# San Diego County Department of Social Services v. Kelly D.

> California Court of Appeal · November 15, 1989 · 215 Cal. App. 3d 889

URL: https://www.frixlaw.com/law-library/cases/9723419

## Case

- **Full name:** In Re TROY D., a Minor. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. KELLY D., Objector and Appellant
- **Court:** California Court of Appeal
- **Decided:** November 15, 1989
- **Citations:** 215 Cal. App. 3d 889; 263 Cal. Rptr. 869; 1989 Cal. App. LEXIS 1144
- **Precedential status:** Published
- **Opinion:** Concurrence by Work
- **Judges:** Froehlich, Work
- **Cited by:** 81 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9723419

## How later opinions describe it (automated extraction)

- holding that child born addicted as result of mother's actions has suffered purposeful or negligent injury

## Opinion text

WORK, J., Concurring.
Although I concur with the result reached by the majority, for the following reasons I would have omitted the lengthy exposition of the mother’s contention her demurrer should have been sustained. (See maj. opn., ante, Discussion, § A.)
Even where demurrers would have been sustained, “[i]t is . . . well settled that the failure of a complaint to state a cause of action is not fatal to a judgment for the plaintiff unless the appellant can show that the error has resulted in miscarriage of justice. Where the parties at the trial treat a certain issue as being involved, and the judgment is based on that issue, it is not a prejudicial error that the complaint defectively alleges, or fails to allege at all, that issue.” (Ades v. Brush (1944) 66 Cal.App.2d 436, 444 [ 152 P.2d 519 ], citing Baker v. Miller (1923) 190 Cal. 263, 267 [ 212 P. 11 ], and other decisions.) Thus, no reversible error can be shown on this record where the facts adduced at the jurisdictional hearing establish the mother’s postdrug involvement resulted in an older child being declared a dependent child; her failure to comply with court-ordered drug testing and counseling; and her child being burned through her neglect. This history of inability to adequately care for Troy’s older sibling and her continued abuse of illegal drugs in conscious disregard of court orders designed to assist her in regaining custody of the other child, even during this pregnancy, amply supports a finding she was not capable of exercising effective care and control. (Former Welf. & Inst. Code, § 300, subd. (a); In re Melissa H. (1974) 38 Cal.App.3d 173, 175 [ 113 Cal.Rptr. 139 ].)
*906 Without expressing any opinion as to the correctness of the majority’s resolution pertaining to the demurrer’s sufficiency, I am satisfied it is extraneous to the dispositive issues in this case. Because I perceive it dicta, I do not join in that portion of the opinion, preferring to leave that question to be resolved by the already ongoing legislative process referred to above or on review of a case where the result depends on such a resolution.
Appellant’s petition for review by the Supreme Court was denied January 31, 1990. Broussard, J., and Kaufman, J., were of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9723419. Public record. Not legal advice.