In re E.S. CA2/3 ( 2022 )

Filed 2/22/22 In re E.S. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re E.S., A Person Coming B308916
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 19CCJP00863
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.H.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Martha A. Matthews, Judge. Affirmed.
Michelle E. Butler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Father challenges orders placing his daughter E.S. with
an out-of-state nonrelated family member and later terminating
dependency jurisdiction with a legal guardianship for the
nonrelated family member. Father contends the court made
the original placement order in violation of the Interstate
Compact on the Placement of Children (ICPC or Compact,
Fam. Code, § 7901 et seq.) and he maintains the evidence was
insufficient to support the court’s finding that returning E.S. to
his custody would be detrimental to the child’s health and safety.
He also argues the court erred in denying his petition to modify
the order terminating reunification services without a hearing.
(See Welf. & Inst. Code, § 388.)1 We affirm.
FACTS AND PROCEDURAL HISTORY
1. The Dependency Petition
E.S. was born in February 2010. Her half-sister Z.S.,
mother’s second daughter, was born in 2013. At the time of
detention, E.S. and Z.S. lived with mother in Los Angeles County.
Father lived in Colorado.
On January 3, 2019, the Los Angeles County Department
of Children and Family Services (Department) received a report
that mother had been arrested for child endangerment and public
intoxication after her Uber driver contacted law enforcement to
report mother was incoherent and did not have a car seat for Z.S.
E.S. was with a babysitter at the time of the incident.
On February 7, 2019, the Department filed a dependency
petition under section 300, subdivisions (b) and (j), alleging E.S.
and Z.S. were at risk of serious physical harm due to mother
1 Statutory references are to the Welfare and Institutions
Code, unless otherwise designated.
2
endangering Z.S. while intoxicated. The petition said father’s
“whereabouts [were] unknown.”
2. Efforts to Locate Father
Mother initially refused to provide the Department
with father’s contact information because she did not want
him “involved” in the case. Approximately two weeks after the
referral, she disclosed father’s name, but told her social worker
father suffered from mental health issues, he had “set himself
on fire,” and she had obtained a restraining order against him.
She provided a court order from Colorado designating her E.S.’s
“primary caretaker” with “[s]ole parental responsibility” and
granting father monitored visitation. Mother said she and E.S.
had not seen father since 2016, when he was in a “mental
hospital.”
In March 2019, the Department interviewed E.S. about
her relationship with father. E.S. said she last saw father
“[a] long time ago.” She did not recall talking to father on
the telephone. However, when asked how she got along with
father, E.S. responded, “He’s my best friend. He would take
me to the park and make cookies with me. My dad would take
me everywhere.”
On February 8, 2019, the juvenile court held a detention
hearing. The court found father to be E.S.’s presumed father,
detained E.S. from parental custody, placed her in foster care,
and ordered the Department to conduct a due diligence search
to locate father.
On March 14, 2019, the Department reported it had
initiated a due diligence search for father but still had not located
him. On May 16 and 20, 2019, the Department reported father’s
whereabouts remained unknown.
3
On May 20, 2019, the juvenile court sustained the petition
and declared E.S. a dependent child. The court continued the
disposition hearing because the Department still had not located
father.
On June 24 and August 20, 2019, the Department filed
due diligence reports detailing its continued but still unsuccessful
efforts to locate father.
3. Disposition
On August 22, 2019, the Department received a telephone
call from father, who said he had spoken with mother “a few
months ago” about E.S.’s dependency case. Father acknowledged
there was a Colorado custody order granting mother sole custody
of E.S., but he said he wanted to have the order changed because
mother was not allowing him to have consistent contact with
the child. He had not seen E.S. in person “for quite some time.”
He reported he was on disability and mother received child
support out of his disability income.
Father acknowledged he had set himself on fire while E.S.
was asleep in the house, but he said the incident was a “ ‘one-
time thing.’ ” He said he was treated medically for his injuries
and placed on a “72[-]hour hold.” He was ordered to participate
in and completed domestic violence, parenting, and individual
therapy services. He said he had never harmed himself again.
On September 4, 2019, father made his first appearance
in the case by telephone. He submitted to the court’s jurisdiction,
and the court noted he was “not offending in the petition.”
