In re C.W.
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
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.
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.) “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.) The critical juncture is when a hearing pursuant to
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
After the selection of a permanent plan, periodic review hearings must be conducted pursuant to
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.” (
Notwithstanding the requirement that the court consider “return home” as a permanent plan option for a child in foster care (
The conduct of this case strayed significantly from this framework. Chronic departures by the court from these statutory requirements led almost inevitably to the errors that Heather asks us now to review.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Commencement of This Case, Failed Reunification and the Selection of a Permanent Plan
When C.W. was born in July 2002, his parents, Heather and Rusty, were married. Not long after, his father left both wife and child and eventually moved across the country, to Louisiana.4 C.W.‘s father started a new family there, remarrying and having two more children with his second wife.
After leaving his California family, Rusty had practically no contact with C.W. From approximately age three until age five, C.W. saw his father only three times (once a year), and then once more in July 2009 at age seven. After that, Heather stopped all visits because she found out Rusty had been arrested on aggravated rape charges. According to Rusty, Heather at that point “eliminated me from [C.W.‘s] life.”
The rape charges that surfaced were not the only accusations of sexual assault Rusty had faced since leaving his California family. In October 2004, before Rusty moved to Louisiana, the four-year-old daughter of a woman he was dating accused him of sexual abuse. The three were living together in Sonoma County. In somewhat lurid
Rusty claimed that after he was released from jail, he tried to contact C.W.‘s mother but couldn‘t locate her (Heather disputed this).
Meanwhile, C.W. was growing up in California, living with his mother who struggled with addiction. Eventually in 2012, she became homeless and was arrested on drug charges. In August of that year, she left C.W., then 10 years old, to live with her own mother and her mother‘s husband, ostensibly temporarily until she could find a
On May 28, 2013, when C.W. was not quite 11 years old, the Sonoma County Human Services Department (the Agency) initiated this case, after learning of C.W. through his grandparents’ efforts to initiate guardianship proceedings. It alleged, pursuant to
C.W. wanted contact with his mother and eventually to live with her again, but he “absolutely” didn‘t want any contact with Rusty, whom he didn‘t regard as his father and whom he could recall seeing only twice in his life, and whom C.W. recalled as “mean.” He did not want to be placed with his father during the dependency and refused even to have visitation.
The court subsequently found true the allegations, declared C.W. a dependent ward of the court, and ordered reunification services. For reasons not apparent, Rusty‘s case plan did not include any objectives or services designed specifically to address the sustained allegations concerning his history of sexually abusing minors.6 Heather was permitted to have supervised visitation, but Rusty was not permitted any visitation until C.W. was willing to have contact. C.W. was initially placed with his grandparents, but due to his grandmother‘s erratic behavior he was later moved to a foster home.
Two months after services were terminated, in May 2014, C.W. was removed from the home of the foster parents who had expressed interest in adopting him, when it was discovered he had been inappropriately touching a seven-year-old girl who lived there, in a sexual manner. He was placed into a group home.
At the uncontested section 366.26 hearing, which took place on July 23, 2014, shortly after C.W. turned 12, the court selected two somewhat conflicting permanent plans.8 In one written order, it found that it was likely C.W. would be adopted, that termination of parental rights would not be detrimental but that no adoptive parent had
B. The Three-Year Permanency Phase, Including C.W.‘s Strengthening Bond with His Mother While in Foster Care, His Father‘s Complete Disappearance for a Year, Followed by a Visit to His Father in Louisiana from Which He Never Returned
The Agency concedes in its respondent‘s brief that “this case is a bit unorthodox.” And from this point forward, it certainly was.
