Tehama County Department of Social Services v. L.K.
201 Cal. App. 4th 51
| Cal. Ct. App. | 2011Background
- Mother L.K. learned Z.K. was in Tehama County foster care and sought custody, while dependency proceedings were advancing toward a 366.26 adoption plan for the foster mother.
- Mother had been unavailable to participate earlier; reunification services had been terminated for both parents before she appeared, and no detriment finding against her was made.
- The department delayed notice and pursued termination of parental rights without clear and convincing evidence that placing Z.K. with mother would be detrimental.
- Despite information about mother’s move to Ohio, the ICPC process was pursued variably; Ohio denied placement initially, but the department considered placement with mother pending ICPC outcomes.
- Mother improved her housing and income, completed parenting classes, obtained employment, and moved toward placement, while the ICPC process remained unsettled and a second ICPC study was not completed.
- The juvenile court terminated parental rights on a record lacking a detriment finding and ordered adoption; the court subsequently remanded for placement with mother with instructions regarding potential disposition options.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process requires a detriment finding before terminating parental rights when noncustodial parent seeks custody | L.K. argues detriment must be shown clearly and convincingly. | Department contends no explicit detriment finding is required at 366.26. | Detriment finding required; reversal and remand. |
| Whether the disentitlement doctrine bars this appeal | Department argues disentitlement applies due to failure to complete ICPC/psych eval. | Department contends the appeal is foreclosed by disentitlement. | Disentitlement does not apply here. |
| Whether placement with mother could be considered under 361.2 and ICPC without a prior detriment finding | Mother seeks placement and argues ICPC need not be conclusive to deny detriment. | ICPC denial reflected concerns but does not negate potential placement. | Placement with mother requires detriment findings; ICPC result cannot substitute for such finding. |
| Whether a section 388 petition was necessary to alter custody considerations at 366.26 | Mother sought placement; error to proceed without section 388 petition. | Parties treated placement as possible without a petition. | Court erred by not requiring a section 388 petition to modify custody; remand recommended. |
| Whether improper weighting of ICPC and lack of completed psychological evaluation supported severance of parental rights | No clear and convincing evidence of detriment; ICPC denial and lack of evaluation do not prove detriment. | State agencies relied on ICPC and evaluations to justify termination. | Termination reversed; remand for placement with mother with proper procedures. |
Key Cases Cited
- In re Gladys L., 141 Cal.App.4th 845 (Cal. App. Dist. 2nd) (due process requires clear and convincing detriment finding before termination)
- In re Frank R., 192 Cal.App.4th 532 (Cal. App. Dist. 4th) (detriment finding required at 366.26)
- In re Isayah C., 118 Cal.App.4th 684 (Cal. App. Dist. 4th) (nonoffending parent has statutory right to placement absent detriment)
- In re Marilyn H., 5 Cal.4th 295 (Cal. 1993) (placement at 366.26 not ordinarily reconsidered; section 388 petitions available)
- Tara S. v. Superior Court, 13 Cal.App.4th 1834 (Cal. App. Dist. 2nd) (ICPC framework and out-of-state placement procedures)
- In re John M., 141 Cal.App.4th 150 (Cal. App. Dist. 4th) (ICPC applicability to foster care and interstate placement)