Sonoma Cnty. Human Servs. Dep't v. Heather B. (In re C.W.)

• Decision Date: 29 March 2019
• Docket Number: A152993
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE C.W., a Person Coming Under the Juvenile Court Law. Sonoma County Human Services Department, Plaintiff and Respondent, v. Heather B., Defendant and Appellant.

33 Cal.App.5th 835

245 Cal.Rptr.3d 463

IN RE C.W., a Person Coming Under the Juvenile Court Law.Sonoma County Human Services Department, Plaintiff and Respondent,

v.Heather B., Defendant and Appellant.

A152993

Court of Appeal, First District, Division 2, California.

Filed March 29, 2019

Karen Elcaness, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Bruce D. Goldstein, County Counsel, Rachel M. Bavis, Deputy County Counsel, for Plaintiff and Respondent Sonoma County Department of Human Services.

Nicole Williams, San Diego, under appointment by the Court of Appeal, for Respondent Father.

Deborah Dentler, Glendale, under appointment by the Court of Appeal, for Minor.

STEWART, J.

Heather, the mother of a 16-year-old boy, C.W. who entered the child dependency system at age 10, appeals the juvenile court’s orders terminating this dependency case and awarding sole legal and physical custody of C.W. to his father, Rusty, who lives in Louisiana. We reverse.

The orders appealed from here were the culmination of a series of rulings by the Sonoma County juvenile court that Heather asks us to review. After it terminated reunification services early for both parents and adopted a permanent plan, the juvenile court returned a minor to the custody of a parent who is an admitted, convicted child sex abuser, failed to reunify with his son, participated in barely any reunification services, engaged in no sexual abuse counseling, and lives on the other side of the continental United States, far away from the watchful eye of even the most conscientious local child welfare officials. This began, without notice, as a "trial home visit" with the boy’s father after reunification had already failed. The visit then transformed into a new permanent plan of "family maintenance" with his father, again with no notice or hearing. Regrettably, while living with his father C.W. deteriorated on virtually all fronts, including trouble in school and at home, conflict with his father, sexual misbehavior and ultimately trouble with the law. Eventually, C.W.’s father kicked C.W. out of his own home and sent him to live in a children’s group home in Louisiana at the urging of local law enforcement officials. Meanwhile in California, C.W.’s mother felt ready herself to regain custody of C.W., having through her own efforts overcome a pernicious cycle of homelessness and drug addiction and become gainfully employed. But rather than order C.W. returned to California where effective supervision over him could resume, and where his mother pleaded ceaselessly for his return, the juvenile court eventually closed the book on these dependency proceedings. It terminated its jurisdiction over C.W., who by then was still living in the out-of-state group home, and it awarded sole legal and physical custody of the boy to his father—who had not made any demonstrated progress toward overcoming his past behaviors as a child sex abuser or the risk they posed to his son.

While this appeal was pending, C.W.’s father then removed C.W. from the group home after again having been accused of child sexual abuse. Louisiana child protection authorities then removed C.W. on an emergency basis from his father’s custody, resulting in a Louisiana dependency court asserting competing jurisdiction over C.W. Eventually, the Louisiana court sent C.W. back to California to live with his mother and very recently it terminated its own case.

We hold, first, that this appeal is not moot in light of these post-judgment developments, because under the Uniform Child Custody Enforcement Act (UCCJEA), California has continuing, exclusive jurisdiction over the permanent disposition to be made concerning C.W.’s custody. On the merits, we hold the juvenile court abused its discretion in awarding custody of C.W. to his father under all of the circumstances (not including those that transpired after the entry of judgment). Accordingly, we will reverse both the custody award entered by the juvenile court and its termination of jurisdiction.

STATUTORY OVERVIEW

This appeal solely concerns rulings made after the juvenile court terminated reunification services for both parents, during the phase of proceedings in which it selected and implemented a permanent plan for C.W. (the "post-reunification" or "permanency planning" phase), which in this case involved, at least initially, continuation in foster care. Before discussing the background of this case, we briefly summarize the legislative scheme governing the post-reunification phase of juvenile dependency proceedings for such children, in order to put the challenged rulings in context.

