Filed 10/25/11; pub order 11/23/11 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
In re Z. K., a Person Coming Under
the Juvenile Court Law.
TEHAMA COUNTY DEPARTMENT OF SOCIAL
(Super. Ct. No. J11421)
Plaintiff and Respondent,
Defendant and Appellant.
In many ways, this case represents a mother‟s worst
nightmare come horrifyingly to life.
Five years after her
husband disappeared with their infant son (Z. K.) from Las
Vegas, Nevada, the child‟s mother (L. K.) -- who had returned to
her home state of Ohio but had never stopped looking for her son
-- discovered over the Internet that the child was in Tehama
County, California, where her husband had been arrested and the
child placed in foster care.
Mother immediately contacted the
Tehama County Department of Social Services (the department) to
Presumably because of mother‟s meager
financial circumstances (she was on government aid as she
pursued a college degree), she could not arrange for an
immediate reunion with the minor, but she clearly expressed that
she desperately wanted him back.
Unfortunately, by the time mother managed to locate Z. K.,
the dependency proceedings had already progressed to the stage
of the hearing to select a permanent plan for the child (Welf. &
Inst. Code,1 § 366.26) -- which in this case was adoption by the
current foster mother.
Despite this fact, under the law mother
had a constitutional right to custody of her child unless and
until someone proved by clear and convincing evidence that
giving her custody would be detrimental to the minor.
nobody in Tehama County -- not the department, not mother‟s
court-appointed attorney, and not the court -- recognized or
acknowledged this right.
Instead of presuming, as the law
required, that placement of Z. K. with mother would be to his
benefit and trying to determine if there was clear and
convincing evidence showing otherwise, the department -- with
the complicity of the juvenile court, and with no meaningful
opposition from mother‟s attorney -- essentially required mother
to prove her fitness to be Z. K.‟s custodial parent through
multiple home studies and psychological examinations.
mother failed to meet the department‟s expectations, the
department sought -- and obtained from the juvenile court -- the
termination of mother‟s parental rights, without any proof (let
Further undesignated section references are to the Welfare
and Institutions Code.
alone proof by clear and convincing evidence) that she had
abandoned, abused, or neglected the child or that a return of
the child to her custody would be to the child‟s detriment.
On mother‟s appeal from the juvenile court‟s order
terminating her parental rights and ordering a permanent plan of
adoption for the minor, we agree with mother that by terminating
her parental rights without finding it would be detrimental to
the minor to be placed in her custody, the juvenile court
violated mother‟s constitutional right to due process of law,
which is rooted in her fundamental interest in the care,
companionship, and custody of her child.
We also agree there
was no evidence to support an implied finding of detriment.
In the absence of any evidence of detriment, the juvenile
court had a duty -- both constitutional and statutory -- to
place the child in mother‟s custody.
Accordingly, we will
reverse and remand with directions to the juvenile court to do
FACTUAL AND PROCEDURAL BACKGROUND
Z. K. was born in July 2004 to L. K. and her husband, J. K.2
When the minor was three months old, father and the paternal
grandmother forced mother out of the home they were sharing in
When mother returned to visit the minor, she
discovered that father and the paternal grandmother had left
with Z. K., changed their telephone numbers, and left no
Father, J. K., is not a party to this appeal.
Mother stayed in Las Vegas, often living in
a tent or homeless shelters, and searched for father and the
minor for three to six months.
Unable to locate her child,
mother eventually returned to her home state of Ohio where her
mother and extended family reside.
Unknown to mother, father
had moved to California with the minor.
On May 4, 2008, three-year-old Z. K. was taken into
protective custody after he was found wandering, unsupervised,
near a busy roadway in Red Bluff.
The paternal grandmother did
not call police to report the child missing until almost three
Father was interviewed by police and arrested for
possession of methamphetamine.
Z. K. was not placed with the
paternal grandmother, as requested by father, because she
admitted to having smoked methamphetamine two days earlier.
The department filed a section 300 petition on behalf of
the minor alleging father had failed to protect the minor,
allowing the child to wander unsupervised near a busy roadway.
