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In re A.C.

July 15, 2010

IN RE A.C., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, PLAINTIFF AND RESPONDENT,
v.
S.E. ET AL., DEFENDANTS;
A.C. APPELLANT.



(Santa Clara County Super. Ct. No. JD14502). Trial Judge: The Honorable Shawna Schwarz.

The opinion of the court was delivered by: Rushing, P.J.

CERTIFIED FOR PUBLICATION

The aim and purpose of Welfare and Institutions Code section 387*fn1 is the removal of a dependent child from the custody of a parent, guardian, relative, or friend and the placement of that child in a foster home or county institution. The section provides the procedure by which such placement change is made, and is, by design to be used for children who have not been freed for adoption. Section 387 does not contemplate placement in an adoptive home, and is not appropriate for children for whom parental rights have been terminated.

The aim and purpose of section 388 is to provide a means for any person having an interest in a dependent child to petition the court for a hearing to change or modify a previous court order. The section is broad in scope, and encompasses any change in circumstances affecting the dependent child. Section 388 is appropriate for a child who has been freed for adoption, and provides a procedural vehicle to change the child's placement based on changed circumstances.

Here, appellant is a juvenile dependent that was freed for adoption, but is no longer in an adoptive home. In July 2009, the Santa Clara Department of Family and Children's Services (the Department) moved A.C. from a temporary foster home to a group home, using a supplemental petition under section 387.

We hereby reverse the judgment. The trial court erred in allowing the Department to use a section 387 petition in this case, because a section 388 petition is the appropriate procedural means to move a minor freed for adoption to a more restrictive placement.

PROCEDURAL BACKGROUND*fn2

The Department filed a supplemental petition on July 29, 2009, to remove A.C. from her temporary foster home and place her in a community care facility. At the hearing on August 18, 2009, A.C. had no objection to the removal from the foster home and placement in the group home; however, she did object to the Department's use of the supplemental petition under section 387. A.C.'s objection was based in part on her assertion that the section 387 petition might have a negative impact on her due to the court's factual findings.

In response, the Department asserted because A.C. was a child who had been freed for adoption, it was not required to file either a section 387 or 388 petition for a change in placement, but as a local practice, the Department continued to file section 387 petitions in similar cases.

In ruling on the petition, the court stated: "The issue, specifically, is whether the 387 process is the appropriate process in a circumstance such as this. First of all, for a free child, and second, when the Department is seeking to change the placement of a child from a less restrictive to a more restrictive placement. . . . In terms of whether a 387 petition is required for free children, the court finds it's not required. I do think it's a good mechanism to provide notice, due process, and a clear standard of proof."

The matter was submitted on the social worker's report, and the court ordered A.C.'s placement to include a community care facility.

A.C. filed a notice of appeal on September 22, 2009.

DISCUSSION

A.C. asserts on appeal that the court erred in allowing the Department to proceed under a section 387 petition, and instead, should have required the Department to file a petition under section 388. She does not object to the court's order that she be removed from foster care and placed in a group home. Indeed, in her opening brief for this appeal, A.C. "asks this court, without disturbing the order approving the minor's group home placement . . . to reverse the juvenile court's finding that a petition under section 387 is the appropriate legal vehicle for requesting a change from foster home placement to group home placement after parental rights have been terminated." Moreover, she requests this court find that a section 388 petition is the ...


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