In re Suhey G. ( 2013 )

Filed 11/21/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re SUHEY G., A Person Coming Under B247969
the Juvenile Court Law.
(Los Angeles County
ESTEBAN G., Super. Ct. No. CK92510)
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Debra L. Losnick, Juvenile Court
Referee. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied in part and granted in
part, with directions.
Los Angeles Dependency Lawyers, Inc., Law Office of Marlene Furth,
Danielle Butler Vappie and Diane Nicola, for Petitioner, Esteban G.
Office of the County Counsel, John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Real Party in Interest.
___________________________________________
INTRODUCTION
By petition for an extraordinary writ, Esteban G. (father) asks us to vacate the
trial court’s order (1) for an evaluation of him under the Interstate Compact on the
Placement of Children (ICPC) and (2) setting a selection and implementation hearing
pursuant to Welfare and Institutions Code1 section 366.262 as to his daughter,
five-year-old Suhey G. (Suhey). Father contends that the court abused its discretion in
ordering an ICPC evaluation because the ICPC does not apply to out-of-state
placements with a parent. Father further contends that the court erred in setting
a section 366.26 hearing without requiring the Department of Children and Family
Services (Department) to show that placement of Suhey with father would be
detrimental to her under section 361.2.3
We issued a stay of the section 366.26 hearing and an order to show cause and
the Department responded. We have reviewed the petition on the merits and conclude
that the court erred to the extent it set a section 366.26 hearing and denied father a fair
opportunity to present his case for relief under section 361.2.4 The petition, however,
1
Unless otherwise stated, all statutory references are to the Welfare and
Institutions Code.
2
Section 366.26 governs the termination of parental rights of children adjudged
dependents of the court.
3
Section 361.2 governs placement of a child with a noncustodial parent when the
child is initially removed from parental custody.
4
As we discuss below, subsequent events have substantially altered the posture of
this case. The Department, therefore, argues that father’s petition has become moot.
We disagree, but, in any event, the importance of the issues raised in this matter and the
2
will be denied as to father’s objection to the trial court’s order for an ICPC evaluation
on the ground that the trial court did not abuse its discretion in ordering such an
evaluation.
FACTUAL AND PROCEDURAL BACKGROUND5
On March 12, 2012, the Department filed a petition alleging, among other things,
that (1) Suhey had been physically abused by mother, Brenda L. (mother), (2) mother
abused methamphetamine, and (3) Suhey and her infant brother6 had been exposed to
violent conduct between mother and mother’s male companion. Although the
Department possessed county records indicating that father’s last known address was in
the state of Idaho, the Department served father with notice of the detention hearing at
his last known street address in “Idaho, California.”7 At the detention hearing, the
Department reported that father’s “whereabouts were unknown.” The court found that
father was Suhey’s presumed father and ordered the Department to present evidence of
due diligence in its attempts to locate father. The children were ordered detained and
likelihood of their reoccurrence, justifies the exercise of our discretion to retain
jurisdiction in order to consider and resolve those issues. (Environmental Charter High
School v. Centinela Valley Union High School District (2004) 122 Cal. App. 4th 139,
144; City of Morgan Hill v. Brown (1999) 71 Cal. App. 4th 1114, 1121 at fn. 5.)
5
Our discussion of the chronological factual context in which this case arose is
very detailed but is important to our consideration and resolution of the issues
presented.
6
Suhey’s brother is not related to father and is not a subject of this writ
proceeding.
7
We take judicial notice of the fact that there is no city of “Idaho” in California.
(Evid. Code, § 452, subds. (g) and (h).)
3
were placed in the home of maternal aunt. The Department was ordered to provide
mother with family reunification services.