The petition further alleged that, thereafter, father was
arrested for possession of methamphetamine.
At the time of his
arrest, father had broken pieces of a glass methamphetamine pipe
and two knives in a nightstand within easy reach of the minor.
Mother‟s whereabouts were unknown.
Father told the social
worker that mother was “„in a mental institution in
Farmersville, Ohio,‟” and that “„[s]he does not want anything to
do with [Z. K.].
She left a couple of months after he was
The juvenile court sustained the allegations in the
petition regarding father but dismissed a section 300,
subdivision (g) allegation that mother had left the minor
without any provision for support.
The department instigated a
search for mother but did not locate her.3
Z. K. was declared a
dependent child of the court and placed in a foster home.
juvenile court ordered reunification services for father but not
for mother, as she had not been located and was possibly
(§ 361.5, subds. (b)(1) and (e).)
Father failed to reunify with the minor.
He was arrested
several times during the reunification period on additional
He was also expecting another child with
his girlfriend and had stopped visiting Z. K.
Mother had still
not been located and the department had stopped looking in
At the 12-month review hearing on June 11, 2009,
the juvenile court terminated reunification services as to both
parents and set a section 366.26 hearing for September 8, 2009,
for selection of a permanent plan for the child.
The “Notice Of
Hearing On Selection Of A Permanent Plan” prepared by the
department advised that the department was recommending
termination of parental rights and implementation of a plan of
Although the department filed a declaration of due
diligence, which the court accepted, we question whether the
department actually conducted a sufficient search for mother.
A little more than a week before the September hearing
date, the department requested a continuance so that it could
serve mother with notice of the section 366.26 hearing by
publication in Las Vegas.
The court continued the hearing to
November 30, 2009, and ordered service by publication.
department did not, however, publish notice in Las Vegas.
Instead, having received information that mother was residing in
Ohio, a week before the November hearing date the department
requested another continuance so that the department could
publish notice in Ohio.
Accordingly, the juvenile court
continued the section 366.26 hearing to February 1, 2010.
Meanwhile, mother and the maternal grandmother had
continued to search for Z. K., and the maternal grandmother
discovered on the Internet a link to a report indicating father
had been arrested and the child found wandering the streets.
The maternal grandmother called child protective services in
Tehama County and left messages.
Someone finally returned her
calls on December 1, 2009, and put department personnel in
contact with mother, who immediately, both by telephone and in
writing (on December 2), explained her circumstances and
requested custody of Z. K.
Among other things, mother informed the department that
since her return to Ohio, she had attended college to obtain her
associates degree as a medical administrative assistant and was
scheduled to graduate in only a few weeks.
She also planned on
continuing her education to obtain a bachelor‟s degree as a
medical administrative specialist.
She had reliable
transportation, sufficient to get to work and appointments.
On December 8, 2009, the department filed a supplemental
report with the juvenile court and provided the court with a
copy of mother‟s December 2 letter.
At a hearing on
December 14, the court appointed legal counsel for mother.
Despite the knowledge of mother‟s whereabouts, her
circumstances, and her request for custody of the minor, on
January 27, 2010, the department filed a section 366.26 hearing
report in advance of the February 1 hearing recommending
termination of the parental rights of both parents and
requesting that the permanent plan for the child be adoption by
the current foster mother.
In the report, the department noted
that mother had been in frequent telephone contact with the
social worker since December 2, 2009, “wishe[d] to be reunited
with her son, . . . and w[ould] do whatever is requested by the
Court to achieve that goal.”
Nowhere in the report did the
department address whether returning the child to mother‟s
custody would be detrimental to the child.
At the hearing on February 1, the department submitted
another supplemental report that consisted of an e-mail from
mother of that same date.
In the e-mail, mother pleaded that
she “desperately want[ed] to be back in [the child‟s] life” and
stated that she had recently begun taking parenting classes to
help her understand how to raise a disabled child.
been diagnosed as mildly mentally retarded.)