Father asked to have E.S. placed in his custody. The court
set the matter for a hearing and ordered the Department
to interview father and to work with Colorado authorities to
4
obtain a courtesy assessment of his home and information
on the family’s child welfare history in the state. 2
In advance of the hearing, the Department reported E.S.
and her half-sibling Z.S. had spent the Thanksgiving holiday
with Z.S.’s paternal family in Ohio. Both children enjoyed
their time together and were reluctant to leave.
The Department also interviewed father about the child
welfare case in Colorado. Father said the case began due to
mother falsely accusing him of physical abuse. He denied
abusing mother, despite a police report indicating multiple
witnesses saw him hit her. Father said the incident with the
police triggered a “ ‘mental breakdown’ ” that had been building
from “ ‘normal everyday stresses.’ ” He said he “ ‘just didn’t
have enough time to think about the situation’ ” and set himself
“ ‘on fire with lighter fluid and a lighter.’ ” He acknowledged he
was using alcohol at the time to cope with his personal problems
but denied he was under the influence of alcohol that day.
He also denied any suicidal ideation at the time or since then.
As a result of the incident, father claimed he “took a plea deal,”
which included admitting to the domestic violence charge and
participating in parenting, substance abuse, and domestic
violence counseling.
On December 3, 2019, the juvenile court held the
disposition hearing. The court released E.S.’s half-sister to
2 Following the hearing, the juvenile court held a conference
call with a Colorado judge regarding the existing custody order.
The Colorado court found “[t]he child and the child’s custodian
or parent no longer have a significant connection with Colorado”
and therefore the Colorado court “would not maintain or retain
jurisdiction” over the family.
5
her father’s custody in Ohio. Counsel for E.S. informed the court
E.S. wanted to live with her half-sister in Ohio and requested
an expedited request for ICPC approval. Father objected to
E.S. being placed in Ohio.
The juvenile court denied father’s request to have E.S.
placed in his custody, finding the Department had met its
burden of proof for removing the child from parental custody.
The court ordered E.S. to remain in her current foster placement
and ordered the Department to initiate an expedited ICPC
request regarding E.S.’s half-sister’s paternal grandmother
in Ohio. The court ordered the Department to “walk the
matter on” if it received ICPC approval. The court also granted
E.S.’s counsel’s request for an extended holiday visit with her
half-sister’s relatives in Ohio.
The court ordered reunification services for father,
including unmonitored telephone visits with E.S. at least
three times per week and monitored in-person contact as much
as possible. As part of his case plan, the court ordered father to
undergo a psychological assessment and psychiatric evaluation,
to take all prescribed medication, and to engage in individual
counseling, including mental health, child safety, and domestic
violence counseling. Although the court questioned whether
an ICPC approval for father’s home in Colorado was required,
it ordered the Department to initiate the process “[j]ust in case.”
4. Father’s Mental Health Evaluation
On January 9, 2020, father underwent a mental health
evaluation. Father’s records indicated he was hospitalized
in 2011 following the incident when he set himself on fire.
He had participated in therapy following his hospitalization
and was diagnosed with alcohol abuse and a mood disorder.
6
He received treatment in 2012 and 2013, attending
approximately 11 appointments and missing or cancelling nine.
Father was hospitalized again in 2016, when he reported feeling
suicidal due to an argument with a family member. His primary
care physician prescribed him antidepressants, but father was
not taking the medication.
Father’s records showed he began drinking alcohol
“ ‘on a daily basis at the age of 21’ ” and he was convicted of
two driving under the influence offenses. Father said he typically
drank one to three beers daily. He acknowledged he had a beer
before the incident when he lit himself on fire and, although
he stopped drinking while on probation, he resumed drinking
after his probation and continued drinking after he was released
from the hospital. Father denied that he had consumed alcohol
in the past “ ‘three or four years.’ ”
After interviewing father about his mental health history
and reviewing his medical records, the evaluator concluded father
met the criteria for depressive disorder and alcohol use disorder.
The evaluator recommended regular contact with mental health
professionals and “dual diagnosis evaluation and management”
to help father manage “the interplay between psychiatric and
substance abuse issues.”
The Department reported that it had discussed the court-
ordered mental health services with father on three occasions
between December 2019 and February 2020. Father told his
social worker he did “not need mental health services since
[he] participated in mental health services before.”