The Department attempted to serve father with notice of the
jurisdiction/disposition hearing at the “Idaho, California” address once again. The
record shows that the notice was returned to the Department as “not deliverable as
addressed.” At the hearing on April 23, 2012, the court sustained the petition’s
allegations under section 300, subdivisions (a) and (b).8 The Department filed
a declaration documenting its efforts to locate father and stating that his whereabouts
remained unknown.9 At the hearing, mother was ordered to participate in counseling
and random drug testing, and was allowed monitored visits with Suhey. The court
further ordered that mother be provided with reunification services but denied
8
Section 300, subdivision (a) provides that a child comes within the jurisdiction of
the juvenile court when the child has suffered, or there is a substantial risk the child will
suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s
parents. Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if
the child has suffered, or there is a substantial risk the child will suffer, serious physical
harm or illness as a result of the parent’s failure to adequately supervise or protect the
child.
9
In a “Declaration of Due Diligence,” the Department listed its attempts to locate
father which included searching records of “Lexis Nexis,” the “California Child Support
Automation System,” the “Federal Bureau of Prisons,” “WCMIS,” “CWS/CMS,”
Los Angeles County central booking, “Global Locate,” the California DMV, the Idaho
Department of Corrections, the Ada County Jail in Idaho, the “Election Information
System,” and “CYA.” The Department also did a “Postal Record Search” at father’s
last known address in Idaho, and “telephoned” the “California Prison/Parole Locater,”
the “Los Angeles County Registrar Recorder of Voter Records,” and the “Los Angeles
County Probation Dept.”
4
reunification services to father pursuant to section 361.5, subdivision (b)(1) on the
grounds that his whereabouts were unknown.10
In a report prepared for the six-month review hearing, the Department stated that
mother was not fully compliant with her drug treatment program, had failed to appear
for the majority of her drug tests, and had often missed scheduled visits with the
children. The Department recommended terminating mother’s reunification services.
On October 22, 2012, the court set the matter for a contested six-month review hearing
on January 8, 2013. The only attempt to again serve father was the mailing of a notice
to the same address in “Idaho, California.”11
On December 5, 2012, father contacted the Department and stated that he wanted
custody of Suhey. Maternal relatives had informed him about the proceedings.12 Father
said that he had lived with mother for the first year of Suhey’s life. After he and mother
separated, he tried to get visitation with Suhey but mother would not cooperate. He said
that mother had “kept Suhey away from” him for the past two to three years. Maternal
aunt also said that mother had threatened to report father to immigration services for
being in the U.S. without documentation if he tried to obtain custody of Suhey. Suhey
10
Section 361.5, subdivision (b)(1) provides that “[r]eunification services need not
be provided to a parent . . . when the court finds, by clear and convincing
evidence . . . [t]hat the whereabouts of the parent . . . is unknown.” (Italics added.)
11
The record does not indicate whether this notice was returned by the postal
service.
12
The Department’s documented efforts to locate father had not included asking
maternal relatives about his location.
5
said that she remembered father and that she would like to visit with him. Father started
talking with Suhey by phone several times a week.13
On December 21, 2012, the Department received a child abuse referral from
a mandated reporter14 who expressed “concern” about a “bluish purple” bruise three
inches in diameter around Suhey’s left ear. The reporter also stated that Suhey said she
was afraid to go home. The Department investigated the referral. When asked about
the bruising, Suhey said “she could have fallen on the play ground at school,” then
“immediately corrected herself and said that she was running at school [,] [and] [s]he
ran into an object and hit the side of her face against a pole at school.” Suhey said she
was not hit or spanked by maternal aunt.
Maternal aunt said that Suhey must have been injured at school, and denied
hitting or spanking Suhey or her own children. When one of Suhey’s cousins was asked
about the bruising on Suhey’s face, she said “ ‘I don’t know who did it.’ ” The other
two cousins said that they did not know how Suhey received the bruise. The
Department noted that several school personnel expressed concerns about Suhey, but
concluded that “the allegation of physical abuse of Suhey [] by an unidentified
perpetrator was determined to be inconclusive.”
13
The record also indicates that father now pays child support for Suhey.
14
The Child Abuse and Neglect Reporting Act requires that specified persons
called “mandated reporters” report suspected child abuse or neglect to local authorities.