(Z. K. has
requested that the matter be set for a contested section 366.26
When the court proposed a hearing date in early March,
mother‟s attorney informed the court that mother was “on a
limited income” and needed additional time to make plans to
travel to California for the hearing.
The hearing was set for
On March 4, 2010, the department requested that the court
continue the section 366.26 hearing to June, “as recent changes
in the mother‟s circumstances need to be addressed.”
department noted that mother was “requesting services and
placement of the minor, and an Interstate Compact on the
Placement of Children (ICPC) [home study] will need to be done.”4
At a hearing on March 15, the court continued the matter to
June 21 for a resetting of the contested hearing to give the
department time to file an amended recommendation.
On March 23, 2010, mother and the maternal grandmother came
to California from Ohio to visit the minor.
visit was in conjunction with the March 24 hearing date, which
had since been continued.)
Mother participated in several
As we explain further hereafter, the ICPC is an interstate
compact designed “to facilitate the cooperation between states
in the placement and monitoring of dependent children.”
(Tara S. v. Superior Court (1993) 13 Cal.App.4th 1834, 1837; see
Fam. Code, § 7900 et seq.) Among other things, the ICPC
provides that a dependent child subject to the compact‟s
provisions “shall not be sent, brought, or caused to be sent or
brought 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.”
(Fam. Code, § 7901.)
visits over a period of three days, all of which went well.
was concluded that mother had the capacity to develop a maternal
relationship with the minor.
The department received the ICPC home study report from the
Scioto County Children Services Board in Ohio in April 2010.
Mother was found to have no criminal history and no child
protective services history.
She was living in a small second-
floor, one-bedroom apartment where she had lived for over two
The apartment appeared to be clean and adequately
Mother was planning to move to a three-bedroom
apartment as soon as her current landlord finished renovations.
Until then, she would have Z. K. sleep in the bedroom and she
would sleep on the living room couch.
She was unemployed at the
time, but actively seeking employment.
She was receiving $115
in cash assistance and $200 in food assistance monthly and was
using the proceeds from student loans to help pay her $429 in
She had a male friend she identified as Lewis
Ruth whom she saw several times a week but who did not reside in
He could provide child care assistance if
needed, as could her mother and relatives.
The ICPC home study was “denied,”5 however, based on the
(1) the adequacy of mother‟s income;
We understand the statement that “[t]he home study is
denied” to represent a finding by the children services agency
in Ohio that the proposed placement of Z. K. with mother
appeared to be contrary to the interests of the child. In this
sense, the Ohio agency was essentially denying the request by
(2) the possibility that mother was living with Lewis Ruth
(based on the presence of fishing poles, hunting hats, and tools
in the home and mother‟s apparent statement to a caseworker at
the Ohio Department of Job and Family Services at an unspecified
time that she was living with Ruth); (3) the adequacy of bedding
space for Z. K. if Lewis Ruth was, indeed, living in the
apartment; and (4) the hazardous condition of the outside wood
stairs leading up to the apartment.6
At the hearing on June 21, mother‟s counsel stated that
before the matter was set for a contested hearing she needed a
report from the department, including the home study.
department‟s attorney stated she had faxed the study to mother‟s
counsel in May but nonetheless would prepare a report and attach
the study to the report.
To allow the department time to
accomplish this, the court continued the matter to July 6 for
On June 25, the department filed its “Addendum Report” with
In that report, the department noted that mother had
been in “at least minimum weekly contact with [the] [s]ocial
[w]orker . . . regarding the well-being and care of [Z. K.]”
She had also provided the department with “verification of her
college degree, and certifications of parenting classes she
the California agency to place the child with mother in Ohio
pursuant to the ICPC.
The evaluator reported that “[t]he construction of the
stairs is poor, with wide gaps between the rails,” which “appear
to be hazardous to everyone, especially small children.”
ha[d] completed in anticipation of [the minor] being placed in
Mother had also “researched the community support
systems in her area that m[ight] assist [Z. K.], should he be
placed in her care.”
