the minor was not residing at the time that the events or conditions arose that brought the minor within the provisions of Section 300, who desires to assume custody of the minor.   If such a parent requests custody the court shall place the minor with the parent unless it finds that placement with that parent would be detrimental to the minor․”

2.   Welfare and Institutions Code section 362.4 provides, in part:  “When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor's attainment of the age of 18 years, and proceedings for the declaration of the nullity or dissolution of the marriage, or for legal separation of the minor's parents, or proceedings to establish the paternity of the minor child brought under the Uniform Parentage Act ․, are pending in the superior court of any county, or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue an order directed to either of the parents enjoining any action specified in paragraph (2) or (3) of subdivision (a) of Section 4359 of the Civil Code or determining the custody of, or visitation with, the child.“Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court.   The order of the juvenile court shall be filed in the proceeding for nullity, dissolution, or legal separation, or in the proceeding to establish paternity, at the time the juvenile court terminates its jurisdiction of the minor, and shall become a part thereof.”

3.   The mother's visitation plan permitted a one- to two-hour visit once a week at the Department of Social Services with a specified supervising social worker present, not exactly the ideal way for a child to maintain frequent and meaningful contact with the out-of-custody parent.The service plan of April 7, 1989, informed the mother:  “Your son Richard was made a dependent of the court and put in care and custody of his father because it was determined that his needs could best be met through living in his father's home.”  (Emphasis added.)

4.   Indeed, the dependency was terminated by the juvenile court with a custody order on March 16, 1990, while this appeal was pending.

AGLIANO, Presiding Justice.

ELIA, J., concurs.