Filed 5/7/15 (unmodified opn. attached)

                                 CERTIFIED FOR PUBLICATION
             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                          DIVISION TWO


In re NICHOLAS E. et al., Persons Coming           B256182
Under the Juvenile Court Law.                      (Los Angeles County
                                                   Super. Ct. No. DK02119)


LOS ANGELES COUNTY                                 ORDER MODIFYING OPINION
DEPARTMENT OF CHILDREN AND                         AND DENYING REHEARING
FAMILY SERVICES,
                                                   NO CHANGE IN JUDGMENT
        Plaintiff and Appellant,

        v.

SUSAN E. et al.,

        Defendants and Respondents.



THE COURT:
It is ordered that the opinion filed herein on April 30, 2015, be modified as follows:
1. On page 2, the last paragraph, line 5, the words “legal and physical” are to be inserted
between the words “father” and “custody” so that the sentence reads:
        Citing In re A.G. (2013) 220 Cal.App.4th 675 (In re A.G.), mother argued that the
        divorce and child custody proceedings pending in family court had resulted in an
        order granting father legal and physical custody of Lauren, Sarah and Zachary, and
        that this family court order obviated any risk of physical or emotional harm posed
        by mother.


       ASHMANN-GERST, Acting P.J., CHAVEZ, J., HOFFSTADT, J.
2. On page 3, line 3, the word “physical” is to be inserted between the words “had” and
“custody” so that the sentence reads:
       Father joined in the motion except as to Nicholas (over whom mother still had
       physical custody), as did all the attorneys for the children.

3. On page 3, the first full paragraph, line 8, the word “physical” is to be inserted
between the words “him” and “custody” so that the sentence reads:
       The court dismissed the petition “with prejudice” as to Lauren, Sarah and Zachary,
       but “without prejudice” as to Nicholas, (to enable father to obtain a family court
       order awarding him physical custody of Nicholas, to which mother agreed not to
       object).

       There is no change in the judgment.
       Appellant’s petition for rehearing is denied.
       CERTIFIED FOR PUBLICATION.




                                              2
Filed 4/30/15 (unmodified version)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                       DIVISION TWO

In re NICHOLAS E. et al., Persons Coming         B256182
Under the Juvenile Court Law.                    (Los Angeles County
                                                 Super. Ct. No. DK02119)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

        Plaintiff and Appellant,

        v.

SUSAN E. et al.,

        Defendants and Respondents.



        APPEAL from orders of the Superior Court of Los Angeles County.
Carlos Vasquez, Judge. Reversed and remanded.
        Mark J. Saladino, County Counsel, Richard D. Weiss, Acting County Counsel,
Dawyn R. Harrison, Assistant County Counsel, and Kim Nemoy, Principal Deputy
County Counsel, for Plaintiff and Appellant.
        Lori A. Fields, under appointment by the Court of Appeal, for Defendant and
Respondent, Susan E.
        No appearance for Minors.
                                         ******
       The Los Angeles County Department of Children and Family Services
(Department) filed a petition in juvenile dependency court alleging that four minors were
at risk of physical harm and emotional damage due to their mother’s conduct. Mother
moved to dismiss the petition because she and father are already litigating the custody of
the kids in family court. May the juvenile court dismiss the petition on the basis of the
pending family court case without giving the Department the opportunity to prove risk?
We have jurisdiction to answer this question, and conclude that dismissal was improper.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Susan E. (mother) and Brian E. (father) have four children: Nicolas (born 2001),
twins Lauren and Sarah (born 2004), and Zachary (born 2007). In 2013, the Department
filed a petition asking the juvenile court to assert dependency jurisdiction over all four
children on the ground that mother had engaged in conduct placing the children’s
physical and emotional health at risk, as contemplated by Welfare & Institutions Code
                                      1
section 300, subdivisions (b) and (c). More specifically, the petition alleged that mother
had regularly complained (or prompted others to complain) that father physically and/or
sexually abused the children, that these complaints were false, and that mother’s conduct
subjected the children to repeated sexual assault examinations and law enforcement
interviews, all of which had severe negative consequences on the children: All four
children had expressed suicidal thoughts; Sarah and Zachary had both been placed in
involuntary mental health holds; Sarah had gained 40 pounds; and all four children were
chronically absent from, or tardy to, school.
       After the Department detained Lauren, Sarah and Zachary from mother by placing
them in father’s custody—but before any adjudication on the merits of the Department’s
petition—mother filed a motion to dismiss the petition. Citing In re A.G. (2013) 220
Cal.App.4th 675 (In re A.G.), mother argued that the divorce and child custody
proceedings pending in family court had resulted in an order granting father custody of