The department went on to note that the ICPC request had
been denied “due in large part to concerns about [mother‟]s
inadequate monthly income, the possibility another unknown
person was residing in the home, and the home had only one
The social worker had discussed with mother on
June 21 “her progress in addressing the issues to be corrected,”
and mother provided the following information:
full-time employment beginning on June 10.
She had obtained
grandmother was assisting her financially in obtaining larger
housing, and she had located housing with additional bedroom
Contrary to the concerns raised in the ICPC report,
mother maintained that she did not have another adult residing
in her home.
She also indicated she would request another ICPC
study be performed once she moved into her new apartment.
The department also reported that, despite father‟s
consistent portrayal of mother as suffering from severe mental
health problems and having an extensive mental health history,
including hospitalizations for mental illness,7 the department
In fact, in addition
the whereabouts of mother
adamantly emphasized that
have any contact with the
even supervised visits in
to maintaining he had no knowledge of
or any of her relatives, father had
mother was completely unsuitable to
minor in any event and warned against
the event she was located.
had found no evidence mother had ever been diagnosed or treated
for mental illness.
The report concluded that it was the social worker‟s
opinion that Z. K. be placed with mother if the Ohio agency
approved the placement following the ICPC study.
this was a reference to the second ICPC study mother was going
to request, since the first ICPC study had resulted in a denial
more than two months earlier.)
The department also recommended
that family maintenance services should be offered to mother in
On July 2, the department requested that the July 6 hearing
be continued to August so the social worker could prepare
The court granted that request and continued
the matter to August 16.
On July 12, the department requested that mother complete a
Thereafter, on July 22, the
department filed another addendum report.
In that report,
without any explanation for the change from the report a month
earlier, and with no mention of the request for a psychological
evaluation, the department once again recommended the
termination of the parental rights of both parents and requested
that the permanent plan for the child be adoption by the current
At the hearing on August 16, the court continued the
resetting of the section 366.26 hearing to September.
On September 10, 2010, the department filed a report that
indicated it was once again pursuing placement of Z. K. with
The department noted that mother had “addresse[d] the
issues of her housing and income that were problems raised by
the first [ICPC report]” because she had “moved into a two
bedroom apartment, obtained full-time employment . . . , and
completed a mental health assessment.”
The department requested
a continuance to November “in order to verify the [second] ICPC
outcome, and to provide further information to State Adoptions,”
which was requesting “a full psychological evaluation” and
“mental health history” for mother.8
The department also
indicated that it would “be continuing to investigate the
validity of [mother]‟s claim regarding anyone living in the
home” and would “complete a criminal and Child Welfare history
background inspection” “[i]f a determination is made that there
is someone living in the home.”
The department concluded that
“State Adoptions” refers to the State Adoptions Branch of
the State Department of Social Services, which was involved in
the proceeding at this point in anticipation that adoption would
be the permanent plan selected for Z. K. at the section 366.26
hearing. That agency, however, had no authority to request a
psychological examination of mother, and the department had no
business backing State Adoption‟s request for one, especially in
the absence of any evidence of potential psychological issues
From the comments of the department‟s attorney at oral
argument in this matter, it appears State Adoptions was “heavily
invested” in completing the adoption of Z. K. by the foster
mother and fought what efforts the department did make to
investigate placing the minor in mother‟s custody instead.
Ultimately, however, the department knuckled under to pressure
from State Adoptions and went along with the request for a
psychological examination to “preserve the relationship” between
the two agencies. This -- like much the department did in this
case -- was completely improper.
if the second ICPC study approved placement with mother, family
maintenance services should be provided to mother “to aid in the
transition of [Z. K.] into her care.”
The juvenile court continued the matter to November 8,
2010, as requested.
On September 21, 2010, the department sent a request for a
second ICPC study to Ohio.
On that same date, the department
received a mental health assessment of mother completed by an
MFT (marriage and family therapist) intern.
this assessment, the department asked mother to complete a
psychological evaluation by a psychiatrist.
On October 18, 2010, mother reported to the ICPC evaluator
in Ohio that Lewis Ruth was living with her in the home and she
needed a couple of weeks to get his background check completed.
