33 Cal.App.5th 835
Cal. Ct. App.2019Background
- C.W., born 2002, entered dependency at age 10 after mother Heather’s substance abuse and father Rusty’s history of sexual offenses were alleged; court found him a dependent and ordered reunification services.
- Reunification services were terminated for both parents in 2014; the juvenile court selected a permanency plan (initially adoption/PPLA) and conducted periodic reviews (§ 366.3).
- In July 2016, while in foster care in California, 14-year-old C.W. visited Rusty in Louisiana and did not return; the Agency and court allowed a trial home visit and, without notice or statutorily required findings, the situation effectively became family maintenance with Rusty.
- C.W.’s behavior and welfare deteriorated in Rusty’s care (school expulsions, sexualized acting out, eventual placement in a Louisiana residential treatment facility); Heather had improved her circumstances and sought custody.
- On September 8, 2017 the juvenile court dismissed dependency jurisdiction and awarded sole legal and physical custody to Rusty (with limited visitation conditions for Heather); no evidence showed Rusty had addressed past sexual-offense risks to minors.
- Post-judgment, Louisiana authorities removed C.W. from Rusty after allegations; Louisiana temporarily took custody and later returned C.W. to Heather and terminated its proceedings. California appellate court held the appeal not moot because California retained exclusive, continuing jurisdiction under the UCCJEA and reversed the juvenile court’s custody and dismissal orders.
Issues
| Issue | Plaintiff's Argument (Heather) | Defendant's Argument (Rusty/Agency) | Held |
|---|---|---|---|
| 1. Permitting trial home visit/placement in Louisiana without notice or hearing | Trial home visit occurred without required notice/local-rule or §386 protections; was void | Agency contended visit was authorized and practice acceptable; initially argued appeal moot | Court found procedural departures but did not need to resolve all; errors contributed to ultimate custody error |
| 2. Changing to family maintenance/return without §366.3 findings or services | Change violated §366.3, subdivision (f) and (e) requirements (findings, reunification plan, review, burden on parent) | Agency argued placement and services were appropriate; later conceded exceptional circumstances | Court held juvenile court abused discretion in effectively returning C.W. to father without required findings/oversight (but reversal rested primarily on custody error) |
| 3. Placing C.W. into out-of-state residential program without §387/ICPC or §361.21 compliance | Placement violated §387 (supplemental petition), ICPC, and §361.21’s in-state availability requirement | Agency argued emergency/necessity and vetting by social worker justified placement | Court noted statutory and procedural irregularities; did not restore placement (post-judgment events mooted direct relief) |
| 4. Dismissing dependency and awarding sole custody to father given father’s history | Awarding custody to Rusty (an adjudicated risk) was abuse of discretion; Heather had remedied prior defects and C.W. preferred mother | Agency and father argued dismissal appropriate (father providing care, therapeutic needs being met) and appeal moot due to Louisiana proceedings | Court reversed: custody award to Rusty was an abuse of discretion because Rusty had not remedied risk factors, C.W. deteriorated in his care, and mother was a safer, willing caretaker; court also reversed dismissal of jurisdiction |
Key Cases Cited
- Sara M. v. Superior Court, 36 Cal.4th 998 (Cal. 2005) (reunification vs. child’s need for permanency framework)
- In re Marilyn H., 5 Cal.4th 295 (Cal. 1993) (parents’ reunification interest is paramount until §366.26 set; burden on parent to show changed circumstances after reunification ends)
- In re Stephanie M., 7 Cal.4th 295 (Cal. 1994) (post-reunification presumption favoring continued foster care; shifting focus to child’s need for permanency)
- In re Maria Q., 28 Cal.App.5th 577 (Cal. Ct. App. 2018) (procedures at permanency planning hearings and review)
- D.T. v. Superior Court, 241 Cal.App.4th 1017 (Cal. Ct. App. 2015) (section 366.3 subdivision (f) purpose and burden allocation)
- In re I.G., 226 Cal.App.4th 380 (Cal. Ct. App. 2014) (abuse of discretion to return dependent child to parent found to pose risk)
- In re Joseph D., 19 Cal.App.4th 678 (Cal. Ct. App. 1993) (temporary emergency jurisdiction under UCCJEA does not permit making permanent custody determinations that conflict with another state’s existing order)
- In re Karla C., 186 Cal.App.4th 1236 (Cal. Ct. App. 2010) (conflicts between oral pronouncement and written order do not cure substantive legal errors)
- In re Damonte A., 57 Cal.App.4th 894 (Cal. Ct. App. 1997) (court may not find a parent poses danger then order child placed with that parent without proper basis)
- In re Jasmine D., 78 Cal.App.4th 1339 (Cal. Ct. App. 2000) (juvenile court must not dismiss dependency when continuing supervision is needed)