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Name: In re Kaylee H.
Case #: D060499
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/20/2012

Juvenile court erred by ordering Agency to file a petition where there was no showing of current risk to the minor. Shortly after the minor was born, parents placed her with a paternal great-uncle while they worked to resolve their substance abuse and legal problems. With the parents’ consent, uncle filed in probate court for guardianship of the minor. The probate court granted a temporary guardianship and referred the matter to the Agency to investigate whether dependency proceedings should be initiated. The Agency declined. The juvenile court then directed the Agency to file a section 300 petition, which it did. The court denied a demurrer to the petition, sustained the petition, and removed the minor from parental custody. Father appealed, contending that the juvenile court erred when it directed the Department to file a dependency petition, and also when it denied his demurrer to the petition. The appellate court agreed and reversed. The juvneile court abused its discretion when it ordered the social worker to file a section 300 petition because it did not consider whether a dependency petition was necessary in order to protect the minor. The record shows that the minor was in the care of a suitable guardian and not at risk of abuse or neglect. Further, the juvenile court erred when it denied the demurrer. The petition alleged facts only of a future risk of harm to the child if the child were to be returned to the parents. There was no allegation that the child was currently at risk. The case was remanded to the probate court for further proceedings.