NOT TO BE PUBLISHED IN OFFICIAL REPORTS
D.C.W. (minor), the son of petitioner D.W. (Father), was detained from the custody of his mother (Mother) on allegations that her chronic substance abuse prevented her from caring for him. At the time, Father was living in Missouri. During subsequent months, the Del Norte County Department of Health and Human Services (Agency) sought to engage Father in the process of approval under the Interstate Compact on Placement of Children, Family Code section 7900 et seq. (ICPC), but Father failed to cooperate with Missouri authorities.
In February 2015, the Agency filed a dependency petition in connection with the minor, Father's five-year-old son.
In the meantime, Father had been located living in Missouri with his parents. He explained to the Agency that Mother had run off with the minor when he was still an infant. Father saw the minor briefly when he was three years old, but Mother soon disappeared with him again. At the jurisdictional hearing in April 2015, Father's request for custody of the minor was denied, but he was granted reunification services the following month.
Father told the Agency he had a substance abuse problem at one time but no longer used drugs. His criminal record reflected drug arrests and/or convictions in 1994, 2006, 2009, and 2011, property crimes in 2009, 2010, and 2011, and traffic offenses, including driving while under the influence, in 2012. Although Father was permitted visitation with the minor, the Agency asked that he begin with correspondence, phone calls, and eventually Skype sessions, given his lack of a meaningful relationship with the minor.
Agency reports filed in connection with the six-month hearing in October 2015 stated that Father was employed. He had fathered three children by three different women, but none of the children resided with him. Although Father had some telephone visits with the minor during the period, the foster family found Father "hard to contact," and once located he tended to "cut the conversation off after 3-4 minutes with various excuses such as he needs to have dinner or he must work on his motorcycle." No reunification services had yet been provided to Father because the ICPC process had not been completed.
In December 2015, Father was finally contacted by ICPC authorities in Missouri and asked to complete the necessary paperwork in January 2016. When he failed to do so, his ICPC approval was denied.
Around January or February, Father discontinued contact with the minor, claiming that family and relationship problems precluded their telephone calls. The termination of contact was upsetting to the minor. In April 2016, Father told the Agency he had concluded he was not in a position to take care of the minor and would not be able to "establish a stable home" for him. Father said he wanted to "drop reunification efforts" in favor of adoption of the minor by his sister. In part because of Father's lack of contact with the minor, the Agency believed "there has been no bond established." Further, the Agency had spoken with several relatives of Father, and "the general consensus was [Father's custody] would not be a good place" for the minor.
At the time scheduled for the 12-month hearing, May 2, 2016, Father's attorney said Father had left her a telephone message suggesting he did not want to take himself out of consideration for custody, but she had not been able to speak with him directly. The juvenile court continued the hearing for two weeks to allow counsel to consult with Father. At the next hearing, Father's attorney asked for an opportunity to present Father's testimony regarding his circumstances, and the court continued the matter a week for a contested 12-month review hearing. It is unclear whether Father appeared for the continued hearing, but rather than present his testimony, his attorney asked for a further continuance to arrange for a formal evaluation of his home.
On August 29, the Agency reported that Father had been provided ICPC paperwork by Missouri authorities and again failed to return it, resulting in another denial. Given Father's failure to obtain ICPC approval, a review hearing addressing "[p]lacement with father" was scheduled for October.
Father was not present for the contested hearing, held on October 13, 2016, but he attended by telephone.
The juvenile court terminated Father's reunification services and scheduled a section 366.26 hearing. The court concluded Father "is purposefully circumventing the gathering of information by inaction or shear [sic] negligence," was unlikely to reunite with the minor due to his inability to maintain contact with the minor and cooperate with the Agency, and presented a substantial risk of detriment to the minor should he be returned to Father.
Father contends the juvenile court's rulings were in error because (1) the court had no power to terminate reunification services in the absence of a request to modify pursuant to section 388, (2) there was no substantial evidence of detriment, and (3) approval under the ICPC should not have been required prior to return of the minor to Father.
Authority to Terminate Services
Father argues the juvenile court was precluded from terminating his services at the October 12, 2016 hearing in the absence of a request to modify under section 388. The argument is premised on Father's contention that the 12-month review hearing occurred in June, at the time reunification services were extended, rather than at the time of the contested hearing in October.
If a child has been declared a dependent of the juvenile court and placed under court supervision, the status of the child must be reviewed every six months. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303.) The juvenile court's authority over reunification services changes with each six-month hearing. Initially, reunification services must be granted to the parent unless special circumstances are present. (§ 361.5, subd. (a); In re Ethan C. (2012) 54 Cal.4th 610, 626.) At the six-month hearing, services are ordinarily extended so long as the parent is attempting to participate and visit the child. (M.C. v. Superior Court (2016) 3 Cal.App.5th 838, 842-843, 849.) By the time of the 12-month review hearing, however, the court can extend reunification services only if it finds a substantial probability that the child will be returned to the parent by the time of the 18-month review hearing. (In re Dakota J. (2015) 242 Cal.App.4th 619, 631-632.) The juvenile court must follow these statutory prescriptions; it lacks the discretion to terminate services at any time, at least in the absence of a section 388 request to modify. (M.C., at p. 849.) Accordingly, if the October hearing constituted the 12-month review hearing, the juvenile court had the authority to terminate reunification services. Otherwise, Father is correct that a section 388 request was necessary.
Father's claim that the 12-month hearing occurred in June is not supported by the record. As early as May, the juvenile court recognized that a contested 12-month review hearing would be necessary. When the court extended reunification services in June, it did so only to allow the Agency to pursue the ICPC process once more, in connection with the 12-month review.
Substantial Evidence of Detriment
Father also contends there was no substantial evidence to support the juvenile court's finding that a grant of custody to him posed a substantial risk of detriment to the minor.
