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Name: In re Victoria C.
Case #: G029830
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 07/24/2002
Subsequent History: None

The 10-year-old dependent minor, who was the object of a custody battle between her unmarried parents, lived with her mother and had visitation with her father. When the minor experienced severe emotional problems, the court terminated visitation with father and ordered a psychological evaluation. The evaluator recommended placement in a group home with monitored visitation for both parents. The Department filed a supplemental petition pursuant to Welfare and Institutions Code section 387 to remove the minor. The court dismissed the supplemental petition with the agreement of the parties. Father filed a 388 petition requesting that the minor be removed from the mother’s custody and requesting visitation resume. The trial court ordered a hearing only on the visitation issue. During the hearing, the minor testified that she did not want to see her father and that she wanted to stay with her mother. The Department did not recommend removal. The court ordered custody remain with the mother with visitation to resume only after a therapist deemed it appropriate. Here, the appellate court affirmed the orders. Although it was error for the trial court to have summarily dismissed the portion of father’s 388 petition challenging removal, the error was harmless. The court considered the evidence regarding placement when it reaffirmed its prior custody order. Father failed to point to any additional evidence that would have been presented at a second hearing. Further, father did not waive the issue when he failed to object to the dismissal of the 387 petition. There was no group home available and father believed the situation might improve. When it did not, he properly filed the 388 petition. Based on the facts, father’s stipulation was appropriate and the waiver rule should not apply.