1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
                                              2
Lauren, Sarah and Zachary, and that this family court order obviated any risk of physical
or emotional harm posed by mother. Father joined in the motion except as to Nicholas
(over whom mother still had custody), as did all the attorneys for the children.
       Before hearing any evidence on the question of jurisdiction, the juvenile court
granted the motion to dismiss. The court read In re A.G. to preclude juvenile court
jurisdiction where the custody of the children at issue in a dependency petition had
already been awarded to the nonoffending parent by a family court, which was the case
here; the juvenile court felt that any “adjudica[tion of] the allegations in the [dependency]
petition” would consequently be “a futile exercise.” The court dismissed the petition
“with prejudice” as to Lauren, Sarah and Zachary, but “without prejudice” as to Nicholas
(to enable father to obtain a family court order awarding him custody of Nicholas, to
which mother agreed not to object).
       The Department timely appealed. We summarily denied the Department’s
intervening petition for a writ of supersedeas to stay the juvenile court’s dismissal order.

                                       DISCUSSION
       At the outset, it is critical to understand precisely what the juvenile court did.
Contrary to what mother represented in her brief and at oral argument, neither her motion
to dismiss nor the trial court’s ruling addressed the sufficiency of the petition. Thus, the
trial court did not grant a motion “akin to a demurrer.” (Cf. In re Kaylee H (2012) 205
Cal.App.4th 92, 107-108 [motion “akin to a demurrer” in dependency proceedings
attacks “the facial sufficiency of a petition”].) The court also did not, as mother also
(somewhat inconsistently) contends, reject the petition on its merits. To the contrary, the
trial court dismissed the petition without hearing any evidence.
       This leaves us with two questions: (1) Do we have jurisdiction over an appeal of
such a dismissal order?; and, if so, (2) did the juvenile court err in issuing such an order?
Both questions involve statutory interpretation; as such, our review is de novo. (Bruns v.
E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.)


                                              3
I.     APPEALABILITY
       Whether the Department may appeal the juvenile court’s dismissal order turns on
whether that order qualifies for appeal under section 395. (In re Michael H. (2014) 229
Cal.App.4th 1366, 1373 [“‘appeals in dependency proceedings are governed by section
395 . . .’”], quoting In re M.C. (2011) 199 Cal.App.4th 784, 801.) Section 395 provides,
in pertinent part, that “[a] judgment in a [dependency] proceeding . . . may be appealed in
the same manner as any final judgment, and any subsequent order may be appealed as an
order after judgment.” (§ 395, subd. (a)(1).)
       The litigation of dependency cases follows the statutory blueprint penned by our
Legislature. The juvenile court first adjudicates whether the evidence supports the
assertion of dependency jurisdiction on any of the grounds set forth in section 300 over
the children and as alleged in the Department’s petition. (§§ 300, 350.) If so, the court
may issue a dispositional order regarding the interim placement of the children, may
provide reunification services, and may specify that other services be provided to family
members. (§§ 358, subd. (a), 360, 361, 361.5.) If the court issues a dispositional order,
the court must then (1) conduct periodic reviews, and (2) either terminate dependency
jurisdiction or set the matter for a permanency hearing for possible termination of
parental rights. (§§ 366.21, 366.22, 366.25, 366.26.)
       Once a juvenile court asserts jurisdiction and issues a dispositional order, the
“‘dependency proceedings [become] proceedings of an ongoing nature and often result in
multiple appealable orders.’” (In re Michael H., supra, 229 Cal.App.4th at pp. 1373-
1374, quoting Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 879.)
       By contrast, the appealability of predispositional orders turns largely (but not
entirely) on their finality. A juvenile court’s order accepting dependency jurisdiction
over children is not immediately appealable because it is merely a precursor to a possible
dispositional order; in this situation, “the dispositional order is the adjudication of
dependency and is the first appealable order in the dependency process.” (In re Sheila B.
(1993) 19 Cal.App.4th 187, 196.) But a trial court’s order declining to accept jurisdiction