(Penal Code, § 11166.) The Penal Code lists 37 mandated reporters, including teachers,
peace officers, firefighters, and physicians. (Penal Code, § 11165.7,
subds. (a)(1)-(a)(37).) As we discuss below, this was the first of five such reports.
6
On January 8, 2013, the Department filed an Interim Review Report with the trial
court stating that Suhey seemed “happy and comfortable in the home of the current
caregivers.” The report did not inform the court about the child abuse referral. Father
appeared at the six-month review hearing on January 8, 2013, and counsel was
appointed to represent him. The court continued the hearing to February 7, 2013 to
allow father’s counsel time “to get familiar with the case.” On that date, father’s
appointed counsel was ill and another attorney stood in for her. Father’s temporary
replacement counsel said that he had not reviewed the file or spoken with father yet and
asked for a continuance to allow father’s appointed counsel an opportunity to appear in
court on this matter. The court denied the request and the hearing went forward.
The Department reported that father had visited Suhey in California, and had
maintained daily contact with her since he had returned to Idaho. Suhey seemed “happy
and comfortable” when speaking about father and said she might like to live with him.
The trial court terminated mother’s reunification services, ordered that father be given
services to assist him with visiting Suhey, and ordered an ICPC evaluation. The court
noted that maternal relatives “seemed very favorable of the father” and that “Suhey had
a very good -- had very good visits with him when he was visiting her.” On the same
day, February 7, 2013, the court set a section 366.26 hearing for June 5, 2013, stating
7
that it believed it was required to set the hearing, and that “in any event, [] that would
also give us the update on the I.C.P.C.” Father’s writ petition followed.15
The Department’s records reflect that, on February 19, 2013, a second child
abuse referral had been generated.16 A mandated reporter said Suhey had “green and
purple” bruising on her face, that it looked like the child had been hit, and that Suhey
came to the reporter and said “I don’t want to go home.” The Department investigated
the referral. Maternal aunt was “exasperated” and verbally aggressive when the
investigator came to her home and said Suhey was “very clumsy, and often falls and
injures herself.”
The Department’s investigation also determined that Suhey, her three cousins,
and maternal aunt had all given different accounts of how Suhey received the bruise but
each one denied that anyone had hit Suhey. Two of Suhey’s cousins said that maternal
aunt spanked them. However, maternal aunt said she disciplined the children “with
time outs or taking away their privileges.” The Department concluded that the abuse
allegations were “unfounded.”
On February 25, 2013, the Department filed an Interim Review Report with the
trial court stating that “[f]ather stated that . . . [1] he and his home were ready to meet
all of Suhey’s needs, [2] he has looked into the school that Suhey will be attending and
15
Father’s petition included a request for a stay of the section 366.26 hearing
scheduled for June 5, 2013. On May 15, 2013, we issued a stay of that hearing pending
further order of this court.
16
These records, which documented the Department’s continuing activities in this
case, were filed, as supplemental records, in this case on August 26 and September 24,
2013 while these writ proceedings were pending.
8
[3] he was committed to fully care for Suhey.” The Department further stated that it
had “made a referral to ICPC for father in Idaho” and identified the long-term plan for
Suhey as reunification and placement with father. The report did not inform the trial
court about the two child abuse referrals reflected in its records.
On March 28, 2013, the Department filed a “Last Minute Information for the
Court” with the trial court stating that the “ICPC Coordinator” had not received the
referral for father, but that the forms were later submitted on March 20, 2013, almost six
weeks after the court had ordered the ICPC investigation. At a progress hearing on
March 28, 2013, the court gave the Department the discretion to liberalize father’s visits
and release Suhey to him. The Department, however, did not do so.