For reasons not apparent from the record, the Agency did not submit any report by the December 11, 2014 deadline concerning efforts to locate an adoptive family, as the court had ordered it to do.10 And at the first permanency review hearing, on January 15, 2015, again for reasons not apparent, the court adopted proposed findings that the Agency had complied “with the permanent plan of a planned permanent living arrangement with confidential placement, and a specific goal of a less restrictive foster care setting continues to be appropriate.” (Italics added.) With the adoption of that
About a year and a half later, and two years after a permanent plan had been selected, 14-year-old C.W. traveled to Louisiana on July 11, 2016, to visit his father and, as it turned out, would not return. Nothing in the record indicates Heather was told this would happen, or that the court had approved C.W.‘s trip before he went.12 By that point, the only progress Rusty had made toward appropriate parenting had been to recently re-establish contact with his son, after two years of remaining largely absent from his son‘s life.13
On the other hand, C.W. by this point had developed a close and supportive relationship with his mother. The two had developed a “strong bond,” Heather‘s visits had increased measurably, and she had been working supportively with both the Agency and C.W.‘s foster parents. For two consecutive review periods, the Agency had consistently described her as “an asset to the treatment plan” for her son and “an essential component to [his] potential for overall success.” And C.W. had been thriving in his
Three days after C.W. began his Louisiana visit, a section 366.3 review hearing took place, on July 14, 2016, during which neither the Agency nor anyone else disclosed C.W. was already in Louisiana. The parties merely discussed an upcoming 16-day “vacation” in Louisiana, which prompted concerns from Heather, but the juvenile court approved the trip after the Agency reassured the court it had conducted a “virtual tour” of Rusty‘s home. It also ordered that “[f]ollowing proper notice to parties,” the Agency was “authorized to begin a trial home visit with the mother and father prior to the next review hearing.”15
Sixteen days after C.W. went to Louisiana, Heather and her attorney were informed during a court-ordered settlement conference that a new plan was in place (the record does not indicate by whom): starting August 4, C.W. would live with Rusty in Louisiana and attend school there. In a phone message, the Agency‘s counsel also notified Heather‘s counsel that the visit “was now a trial home visit” and that C.W. would not be returning to California. There had been no notice or hearing on the change in plan.
C.W.‘s situation, including his relationship with his father, deteriorated badly in Louisiana. He started ninth grade at a local high school but had behavioral problems, got suspended, asked to resume his psychotropic medication and struggled academically. Eventually he was expelled for downloading pornography and then enrolled in an alternative school his father described as a “boot camp.” At home, he was having personality clashes with his father, struggling with behavioral issues, and pushing back against Rusty‘s “strong boundaries and expectations.” He also ran away once and was missing for several hours.
All of this culminated at a contested hearing on September 8, 2017, approximately six months after C.W. had been expelled from Rusty‘s home and more than a year after C.W. had left California. By this juncture, the Agency was recommending the case be terminated, with orders that C.W. continue to remain under his father‘s care and custody. Also pending was a section 388 petition Heather had filed six months earlier, asking the court to return C.W. to her on a trial home visit. (See footnote 16, ante.)
The court opened the final hearing by framing the issue, initially, as a decision on where C.W. should live if the case were to be dismissed. With the issue thus framed, C.W.‘s lawyer opposed dismissal. C.W. didn‘t want to live with his father and wanted to be returned to his mother yet, according to counsel, “there needs to be some mechanism or something that forces that removal from dad into mom‘s home full time.” In addition, his counsel expressed safety concerns because Heather “hasn‘t had the requisite contact with him.” The Agency urged dismissal, contending C.W. had been “legally placed” with Rusty already, there were no changed circumstances that would justify now removing C.W. from the treatment program and placing him with Heather, and “services are being provided by [Rusty] to ameliorate the issues that the family is currently experiencing.” Rusty‘s counsel contended the dependency proceedings themselves were imperiling C.W.‘s welfare. Judicial oversight, counsel maintained, was “stalling” C.W.‘s treatment progress because his providers had encountered difficulty securing treatment authorizations when Heather, Rusty and CPS had been unable to agree.
The court next invited argument by Heather‘s counsel, and then summarily denied her section 388 petition in a colloquy reflecting some confusion:
“[Mother‘s counsel]: Your Honor, I‘m not sure if this is opening statement on the [section 388 petition] or on the dismissal but—
“THE COURT: Well, again, the case is on today, really, should the Court grant a hearing, an evidentiary hearing on the [section 388 petition]? [¶] So—it is your motion.
“[Mother‘s counsel]: Correct. And that was filed back in March.
“THE COURT: Right.
