San Diego County Department of Social Services v. Joaquin G.
In re ANDRES G., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, and v. JOAQUIN G., and
- Area
- dependency
- Panel
- Patricia D. Benke (author)
Analysis
The trial court declared the children dependent and ordered their removal from parental custody to the Department, but simultaneously detained them in the parents' home under a nonstatutory scheme. The Court of Appeal reversed the dispositional order, holding that the scheme was in excess of the court's jurisdiction and could not be validated by party consent.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Nonstatutory disposition placing children with Department but detaining them in parents' home“We conclude the orders made by the juvenile court were in excess of its jurisdiction. We further conclude that given the societal interests involved and the specificity of the statutory dispositional outline, authority to employ the nonstatutory scheme cannot be conferred by consent.” | de novo | error | agree with court The court correctly identified that the Welfare and Institutions Code provides a specific, exclusive list of placement options (Welf. & Inst. Code, § 361.2) and that the trial court's hybrid order—removing custody while keeping the child in the home—was not among them. By relying on In re Damonte A., the court properly applied the principle that a court cannot grant relief it has no power to grant, and that such jurisdictional defects in a comprehensive statutory scheme cannot be waived by consent due to public policy concerns. |
Order requiring father to submit to psychological evaluation“We find the psychological evaluation ordered by the court has been completed and the issue is moot. (See Code Civ. Proc., § 909.)” | mixed | not reached | unsure The court declined to review the merits of the psychological evaluation order because the evaluations had already been completed, rendering the issue moot under Code of Civil Procedure section 909. The court noted that the issue is highly case-specific and suggested that parents could seek redress via writ if they believed the order was improper, effectively leaving the substantive legal question of the evaluation's necessity unresolved for this specific appeal. |
Authorities
- relied: In re Damonte A. (1997) 57 Cal.App.4th 894 — A dispositional scheme that removes a child from parental custody but immediately places the child back in the home is invalid because it lacks a statutory basis and circumvents the clear and convincing evidence requirement for removal.
- relied: Carlson v. Eassa (1997) 54 Cal.App.4th 684 — A court acts without jurisdiction in a broader sense when it grants relief which it has no power to grant or acts without the occurrence of certain procedural prerequisites.
- relied: People v. Ruiz (1990) 217 Cal.App.3d 574 — An act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by waiver, estoppel, or the passage of time, unlike acts beyond fundamental jurisdiction which are void.
- relied: People v. Soriano (1992) 4 Cal.App.4th 781 — Whether a party is estopped to complain of an act in excess of jurisdiction depends on the importance of the irregularity and considerations of public policy.
- relied: Cowan v. Superior Court (1996) 14 Cal.4th 367 — Courts have allowed acts in excess of jurisdiction to stand when the acts were beneficial to all parties and did not violate public policy.
- relied: In re Griffin (1967) 67 Cal.2d 343 — Allowing an objection to an act in excess of jurisdiction may be denied if it would countenance a trifling with the courts.
- relied: People v. Mendez (1991) 234 Cal.App.3d 1773 — Courts have voided acts in excess of jurisdiction when the irregularity was too great or when the act violated a comprehensive statutory scheme or offended public policy.
- relied: In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020 — A stipulation of parties cannot deprive a court of authority to modify child custody and visitation orders, illustrating that consent cannot cure jurisdictional defects in family law contexts.
- relied: People v. Blakeman (1959) 170 Cal.App.2d 596 — Banishment as a condition of probation is an act in excess of jurisdiction that violates public policy.
- relied: In re Marquis D. (1995) 38 Cal.App.4th 1813 — The court expressed reservations similar to those in Damonte A. concerning schemes of detaining but not placing children with noncustodial parents pursuant to section 361.2.
The appellate opinion: sound — The opinion is sound because it correctly applies the principle that courts cannot grant relief not authorized by statute, particularly in the dependency context where the Welfare and Institutions Code provides a specific, exclusive list of placement options. The court properly distinguishes between void acts and acts in excess of jurisdiction, concluding that the public policy interests in child welfare and the comprehensive nature of the statutory scheme preclude waiver by consent.