At each status review hearing, a parent is presumptively entitled to return of the dependent child to his or her physical custody. (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1505 (Nickolas T.).) At a 12-month hearing, the juvenile court must order the child's return "unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (f)(1); In re B.S. (2012) 209 Cal.App.4th 246, 252 (B.S.).) "Detriment" is a "`nebulous standard' "that depends upon the particular statutory context. (In re A.J. (2015) 239 Cal.App.4th 154, 160.)
The Agency bears the burden of demonstrating detriment. (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789 (David B.).) We review a juvenile court's finding of detriment for substantial evidence. (Nickolas T., supra, 217 Cal.App.4th at p. 1507.)
There was substantial evidence to support the juvenile court's finding of a substantial risk of detriment to the minor if custody was granted to Father. Most importantly, there is no evidence in the record to suggest Father actually wanted custody of the minor. Father was aware his participation in the ICPC process was a critical step in gaining custody, but he twice declined to complete the necessary paperwork, despite the Agency's urging and offer of help. Father never personally visited the minor, actively avoided contact with him for months at a time, and for a period of at least six months had no contact with the minor at all. When Father did participate in telephone calls with the minor, they were abbreviated. At one point, Father confessed he did not feel competent to accept custody of the minor and deferred in favor of proposed custody by his sister. On the thinnest of pretexts, he repeatedly asked for continuances of hearings at which custody might be awarded. He had made no preparation to get the minor the counseling and academic help he would need if custody was granted. Were it not for the report of his attorney, there would be no reason to believe Father wanted anything to do with the minor.
Father's lack of commitment was a cause for grave concern. As the social worker suggested, the minor had a tough life, living largely in tent encampments with a mother disabled by drug abuse. As his foster mother reported during the proceedings, when the minor went to live with the foster family he had never attended school, "didn't know what sharing was," was unable to use a toilet, "actually thought it was ok to hit [others]," and "would eat to the point he got sick." The minor was grateful merely for a roof over his head when it rained and dry, clean clothes. Given the emotional fragility created by his unstable early life, the minor was particularly susceptible to further emotional harm from a neglectful parent. If, as it appeared, Father was not fully committed to becoming a custodial parent, there is a good chance the minor would have suffered harm from a placement with him.
Beyond Father's ambivalence, there were other reasons to find a substantial risk of detriment. Father appeared to have a long history of substance abuse. Although he claimed to have stopped using drugs, he consciously failed to participate in the ICPC process that would have required drug testing. The juvenile court could, and did, infer that Father had something to hide. Family members familiar with Father's conduct and character agreed that he was not parental material. His various excuses to the Agency and his insensitivity to the effect of his conduct on the minor confirmed this, revealing an immature, self-centered character. All these red flags added to the evidence supporting a finding of detriment.
Father relies on a series of decisions in which a finding of detriment was reversed, but in all of them the parents were plainly committed to gaining custody of their children and worked hard toward reunification. In the case with the most similar facts, David B., the father's only contact with the child occurred when she was a baby. (David B., supra, 123 Cal.App.4th at p. 774.) Once the dependency proceeding commenced, the father complied fully with the reunification plan, attending a substance abuse program, parenting class, and an anger management class, visited regularly with the child and participated in joint therapy with her, and found a steady job. (Id. at pp. 775-776.) Eventually he was visiting for three hours, twice per week. (Id. at p. 776.) The contrast with Father's conduct is so stark as to require no discussion.
Father also criticizes the Agency for relying on the ICPC process. The use of ICPC procedures, however, is a recognized and convenient means for social service agencies to investigate out-of-state parents. (Suhey G., supra, 221 Cal.App.4th 732, 742-743.) It was Father's failure to cooperate, rather than any deficiency in the Agency's conduct, that led to the failure of ICPC procedures in this case. In any event, we find Father's criticism legally irrelevant. Custody to Father was not denied because of the failure to obtain a home study. Rather, as discussed above, Father's background and his failure to make any serious attempt to bond with the minor raised substantial questions about the minor's safety in his custody, regardless of the nature of his home.
Father argues that the juvenile court was not entitled to deny him custody because of his failure to receive approval under the ICPC.
The ICPC was explained in B.S., supra, 209 Cal.App.4th 246, as follows: "`"[I]nterstate compacts, like the ICPC, `are formal agreements among and between states that have the characteristics of both statutory law and contractual agreements. They are enacted by state legislatures that adopt reciprocal laws that substantively mirror one another.' [Citation.]" . . . "`The purpose of the ICPC is to facilitate cooperation between participating states in the placement and monitoring of dependent children. [Citation.]'" [Citation.]' [Citation.] [¶] `The key provisions of the ICPC state: "Before sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state." [Citation.] "The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child."'" (Id. at p. 253.) As the language in italics above suggests, ICPC procedures do not apply to a grant of custody to a parent, and placement with an out-of-state parent need not follow ICPC procedures. (B.S., at p. 254.)
Contrary to Father's argument, however, the juvenile court did not deny custody to him because there was no ICPC approval in place. It denied custody upon an affirmative finding that return of the minor posed a substantial risk of detriment to his well-being. As B.S. holds, when a denial of custody is premised on a finding of detriment, the issue of ICPC approval is irrelevant. (B.S., supra, 209 Cal.App.4th at p. 254.) Further, although ICPC approval requirements do not apply to parents, "`nothing in the ICPC prevents the use of an ICPC evaluation as a means of gathering information before placing a child with such a parent.'" (Suhey G., supra, 221 Cal.App.4th at p. 743.)
Father's petition for an extraordinary writ is denied on the merits. (See Kowis v. Howard (1992) 3 Cal.4th 888, 894.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
Humes, P.J. and Dondero, J., concurs.