7
5. Travel Request, ICPC Approval, and E.S.’s Placement
with Her Half-Sister’s Grandmother in Ohio
On March 4, 2020, the juvenile court granted the
Department’s ex parte application for authorization to allow E.S.
to visit her half-sister in Ohio from March 13 to March 20, 2020.
On March 17, 2020, the Department informed father that
E.S. might stay in Ohio due to concerns over COVID-19. Father
said he was not happy about E.S. staying in Ohio. There is
nothing in the record to suggest the Department informed
the court about the change to E.S.’s out-of-state visit.
On May 5, 2020, the Department received ICPC approval
for the home of E.S.’s half-sister’s grandmother T.B. in Ohio.
There is no contemporaneous record of the Department “walking
on” the approval as the juvenile court had ordered; however,
a subsequent report filed by the Department on March 3, 2021
stated that E.S.’s placement with T.B. in Ohio began on May 15,
2020.
On July 22, 2020, the Department notified father that
Colorado’s ICPC unit had denied the request for approval for
placement in father’s home. When father questioned the basis
for the denial, his social worker encouraged him to contact
the Colorado ICPC unit to obtain more information. The social
worker also encouraged father to comply with his court-ordered
case plan to obtain mental health therapy, but father responded,
“[W]hat’s the point of doing anything, I am not going to be
reunified.”
In August 2020, the Department spoke with father again
about the need to follow the court’s order to obtain mental health
therapy. Father again said there was “no use to follow up
with anything,” as he lost his parental rights a long time ago.
8
On September 9, 2020, the Department reported E.S.
was residing with T.B. in Ohio. T.B. was meeting E.S.’s needs,
providing a nurturing environment, and establishing a strong
bond with E.S. E.S. called T.B. “ ‘grama’ ” and said she was
happy living with T.B. and her half-sister. She wanted to
continue living with them.
6. Section 366.21, Subdivision (e) Review Hearing
and Father’s First Appeal
On September 11, 2020, the juvenile court held a review
hearing under section 366.21, subdivision (e). Father attended
the hearing virtually. The court found the Department had
provided reasonable services and found the parents were in
“partial compliance with the case plan.” The court found that
returning E.S. to the parents’ custody would create a substantial
risk of detriment to the child and ordered continued out-of-home
placement with T.B. in Ohio.
On November 10, 2020, father filed an appeal from the
orders made at the September 11, 2020 hearing.
7. Combined Section 366.21, Subdivision (f) and
Section 366.22 Permanency Hearing
On November 18, 2020, the court held a permanency
hearing under sections 366.21, subdivision (f) and 366.22, which
father attended by telephone.
E.S.’s counsel supported termination of reunification
services, as the case was at the 18-month date. She said E.S.
now wished to return home to mother. Mother requested
E.S.’s return or a brief period of additional reunification services.
Father supported placement with mother. He also objected to
the termination of his services and requested a brief extension.
9
The juvenile court declined to return E.S. to mother,
finding mother was either in “denial about an underlying drug or
alcohol problem or . . . there is some sort of mental health issue,”
and it was “not a safe situation” for E.S. The court likewise found
placing E.S. with father would be detrimental to her health and
safety, citing father’s past “mental health issues,” his limited
contact with E.S., and the lack of progress on his case plan.
The court terminated reunification services and set
a hearing under section 366.26. The court ordered the clerk
to provide the parents with the “writ advisement.” When the
Department’s counsel later asked the court if it gave the parents
the writ advisement, the court responded, “I did,” adding, “I said
the clerk of the court is to send them the writ advisement.”
8. Father’s Section 388 Petition for Modification
On March 17, 2021, father filed a section 388 petition
to modify the order terminating his reunification services by
restarting those services. With respect to changed circumstances,
father alleged he had been attending individual counseling since
February 2021 and his therapist reported “no concerns about his
mental health or stability.” Father said he was “making progress
towards his treatment goals” and he would “continue to engage
in mental health services.” With his petition, father submitted
a letter from a therapist confirming father had been “actively
involved in weekly psychotherapy from February 16, 2021
to present.” The therapist also said father exhibited “progress
towards established clinical goals,” he appeared “highly
motivated to enhance the relationship with his daughter,” he
appeared “competent in areas of child safety [and] protection . . . ,
with no direct clinical concerns,” and he presented “a low risk
with no active or recent suicidal/homicidal features that would
10
warrant concern regarding his ability to effectively parent
at this time.”
