In Re Troy D.

Troy D. was declared a dependent child of the juvenile court under former section 300(a) 1 of the Welfare and Institutions Code 2 on *895 the basis of a petition which alleged that he was bom under the influence of morphine, methamphetamine and amphetamine, and that his parents were unable to protect him. He was placed in his paternal grandmother’s custody. Troy’s mother, Kelly D. (Mother) appeals.

Factual and Procedural Background

Troy was born prematurely on February 10, 1988. Tests taken on Troy and Mother at the time of Troy’s birth were positive for amphetamines and opiates. 3 On February 16, 1988, a petition was filed alleging that Troy came within the provisions of section 300(a) in that his “mother used narcotics and dangerous drugs, to wit, codeine and methamphetamine, to excess to the detriment of said minor, and the father was unable to protect said minor.”

At a detention hearing on February 17, the court detained Troy from residing in his parents’ home. At a readiness hearing on March 16, the court changed Troy’s placement to his parents’ home and conditioned this placement on his parents continuing to be tested for drugs and attending parenting…

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…

James G. Dunn, under appointment by the Court of Appeal, for Objector and Appellant.

Edwin L. Miller, Jr., District Attorney, Peter C. Lehman and Edward J. Mantyla, Deputy District Attorneys, for Petitioner and Respondent.

Sherri Sobel Sokoloff, under appointment by the Court of Appeal, for Minor.

OPINION

FROEHLICH, J.

Troy D. was declared a dependent child of the juvenile court under former section 300(a) [1] of the Welfare and Institutions Code [2] on the basis of a petition which alleged that he was born under the influence of morphine, methamphetamine and amphetamine, and that his parents were unable to protect him. He was placed in his paternal grandmother's custody. Troy's mother, Kelly D. (Mother) appeals.

Troy was born prematurely on February 10, 1988. Tests taken on Troy and Mother at the time of Troy's birth were positive for amphetamines and opiates. [3] On February 16, 1988, a petition was filed alleging that Troy came within the provisions of section 300(a) in that his "mother used narcotics and dangerous drugs, to wit, codeine and methamphetamine, to excess to the detriment of said minor, and the father was unable to protect said minor."

At a detention hearing…