                                                4
(and thereby dismissing the petition) after a hearing is appealable because that order “is
the end of the matter and the child goes home.” (Id. at p. 197; In re Michael H., supra,
229 Cal.App.4th at p. 1374 [“As for predispositional orders, at least one such order is
appealable: an order dismissing a dependency petition after an adjudication of the
petition on the merits.”]; cf. ibid. [order of juvenile court affirming Department’s
decision not to file a petition is not appealable because “an order that prevents an action
or proceeding” is appealable only when the Legislature affirmatively “says so”].)
       The juvenile court’s dismissal order in this case is appealable for two reasons.
Chiefly, the juvenile court’s order—while not an adjudication on the merits—is, for all
intents and purposes, “the end of the matter.” (In re Sheila B., supra, 19 Cal.App.4th at
p. 197.) This result is also consistent with In re Phoenix B. (1990) 218 Cal.App.3d 787,
where the court, without any discussion of appealability, nevertheless entertained an
appeal by a parent of a juvenile court order dismissing a dependency petition without any
hearing on the merits (because the Department changed its mind and requested a
dismissal of its own previously filed petition).
       Additionally, the juvenile court’s dismissal order in this case effectively meant
that the juvenile court was abstaining from exercising its jurisdiction in favor of a
different forum—namely, the family court. Orders staying or dismissing causes on the
grounds of abstention or forum non conveniens are typically appealable. (E.g., Alvarado
v. Selma Convalescent Hospital (2007) 153 Cal.App.4th 1292, 1295 [abstention]; Hahn v.
Diaz- Barba (2011) 194 Cal.App.4th 1177 [forum non conveniens]; Code Civ. Proc.,
§ 904.1, subd. (a)(3) [authorizing appeal “[f]rom an order . . . granting a motion to stay
the action on the ground of inconvenient forum”].)
       We accordingly conclude that we have jurisdiction to hear the Department’s
appeal of this juvenile court’s dismissal order.
II.    DISMISSAL OF THE PETITION WAS ERRONEOUS
       The blueprint for litigating dependency cases discussed above contemplates that
the propriety of the juvenile court’s jurisdiction will be adjudicated “[a]t [a] hearing” at

                                              5
which the Department, the parents and the children (through their counsel) will “present[]
. . . evidence.” (§ 350, subd. (c); see also § 356 [juvenile court shall make findings
regarding jurisdiction “[a]fter hearing the evidence”]; see also Los Angeles County
Department of Children and Family Services v. Superior Court (2008) 162 Cal.App.4th
1408, 1420 [“The applicable statutory scheme reflects that the Legislature did not intend
for courts to summarily dismiss a dependency petition at a [prejurisdictional] detention
hearing.”]; cf. In re Phoenix B., supra, 218 Cal.App.3d at pp. 792-793 [dismissal at
jurisdictional hearing without presentation of evidence is appropriate when Department
seeks dismissal].)
       The juvenile court’s dismissal of the petition seeking assertion of dependency
jurisdiction without any adjudication of the merits—and over the Department’s
objection—is a departure from this blueprint. The juvenile court reasoned that In re A.G.
“compel[led]” this departure. We disagree.
       To begin, In re A.G. held only that there was insufficient evidence adduced at the
jurisdictional hearing in that case to support the juvenile court’s finding that the mother’s
mental illness in that case placed her children at risk of physical harm where a family
court order already awarded sole custody to the father and “where Father has always
been, and is, capable of properly caring for them.” (In re A.G., supra, 220 Cal.App.4th at
pp. 682-683.) In light of the insufficient evidence to support dependency jurisdiction, the
appellate court in In re A.G. remanded the case back to the family court. (Id. at p. 686.)
For support, In re A.G. cited In re John W. (1996) 41 Cal.App.4th 961 and In re Phoenix
B., supra, 218 Cal.App.3d 787, both of which involved (1) the dismissal of a dependency
case after a stipulation to jurisdiction or after a Department request for dismissal and (2) a
subsequent remand to the family court. (In re John W., at pp. 974-975; In re Phoenix B.,
at pp. 792-793.)
       Nothing in In re A.G.—or either of the cases on which it relied—purported to
authorize a juvenile court to skip the evidentiary hearing on jurisdiction or to apply a rule
of abstention just because a nonoffending parent could gain custody of the child in an