Although the legislative scheme is somewhat labyrinthine, it is simple in basic concept.¹ Its purpose is to balance efforts to reunify a parent with their child with the child’s need for a stable, permanent home. ( Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1015, 32 Cal.Rptr.3d 89, 116 P.3d 550.) "The parent is given a reasonable period of time to reunify and, if unsuccessful, the child’s interest in permanency and stability takes priority." ( Id . at pp. 1015–1016, 32 Cal.Rptr.3d 89, 116 P.3d 550.) The critical juncture is when a hearing pursuant to Welfare and Institutions Code section 366.26² is set to determine a permanent plan of care for the dependent child, sometimes referred to as the "permanency planning hearing." (See In re Maria Q . (2018) 28 Cal.App.5th 577, 593, 239 Cal.Rptr.3d 375.) "[U]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over the child’s need for stability and permanency." ( In re Marilyn H . (1993) 5 Cal.4th 295, 310, 19 Cal.Rptr.2d 544, 851 P.2d 826.) The reunification period may last as long as 18 months, and it may be yet another four months before the section 366.26 hearing is held. ( In re Marilyn H. , at p. 310, 19 Cal.Rptr.2d 544, 851 P.2d 826.) "While this may not seem a long period of time to an adult, it can be a lifetime to a young child. Childhood does not wait for the parent to become adequate." ( Ibid . ) "After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point, ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption [pending the adoption of a permanent plan] that continued foster care is in the best interests of the child." ( In re Stephanie M . (1994) 7 Cal.4th 295, 317, 27 Cal.Rptr.2d 595, 867 P.2d 706.) After the focus has shifted from reunification, "[t]he burden ... is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue." ( In re Marilyn H. , at p. 309, 19 Cal.Rptr.2d 544, 851 P.2d 826.) This scheme "provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status." ( Ibid. )

In selecting a permanent plan, the statutory preference is for termination of parental rights and adoption, followed in order of priority by several alternatives the last of which (and therefore disfavored) is continued foster care.³ (See § 366.26, subds. (b)(1) & (7).)

After the selection of a permanent plan, periodic review hearings must be conducted pursuant to section 366.3. ( In re Marilyn H ., supra , 5 Cal.4th at p. 305, 19 Cal.Rptr.2d 544, 851 P.2d 826.) If the permanent plan is either for adoption or guardianship, that statute calls for the juvenile court to retain jurisdiction until either step is accomplished, and to review the child’s status every six months to ensure that the plan "is completed as expeditiously as possible." (§ 366.3, subd. (a).) For all other children (i.e., those who have neither been ordered placed for adoption nor with a legal guardian), section 366.3 specifies that "the status of the child shall be reviewed at least every six months" (id. , subd. (d)) in order to inquire into "the progress being made to provide a permanent home for the child," which inquiry also "shall consider the safety of the child" (id. , subd. (e)). Subdivision (e) of section 366.3 specifies ten categories of findings that must be made at each review hearing for such children. Among the required findings, as pertinent here, are determinations concerning "[t]he continuing necessity for, and appropriateness of, the placement" (id. , subd. (e)(1)), "[t]he extent of progress the parents or legal guardians have made toward alleviating or mitigating the causes necessitating placement in foster care" (id. , subd. (e)(7)), and "[t]he extent of the agency’s compliance with the child welfare services case plan in making reasonable efforts either to return the child to the safe home of the parent or to complete whatever steps are necessary to finalize the permanent placement of the child" (id. , subd. (e)(4)).

Subdivision (h) of section 366.3 imposes additional requirements at such hearings with respect to children in foster care. Among other things, it directs the court to "consider all permanency planning options for the child including whether the child should be returned to the home of the parent, placed for adoption, ... or appointed a legal guardian, placed with a fit and willing relative, or, if compelling reasons exist for finding that none of the foregoing options are in the best interest of the child and the child is 16 years of age or older, whether the child should be placed in another planned permanent living arrangement." (§ 366.3, subd. (h)(1), italics added.)

Notwithstanding the requirement that the court consider "return home" as a permanent plan option for a child in foster care (§ 366.3, subd. (h)), there is a statutory presumption in favor of continued out-of-home placement rather than efforts to return the child home. Subdivision (f) of section 366.3 states: "[i]t shall be presumed that continued care is in the...