How this analysis was made · dispute it
unusual dispositionThe juvenile court declared Andres and Joaquin dependents, found by clear and convincing evidence under Welfare and Institutions Code section 361 that return home would be dangerous, removed physical custody and placed it with the Department under section 361.2, ordered relative placement but immediately detained the children in the parents' home, and ordered the father to undergo a psychological evaluation. The Court of Appeal held the remove-then-return-home disposition was unauthorized by statute and in excess of the court's jurisdiction, that the parties' consent could not validate it because it contravened a comprehensive statutory scheme, found the psychological-evaluation challenge moot, reversed the dispositional order, and directed a new dispositional hearing for both children.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Dispositional order removing physical custody from the parents under section 361(c)(1), placing custody with the Department under section 361.2(e), ordering relative placement, but immediately detaining the children in the parental home.“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.” | de novo | error (statutory interpretation) | agree with court The opinion does not articulate a standard, but the question whether the Welfare and Institutions Code authorizes this disposition is a pure question of statutory construction reviewed independently. Sections 361 and 361.2 specify that removal requires a clear-and-convincing finding that no reasonable means short of removal can protect the child, and that a removed child be placed with a relative, foster home, licensed facility, agency, or group home; nothing authorizes returning the child to the very home found dangerous. In re Damonte A. squarely rejected the identical scheme, and the court's reasoning that the practice either removes children without statutory authority or places them in a dangerous setting is persuasive. |
Whether father's failure to object and apparent consent to the nonstatutory dispositional scheme forfeited or estopped his challenge on appeal.“We further conclude that given the societal interests involved and the specificity of the statutory dispositional outline, authority to employ the nonstatutory scheme cannot be conferred by consent.” | de novo | error (law misapplied) | agree with court The court correctly classified the order as an act in excess of jurisdiction (not a fundamental lack of jurisdiction), which under Ruiz and Soriano may ordinarily be subject to waiver or estoppel depending on the importance of the irregularity and public policy. It then reasonably placed this case with Mendez, Goodarzirad, and Blakeman rather than Cowan and Griffin, because the practice was routine, contravened a detailed legislative scheme protecting children, and reconfigured the roles of court and agency. The balancing framework was applied with the appropriate authorities, and the conclusion that consent cannot license a systematic departure from the dependency statutes is well supported. |
Order requiring father to submit to a psychological evaluation as a condition of the reunification plan.“We find the psychological evaluation ordered by the court has been completed and the issue is moot.” | unclear | not reached | agree with court The Department supplied certified records showing the evaluation had been completed, and father conceded this, so no effective relief could be granted. The court acknowledged the public-interest exception to mootness but reasonably declined to apply it because the propriety of an evaluation order is highly fact-specific, and it noted writ review is available. The disposition is defensible, though the court did not analyze whether the completed evaluation could still affect father's position at the new dispositional hearing. |
Authorities
- relied: In re Damonte A. (1997) 57 Cal.App.4th 894 — A dispositional order removing a child from parental physical custody, placing custody with the agency, and then directing the child be placed back in the parental home lacks any statutory basis and is invalid; it circumvents the clear-and-convincing removal standard of section 361.
- relied: Carlson v. Eassa (1997) 54 Cal.App.4th 684 — Distinguishes lack of fundamental subject matter jurisdiction from the broader sense of acting without jurisdiction by granting relief the court has no power to grant or acting outside a prescribed manner.
- relied: People v. Ruiz (1990) 217 Cal.App.3d 574 — An act beyond fundamental jurisdiction is void, but an act merely in excess of jurisdiction is valid until set aside and may be insulated by waiver, estoppel, or passage of time.
- relied: People v. Soriano (1992) 4 Cal.App.4th 781 — Whether a party who sought or agreed to an act in excess of jurisdiction is estopped depends on the importance of the irregularity and public policy considerations.
- relied: People v. Ellis (1987) 195 Cal.App.3d 334 — Estoppel to challenge an act in excess of jurisdiction turns on the gravity of the irregularity and public policy.
- relied: Cowan v. Superior Court (1996) 14 Cal.4th 367 — Acts in excess of jurisdiction may be allowed to stand where beneficial to all parties and not contrary to public policy, such as a defendant's knowing plea to a time-barred lesser offense.
