A Juvenile Detention Warning is Not a Permanent Court Order

In January of 2016, Mother [M] married Step Father [SF]. She had a son [S] from a previous relationship, but S’s father was not in the picture. M was aware before she married SF that he had served a year in jail for a domestic violence offense. She married him anyway. Sadly, it was a bad decision, and there were four instances of domestic violence against both M and S during that first year of marriage.

In January of 2017, SF had become so violent that he hit M in the face, and threw bleach at her. M hid in a locked bathroom and called the police. The police came and arrested SF. The police also contacted the San Diego County Health and Human Services Agency [Agency]. Social workers from Agency questioned S regarding his relationship with SF. S told them he was afraid of SF and that SF had beat him many times. He also said that SF sprayed bleach at him too, and that the bleach stung his eyes.

The Agency immediately filed a two-part petition with the juvenile court stating that S was at “substantial risk of suffering, serious physical harm or illness as a result of physical abuse by SF, domestic violence between M and SF and M’s failure or inability to adequately protect S.”

A few days later, SF returned to the family home. M would not leave SF, because she was a stay-at-home mom and two months pregnant with his child. A social worker came and finally convinced M take S with her and move in with family members, or S would be placed in foster care for failing to protect him. She finally did so.

At the detention hearing, the juvenile court judge restrained SF from having any contact with M and S. The judge also told M that she would retain custody of S only if she stayed away from SF. The judge further ordered “…I am directing the Agency, if they receive evidence that [S] has been exposed to [SF], and [M] has permitted [SF] to violate the order, or put [S] in a circumstance where [SF] has violated the order, you are to immediately remove [S] from her care and put the matter back on [calendar] immediately in this courtroom.”

M appealed stating the judge had no right to automatically terminate her rights without having a hearing first. Agency argued that the juvenile judge did not terminate M’s rights, but merely gave her a conditional removal order, known as a “detention warning.”

The Appellate Court agreed with M that this was not a “detention warning” but a full removal of M’s rights without benefit of trial. The Appellate Court stated:

“To the extent the order is an order for immediate temporary detention of the child, the conditional removal order encroaches on the Legislature's specific directive to the social worker to assess the risk to the child in the home, and disregards the factual findings necessary for protective detention. To detain a child in protective custody, the focus must be exclusively on the question whether the child is in imminent danger of physical or sexual abuse or the physical. environment poses an immediate threat to the child's health or safety…”

“…The standard for removal on a supplemental petition is the same as removal on an

original petition: the agency must show by 'clear and convincing evidence . . . [t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor' if left in parental custody 'and there are no reasonable means by which the minor's physical health can be protected without removing the minor from [parental] physical custody.”

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