On April 24, 2013, a third child abuse referral was generated. A mandated
reporter said that Suhey had a “swollen purple and blue bruise (about [three] inches) on
her face from her cheek bone to her eye and the bruise appears like some[one] punched
her face.” The reporter “also stated that the bruise is similar to the ones that [Suhey]
had before,” and that the reporter was “concerned for the safety of Suhey in this home
because on [three] different occasions [recently], Suhey has been seen with bruises like
the one that she has today.”
The Department also investigated this referral. Suhey said she “hit her face on
the wheel of the bed” and denied that maternal aunt hit her. One of Suhey’s cousins
said that maternal aunt and uncle spanked her sisters, and that they also “hit” Suhey.
A second cousin, however, said that maternal aunt and uncle did not hit or spank her,
her sisters or Suhey. A third cousin said maternal aunt and uncle did not spank anyone.
9
Maternal aunt denied hitting or spanking the children, and said that Suhey had told her
she had hit her face on the bed. The Department determined that the abuse allegations
were “inconclusive.” This third report of injury to Suhey was likewise not reported to
the trial court.
On May 31, 2013, Suhey was asked if she wanted to live with father and she said
“that she did want to go and live with her father,” “that she talks to him on a regular
basis,” and “that he is nice to her.” Despite Suhey’s clearly expressed wishes and all of
the information in its files, on June 5, 2013, the Department filed a Section 366.26
Report identifying the long-term goal for Suhey as adoption and recommended
terminating father’s parental rights with no explanation as to why the goal had changed
from placement with father.17
In the Section 366.26 Report, the Department also briefly informed the trial
court, for the first time, that there had been three child abuse referrals over the past six
months concerning Suhey. The report set forth the dates of the referrals and stated
(1) that the referrals alleged that Suhey was the victim of “general neglect” by maternal
aunt and “physical abuse” by an “unknown perpetrator,” and (2) the Department’s
conclusion that the February referral was “unfounded” and the “likely disposition” for
the April referral was “inconclusive.” The Department, however, did not further inform
the court as to the substance of the abuse allegations or its investigation of the referrals,
but continued to recommend adoption by maternal aunt and uncle and, inexplicably,
17
The section 366.26 hearing at this time was still stayed pursuant to this court’s
order.
10
advised the court that “the family had developed an even closer loving relationship with
one another.”
At the June 5, 2013 hearing, the court again gave the Department discretion to
liberalize father’s visits with Suhey and to release Suhey to father. Again, however, the
Department did not do so. The court’s order did not address the alleged abuse of Suhey.
Less than two weeks later, a fourth child abuse referral alleging physical abuse was
made. A mandated reporter stated that (1) Suhey had a black eye with “swelling and
bruising” under the eye, (2) the reporter was concerned because this was the fourth child
abuse report for Suhey in the last six months, and (3) the child had a troublesome
pattern of absences from school whenever she was injured. The record does not reflect
the nature of investigation the Department undertook in response to this referral, but
indicates only that the investigation was never completed.
In late June or early July, maternal aunt brought Suhey in to the Department and
said she wanted to “give her up” and that she “didn’t want her anymore.” On July 31,
2013, the social worker conducted a visit and observed bruising on Suhey’s cheek.
When the social worker asked Suhey how she received the bruise, Suhey “could not say
but shrugged her shoulders.” Maternal aunt said that Suhey fell.
In spite of all of these circumstances, on August 8, 2013, the Department filed
a Status Review Report stating that Suhey was “thriving” in maternal aunt’s home, had
a “strong emotional attachment” to her, that maternal aunt was providing Suhey with
a “loving and stable environment.” The Department did not inform the court, in this
report, that maternal aunt had attempted to “give up” Suhey to the Department or that
11
a social worker had observed bruising on Suhey’s face the week prior. The Department,
however, did advise the trial court that a child abuse referral alleging physical abuse had
been made on June 17, 2013, and that it was “under investigation.”18
On August 8, 2013, the Department also submitted the results of the ICPC
investigation to the trial court which made only positive findings about father and his
home: (1) father and his wife were eager to have Suhey live with them; (2) had space in
their home for Suhey, a supportive family network, and several positive references; and
(3) were willing to participate in parenting classes and family counseling.19 Despite the
positive ICPC report and maternal aunt’s attempt to “give up” Suhey (and all of the
information it had in its files pointing to possible physical abuse), the Department’s
report nonetheless recommended that maternal aunt be allowed to adopt the child.