- relied: In re Griffin (1967) 67 Cal.2d 343 — A party may be estopped from attacking an act in excess of jurisdiction where permitting the objection would countenance trifling with the courts.
- relied: People v. Mendez (1991) 234 Cal.App.3d 1773 — Acts in excess of jurisdiction are voided where the irregularity is too great or the act violates a comprehensive statutory scheme.
- relied: In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020 — Parties cannot by stipulation deprive the court of its statutory authority over child custody and visitation; such an agreement offends public policy and is not binding.
- relied: People v. Blakeman (1959) 170 Cal.App.2d 596 — Banishment as a condition of probation is void as beyond the court's power and contrary to public policy, regardless of consent.
- relied: In re Marquis D. (1995) 38 Cal.App.4th 1813 — The Fourth District had previously expressed reservations about a scheme of detaining but not placing children with noncustodial parents under section 361.2.
The appellate opinion: sound — The court answered both of the Department's arguments—statutory flexibility and consent—with the directly controlling Damonte A. decision and a correctly framed excess-of-jurisdiction and estoppel analysis drawn from Ruiz, Soriano, Cowan, Griffin, Mendez, and Goodarzirad. The mootness ruling on the psychological evaluation is reasoned and leaves father a writ remedy, and the remedy of a new dispositional hearing fits the error found.
Opinion — Benke
Opinion
BENKE, J.Andres G. and Joaquin G. were declared dependent children of the juvenile court. Father Joaquin G. (father) appeals, arguing the juvenile court erred in making a nonstatutory disposition by placing the children with respondent San Diego County Department of Social Services (Department) but detaining them with their parents and in ordering he submit to a psychological evaluation.
Background
Andres was bom on November 3, 1993, and Joaquin on February 9, 1997. On July 22, 1997, a hospital hold was placed on five-month-old Joaquin when he sustained second degree bums after coming in contact with an iron. Joaquin’s mother reported she was ironing on the floor while Joaquin slept in a low-lying bed nearby. She finished ironing, unplugged the iron and set it next to a wall near the bed. Feeling she was about to have an epileptic seizure, Joaquin’s mother went to the bathroom to put water on her face. When she returned 15 minutes later Joaquin was on the floor and had been burned by the iron.
An examining physician concluded that at a minimum Joaquin’s injuries were the result of neglect. While the distribution and number of burns suggested a nonaccidental injury, the nature of the burns themselves did not resemble those associated with intentional harm.
*479On July 23, 1997, a Welfare and Institutions Code1 section 300, subdivision (b), petition was filed as to Joaquin and a section 300, subdivision (j), petition as to Andres. The petition as to Joaquin alleged physical harm as the result of unreasonable or neglectful acts or omissions. The petition as to Andres alleged a substantial risk of harm citing the allegations related to Joaquin.
A detention hearing was held on July 24, 1997. Department requested psychological evaluations of both parents. Father objected, stating he was not in the home at the time of Joaquin’s injuries. The court authorized payment for such evaluations but did not order they be undertaken. The court ordered Joaquin detained at the Polinsky Center with the provision Department could, with the concurrence of Joaquin’s counsel, detain him at home. Andres was detained with the parents.
The jurisdictional hearing was held on August 19, 1997. A social study prepared for the hearing opined Joaquin’s injuries did not appear to have been intentionally inflicted but rather were the result of neglect. The parents submitted on the reports. The court found the allegations in the petitions true.
At the dispositional hearing, both Andres and Joaquin were declared dependent children pursuant to section 360, subdivision (b). Finding, pursuant to section 361, subdivision (b)(1) (now subd. (c)(1)), there would be a substantial danger to the health or safety of the children if returned home, the court removed physical custody from the parents and placed it with Department pursuant to section 361.2, subdivision (e). The court ordered Andres placed with a relative but detained him in his parents’ home. As to Joaquin, the court made the same order with the proviso that the parents’ psychological evaluations first be reviewed and that Joaquin not be returned home without the concurrence of his counsel.