Thereafter, on November 5, 2010, mother reported to the Ohio
ICPC evaluator that Ruth still had not completed his background
check and, in addition, she had lost her job.
additional time before completion of the second ICPC study to
find another job, but the evaluator told her the study needed to
be completed within three weeks (i.e., within 60 days of the
date of the request for the study).
At the hearing on November 8, mother‟s attorney told the
court that mother‟s psychological evaluation was not scheduled
until November 24.
The representative of State Adoptions also
informed the court that the second ICPC study had not yet been
Accordingly, the matter was continued to December 6.
On November 30, because mother had not contacted the
evaluator in Ohio following their contact on November 5, the
evaluator closed the home study, denying placement of the child
On December 6, the contested section 366.26 hearing was set
for January 12, 2011.
In advance of that hearing, the
department filed another addendum report on December 9.
report, the department once again returned to recommending the
termination of the parental rights of both parents and
requesting that the permanent plan for the child be adoption by
the current foster mother.
The department criticized mother for
not following through with the second ICPC study, characterizing
her as uncooperative.
The department also complained that it
had not received the full psychological evaluation it had
requested and proclaimed the mental health assessment completed
by the MFT intern, “uninformative and useless.”
At the contested hearing on January 12, mother‟s attorney
stated that mother was “requesting placement as the nonoffending parent” and asked for a continuance so that mother
could find transportation to attend the hearing.
department‟s attorney responded that the ICPC study “was
denied,” and the attorneys for the minor and the foster mother
both objected to a continuance.
The juvenile court denied the
request for a continuance “both for the reasons state[d] by
counsel on the record and for the reasons that appear throughout
the file which in large part deal with the non-cooperation and
the failure to cooperate of the mother, not the least of which
is her failure twice in a row to cooperate with the Interstate
Thereafter, mother‟s attorney examined the
social worker, eliciting testimony that mother‟s visit with the
minor in March 2010 was “successful” and that mother did not
“follow through” on the second ICPC study because “they needed
to make a home visit and that was never completed.”
Finding by clear and convincing evidence that the child
would be adopted, the juvenile court terminated the parental
rights of both parents and selected adoption as the minor‟s
Mother timely appealed.
Mother contends the juvenile court violated her due process
rights when the court terminated her parental rights without
finding by clear and convincing evidence that placing Z. K. in
her custody would be detrimental to the minor.
also agree that there is no evidence in the record to support an
implied finding of detriment.
Accordingly, the termination of
mother‟s parental rights must be reversed.
Initially, we address the department‟s contention that the
disentitlement doctrine applies to bar this appeal because
mother failed to complete the second ICPC home study and the
requested psychological evaluation before the section 366.26
hearing in January 2011.
A reviewing court has inherent power to dismiss an appeal
when the appealing party has refused to comply with the orders
of the trial court.
(People v. Puluc-Sique (2010) 182
Cal.App.4th 894, 897.)
This disentitlement doctrine prevents a
party from seeking assistance from the court while that party is
in an attitude of contempt to legal orders and processes of the
(MacPherson v. MacPherson (1939) 13 Cal.2d 271, 272, 277
[appellant challenged attorney‟s fees after absconding with the
minor children and holding them outside the country].)
Appellate disentitlement “is not a jurisdictional doctrine, but
a discretionary tool that may be applied when the balance of
equitable concerns make it a proper sanction.”
In criminal cases it is often applied when the
appellant is a fugitive from justice.
cases, the doctrine has been applied only in cases of the most
egregious conduct by the appellant that frustrates the purpose
of dependency law and makes it impossible for the court to
protect the child or act in the child‟s best interests.
re Kamelia S. (2000) 82 Cal.App.4th 1224 [father absconded with
minor]; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293
[grandparents denied placement/guardianship thereafter absconded
with minor]; Adoption of Jacob C. (1994) 25 Cal.App.4th 617
[mother abducted child].)