On September 13, 2013, one month after the initial oral argument before this
court, the Department received a fifth child abuse referral alleging that Suhey had
suspicious bruises. A social worker investigated the allegations and found that maternal
aunt had been physically abusing Suhey. Suhey was removed from maternal aunt’s
home, and the Department agreed to release her to father.
18
At the initial oral argument before this court, on August 13, 2013, the
Department’s counsel did not inform this court that there had been numerous child
abuse referrals relating to Suhey.
19
The Department’s counsel also failed to inform this court, on August 13, 2013,
that the ICPC investigation under review had, in fact, been completed, was in the
possession of the Department, and was favorable to father. In addition, counsel did not
inform this court that such report had been submitted to the trial court nearly one week
previously.
12
In a Detention Report filed on September 18, 2013, the Department, for the first
time, informed the trial court of the substance of the child abuse referrals going back to
December 2012. The Department also filed a section 38720 petition against maternal
aunt alleging that she had abused Suhey on numerous occasions by striking Suhey’s
face with a sandal. On September 25, 2013, the court sustained the petition and ordered
that Suhey be placed in the “home of parent - father under the supervision of the
[Department].” The court set a hearing for October 7, 2013, at which it would consider
an exit order for Suhey.
CONTENTIONS
Father contends that the court erred in ordering an ICPC evaluation of father
because the ICPC does not apply to out-of-state placements with a parent. More
significantly, father contends that the court erred in setting a section 366.26 hearing
without considering his request for custody of Suhey under section 361.2.
20
Section 387 provides that the Department may file a supplemental petition
seeking to remove a child from the physical custody of a relative based upon
a statement of facts showing that the previous disposition has not “been effective in the
rehabilitation or protection of the child.” A section 387 hearing is bifurcated into
“(1) an adjudicatory hearing on the merits of the allegations in the petition and
(2) a disposition hearing on the need for the removal of the [children] from [their]
current level of placement.” (In re Javier G. (2006) 137 Cal. App. 4th 453, 460.) At the
section 387 disposition hearing, the court applies the same procedures that govern
disposition hearings on a section 300 petition as set forth by the California Rules of
Court. (Cal. Rules of Court, Rule 5.565, subd. (e)(2).) These rules contemplate that
section 361.2 may be applied at the disposition hearing. (Cal. Rules of Court,
Rule 5.695, subd. (a)(7)(B).)
13
DISCUSSION
1. Standard of Review
“An order scheduling a permanency planning hearing is nonappealable but may
be subject to immediate writ review. (Welf. & Inst. Code, § 366.26, subd. (k).)” (In re
Catherine S. (1991) 230 Cal. App. 3d 1253, 1256.) 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
Merrick V. (2004) 122 Cal. App. 4th 235, 247.) Insofar as we are asked to resolve
questions of law, our review is de novo (In re A.L. (2010) 190 Cal. App. 4th 75, 78); but
with respect to whether the trial court erred in ordering an ICPC evaluation of father, we
apply the abuse of discretion test. (In re K.D. (2004) 124 Cal. App. 4th 1013, 1018.)
Although the Department argues that this appeal is now moot and urges us to simply
dismiss it, we disagree, and, in any case, may exercise our discretion to retain
jurisdiction of the matter in order to consider and resolve the issues raised by father
because they are important and of continuing interest.21 (Environmental Charter High
School v. Centinela Valley Union High School District, supra, 122 Cal.App.4th at
p. 144; City of Morgan Hill v. Brown, supra, 71 Cal.App.4th at p. 1121 at fn. 5.)
2. The ICPC Evaluation
Father contends that the court abused its discretion by ordering an ICPC
evaluation because the ICPC does not apply to out-of-state placements with a parent.