As for why the requested modification would be in E.S.’s
best interest, father’s petition alleged: “Father is dedicated to
being a stable and healthy parent for his daughter, and closing
this case with legal guardianship prior to exhausting all legal
available remedies for the child to live with and be cared for
by her own parent would be against the child’s best interest.”
9. Section 366.26 Hearing
On March 17, 2021, the juvenile court held the scheduled
section 366.26 hearing and considered father’s section 388
petition. The Department opposed the petition, arguing father
failed to make a prima facie showing that restarting reunification
services was in E.S.’s best interest. It recommended terminating
jurisdiction with legal guardianship in place for E.S.’s half-
sister’s grandmother T.B. in Ohio. E.S.’s counsel supported
the Department’s recommendation. Father objected to the
legal guardianship.
The juvenile court denied the section 388 petition,
concluding father failed to make a prima facie showing either
of changed circumstances or that restarting services would be
in E.S.’s best interests. The court acknowledged father was in
a “difficult position in that he lives in Colorado,” but determined
“enroll[ing] in therapy one month ago after the end of the
reunification period” was not sufficient to show changed
circumstances after the case had “been open for two years.”
And the court determined there “certainly” had not been
“a prima facie showing regarding best interest.”
The court found it would be detrimental to E.S. to return
the child to the parents’ custody, ordered legal guardianship
11
as E.S.’s permanent plan, and appointed T.B. the child’s legal
guardian with weekly virtual visits for father and twice yearly
monitored in-person visits in Ohio. The court terminated
jurisdiction and advised the parties they could return to court
to seek modifications to the guardianship in the future.
Father timely appealed the March 17, 2021 findings and
orders.
We consolidated father’s appeal from the September 11,
2020 orders with his appeal from the March 17, 2021 orders.
DISCUSSION
1. Good Cause Exists to Review the Placement Order,
Notwithstanding Father’s Failure to File a
Writ Petition Challenging the Order Setting
a Section 366.26 Hearing
In addition to appealing the order terminating jurisdiction
with a legal guardianship, father appealed the September 11,
2020 order, made after the section 366.21, subdivision (e) review
hearing, denying his request for physical custody and placing
E.S. with her half-sibling’s grandmother under the ICPC. Two
months later, while that appeal was pending, the juvenile court
held a combined 12-month and 18-month permanency hearing
under sections 366.21, subdivision (f) and 366.22, where the court
reaffirmed the out-of-state placement continued to be appropriate
and in E.S.’s best interests, terminated reunification services,
and set a section 366.26 hearing. The Department contends
this subsequent order rendered father’s appeal from the
September 11, 2020 placement order moot, and father’s failure
to challenge the order setting the section 366.26 hearing by
a writ petition forfeits his right to obtain appellate review of
the placement order. However, the record shows the juvenile
12
court failed to discharge its duty to give oral notice of the writ
requirement. In view of the court’s oversight, father has shown
good cause for his failure to file a petition for an extraordinary
writ challenging the subsequent placement order. (See
Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254,
259–260 (Jennifer T.); In re Cathina W. (1998) 68 Cal.App.4th
716, 722–724 (Cathina W.).)
“An order setting a section 366.26 hearing ‘is not
appealable; direct appellate consideration of the propriety of
the setting order may be had only by petition for extraordinary
writ review of the order.’ ” (Jennifer T., supra, 159 Cal.App.4th
at p. 260; § 366.26, subd. (l).) “In addition, ‘[a]ll court orders,
regardless of their nature, made at a hearing in which a section
366.26 permanency planning hearing is set must be challenged
by a petition for extraordinary writ.’ ” (In re Suhey G. (2013) 221
Cal.App.4th 732, 742; In re Merrick V. (2004) 122 Cal.App.4th
235, 247.)