The conduct of mother on which the department relies to
invoke the disentitlement doctrine here is far from the flagrant
disobedience and contempt that would justify the sanction of
Even if we were to assume mother‟s conduct
related to the incompletion of the second ICPC study and the
psychological evaluation were in some manner culpable, that
conduct would not constitute contempt at all, as neither the
ICPC study nor the psychological evaluation was court-ordered.
Furthermore, as we discuss hereafter, neither the study nor the
evaluation could lawfully be required as a precondition to
placing the minor with mother and avoiding the termination of
mother‟s parental rights.
There is simply no basis for us to
apply the disentitlement doctrine to the facts in this case, and
the department‟s assertions to the contrary are completely
Due Process And The Termination Of Parental Rights
In In re Gladys L. (2006) 141 Cal.App.4th 845, the court
noted that “[p]arents have a fundamental interest in the care,
companionship, and custody of their children.
Kramer (1982) 455 U.S. 745, 758 [71 L.Ed.2d 599 . . .]
Santosky establishes minimal due process
requirements in the context of state dependency proceedings.
„Before a State may sever completely and irrevocably the rights
of parents in their natural child, due process requires that the
State support its allegations by at least clear and convincing
(Id. at pp. 747–748.)
„After the State has
established parental unfitness at that initial proceeding, the
court may assume at the dispositional stage that the interests
of the child and the natural parents do diverge.‟
„But until the State proves parental unfitness, the
child and his parents share a vital interest in preventing
erroneous termination of their natural relationship.‟
“California‟s dependency system comports with Santosky‟s
requirements because, by the time parental rights are terminated
at a section 366.26 hearing, the juvenile court must have made
prior findings that the parent was unfit.
(Cynthia D. v.
Superior Court (1993) 5 Cal.4th 242, 254 . . . .)
and quality of the judicial findings that are necessary
preconditions to termination convey very powerfully to the fact
finder the subjective certainty about parental unfitness and
detriment required before the court may even consider ending the
relationship between natural parent and child.‟
The linchpin to the constitutionality of the section
366.26 hearing is that prior determinations ensure „the evidence
of detriment is already so clear and convincing that more cannot
be required without prejudice to the interests of the adoptable
child, with which the state must align itself.‟
(5 Cal.4th at
(In re Gladys L., supra, 141 Cal.App.4th at p. 848.)
California‟s dependency scheme no longer uses the term
“„parental unfitness,‟” but instead requires the juvenile court
make a finding that awarding custody of a dependent child to a
parent would be detrimental to the child.
(In re P.A. (2007)
155 Cal.App.4th 1197, 1211, citing In re Dakota H. (2005) 132
Cal.App.4th 212, 224, fn. 3; accord In re Frank R. (2011) 192
Cal.App.4th 532, 537-538.)
Due process requires that a finding
of detriment be made by clear and convincing evidence before
terminating a parent‟s parental rights.
(In re Frank R., at
“„Clear and convincing evidence requires a high
probability, such that the evidence is so clear as to leave no
(In re John M. (2006) 141 Cal.App.4th
1564, 1569-1570, quoting In re Luke M. (2003) 107 Cal.App.4th
The department tries to discount both Gladys L. and Frank
R., arguing that “both [of those cases] relied on . . . cases
that are factually distinguishable and therefore inapposite to
Specifically, the department argues that the
underlying cases “dealt with the termination of parental rights
of presumed fathers from whom the children had been removed, not
parents who had never had custody.”
The department contends
that here, because mother‟s “whereabouts continued to be unknown
until after services for . . . both parents were terminated and
a [section] 366.26 hearing was already set,” “it was literally
impossible for the court to make a specific finding of detriment
as to [mother] prior to the [section] 366.26 hearing.”
department also argues that the “Welfare [and] Institutions Code
does not explicitly require a finding of detriment or unfitness
for a noncustodial parent at the [section] 366.26 hearing,
except for a parent of an Indian child which does not apply
The department‟s arguments are without merit.
that section 366.26 -- a statutory provision -- did not require
a finding of detriment here is hardly determinative of whether
mother‟s constitutional rights were violated by the termination
of her parental rights.