The ICPC is a compact among California and other states, the purpose of which is “ ‘to
21
The Department’s motion to dismiss is therefore denied.
14
facilitate the cooperation between states in the placement and monitoring of dependent
children.’ [Citation.]” (In re John M. (2006) 141 Cal. App. 4th 1564, 1573.) Pursuant to
the ICPC, no child shall be “sent, brought, or caused to be sent or brought into the
receiving state until the appropriate public authorities in the receiving state [] 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.” (Fam. Code, § 7901, art. (3), subd. (d).)
“Placement with an out-of-state parent need not follow ICPC procedure, as is
plain from the statutory language[:] . . . [¶] The ICPC governs conditions for
out-of-state ‘placement in foster care or as a preliminary to a possible adoption.’
[Citation.]” (In re John M., supra, 141 Cal.App.4th at p. 1573 (emphasis added); see
also In re Johnny S. (1995) 40 Cal. App. 4th 969, 979 [holding “that the provisions of the
ICPC are not mandatory in connection with placement of a child with a natural parent in
another state”].) However, although “ICPC compliance is not required for an
out-of-state placement with a parent, nothing in the ICPC prevents the use of an ICPC
evaluation as a means of gathering information before placing a child with such
a parent.” (In re John M., supra, 141 Cal.App.4th at p. 1572.)
Although an ICPC evaluation was not legally required prior to placing Suhey
with father, the court had discretion to use such evaluation “as a means of gathering
information” about father for the purposes of determining whether placing Suhey with
him would be detrimental to her. (In re John M., supra, 141 Cal.App.4th at p. 1572.)
Accordingly, the court did not abuse its discretion in ordering an ICPC evaluation of
father.
15
3. The Section 366.26 Hearing
Father argues that the court should not have set a section 366.26 hearing without
requiring the Department to meet its burden of showing that placement with father
would be detrimental to Suhey under section 361.2. Section 361.2 provides that, when
a court orders removal of a child, it must determine “whether there is a parent of the
child, with whom the child was not residing at the time that the events or conditions
arose that brought the child within the provisions of Section 300, who desires to assume
custody of the child.” If so, the court must place the child with that parent unless it
finds that doing so poses a risk of harm to the child. (§ 361.2, subdivision (a).)
“[Section 361.2’s] language suggests that the statute is applicable only at the time the
child is first removed from the custodial parent or guardian’s home.”22 (In re
Zacharia D. (1993) 6 Cal. 4th 435, 453.) Accordingly, the trial court would not generally
be required to conduct a section 361.2 analysis at a six-month review hearing.
However, the Department now agrees that a section 361.2 analysis would be
appropriate in this particular case given its inadequate efforts to locate father and
provide him with timely notice of these proceedings.23 The court’s denial of
22
Although section 361.2 applies only when the child is first removed from the
custodial parent’s home, its procedures must be followed if the court places a child with
a noncustodial parent at a six-month review hearing. (In re Janee W. (2006)
140 Cal. App. 4th 1444, 1451 [citing to C.R.C. Rule 1460]; see also C.R.C., Rule 5.710,
subd. (b)(2).)
23
We sent the parties a Government Code section 68081 letter asking them to
address how section 361.2 affected the proceedings. The Department addressed the
issue in two letter briefs, the second of which acknowledged that there were grounds in
the record for a finding that its search for father had been deficient, “rendering the
16
reunification services to father was based on the Department’s report stating that it had
conducted a diligent search for father and had served father with notice of the
proceedings at his last known address. As we further discuss below, it is clear from the
record that the Department failed to properly serve father with timely (or any) notice of
these proceedings. Therefore, a section 361.2 analysis would be appropriate.
“At the detention hearing, or as soon thereafter as practicable, the court shall
inquire of the mother and any other appropriate person as to the identity and address of
all presumed or alleged fathers.” (§ 316.2, subd. (a).) “If, after the court inquiry, one or
more men are identified as an alleged father, each alleged father shall be provided
notice at his last and usual place of abode by certified mail . . . . ” (§ 316.2, subd. (b).)