Discussion
A. Nonstatutory Disposition
Father, Andres and Joaquin argue the trial court made an unauthorized disposition when, while finding by clear and convincing evidence it would be dangerous to return the children to the parental home, it gave *480physical custody to Department, and ordered the children placed with relatives but immediately detained them with their parents.2
All parties agree the orders were the result of a statutorily unauthorized, informal dispositional scheme employed by the San Diego County Juvenile Court. Department argues while the dispositions were unauthorized, all parties consented to them. Department contends the scheme provides a flexibility useful to Department, parents and the court and use of the scheme should be allowed in appropriate cases. We conclude the orders made by the juvenile court were in excess of its jusrisdiction. We further conclude that given the societal interests involved and the specificity of the statutory dispositional outline, authority to employ the nonstatutory scheme cannot be conferred by consent.
1. Statutory Background
The Welfare and Institutions Code provides a detailed plan for the disposition of a minor found to be a person described in section 300. When such a finding is made, and when the court judges the minor a dependent, it can make any order limiting the control exercised by the parents necessary for the protection of a child. (§ 361, subd. (a).) However, physical custody of the child can be taken from the parents, in the context of the present case, only if the juvenile court “finds clear and convincing evidence of . . . [^] . . . a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parents’ . . . physical custody.” (§ 361, subd. (c)(1).)
When the court orders the minor removed from the physical custody of a parent, and there is no noncustodial parent with whom the minor may be placed, the court must give custody and control of the minor to the probation officer who may place the minor, in the context of the present case, in (1) the home of a relative, (2) a foster home, (3) a licensed community care facility, (4) a foster family agency for placement, or (5) a group home. (§ 361.2, subds. (a)-(e).)
2. Rejection of Unauthorized Dispositional Scheme
In In re Damonte A. (1997) 57 Cal.App.4th 894, 899-900 [67 Cal.Rptr.2d 369], the court reviewed a dispositional scheme identical to the one employed in the present case and stated: “Nowhere in the statutes or rules is *481there 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 it 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. Accordingly, as it lacks a statutory basis, the juvenile court’s removal order is invalid. We agree with appellant that the order permits DHHS. 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.”
The court further commented: “Respondent recognizes the removal order is not authorized by statute but argues appellant’s fear of the potential for abuse of power by the social worker should not abolish a practice which furthers the purposes of the juvenile court. We fail to see what purposes of the dependency law can be furthered by this unauthorized practice which invites abuse that cannot be better addressed by the options available under the statute. Indeed, the practice, absent abuse, is the equivalent of an in-home dependency. We see no reason why DHHS should not be required to file a petition seeking a change of custody, if there is a factual basis, meeting the clear and convincing evidentiary standard rather than being able to effect a removal subject only to a subsequent review on motion of the parent. Had the Legislature wished to extend to the court unfettered discretion to fashion placement practices such as this, it would not have described the permissible options with such specificity in the several relevant code sections.” (In re Damonte A., supra, 57 Cal.App.4th at p. 900.)3
We agree. We are troubled by, what at least appears to be, the artifice of making a finding that it is necessary to remove a child from the physical custody of the parents, and, thus, place custody with Department, and then immediately place the child physically back in the home. 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.
*4823. Consent to Unauthorized Disposition
Department argues not only did father fail to object to the use of the court’s nonstatutory dispositional scheme, the actions of his counsel indicated he consented and he cannot now raise the issue on appeal. We disagree.
a. Law
“A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction ‘relates to the inherent authority of the court involved to deal with the case or matter before it.’ [Citation.] Lack of jurisdiction in this ‘fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.] [^] In a broader sense, lack of jurisdiction also exists when a court grants ‘relief which [it] has no power to grant.’ [Citations.] Where, for instance, the court has no power to act ‘except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites,’ the court acts without jurisdiction in this broader sense. [Citation.]” (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691 [62 Cal.Rptr.2d 884].)
“The consequences of an act beyond the court’s jurisdiction in the fundamental sense differ from the consequences of an act in excess of jurisdiction. An act beyond a court’s jurisdiction in the fundamental sense is void; it may be set aside at any time and no valid rights can accrue thereunder. In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. [Citations.]” (People v. Ruiz (1990) 217 Cal.App.3d 574, 584 [265 Cal.Rptr. 886].)