“When the juvenile court orders a hearing under section
366.26, the court must orally advise all parties present that
if a party wishes to preserve any right to review on appeal of
the order setting the hearing under section 366.26, the party
is required to seek an extraordinary writ.” (Jennifer T., supra,
159 Cal.App.4th at p. 259; § 366.26, subd. (l)(3)(A)(i); see also
Cal. Rules of Court, rule 5.590(b)(1).)3 “The advisement must
include the time for filing a notice of intent to file a writ petition.”
(Rule 5.590(b)(3); see also rule 8.450(e)(4)(A).)
The record shows father was present by telephone at
the combined 366.21, subdivision (f) and section 366.22 hearing,
3 Rule references are to the California Rules of Court.
13
which the juvenile court held virtually due to COVID-19
restrictions. However, the hearing transcript reveals the court
verbally directed only the clerk to “provide [the parties] with
writ advisement.” The court did not verbally advise father of
the writ requirement, let alone of the time for filing a notice
of intent to file a writ petition. Indeed, when the Department’s
counsel later asked the court if it was going to give the writ
advisement, the court responded, “I did,” adding, “I said the
clerk of the court is to send them the writ advisement.” While
the minute order confirms the court clerk served the parties
with a written writ advisement, this was not sufficient to
satisfy the mandate to “orally” advise all parties present
of the requirement to file a petition for extraordinary writ.
(§ 366.26, subd. (l)(3)(A)(i); see Jennifer T., supra, 159
Cal.App.4th at p. 259.)
In Cathina W., the court held the juvenile court’s failure
to advise the mother of her writ rights constituted “good cause”
for the mother to obtain appellate review of the merits of
the setting order on her appeal from the termination order.
(Cathina W., supra, 68 Cal.App.4th at pp. 722–724.) Here, father
timely appealed the termination order and the September 11,
2020 order placing E.S. with an out-of-state caregiver under
the ICPC. He did not file a writ petition from the November 18,
2020 setting order, entered while his earlier appeal was pending,
in which the court reaffirmed the findings underlying the ICPC
placement. Due to the juvenile court’s failure to discharge its
duty under section 366.26, subdivision (l), we conclude good
cause exists to review the merits of his appeal from the initial
placement, as well as his challenge to the reaffirmed placement
findings as part of his appeal from the termination order.
14
(Cathina W., at pp. 722–724; see also Jennifer T., supra, 159
Cal.App.4th at p. 260 [construing appeal from order setting
section 366.26 hearing as a petition for writ of mandate].)
2. Father Fails to Establish Prejudice from the
Apparent Failure to Comply with ICPC Mandates
Father contends the Department failed to comply with
the juvenile court’s order to “walk the matter on” once it received
ICPC approval from Ohio, and he argues the court erred
in failing to confirm ICPC approval once E.S.’s March 2020
visit to Ohio became a placement under the ICPC. He argues
these errors require reversal of the placement order and
the subsequent guardianship. It appears from the record
that the Department and juvenile court failed to comply with
ICPC mandates; however, under the circumstances of this case,
we conclude reversal of the guardianship is not appropriate.
The ICPC is an agreement between California and other
jurisdictions that governs “sending, bringing, or causing any child
to be sent or brought into a receiving state for placement in foster
care or as a preliminary to a possible adoption.” (Fam. Code,
§ 7901, art. 3, subd. (b); In re Luke L. (1996) 44 Cal.App.4th 670,
681–682 (Luke L.).) The Compact “prohibits sending a minor into
the receiving state ‘until the appropriate public authorities in the
receiving state shall notify the sending agency, in writing, to the
effect that the proposed placement does not appear to be contrary
to the interests of the child.’ ” (Luke L., at p. 682; Fam. Code,
§ 7901, art. 3, subd. (d).) Thus, before making an out-of-state
placement, the juvenile court must receive and review written
confirmation from the receiving state that the home is safe,
stable, and appropriate. (See rule 5.616(d)(2).) Under section
366, subdivision (c), each review hearing “shall also address
15
whether the out-of-state placement continues to be the most
appropriate placement selection and in the best interests
of the child.”
“By its terms, the ICPC applies only to a placement.”
(Luke L., supra, 44 Cal.App.4th at p. 682.) An order sending
a child to an out-of-state person, other than a parent, “without
a specific date of return” or “with a return date more than
30 days from the start of the visit” constitutes a “placement.”