“[Mother‘s counsel]: And I think the request is still there; mother is requesting essentially a trial home visit. Given what‘s happened since March, I think the request for a trial home visit would be to take place when [C.W.] is finished with his treatment in Louisiana and then at that point she would step in and take care of him on a trial home visit. [¶] The overlapping issue of dismissal then is—if the case is dismissed, the
argument is mother should have custody rather than father? And we have this unusual situation where it‘s called family maintenance right now, but [C.W.] is really in the care and custody of Louisiana Methodist Children‘s Home. So if the case is dismissed, it seems like it‘s right now a strange situation to have—I guess in anticipating [C.W.‘s] exiting from this children‘s home, she would be requesting custody of him at that time.
“THE COURT: But as it‘s framed right now, wouldn‘t the motion really be, should the Court remove the child from his current therapeutic placement and place him in the home of the mother; . . . is that not the request?
“[Mother‘s counsel]: Based on what was filed back in March, I think he was in the care of father at that time and she was requesting that the care be transferred to her.
“THE COURT: At the present time, given the child‘s placement, the Court does not believe that there has been a sufficient showing to justify an evidentiary hearing on the [section 388 petition]. So that request is denied.”
The court then solicited opening statements on what it characterized as the Agency‘s “motion to dismiss” the case. Rusty‘s counsel argued, again, in favor of dismissal on the theory that Heather had been interfering with C.W.‘s treatment and “had not been compliant” with his treating clinicians. Heather‘s counsel argued there was still a substantial risk of harm to C.W. if the case were dismissed, because he was not yet done with treatment. He also argued Heather very much wanted to be involved in his treatment and had tried to be, but had been blocked. And, he argued that Heather was ready and willing to take care of C.W. when he finished the program and asked that he be returned to California. The court then shared lengthy comments equating the propriety of either retaining or terminating jurisdiction with the question whether either parent could now “help fix the child.”18 After these comments, the Agency and C.W.‘s counsel both
That final hearing phase began with the arguments of counsel. Rusty requested sole legal and physical custody, with only supervised visitation for Heather, in a manner to be determined by C.W.‘s treating physicians. The Agency concurred, but was open to unsupervised visitation “if it‘s therapeutically appropriate.” Heather asked for physical and legal custody of C.W. after he finished his treatment at the children‘s home, with visitation “as appropriate” for Rusty. Barring that, she objected to supervised visitation for her and to conditioning her visitation on a treating physician‘s approval. C.W.‘s counsel declined to take a position, struggling with the conundrum that “there is no way to split the baby in this case” and not yet wanting the case dismissed.19
Carmel Papworth-Barnum. A social worker with an outside homeless advocacy organization, Carmel Papworth-Barnum, who had worked with Heather for the past year to help her find housing, testified that Heather had found a new job, and a two-bedroom unit with a year-long lease that was just waiting for inspections to finalize. She described Heather as “a delight” to work with, and “a determined and persistent person” who “doesn‘t give up,” despite the obstacles of having a Section 8 voucher in a tight Sonoma County housing market.
Social Worker Sydney Ferris. Next to testify was Sydney Ferris, the Agency‘s social worker who had been assigned to the case in December 2016, approximately five months after C.W. arrived in Louisiana. According to Ferris (and contrary to the Agency‘s legal position), the Agency had not definitively decided it would be best for C.W. to return to his father. She also testified, vaguely, that Louisiana child protective services had begun investigating Rusty but had closed their case, although there was a possibility they would step in if the juvenile court dismissed the case in California. Ferris also testified that C.W. had told her (twice, as recently as their last contact in July) that he didn‘t feel safe in his father‘s home, didn‘t want to live with his father whom he said needed anger management, had seen Rusty use a belt on some of his other children, and recently left a therapy session with his father after only eight minutes. She also testified there had “definitely” been breaks in C.W.‘s family therapy with his father and stepmother, “due to the fact that [C.W.] was not interested and that there was this ongoing investigation.”
Ferris testified that the only way in which Heather had tried to block any of C.W.‘s treatment was by once declining to consent to some psychotropic medication that his doctors had approved for him. Ferris explained Heather was upset when she found out that she hadn‘t been consulted in advance about it and that Rusty had approved it, since she was the one who held the rights to approve C.W.‘s psychotropic medication. According to Ferris, Heather was upset with the treatment program (for not consulting with her); Rusty was upset with Heather (for not approving it); and the treatment program
Ferris also described various ways in which Heather‘s access to her son had been curtailed since he had begun living in the children‘s home. Heather hadn‘t been allowed to participate in family therapy because C.W.‘s treatment team was focused first on family therapy with Rusty, “because that‘s who he was planning to return home with.” Heather was not allowed to call her son, and was allowed to have phone calls from him only if supervised. Yet she had one supervised visit with C.W. in January that went very well, where they spent time together enjoying New Orleans and were both “very happy” to see each other, and nothing inappropriate took place. She wanted to visit him again in March but the Agency wasn‘t willing to pay for it.