Here, father was identified as an alleged father at the detention hearing, and the
Department repeatedly attempted to serve him with notice at an address in the fictional
town of “Idaho, California.” The Department does not dispute that it failed to provide
father with notice at his “last and usual place of abode,” and that there was not “clear
and convincing evidence” that his whereabouts were unknown. (See fn. 23 ante.)
juvenile court’s decision to deny father reunification services based on his unknown
whereabouts, unfair.” Therefore, the Department suggested that the court reverse the
disposition order to the extent it “den[ied] reunification services to father
under . . . section 361.5, subdivision (b)(1), and remand the matter back to the juvenile
court to conduct a new disposition hearing as to father only and to conduct an analysis
under section 361.2.”
17
Serendipitously, father later found out about the proceedings from Suhey’s maternal
relatives.24 He then contacted the Department and sought custody of Suhey.
Had father received timely notice of the disposition hearing, he would have had
an opportunity to appear at that hearing and request custody of Suhey. If he had done
so, he would have been entitled to custody of Suhey under section 361.2 unless the
court made a finding that such custody would have been detrimental to Suhey. Instead,
the trial court denied father reunification services because it found, based on the
Department’s report, that his whereabouts were unknown. The court then set
a section 366.26 hearing to address the termination of parental rights and adoption of
Suhey by her then current caregivers. The Department argues that, at that point, father’s
interest in reunification was, in its view, no longer a paramount concern and the burden
shifted to him to file a petition under section 388 based upon changed circumstances in
order to have Suhey placed with him. (In re Marilyn H. (1993) 5 Cal. 4th 295, 309.)
We disagree with this conclusion by the Department.
The Department’s failure to properly serve father deprived him of the
opportunity to appear at the disposition hearing and obtain custody under the
section 361.2 framework. As a result, the burden should not have been shifted to father
to show that Suhey should be placed with him. Rather the burden was on the
Department, under section 361.2, to prove that placing Suhey in the custody of father
would be detrimental to her, because, due to the Department’s inadequate and
24
It appears from the record that the Department never inquired of those maternal
relatives as to father’s actual location, information which, in fact, such relatives had.
18
ineffective service efforts, the court never obtained jurisdiction over father. (In re
Arlyne A. (2000) 85 Cal. App. 4th 591 [holding that the trial court failed to acquire
personal jurisdiction over the father due to inadequate efforts to locate him and provide
notice].) Had the trial court been aware of the Department’s failure to properly serve
father, it would have proceeded to adjudicate father’s custody request under
section 361.2 rather than set the section 366.26 hearing. Thus, we agree with father that
he was entitled to have his claim for custody adjudicated under section 361.2.
It now appears that such claim has been, in fact, addressed. The record before us
indicated that the trial court did, effectively, apply section 361.2 at the section 387
hearing when it placed Suhey with father, and therefore, father has now obtained the
relief to which he was entitled all along.25 In our view, this result was not precluded by
In re Zacharia D., supra, 6 Cal.4th at p. 453.
4. The Department Failed to Adequately Address Evidence of Child Abuse
and Failed to Facilitate Reunification of Suhey with Father
This record clearly demonstrates that the Department failed to protect Suhey
from being physically abused by her maternal aunt. The multiple reports of child abuse
in this case deserved far more attention than was devoted to them by the Department.
Mandated reporters repeatedly notified the Department of their concerns that Suhey
showed marks of severe physical abuse and had stated that she was afraid to go home.
25
The California Rules of Court contemplate that section 361.2 may be applied at
the disposition hearing of a section 387 petition. (See Cal. Rules of Court, Rule 5.565,
subd. (e)(2) [providing that the procedures relating to disposition hearings govern
supplemental petitions under section 387]; Cal. Rules of Court, Rule 5.695,
subd. (a)(7)(B) [providing that, at the disposition hearing, the court may “order custody
to the noncustodial parent with services to one or both parents.”])
