D.W. v. SUPERIOR COURT OF DEL NORTE COUNTY

No. A149681.

D.W., Petitioner, v. THE SUPERIOR COURT OF DEL NORTE COUNTY, Respondent, DEL NORTE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Real Party in Interest.

Court of Appeals of California, First District, Division One.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.115

MARGULIES, J.

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.1 At the 12-month review hearing, which had been rescheduled several times in an effort to accomplish ICPC review, the juvenile court terminated Father's reunification services, found placement of the minor with Father would be detrimental, and scheduled a section 366.26 hearing. Father contends the juvenile court erred in terminating services and not granting him custody of the minor. We find no error and deny the requested writ.

I. BACKGROUND

In February 2015, the Agency filed a dependency petition in connection with the minor, Father's five-year-old son.2 The petition alleged Mother had a "history of chronic substance abuse" that impaired her ability to supervise and care for the minor. (Welf. & Inst. Code,3 § 300, subds. (b), (g).) At the time of filing, Mother was homeless, and Father had not been located. The juvenile court found true the jurisdictional allegations, declared the minor a dependent, and denied reunification services to Mother.

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.4 At the hearing, the juvenile court ordered that Father would continue to be eligible to receive services.

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.5

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.6 When the parties gathered again, in mid-June, the Agency told the court it wanted to try the ICPC process a second time, and the matter was continued to August. The juvenile court ordered reunification services to Father to continue in the meantime.

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.7

Father was not present for the contested hearing, held on October 13, 2016, but he attended by telephone.8 The social worker in charge of the minor's case testified she had "several" concerns about returning the minor to Father, including Father's inconsistent contact with the minor, the short conversations when they did speak, the difficulty in contacting Father and the long periods when he avoided any contact, the absence of a meaningful personal relationship between Father and the minor, aspects of Father's criminal record, the inability to investigate Father's home and family and engage him in services due to the failure of the ICPC process, Father's vacillation regarding his commitment to the minor, and his lack of insight with respect to the effect on the minor of his inconsistency.9 Given Father's arrests on drug-related charges in 2011 and for driving under the influence in 2012, the social worker was concerned about possible continuing drug abuse, but she had been unable to arrange for drug testing as a result of Father's lack of cooperation with the ICPC process. The social worker's concern was compounded by the minor's vulnerability. Although he does not have "special needs," the minor had been "exposed to lots of terrible things no child should be exposed to" and needed counseling and academic help. Father had made no preparations to secure the minor the help he needed. When the social worker discussed Father with his relatives, they were "adamant they don't feel this is a good situation, that we're setting [the minor] up to be abused or neglected" due to Father's unstable conduct, difficulty in holding a job, and immaturity.

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.

II. DISCUSSION

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.

A. 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.10 The required contested hearing did not occur until October. Despite the many continuances, it is clear from the record that the juvenile court understood the October hearing to constitute the 12-month review hearing. Accordingly, the juvenile court had the authority to terminate services at that hearing.

B. 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.

C. ICPC Approval

Father argues that the juvenile court was not entitled to deny him custody because of his failure to receive approval under the ICPC.11

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.)

III. DISPOSITION

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.

FootNotes


1. The ICPC "is a compact among California and other states, the purpose of which is `"to facilitate the cooperation between states in the placement and monitoring of dependent children."'" (In re Suhey G. (2013) 221 Cal.App.4th 732, 742 (Suhey G.).) Pursuant to the ICPC, a child may not be sent from one participating state to another for foster or adoptive placement until the receiving state has approved the placement as not contrary to the interests of the child. (Fam. Code, § 7901, art. 3, subd. (d); Suhey G., at p. 742.)
2. A similar petition was filed with respect to a second child of Mother by a different father. That proceeding is not before us.
3. All further statutory references are to the Welfare and Institutions Code.
4. According to the Agency, Father changed his residence at some point after the ICPC application was filed in Missouri, and this relocation caused delays in the processing of the application. Because it was anticipated that Father's services would be provided by Missouri authorities once ICPC approval was obtained, no services had yet been provided to him.
5. A social worker later testified that Father had asked her about the paperwork he had received. The social worker told him it was important, encouraged him to complete it, and offered help if he had any problem. The social worker heard nothing further from Father about the ICPC papers.
6. Our description of events at these interim hearings is based on summary notes contained in the clerk's minutes of the hearings. No transcripts have been provided.
7. Since the June hearing, the Agency also reported, Father had a 5- to 10-minute telephone call with the minor, the first call since January. The call had been initiated by the Agency.
8. Prior to this hearing, Father had requested yet another continuance because his driver's license had been suspended and he would be required to take a bus to attend the hearing. The continuance was denied, and Father did not take the bus. Father had earlier obtained a continuance prior to the August 29 hearing on the pretense of the death of a family member. Despite requesting the continuance, Father did not attend the funeral, which occurred in California.
9. In a recent conversation, Father had told the social worker he wanted to suspend telephone calls with the minor because he had lost his driver's license and was "trying to focus on getting my license." The social worker, apparently resisting the temptation to comment on Father's bizarre excuse, noted that Father gave "no sort of thought to what that does to [the minor]."
10. In June, the Agency told the court it wanted to attempt the ICPC process once more and recommended "continuing services for the father during further investigation." Consistent with this temporary approach, the court's subsequent order stated, "family reunification services to the father . . . are continued at this time." The court did not grant a six-month extension of services, as would have been expected if services were extended at a 12-month hearing.
11. Father also argues here and elsewhere that the juvenile court erred in not granting him custody earlier in the dependency process, but these claims were forfeited by Father's failure to appeal the allegedly erroneous rulings. (§ 395; In re T.G. (2015) 242 Cal.App.4th 976, 984.) The same is true of Father's contention that the reunification services proposed in the case plan were inadequate. (Los Angeles County Dept. of Children etc. v. Superior Court (1997) 60 Cal.App.4th 1088, 1093.)

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