Allen M. v. Superior Court (1992)
The department does not bear the right to unilaterally close or dismiss a 300 petition as the best interest of the child is paramount.
The question raised in this case is whether the department has the right to dismiss a dependency petition over the objection of the other counsel’s objections (minor’s counsel). The appellate court concluded that the juvenile court must allow evidence to come in when weighing whether dismissal is in the interests of justice and the welfare of the minor.
Although the social worker can be the only person to file a dependency petition, they cannot unilaterally dismiss or terminate a 300 petition. Once the petition is filed and evidence comes in that demonstrates that there is risk of detriment to the child then minor’s counsel can introduce evidence into the petition that they believe the department is lacking. When the court files for a 350 (c) motion, it cannot do so unilaterally. Minor’s counsel has a right to present evidence in support of the petition before the court rules on a section 350(c) motion in re Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069.)
A 350 (c) motion refers to Welf & I C § 350 (c):
At any hearing in which the department bears the burden of proof, after the presentation of evidence on behalf of the department and the minor has been closed, the court shall order an action such as the dismissal of the petition and release of the minor at a jurisdictional hearing, the return of the minor at an out-of-home review held prior to the permanency planning hearing, or the termination of jurisdiction at an in-home review.
Shortly put, a 350 (c) motion is a motion to dismiss the petition and return the minor to the home of the parent or to terminate jurisdiction. Normally, the department and minor’s counsel concur on the decision, but there are cases where this does not happen and minor’s counsel may request an Allen M hearing.
Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069 is the seminal case that established that the agency or department does not bear unilateral power to open or dismiss petitions. Once all parties become involved, minor’s counsel now has a right to introduce new evidence.
In Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, the parents had a petition pursuant to Welfare and Institutions Code § 300 (d) filed on one of the two children. The mother was granted liberal visitation and the father was denied any contact due to it being a (d) count. The department filed again a month later for a (b) count. However, when at the jurisdiction hearing, the department moved to dismiss the sexual abuse petition due to minor’s incompetence to testify and a lack of enough information to sustain the petition.
Minor’s counsel raised an objection in that it believed that the petition contained reports and interview facts that would be enough to demonstrate detriment to the child. The court took minor’s counsel’s objections into consideration and set a hearing. The court provided its reasoning for allowing minor’s counsel to set this hearing.
"[T]o out-of-hand grant the motion to dismiss the [section] 300[, subd.] (d), proceed as to the new petition, allow the parties to proceed forward with a submission or no contest on that would, in essence, be the same as ignoring what issues may have been caused to arise in the mind of [minors' counsel] and his representation of the minor[s]. I don't think that is a balanced way of looking at the case. ... [Minors counsel] will have the obligation to proceed forward.
Father filed a writ of mandate citing that minor’s counsel did not have standing in this matter as only the department bears the power to open a petition and close a petition. Minor’s counsel does not have the right to “step into the department’s shoes” and prosecute the dependency petition. Father also cites that minors' counsel has a different remedy of applying to the Department for initiation of yet another petition under section 329 should they disagree with the department’s decisions. Additionally, the department contends that it acts as "an arm of the state" and has the discretion to dismiss a petition.
Minors' counsel on the other hand, asserts that its role is to protect the minor’s interests pursuant to Welf & I C § 317 (e) and to represent the minor’s preferences. Minor’s counsel asserts that the court has the duty to determine what is in the best interest of the children and that should they apply section 329 it would not be in the best interest of the children.
The appellate court provided its opinion.
It first set forth the groundwork for minor’s counsel’s contention. According to California rules of court, rule1406 states “the social worker or probation officer shall have the sole discretion whether to file a petition under section 300 but it does not confer equal discretion to dismiss a petition as it cannot invoke and then divest the court of jurisdiction”.
Here, the court could not make a best interest determination based solely upon the Department's assessment that the evidence in support of the petitions was weak or insufficient.
However, sufficiency of the evidence is a legal question, not an abuse of discretion standard.
Because the department lacks the power to close a petition alone, it must notify all parties, minor’s counsel, parent’s counsel, and others in order to provide the opportunity to raise an objection and be heard on the matter. If a parent or minor does object, the proper vehicle would be an order to show cause hearing. This would require the department to establish why the petition should be dismissed and allow for declarations and testimony to come into the record. Although the court will be deferential to the Department's expertise, because the primary focus is in the best interest of the child other parties such as minor’s counsel can introduce evidence in support of the 300 petition.
In regards to the assertion that minor’s counsel is overstepping the appellate court opines that that is incorrect as they do not become “the prosecutor” because § 317, (e) tasks counsel with presenting evidence and representing their client. This is also not limited to making recommendations to the court concerning the minor's welfare, and when the Department has not carried its burden of proof, it “may offer evidence without first having reserved that right” before any order is made. Refusal to allow minor's counsel to present evidence would be inconsistent with their role of protecting the interests of their client, the minor.
The appellate court notes that the application procedure under section 329, would be circuitous and a waste of resources here where the Department has already made clear it will not pursue the d counts.
The appellate court concluded that judicial review of the department’s request for dismissal is critical to protect the welfare of the minor in the case that it misses critical information. It finds that the trial court properly set the matter for a contested jurisdictional hearing, denied the petition for extraordinary relief, and vacated the stay issued.
Juvenile Dependency and