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Name: In re Nicholas E.
Case #: B256182
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 04/30/2015

Juvenile court could not skip an evidentiary hearing and dismiss the dependency action merely because the matter had been decided in family court. The Department filed a petition alleging that the four minors were at risk of physical harm and emotional damage due to mother’s conduct. Mother moved to dismiss the petition because she and the father were already litigating the custody of the minors in family court, and father had been awarded custody. Before hearing any evidence on jurisdiction, the juvenile court granted the motion to dismiss, finding that under In re A.G. (2013) 220 Cal.App.4th 675, juvenile court jurisdiction was precluded where the custody of the children at issue had already been awarded to the nonoffending parent in family court. The appellate court held that dismissal of the petition was erroneous. Nothing in In re A.G. authorizes a juvenile court to skip the evidentiary hearing on jurisdiction or apply a rule of abstention because a nonoffending parent could gain custody of the child in a family court proceeding. The court took no position on whether the Department would be able to establish that mother’s behavior placed the children at risk of harm, but In re A.G. does not deprive the Department of the opportunity to try.