(Rule 5.616(b)(1)(B)(i) & (ii).) “[C]ontingent or conditional
placement orders” are not permitted. (Luke L., at p. 682.) Thus,
absent compliance with the ICPC, an order placing a child out
of state with someone other than a parent for more than 30 days
or without a specified return date constitutes a violation, even
if the “court ma[kes] its order contingent on completion of the
ICPC” requirements. (Id. at p. 682.)
Father contends the Department and the juvenile court
violated the ICPC by allowing E.S. to stay in Ohio beyond 30 days
without ICPC approval from the jurisdiction. The record shows
the juvenile court authorized E.S. to visit her sibling and
extended family in Ohio from March 13 to March 20, 2020, but,
on March 17, 2020, the Department informed father that E.S.
might stay in Ohio longer “due to [COVID]-19.” The Department
concedes this resulted in E.S. staying in Ohio without ICPC
approval from March 13 until May 5, 2020, when the Ohio home
was approved—a total of 53 days, which exceeded the 30-day
limit for a visit under rule 5.616. There is no dispute that this
violated the ICPC.
When a child remains in an out-of-state placement without
an approved ICPC the proper remedy for the violation is to
reverse the placement order. (Luke L., supra, 44 Cal.App.4th
16at pp. 673–674.) However, under the circumstance here, we will
not reverse the guardianship, as father requests. Before the date
of the section 366.26 hearing, the Department received the ICPC
approval from Ohio. Even if we were to reverse and remand
the placement order that father challenges, our disposition
would simply result in the juvenile court reinstating its original
findings upon finding that all ICPC requirements were met.
(See In re D’Anthony D. (2014) 230 Cal.App.4th 292, 303–304
[no reversal where placement order would be the same absent
error].) Because Ohio has approved the placement, there is
nothing further for the juvenile court to review and remand
to the court would serve no purpose. We cannot reverse the
order under these circumstances.4 (See Cal. Const., art. VI, § 13
[reversal not permitted if outcome would have been the same
absent error]; In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122
[harmless error analysis applies when statutory mandate is
disobeyed].)
3. Substantial Evidence Supports the Detriment
Finding
At each of the hearings held under sections 366.21,
subdivision (e)(1), 366.21, subdivision (f)(1), and 366.22, the
juvenile court is required to order the return of the child to
the physical custody of her parent “unless the court finds, by
a preponderance of the evidence, that the return of the child to
4 In reaching this conclusion we in no way sanction the
Department’s apparent disobedience of the juvenile court’s
visitation order or the resort to after-the-fact ICPC approval.
This practice not only contravenes the explicit mandates of
the ICPC, but it also subjects the Department to the possibility
of sanctions. (See Fam. Code, § 7901, art. 4.)
17
his or her parent . . . would create a substantial risk of detriment
to the safety, protection, or physical or emotional well-being of
the child.” (§§ 366.21, subds. (e)(1) & (f)(1), 366.22, subd. (a)(1).)
We may reverse the court’s order declining to return the child
to her parent’s custody only if there is no substantial evidence
to support the detriment finding. (Angela S. v. Superior Court
(1995) 36 Cal.App.4th 758, 763 (Angela S.).)
Father contends the Department unlawfully delegated
its duty to investigate his home and current circumstances to
Colorado authorities, without conducting its own investigation
or presenting independent evidence of detriment to support
the court’s finding. In that regard, father emphasizes that the
ICPC procedure does not apply to placement of a child with an
out-of-state parent. (Rule 5.616(g) [“When a child will be placed
with his or her parent in another state, compliance with the
requirements of the ICPC is not required.”]; Tara S. v. Superior
Court (1993) 13 Cal.App.4th 1834, 1837 [law “limits the ICPC to
foster care and possible adoption—neither of which would involve
natural parents”]; cf. rule 5.616(g) [concerning out-of-state
parent, juvenile court may direct child welfare agency to request
an independent, non-ICPC home study or courtesy check, or
request a home study from public or private agency in receiving
state, and take any other steps necessary to ensure child’s
safety].)
