In re A.C v. S.E.





















Filed 7/15/10

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>CERTIFIED FOR PUBLICATION





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH
APPELLATE DISTRICT




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In re A.C., a Person Coming Under the Juvenile Court Law.	H034769 (Santa Clara County Super. Ct. No. JD14502)
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. S.E. et al., Defendants; A.C. Appellant.

The aim and purpose of Welfare and
Institutions Code section 387[1]
is the removal of a dependent child from the custody of a parent, guardian,
relative, or friend and the placement of that child in a foster home or county
institution. The section provides the
procedure by which such placement change is made, and is, by design to be used
for children who have not been freed for adoption. Section 387 does not contemplate placement in
an adoptive home, and is not appropriate for children for whom parental rights have been terminated.

The aim and purpose of section 388
is to provide a means for any person having an interest in a dependent child to
petition the court for a hearing to change or modify a previous court
order. The section is broad in scope,
and encompasses any change in circumstances affecting the dependent child. Section 388 is appropriate for a child who
has been freed for adoption, and provides a procedural vehicle to change the
child's placement based on changed circumstances.

Here,
appellant is a juvenile dependent that was freed for adoption, but is no longer
in an adoptive home. In July 2009, the Santa Clara Department of Family and
Children's Services (the Department) moved A.C. from a temporary foster
home to a group home, using a supplemental petition under section 387.

We hereby
reverse the judgment. The trial court
erred in allowing the Department to use a section 387 petition in this case,
because a section 388 petition is the appropriate procedural means to move a
minor freed for adoption to a more restrictive placement.

Procedural Background[2]

The
Department filed a supplemental petition
on July 29, 2009, to remove
A.C. from her temporary foster home and place her in a community care
facility. At the hearing on August 18, 2009, A.C. had no
objection to the removal from the foster home and placement in the group home;
however, she did object to the Department's use of the supplemental petition
under section 387. A.C.'s objection was
based in part on her assertion that the section 387 petition might have a
negative impact on her due to the court's factual findings.

In
response, the Department asserted because A.C. was a child who had been freed
for adoption, it was not required to file either a section 387 or 388 petition
for a change in placement, but as a local practice, the Department continued to
file section 387 petitions in similar cases.


In ruling
on the petition, the court stated: â€