33 Cal. App. 5th 835
Cal. Ct. App. 5th2019Background
- Dependency began when C.W., removed at age 10, was declared a dependent based on mother's substance abuse and father's history of sexually inappropriate conduct; reunification services were later terminated for both parents.
- Father (Rusty) lived in Louisiana, had prior accusations/convictions for sexual offenses against minors, and had minimal contact with C.W. before the dependency.
- The juvenile court selected a permanency plan (initially adoption/PPLA), but the Agency and court later permitted an unexplained visit to father in Louisiana that effectively became a prolonged placement without formal notice or required findings.
- While living with father, C.W.’s behavior and school performance deteriorated, culminating in sexualized conduct and placement in a Louisiana residential treatment program; father later removed C.W. from that program after his own arrest for sexual battery, triggering Louisiana emergency intervention.
- The Sonoma County juvenile court dismissed dependency jurisdiction and entered an exit order awarding sole legal and physical custody to father; Heather (mother) appealed. Louisiana later returned C.W. to mother and terminated its dependency case while this appeal was pending.
Issues
| Issue | Plaintiff's Argument (Heather) | Defendant's Argument (Father/Agency) | Held |
|---|---|---|---|
| Whether the appeal is moot given Louisiana proceedings | Not moot; California retains exclusive, continuing UCCJEA jurisdiction | Initially argued moot, later conceded California retains jurisdiction | Not moot: California had initial custody jurisdiction under the UCCJEA and continuing exclusive jurisdiction, so appellate review is proper |
| Whether juvenile court abused discretion by dismissing dependency and awarding sole custody to father | Abuse: father had unresolved history of sexual abuse, made no demonstrated progress, and C.W. worsened in his care; mother was rehabilitated and wanted custody | Argued dismissal appropriate because father was providing treatment and judicial oversight hindered progress; Louisiana had intervened | Reversed: award to father was an abuse of discretion; court lacked substantial evidence father no longer posed risk and C.W. deteriorated in father’s care |
| Whether the change to an apparent "trial home visit" / family maintenance placement complied with statutory procedures (notice, §366.3 review, §386, §387, Interstate Compact) | Change occurred without required notice, hearings, findings, or compliance with statutes and compacts; thus voidable | Agency defended its actions as reasonable under the circumstances and emphasized treatment needs | Court found significant procedural departures from statutory framework; these failures contributed to reversible error (court need not resolve every statutory point separately because custody ruling independently dispositive) |
| Whether temporary/permanent placement in Louisiana residential program and related placements were lawful | Placement required compliance with §361.21, §387, and Interstate Compact; those procedures were not followed | Agency claimed emergency and lack of in-state options justified placement | Court noted procedural irregularities and that some issues had become moot by developments, but emphasized juvenile court still had duty to protect child and could not abdicate by dismissing jurisdiction |
Key Cases Cited
- Sara M. v. Superior Court, 36 Cal.4th 998 (2005) (describing balance between reunification and child's need for permanence)
- In re Marilyn H., 5 Cal.4th 295 (1993) (parental reunification interest yields to child's need for prompt permanency once reunification services are terminated)
- In re Stephanie M., 7 Cal.4th 295 (1994) (presumption favoring continued out-of-home placement after reunification ends)
- In re Maria Q., 28 Cal.App.5th 577 (2018) (procedural posture and timing of section 366.26 hearings in permanency planning)
- D.T. v. Superior Court, 241 Cal.App.4th 1017 (2015) (burden on parent to prove further reunification appropriate under §366.3(f))
- In re Joseph D., 19 Cal.App.4th 678 (1993) (temporary emergency jurisdiction under predecessor scheme cannot make a permanent custody determination)
- In re I.G., 226 Cal.App.4th 380 (2014) (abuse of discretion to return a dependent to a parent previously found to present substantial danger)
- In re Chantal, 13 Cal.4th 196 (1996) (distinguishing juvenile and family court roles; juvenile court's parens patriae duty to protect dependent children)