While the record shows the Department advised father
to consult Colorado authorities about the reasons ICPC approval
of his home was denied, it does not establish the juvenile court
relied upon Colorado’s determination to find returning E.S.
to father’s custody would create a substantial risk of detriment
to the child. Contrary to father’s contention, the Department’s
18
reports presented substantial evidence, independent of the
Colorado ICPC determination, to support the juvenile court’s
detriment finding.
On January 9, 2020, father underwent a mental health
evaluation that determined he met the criteria for depressive
disorder and alcohol use disorder. The evaluator also reported
father failed to participate regularly in mental health services
in Colorado; he had a history of suicidal ideation; he attempted
suicide by setting himself on fire; he refused to take prescribed
psychotropic medication; he had a history of drinking alcohol
to the point of blacking out; and he had multiple convictions
for driving under the influence. Regarding the attempted suicide,
the evaluator suggested the act could have been “the result of
a chronic mental illness (or illnesses), an acute psychiatric issue,
or a combination of mental illness and situational factors.”
The evaluator recommended father engage in “dual diagnosis”
treatment to address both disorders and “the interplay
between psychiatric and substance abuse issues.” Despite
this recommendation and the juvenile court’s order to obtain
treatment, the Department’s reports disclosed that father
persistently rebuffed his social worker’s suggestion that he follow
the court’s order and enroll in mental health services. In each
instance father either responded that he did not need mental
health services or that there was “[no] point [to] doing anything”
as he was “not going to [be] reunified.”
The Department’s reports also disclosed that father
had not had regular contact with E.S. When the Department
began its due diligence search for father in March 2019, mother
reported father had last seen E.S. in 2016 and E.S. said she last
spoke with father “[a] long time ago.” In May 2020, after telling
19
the Department he did not feel comfortable contacting E.S. in
Ohio, father took no action on his social worker’s offer to
personally arrange a call. In July and again in September 2020,
father failed to follow up on the Department’s request for a phone
visitation schedule with E.S. And, although the Department
reported father had contacted E.S. in September, October, and
November 2020, it again noted he had not provided a schedule
for regular visitation with the child.
Contrary to father’s contention, in making its detriment
finding, the juvenile court made no reference to the Colorado
ICPC denial. Rather, the court observed, consistent with the
mental health evaluation, that “father had struggled with some
fairly serious mental health issues” and, although he “appeared
to be in a somewhat better situation,” he had “had very little
contact with [E.S.] and ha[d] made very little progress on his
case plan.” Because the evidence presented in the Department’s
reports supported those observations and the court’s detriment
finding, we cannot reverse the placement order. (See Angela S.,
supra, 36 Cal.App.4th at p. 763.)
4. Father Failed to Allege Sufficient Facts to Establish
Restarting Reunification Services Would Be in E.S.’s
Best Interests
“Under section 388, a parent may petition the court to
change, modify, or set aside a previous court order on the grounds
of changed circumstances or new evidence.” (In re Justice P.
(2004) 123 Cal.App.4th 181, 188 (Justice P.); § 388, subd. (a).)
The petition must allege why the requested change is “in the
best interest of the dependent child.” (§ 388, subd. (b)(1).) “If it
appears that the best interests of the child . . . may be promoted
by the proposed change of order . . . the court shall order that
20
a hearing be held.” (§ 388, subd. (d).) “However, the court
may summarily deny the motion if the petition fails to make
a prima facie showing (1) of a change of circumstances or new
evidence requiring a changed order, and (2) the requested change
would promote the best interests of the child.” (Justice P., at
pp. 188–189; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
“[A] petition must be liberally construed in favor of
its sufficiency [citation] and a hearing may be denied only
if the application fails to reveal any change of circumstance
or new evidence which might require a change of order.” (In re
Jeremy W. (1992) 3 Cal.App.4th 1407, 1413–1414, footnote
omitted, citing rule 1432(a) & (b).) “In determining whether
the petition makes the necessary showing, the court may consider
the entire factual and procedural history of the case.” (Justice P.,
supra, 123 Cal.App.4th at p. 189; see In re Jamika W. (1997)
54 Cal.App.4th 1446, 1450–1451.)
Father contends his petition plainly made a prima facie
showing of changed circumstances. He notes that when the court
terminated services in November 2020, it found he had made
little progress in his services and had limited contact with E.S.
