In re KARLA C.

• Decision Date: 21 July 2010
• Docket Number: No. A126685.,A126685.
• Citation: 186 Cal.App.4th 1236,113 Cal.Rptr.3d 163
• Court: California Court of Appeals
• Parties: In re KARLA C., a Person Coming Under the Juvenile Court Law. San Mateo County Human Services Agency, Plaintiff and Respondent, v. P.E., Defendant and Appellant, G.C., Defendant and Respondent.

186 Cal.App.4th 1236

113 Cal.Rptr.3d 163

In re KARLA C., a Person Coming Under the Juvenile Court Law.San Mateo County Human Services Agency, Plaintiff and Respondent,

v. P.E., Defendant and Appellant,G.C., Defendant and Respondent.

No. A126685.

Court of Appeal, First District, Division 5, California.

July 21, 2010.

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Michael P. Murphy, County Counsel, Kimberly A. Marlow, Deputy County Counsel, for Plaintiff and Respondent.

Gorman Law Office, Seth F. Gorman, Half Moon Bay, under appointment by the Court of Appeal; David J. Pasernak for Defendant and Appellant.

Valerie E. Sopher, El Cerrito, under appointment by the Court of Appeal, for Defendant and Respondent.

Law Office of Bonnie L. Miller, Bonnie L. Miller for Minor.

BRUINIERS, J.

The juvenile court found that Karla C. (Karla) was at risk of continuing sexual abuse at the hands of a stepfather in the home of her mother, P.E. (Mother), and that Mother had failed to protect Karla from the abuse. The court took jurisdiction over Karla under Welfare and Institutions Code section 300, subdivision (d) and removed Karla from Mother's physical custody. ¹ At the conclusion of a contested disposition hearing, the juvenile court decided to place Karla, at least temporarily, with her father, G.C. (Father), a Peruvian national who lives in Peru. Mother appeals from the juvenile court's disposition orders, contesting the ordered placement of Karla with Father outside the territorial boundaries of the United States. Because it is not clear from the record before us that the juvenile court will have the ability to enforce its continuing jurisdiction over Karla after placement in Peru, we reverse the order and remand for a further hearing to determine the enforceability of the juvenile court's jurisdiction in Peru, and to allow the court to then impose any measures that may be appropriate to ensure that its jurisdiction is maintained.

I. Statutory Framework

The jurisdictional findings which brought Karla under the court's dependency protection are undisputed, and the only question before us is the propriety of the court's dispositional order which would place Karla with Father.

Before discussing the facts of this case, we first address the governing statute. “The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent).” ( In re V.F. (2007) 157 Cal.App.4th 962, 969, 69 Cal.Rptr.3d 159, fn. omitted, superseded on other grounds, as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57–58, 81 Cal.Rptr.3d 918 ( Adrianna P.).) “[S]ection 361.2 governs the child's temporary placement with the noncustodial parent and the provision of reunification services to the parents, and also permits the court to grant legal and physical custody of the child to the noncustodial parent.” ( In re V.F., supra, at p. 969, 69 Cal.Rptr.3d 159.)

“When a child has been removed from the physical custody of his or her parents under section 361, subdivision (c), the court must place the child in a safe home or setting, free from abuse or neglect. (§ 16501.15.) ... Section 361.2 governs placement when the child has a parent ‘with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300.’ (§ 361.2, subd. (a), italics added.) It directs that before the child may be placed in out-of-home care, the court must first consider placing the child with the noncustodial parent, if that parent requests custody. [Citations.]” ²

( Adrianna P., supra, 166 Cal.App.4th at p. 55, 81 Cal.Rptr.3d 918, fns. omitted.)

[1] [2] The noncustodial “parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent's choices will be ‘detrimental to the safety, protection, or physical or emotional well-being of the child.’ [Citations.]” ( In re Isayah C. (2004) 118 Cal.App.4th 684, 697, 13 Cal.Rptr.3d 198.) Thus, it is the party opposing placement who has the burden to show by clear and convincing evidence that the child will be harmed if the noncustodial parent is given custody. Clear and convincing evidence is evidence that establishes a high probability and leaves no substantial doubt. ( In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, 101 Cal.Rptr.2d 449.) It is “ ‘sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]’ [Citations.]” ( Ibid.)