19
The Department’s own investigation of the abuse referrals revealed troubling
inconsistencies in maternal aunt’s and her children’s accounts of how Suhey received
her injuries and regarding maternal aunt’s use of corporal punishment. However, the
Department nonetheless concluded time after time that Suhey should remain in maternal
aunt’s home and was, in fact, thriving in her care.
The Department also did not keep the trial court informed about the reports or
evidence of abuse in the foster home, and misrepresented to that court the state of that
home. 26 For example, there is no way to reconcile the fact that maternal aunt brought
Suhey in to the Department in an attempt to “give her up” because she “didn’t want her
anymore,” and the Department’s subsequent report to the trial court that maternal aunt
was providing Suhey with a “loving and stable environment.”
Further, there is no justifiable explanation as to why it took almost six months for
the Department to inform the trial court about the multiple reports of child abuse in the
foster home, and almost ten months to inform it of the substance of those allegations.
The first child abuse referral occurred in December 2012, but it was not until June
2013 − after three child abuse referrals had been made − that the Department included
26
There is also no indication in the record that children’s counsel was informed
about the child abuse referrals. In our view, it should be part of the Department’s
responsibility to keep children’s counsel informed of all such referrals during the course
of a dependency case. Given that it is children’s counsel’s duty to advocate for the
“protection, safety, and physical and emotional well-being” of her client, the
Department should adopt a practice of providing timely notice to counsel of all such
referrals. (See section 317, subd. (c) [“A primary responsibility of counsel appointed to
represent a child or nonminor dependent pursuant to this section shall be to advocate for
the protection, safety, and physical and emotional well-being of the child or nonminor
dependent.”])
20
any information about these referrals in its reports to the court. Moreover, the
Department’s June 2013 report provided the court with only a minimal description of
the referrals − that there had been allegations of “physical abuse” by an “unknown
perpetrator” − and withheld from the court the fact that mandated reporters had
repeatedly reported severe bruising on Suhey’s face, that Suhey had said she was afraid
to go home, and that the Department’s investigations had revealed substantial
inconsistencies in the foster family’s accounts of how Suhey had received her injuries.
The Department (through its attorney) also failed to inform this court at the first oral
argument in this matter (August 13, 2013) as to critical information regarding such
abuse that it had in its possession.
The record in this case demonstrates that the Department failed to carry out its
goal of reunifying dependent children with non-offending parents. The Department
repeatedly gave notice to father at an address in a city that does not exist, and
recommended adoption by the maternal aunt − who was ultimately determined to have
abused Suhey over a period of ten months − over reunification with father despite the
positive reports about father and his home. In addition, while the trial court ordered the
Department to give father services to assist him with visiting Suhey, there is no
evidence in the record that the Department ever provided such services to him.27
27
From this record, we can only sadly conclude that the Department repeatedly
failed to discharge its responsibilities to both father and Suhey. It also appears that the
trial court was never provided with a full and complete statement as to all of the
material facts known to the Department until September 18, 2013 which was very late
in these proceedings and well after the initial oral argument before this court on
August 13, 2013. Finally, it appears to us that Suhey’s eventual reunification with
21
DISPOSITION
Father’s petition is denied with respect to the trial court’s order for an ICPC
evaluation. The petition is otherwise granted and, on remand, the trial court is directed
to conduct such further proceedings as may be required and which are consistent with
the views expressed herein. In all future proceedings in this case, the court’s order
placing Suhey with father shall be deemed to have been made under section 361.2.
CERTIFIED FOR PUBLICATION
CROSKEY, Acting P. J.
WE CONCUR:
KITCHING, J.
ALDRICH, J.
father resulted more from the chance occurrence of events than from the Department’s
exercise of the care and diligence that it owes to the people of Los Angeles County and
the dependent minor children entrusted to it.
22