At the time, father had completed a psychological evaluation
but had not enrolled in therapy, despite the court’s order to do so
in December 2019. Father maintains his section 388 petition
demonstrated “a substantial change” in that he had started
attending weekly therapy sessions in February 2021 and his
therapist reported he presented a “low risk with no active or
recent suicidal/homicidal features that would warrant concern
regarding his ability to effectively parent at this time.” The
Department counters that enrolling in treatment more than
two months after reunification services were terminated and
21
only one month before the section 366.26 hearing is not sufficient
to warrant a hearing under section 388. (See In re Edward H.
(1996) 43 Cal.App.4th 584, 594 (Edward H.) [“on the eve of
the section 366.26 permanency planning hearing—the children’s
interest in stability was the court’s foremost concern and
outweighed any interest in reunification”]; In re Ernesto R.
(2014) 230 Cal.App.4th 219, 223 [“[T]he change in circumstances
must be substantial.”].)
We need not decide whether one month of mental health
treatment represented a sufficient change in circumstances to
warrant a hearing, because we agree with the juvenile court that
father’s petition “certainly” did not make a prima facie showing
that delaying permanency to restart reunification services would
promote E.S.’s best interest. With respect to the child’s interest,
father’s petition alleged: “Father is dedicated to being a stable
and healthy parent for his daughter, and closing this case
with legal guardianship prior to exhausting all legal available
remedies for the child to live with and be cared for by her own
parent would be against the child’s best interest.” The implicit
premise of this allegation is that custody with a natural parent,
as opposed to a nonrelated guardian, is presumptively in the
child’s best interest. However, “[t]he presumption favoring
natural parents by itself does not satisfy the best interests prong
of section 388.” (Justice P., supra, 123 Cal.App.4th at p. 192.)
As the Justice P. court explained, “[t]he cases that state a
child may be better off with his or her biological parent rather
than with strangers do so when the biological parent has
shown a sustained commitment to the child and parenting
responsibilities.” (Ibid., italics added, citing Adoption of
22
Kelsey S. (1992) 1 Cal.4th 816, 844–849; In re O.S. (2002)
102 Cal.App.4th 1402, 1411.)
The entire factual record and procedural history of
the case does not reveal the sort of sustained commitment
to E.S. necessary to presume delaying permanency to allow
father another chance to reunify would have promoted the child’s
interest. (See Justice P., supra, 123 Cal.App.4th at pp. 189, 192.)
Before the family came to the Department’s attention, a Colorado
court had entered a custody order granting mother sole custody
of E.S. after father pled guilty to a charge of domestic violence
and was found to have endangered E.S. by lighting himself
on fire while the child was asleep in the home. Mother reported
she and E.S. had not seen father since 2016, and E.S. said she
had not spoken with father for “[a] long time.” Throughout the
reunification period, father’s social worker repeatedly encouraged
him to comply with the court’s order and enroll in mental health
treatment. Father persistently rebuffed this advice, telling his
social worker he did not need mental health services or there
was “no use to follow up with anything” as he lost his parental
rights a long time ago. When his social worker offered to
facilitate phone visits with E.S. and requested a visitation
schedule from father, father failed to follow up with the social
worker’s requests. And, as the Department emphasizes, after
the case had been pending for nearly two years, father waited
for two months after his reunification services were terminated
finally to enroll in treatment. The factual record demonstrated
at most that father was ready to start committing himself
to reunification—not the sort of sustained commitment to E.S.
and his parental responsibilities necessary to show delaying
23
permanency for the chance to reunite with a natural parent
would be in E.S.’s best interest.5 (Justice P., at pp. 189, 192.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P.J. LIPNER, J.
5 Father argues the guardianship with T.B. “did not offer
[E.S.] the permanency of placement with her Father.” This
contention overlooks that father’s petition did not seek placement
and made no allegation to dispute the court’s finding that
returning E.S. to father’s custody would be detrimental to
the child. Rather, father’s petition sought only to delay the
permanent plan for E.S. by restarting the reunification process.
When father presented his section 388 petition on the eve
of the section 366.26 hearing, E.S.’s interest in stability was
the court’s foremost concern and outweighed any interest in
the mere possibility of reunification with her natural father.
(See Edward H., supra, 43 Cal.App.4th at p. 594.)

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
24