“If the court places the child with the noncustodial parent, the court initially has three alternatives. The court may order the noncustodial parent to assume custody of the child, terminate juvenile court jurisdiction and enter a custody order. (§ 361.2, subd. (b)(1).) It may continue juvenile court jurisdiction and require a home visit within three months, after which the court may make orders as provided in subdivision (b)(1), (2) or (3). (§ 361.2, subd. (b)(2).) Or the court may order reunification services to be provided to either or both parents and determine at a later review hearing under section 366.3 which parent, if either, shall have custody of the child. (§ 361.2, subd. (b)(3).)” ³ ( Adrianna P., supra, 166 Cal.App.4th at p. 55, 81 Cal.Rptr.3d 918, italics omitted.)

[3] Reunification services are generally required when a child is removed from parental custody. (§ 361.5, subd. (a).) However, when a court places a dependent child with the noncustodial parent pursuant to section 361.2, it has discretion, but is not required, to order reunification services to the formerly custodial parent. (See § 361.2, subd. (b); In re Gabriel L. (2009) 172 Cal.App.4th 644, 651, 91 Cal.Rptr.3d 193; In re Erika W. (1994) 28 Cal.App.4th 470, 475–478, 33 Cal.Rptr.2d 548 ( Erika W.).) “If the previously noncustodial parent can provide a safe and stable permanent home for the child and the evidence establishes that the other parent cannot, reunification services may be offered only to the previously noncustodial parent since this serves the Legislature's goals by placing the child in parental custody and providing for a safe and stable permanent home for the child.... [¶] If, on the other hand, the previously noncustodial parent who is now assuming custody does not appear to be an appropriate permanent placement for the child, and the previously custodial parent has the potential to provide a safe stable permanent home for the child, reunification services can be offered to the previously custodial parent in the hope that this parent will remedy his or her deficiencies and reunify with the child.... [¶] ... [¶] ... ‘[T]he purpose of reunification services is to facilitate the return of a dependent child to parental custody.’ [Citations.] ... When a child is placed in nonparental custody, reunification services are necessary to promote a possible return of the child to parental custody. However, when a child is placed in parental custody, this goal has already been met and therefore reunification services are not necessary.” ( Erika W., supra, 28 Cal.App.4th at pp. 476–478, 33 Cal.Rptr.2d 548, italics omitted.)

[4] In sum, “when a nonoffending noncustodial parent requests custody under section 361.2, subdivision (a), he or she is requesting sole legal and physical custody of a child. However, the court may not immediately grant that parent sole legal and physical custody. The court must first determine whether it would be detrimental to the child to temporarily place the child in that parent's physical custody. If there is no showing of detriment, the court must order the Agency to temporarily place the child with the nonoffending noncustodial parent. The court then decides whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction.” ( In re Austin P. (2004) 118 Cal.App.4th 1124, 1134–1135, 13 Cal.Rptr.3d 616.)

II. Factual and Procedural Background

Section 300 Petition and Detention Report

On June 24, 2009, the San Mateo County Human Services Agency (Agency) filed a juvenile dependency petition on behalf of Karla, who was born in July 2004. The petition, brought pursuant to section 300, subdivision (d), asserted that Karla was sexually abused by her stepfather, Martin S. It was alleged that Martin S. stroked his penis in front of Karla and asked her to stroke his penis, which she did on three occasions. It was further alleged that Martin S. had “tickled” Karla's vagina, telling Karla not to tell anyone because Mother and Mother's baby would die. ⁴ When Karla's allegations first surfaced, Mother did not believe her and accused her of telling lies. On June 22, 2009, Karla was placed in protective custody at a shelter care foster home.

The detention report indicated that, at the time of the abuse, Karla lived with Mother, Martin S., the maternal grandmother, and Martin S.'s brother in a one-bedroom apartment. Karla shared a bedroom with Mother and Martin S. ⁵ The maternal grandmother was told by Karla of the sexual abuse. The maternal grandmother was unsure if she should believe Karla, but shared Karla's disclosures with a mandatory reporter. When Mother was told of the abuse, “[s]he said that she did not believe [Karla] and that she [could] not believe that [Martin S.] would ever do this to her daughter. She said over and over that [Karla] does not know what she is saying and that someone might be telling her to say such lies.” When Karla was present in...