Ferris also testified briefly about the measures the Agency had taken to find a suitable facility in California for C.W. It applied to one facility in California that would not accept C.W., to another in Nevada and contacted the state to ask about other facilities that focused on the kinds of behaviors C.W. was exhibiting. Once the Louisiana Methodist Children‘s Home accepted C.W., the Agency stopped its search.
Heather. Heather testified about dramatic changes she had made in her life since the case began. She was working full-time as an accounting clerk at a local auto body shop, with full pay and medical insurance, and she also had a second job working part-time as an in-home health aid. She had been clean and sober for two years, after having successfully completed a drug treatment program. In addition, all drug offenses against her had been dismissed; she had been released from probation early; and she was eligible to seek expungement of the two criminal charges that remained on her record. She also didn‘t think there was any danger of relapse: she didn‘t want to do anything to compromise her relationship with her son, and she believed that if anything would trigger a relapse it would have been “the very significant emotional trauma” she had endured in the case, and yet despite those stresses she had remained clean and sober. She had gone to counseling, where she gained “a lot of insight . . . and some better understanding of myself and my own behaviors as well as . . . the mistakes that I made as a parent.”
Heather testified about her involvement in C.W.‘s life before he went to Louisiana, including regular unsupervised overnight weekend visits, a two-week visit together when she cared for him without incident, and her efforts to work closely with his foster parents for nearly a year (“they were really great people“). She testified, “I did my best to be as involved and supportive to them and to him while he was in their care.”
She also addressed concerns about C.W.‘s behaviors. Right around the time their overnight visits began, it came to light C.W. had been accessing pornography. She testified he never did that when he visited with her, and she had no hints he was engaged in any sexual behaviors with one exception. In the spring of 2016, the social worker (Ferris’ predecessor) invited her to attend a school conference with C.W.‘s foster parents because of “an incident surrounding inappropriate touching in school.” Heather became very upset and had to excuse herself from the meeting, because she felt the social worker was shaming C.W., talking in front of him as if he were a sexual predator.
Heather also testified about how her contact with C.W. declined once he went to Louisiana. After having enjoyed regular unsupervised, overnight visits with C.W. while he was in California, she had only infrequent phone contact with him once he began living with Rusty because the calls were required to be monitored, which puzzled her. Asked why she didn‘t call her son more frequently, she explained that she had been “blindsided” by what had occurred in the case, didn‘t understand why things took the turn that they did or why her calls had to be supervised, and was just frustrated and “struggling” to come to grips with everything. When she tried raising her concerns about supervised phone calls with the social worker, the social worker refused to address the subject. She also tried to contact C.W. through his Facebook account but got no
Heather also testified about the difficulties she’d encountered trying to be involved in C.W.’s treatment in Louisiana. She asked several times to be allowed to participate in family counseling with her son, but she was told the program would need to request the Agency’s approval and then nothing came of it. She also had reached out several times just asking for information about her son’s progress; eventually she was promised monthly written status reports, but she received only two and then the reports stopped. She also made clear, repeatedly, to her primary point of contact in C.W.’s program that she was available to offer any support they thought was appropriate. Yet despite her many attempts to be involved, she felt her relationship with her son wasn’t being acknowledged or supported while he was in Louisiana.
She denied ever blocking C.W.’s treatment in the program, including with respect to medications. She testified she had worked with C.W.’s doctors to get him medication when needed ever since C.W. was five years old, and “I have never been against him taking medication.” She was simply opposed to “not being notified of him even taking medication until that decision was already made,” a problem that she testified was reflective more generally of her being excluded from his treatment. As for the prospect of C.W. coming back to California, Heather testified she was “absolutely” willing to get C.W. whatever treatment or follow-up counseling he might need, and could pay for it either personally or through her employer-sponsored insurance.