                                              6
ongoing family court proceeding.
       Reading In re A.G. to support such an abstention-like rule is problematic for a
number of reasons. First, it is inconsistent with the statutory mandate in section 350,
subdivision (c), and section 356 that the Department have its day in court. Second, this
rule—because it would require deference to ongoing family court proceedings—is
inconsistent with the longstanding principle that dependency proceedings have primacy
over family court proceedings when it comes to child custody matters. (In re Anne P.
(1988) 199 Cal.App.3d 183, 193 [“a superior court order awarding custody of minor
children in a divorce action does not, in itself, deprive the juvenile court of jurisdiction to
later litigate matters and issue orders affecting the custody of those children”]; In re
Desiree B. (1992) 8 Cal.App.4th 286, 293 [“[t]he litigation of custody issues in family
court does not estop the juvenile court from reconsidering factually identical issues”].)
There is good reason for this principle: Family court proceedings are aimed at assessing
“the best interests of the child as between two parents.” (In re John W., supra, 41
Cal.App.4th at p. 971.) Dependency proceedings are not so narrow in focus, and invoke
the state’s role as parens patriae in evaluating the best interest of the child, even if it
means placement with someone other than the parents. (In re Ryan K. (2012) 207
Cal.App.4th 591, 599, fn. 10 [“‘Although both the family court and the juvenile court
focus on the best interests of the child, the juvenile court has a special responsibility to
the child as parens patriae and must look at the totality of the child’s circumstances. . . .
By empowering the juvenile court to issue custody . . . orders, the Legislature has
expressed its belief that “the juvenile court is the appropriate place for these matters to be
determined. [Citation.]”’”], quoting In re Roger S. (1992) 4 Cal.App.4th 25, 30-31; In re
Jennifer R. (1993) 14 Cal.App.4th 704, 712; In re Travis C. (1991) 233 Cal.App.3d 492,
500.) A rule requiring abstention without any adjudication dilutes the primacy of
dependency jurisdiction.
       To be sure, the juvenile court’s countervailing concerns are not without weight.
“The juvenile courts must not become a battleground by which family law war is waged

                                               7
by other means,” particularly when “the resources of local government social service
agencies are stretched thin . . .” (In re John W., supra, 41 Cal.App.4th p. 975; In re
Alexandria M. (2007) 156 Cal.App.4th 1088, 1096.) But where the Department is able to
prove that dependency jurisdiction is warranted, these concerns must give way to the
primacy of dependency court jurisdiction and its special role. To rob the Department of
its chance to prove its allegations is to elevate judicial economy above the protection of
children, in contravention of our Legislature’s express declaration that dependency
jurisdiction be construed broadly. (See § 300.2.)
       We take no position on whether the Department will be able to establish, factually,
that mother’s stream of false allegations and the battery of tests and interviews that
followed these allegations placed her children at risk of physical or emotional harm, but
                                                                        2
In re A.G. does not deprive the Department of the opportunity to try.
                                      DISPOSITION
       We reverse the juvenile court’s order dismissing the petition and remand to the
juvenile court for adjudication as to all four children.
       CERTIFIED FOR PUBLICATION.


                                                    _______________________, J.
                                                           HOFFSTADT
We concur:


____________________________, Acting P. J.
          ASHMANN-GERST


____________________________, J.
               CHAVEZ


2     In light of our reading of In re A.G., we have no occasion to consider the
department’s alternative request that we disapprove of In re A.G.
                                             8