Whether a party who has sought or agreed to an action in excess of a court’s jurisdiction is estopped to complain depends on the importance of the irregularity and considerations of public policy. (People v. Soriano (1992) 4 Cal.App.4th 781, 785 [6 Cal.Rptr.2d 138]; People v. Ellis (1987) 195 Cal.App.3d 334, 343-345 [240 Cal.Rptr. 708].)
Reviewing courts have repeatedly allowed acts in excess of jurisdiction to stand when the acts were beneficial to all parties and did not violate public policy (see, e.g., Cowan v. Superior Court (1996) 14 Cal.4th 367, 370-376 [58 Cal.Rptr.2d 458, 926 P.2d 438] [trial court allowed defendant to plead guilty to a time-barred lesser included offense]), or when allowing objection would countenance a trifling with the courts. (See, e.g., In re Griffin (1967) *48367 Cal.2d 343, 346-347 [62 Cal.Rptr. 1, 431 P.2d 625] [trial court as a result of defendant’s actions revoked probation after expiration of probation period].)
On the other hand, courts have voided acts in excess of jurisdiction when the irregularity was too great, or when the act violated a comprehensive statutory scheme or offended public policy. (People v. Mendez (1991) 234 Cal.App.3d 1773, 1778-1784 [286 Cal.Rptr. 216] [reducing'felony conviction to misdemeanor and sealing conviction record]; In re Marriage of Goodarzirad (1986) 185 Cal.App.3d 1020, 1024-1027 [230 Cal.Rptr. 203] [stipulation of parties to deprive court of authority to modify child custody and visitation orders in dissolution proceeding]; People v. Blakeman (1959) 170 Cal.App.2d 596, 598 [339 P.2d 202] [banishment as condition of probation].)
b. Discussion
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. (In re Damonte A., supra, 57 Cal.App.4th at pp. 899-900.) 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. We suggest Department and interested parties take up this matter with the Legislature.
B. Psychological Evaluation
Father argues there was no basis for the order requiring he submit to a psychological evaluation as a condition of the reunification plan. He states he was not present in the home at the time Joaquin was burned and there was no reason to conclude he could not adequately protect or parent his children.
Department has submitted certified records indicating the evaluations have been completed and asks we find the issue moot. Father agrees the *484evaluation has been completed but argues we address the general issue as a matter of continuing institutional interest and since the nature of the issue is such that it will often become moot before the case can be reviewed on appeal.
We find the psychological evaluation ordered by the court has been completed and the issue is moot. (See Code Civ. Proc., § 909.) While it may be that often, but not always, the issue will be moot before it can be reviewed on appeal, the appropriateness of any given order is so case-specific that little use would be served by our review of the matter in any given case. If a parent believes an order requiring submission to a psychological evaluation is improper, he may always seek redress by way of writ.
The dispositional order of the juvenile court is reversed. The court is directed to conduct a new dispositional hearing as to both Andres and Joaquin.
Kremer, P. J., and Huffman, J., concurred.
All further statutory references are to the Welfare and Institutions Code.
We recognize the disposition as to Joaquin required he not be returned home until the completion of the psychological studies of his parents and not without the concurrence of his attorney. Since we find the dispositional scheme employed defective as to both children, we describe both dispositions as an immediate placement with the parents.
In In re Marquis D. (1995) 38 Cal.App.4th 1813, 1822-1824 [46 Cal.Rptr.2d 198], this court, while finding it unnecessary to reach the issue, expressed reservations similar to those voiced in Damonte A. concerning a scheme of detaining but not placing children with noncustodial parents pursuant to section 361.2.
Cites, in this corpus
- In Re Damonte A. C025891 · 1997-09-16
- Carlson v. Eassa H015399 · 1997-04-24
- Cowan v. Superior Court No. S052051 · 1996-12-09
- In Re Marquis D. D023165 · 1995-10-16
- People v. Soriano A054175 · 1992-03-16
- People v. Mendez A051970 · 1991-10-03
- People v. Ruiz C005629 · 1990-01-25
- People v. Ellis C001374 · 1987-10-05
- In Re Marriage of Goodarzirad F005757 · 1986-09-23
- In re Griffin Crim. No. 10897 · 1967-09-21
- People v. Blakeman Crim. 3551 · 1959-05-25