Heather had written her son only three times since he entered the program and had received just one letter back until the previous day when C.W. emailed her, reiterating what he said in his letter that was introduced into evidence: that he missed her and wanted to live with her. Asked why she hadn’t written him more often, she testified that she had wanted more contact but was at a loss for an explanation, in part because of the long gaps in him writing her back as well as the constraints the program had placed on her. As she put it, “I feel like I’ve gotten conflicting information, and I really don’t know
Asked why she thought it wasn’t in her son’s interest to return to his father, she testified that C.W. wanted to be with her not Rusty, and “obviously, it’s not working,” citing for example his expulsion from school, running away and “all of these behaviors” that were happening while in his father’s care. “Obviously . . . there’s a problem, and perhaps we need to, you know, value his opinion or maybe look at it.” She also testified she didn’t think it was necessary for her to have supervised contact with C.W., and still didn’t understand why that had occurred.
Asked why she thought it was in her son’s best interest to live with her once he finished his treatment program, she testified in her own words, poignantly, that it was because she believed she had overcome the problems that led the court to declare her son a dependent of the court: “I honestly feel like [C.W.] was never removed from my custody for me abusing him in any way. I struggled with substance abuse and had placed him in the care of my mother and that’s how the case originated. There has never been any modeling [sic] of my parent to be able to say that I can’t parent or to say that I can’t—and I just feel that I should be allowed the opportunity to try to parent my child. [¶] I mean, I’ve turned my life around and—I’m aware of, you know, his needs as much as I can be or as much as I’ve been made aware of and I completely want to parent my child and offer him whatever support he needs and be a part of his life.”
After entertaining brief argument, the court ruled from the bench that Rusty would be awarded full custody of C.W. It also suggested, initially at least, the matter should be revisited later. Here is what it said (italics added):
“[A]t this point in time the Court does . . . not believe that joint physical custody is appropriate and I do believe, given the state of the evidence right now, custody to father is appropriate. [¶] So any order that I issue today is subject to review. Once your son is done with treatment, then that will be a change in circumstance, we’ll see where that is. My job is to determine where your son should be today, with what parent. You know, I believe the current placement with your child in the program he’s in is appropriate.
“[HEATHER]: I do too. “THE COURT: And I believe that the father being right there is in a better position to run that. When he’s out of treatment, then it’ll be up to the Court to determine what’s the next step. [¶] My job today is to figure out what today’s step is. I don’t have a crystal ball. As things change and develop, as he completes the program, that’s going to be a different situation; we’ll see where he is mentally.”
The court then directed the parties to meet and confer about visitation, and when the parties went back on the record to announce they’d reached an agreement, another colloquy ensued in which the court again indicated the disposition was not intended to be permanent (italics added):
“[HEATHER’S COUNSEL]: I guess the one issue that kind of gets to me is, I mean, Children’s Home has custody of [C.W.] and it seems like that should be reflected in the court order. Right now it’s like this fiction that dad has custody when he doesn’t.
“THE COURT: Well, he legally has legal and physical custody of the child. The child is in placement. I mean, as I mentioned, the next step is what happens when he gets out? [¶] So if you want to write in there that there’s an agreement that there be a reassessment upon contemplation of his graduation or expulsion. I mean, I think that’s—as I said, I can’t crystal-ball what’s going to happen. I can’t make orders today that would encompass that event. But as you look today, he needs to be somewhere and no one’s disagreeing that this is a bad place or—this is meeting his needs currently. So I’m fine with that language.” (Italics added.)
When Rusty then asked whether “jurisdiction” for reassessing custody would be in California or Louisiana, the court offered some final comments that were inconsistent with its previous remarks and also reflected a puzzling view of its own supervisory role: “Under the Uniform Code, we’re looking at where is the child’s home state? The home state of the child is where has the child been living for six months before the Court is being asked or where does the child have a strong connection? Although, the connection has been here, that would be a conversation that if there’s a controversy between the parents that a Louisiana judge would have with a Sonoma County judge. [¶] Now, again,
The court then announced that it was signing findings and orders, and the parties waived their reading. The court entered written findings the Agency had “complied with the case plan by making reasonable efforts and taking whatever steps necessary to finalize the child’s permanent plan,” the permanent plan “to remain home is appropriate,” and “the conditions which existed within the family that justified the original assumption of jurisdiction no longer exist.” It entered two written orders dismissing the case, without qualification. And it entered a custody order awarding sole legal and physical custody of C.W. to Rusty, with four limitations: “1. Mother to have phone calls as arranged through therapist. [C.W.] to call when he wants. 2. Mother may write letters as often as she wants. 3. Mother to have visits in Louisiana as she is able, and as therapeutically driven. 4. Parties agree that issues be reassessed upon graduation or expulsion from Louisiana Methodist Children’s Home.”
Heather then timely appealed the court’s orders.
D. Subsequent Events
In November 2017, the month after the court terminated its jurisdiction, and while C.W. was still living in the residential treatment program, Louisiana child protective services removed Rusty’s other two children from his custody due to physical abuse, and he was ordered to have no contact with them. Then, in December 2017, Rusty was arrested for two counts of sexual battery involving his wife’s nine-year-old daughter. He was released from jail on bond the following month, in mid-January 2018, on the condition he not return to his home, and after his release from jail he removed C.W. from the residential treatment facility.
We were apprised of these post-judgment developments in a motion to dismiss this appeal (discussed below), and thereafter we contacted the Louisiana court in writing in order to apprise it of this appeal and the fact that there were parallel dependency proceedings concerning the same minor in our courts. We informed the Louisiana dependency court that the parties to this appeal had briefed the question of our subject matter jurisdiction under the
DISCUSSION
I. Summary of the Parties’ Positions
Heather challenges several rulings, on many grounds. She contends the juvenile court erred: (1) by allowing C.W. to live in Louisiana with his father on a “trial home visit“—which she contends was done improperly without notice, without any ruling on her objections and without any judicial review after 90 days, all in contravention of the court’s own local rules (see
C.W. joins in his mother’s argument that the court erred in dismissing jurisdiction, and maintains the court should have retained jurisdiction until he finished his treatment program in Louisiana so that he could have then been returned to his mother’s custody in California per his wishes. In response to our request for supplemental briefing, he stated that if we reverse the dismissal of jurisdiction, then the question whether the juvenile court should maintain continuing jurisdiction after his return to his mother in California should be left to the juvenile court to decide in the first instance based on current circumstances.
The Agency, for its part, initially asked us to dismiss this appeal as moot or, alternatively, to affirm the juvenile court’s rulings. It initially defended all of the court’s rulings on the merits, and also argued Heather waived many of her arguments and failed timely to appeal from appropriate rulings in various ways. And its mootness argument, presented in an initial motion to dismiss this appeal, was premised on the theory that Louisiana’s assertion of jurisdiction over C.W. while this appeal was pending deprived this court of subject matter jurisdiction over C.W. under the
As matters now stand, father is the only party who argues in favor of allowing the juvenile court’s orders to stand.22 He joins fully in the Agency’s (now largely disavowed) respondent’s brief and also in the Agency’s initial motion to dismiss this appeal which, as said, was premised on an interpretation of the
Although some of the issues in this appeal now are clearly moot in light of C.W.’s return to his mother’s custody in California, the appeal in its entirety is not moot.23 That is because of our conclusion, as now conceded by virtually everyone in this case, that under the
The
In this case, the juvenile court made an initial custody determination governed by the
None of this is to say that Louisiana did not properly assert its jurisdiction in the circumstances of this case. The
juvenile court’s decision to terminate jurisdiction as an indication the juvenile court declined to exercise jurisdiction under the
Because California courts have continuing, exclusive jurisdiction over C.W., we have subject matter jurisdiction over this appeal and the power to afford effective relief. The appeal is not moot. Despite C.W.’s return to Heather’s custody by order of the Louisiana court, only a court of California has jurisdiction to decide issues affecting his permanent legal custody, and presently the California juvenile court has vested permanent legal custody with his father. We now proceed to address these issues as they have been framed in the context of this appeal.
III. The Trial Court’s Custody Decision
This is a procedurally messy, factually complicated case. But it is not very hard. Although the parties have raised many issues, and many claims of error by Heather give us significant pause and raise troubling concerns, we do not need to decide most of the issues the parties have briefed in view of the most significant, overriding reason to reverse: the award of sole legal custody of C.W. to his father.
The court’s exit custody order was issued pursuant to
We review a juvenile court’s decision to terminate jurisdiction and to issue an accompanying exit custody order for abuse of discretion, and may not disturb such rulings unless the court made an ” ‘ ” ‘arbitrary, capricious or patently absurd determination.’ ” ’ ” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
We start with the court’s finding that “the conditions which existed within the family that justified the original assumption of jurisdiction no longer exist,” which is not supported by substantial evidence with respect to Rusty.27 In June 2013, the court sustained allegations C.W. was in substantial danger in Rusty’s custody due to Rusty’s history of sexually inappropriate behaviors toward three other minors (
Awarding sole custody of C.W. to his father in these circumstances was an abuse of discretion. After reunification has failed, a permanent plan has been selected and the focus of proceedings has shifted from reunifying parent with child in favor of providing the child with a permanent and stable home, it thwarts the entire point of our dependency scheme for a juvenile court to surrender a child back to such a parent, by relinquishing its jurisdiction and awarding that parent full and exclusive legal custody of the child. “It is a clear abuse of discretion to make findings that a minor is at risk in [a parent’s] home, yet return the minor home and terminate supervision and dependency.” (In re I.G. (2014) 226 Cal.App.4th 380, 387.) Doing so abrogates the court’s statutory duty to protect every minor within its jurisdiction, wherever placed. (See id. at pp. 387–388 [reversing order granting mother custody and terminating jurisdiction];
The juvenile court, by contrast, provides the state a forum to ‘restrict parental behavior regarding children, . . . and . . . to remove children from the custody of their parents or guardians.’ [Citation.] When, as in this matter, a juvenile court hears a dependency case under section 300 of the Welfare and Institutions Code, the court deals with children who have been seriously abused, abandoned, or neglected. The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child’s circumstances when making decisions regarding the child. [Citation.] Accordingly, although both courts focus on the best interests of the child, ‘[t]he presumption of parental fitness that underlies custody law in the family court . . . does not apply to dependency cases’ decided in the juvenile court.” (In re Chantal, at p. 201; see also id. at p. 208.) Furthermore, the hurdle is high for the family court to change an exit custody order issued by the juvenile court: there must be a “significant change of circumstances” and modification must be in the child’s best interests. (
In light of all of these circumstances (and as now effectively conceded by the Agency), it was a clear abuse of discretion to award custody of C.W. to Rusty. Simply put, it is difficult to fathom the court’s willingness to permit Rusty to have custody of C.W., when Rusty had done nothing to rectify the dangers he posed as a parent, his relationship with C.W. had soured, C.W.’s mother had vastly improved her own parenting capabilities yet had been permitted ever diminishing contact with her son, and C.W.’s own behavior and emotional health had deteriorated so badly in Rusty’s care that he ended up banished from his father’s household and in trouble with the law.
In light of our conclusion the court erred in awarding custody to Rusty, it is unnecessary to consider separately whether the court erred by terminating its jurisdiction, a ruling that on its face gives us pause. It necessarily follows from our decision on the custody question that the court’s termination of jurisdiction must also be reversed, because the two rulings are interwoven and connected. (See Estate of McDill (1975) 14 Cal.3d 831, 840; Marriage of Rosan (1972) 24 Cal.App.3d 885, 899.) An appellate court ” ‘must have power to do that which justice requires and may extend its reversal as far as may be deemed necessary to accomplish that end.’ ” (McDill, at p. 840.)
That said, we would be remiss if we did not state the obvious. Heather assured the juvenile court years ago, shortly before it terminated her reunification services and at a time when she was still struggling with addiction, that “I will do whatever it takes to become the mother [C.W.] needs and once had,” and “I don’t want it to be this way nor
DISPOSITION
Both motions to dismiss this appeal are denied. The requests encompassed within those motions to take judicial notice of records from the Louisiana dependency court proceedings are granted. The juvenile court’s orders terminating jurisdiction and related exit orders awarding sole custody of C.W. to Rusty are reversed, and the case is remanded for further proceedings consistent with this opinion. The clerk of this court is directed to send a copy of this opinion immediately upon its filing to the clerk of the Louisiana juvenile dependency court.
STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
Trial Judge: Hon. Lawrence E. Ornell
Counsel:
Karen Elcaness, 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, under appointment by the Court of Appeal, for Respondent Father.
Deborah Dentler, under appointment by the Court of Appeal, for Minor.