Furthermore, from a constitutional
perspective, it was exactly because mother was not involved in
the earlier stages of the proceeding that a specific finding of
detriment was needed before her rights were terminated at the
section 366.26 hearing.
As explained above, the only reason the
termination of parental rights at a section 366.26 hearing in a
typical dependency proceeding is constitutional is because of
the findings that have necessarily been made as to the parent at
earlier stages of the proceeding.
Here, no such findings were
made as to mother because her whereabouts were unknown and she
was not a subject of the earlier stages.
As the department
admits, mother “was not the custodial parent, the child was not
removed from her custody and she was not denied placement [at
the dispositional hearing].”
Thus, to terminate her parental
rights at the section 366.26 hearing over her request for
custody, a specific finding of detriment, supported by clear and
convincing evidence, had to be made.
It was not.
The department contends that we may imply the necessary
finding of detriment “if there is substantial evidence in the
record to support it.”
The department contends there is such
The department is wrong.
First, we dismiss the department‟s contention that,
somehow, the fact that reunification services were terminated as
to mother “was indicative that the court believed there was
As the department is well aware, the juvenile court
terminated reunification services as to both parents in June
2009, months before mother‟s whereabouts were known and
therefore before she had the opportunity to appear in the
The termination of reunification services to a
parent who has not been located provides no support whatsoever
for an implied finding of detriment.
We find equally absurd the department‟s argument that an
implied finding of detriment is supported by the fact that
mother‟s initial visit with the minor was supervised.
department points to no evidence that the court ordered
supervision of the visit.
Moreover, even if the court had
ordered it, the conclusion that the first visit between mother
and the five-year-old Z. K., who were separated when the minor
was only months old, should be supervised hardly suggests a
finding by the court that giving custody to mother after a
suitable reunification period would be detrimental to the child.
We also reject any implication that a finding of detriment
to the minor could be based on mother‟s alleged failure to
“pass” an ICPC home study under the circumstances here.
Contrary to what the juvenile court may have believed, an
approved ICPC report was not legally required before placing Z.
K. out of state with mother.
“The purpose of the ICPC is to facilitate the cooperation
between states in the placement and monitoring of dependent
(Tara S. v. Superior Court, supra, 13 Cal.App.4th at
“The ICPC governs conditions for out-of-state
„placement in foster care or as a preliminary to a possible
(Fam. Code, § 7901, art. 3, subds. (a), (b).)”
re John M., supra, 141 Cal.App.4th at p. 1573.)
By its terms,
the ICPC is applicable only “to foster care and possible
adoption--neither of which would involve natural parents.”
(Tara S., at p. 1837.)
Accordingly, “compliance with the ICPC
is not required for placement with an out-of-state parent.”
re John M., at p. 1575; see also Tara S. v. Superior Court,
supra, 13 Cal.App.4th at pp. 1837-1839; In re Johnny S. (1995)
40 Cal.App.4th 969, 977-979.)
consistently so held.
The California courts have
(In re C.B. (2010) 188 Cal.App.4th 1024,
While acknowledging the import of these cases, the
department argues that pursuant to “a rewrite called the New
ICPC Final Draft 2009,” which “California has adopted,” the ICPC
now “requires [an approved home study] when a public agency
seeking to retain jurisdiction places a child with an out of
We find nothing, however, to support the
department‟s assertion that California has adopted what the
website the department cites9 calls the “new ICPC.”
extent the department relies on rule 5.616(b) of the California
Rules of Court to support its assertion that California has
adopted the “new ICPC,” we note that that rule has not been
amended since 2007 -- two years before the rewrite the
department seeks to invoke.
Thus, an approved ICPC study was not legally required
before placing Z. K. with mother.
To the extent the department
can be understood to argue that it was entitled to require an
approved ICPC study “as a matter of policy” to “verify risk
assessment and safety of the child, and to engage the State of
Ohio in the oversight of [any] placement” with mother, we do not
disagree that the department was entitled to use the ICPC home
study process (to the extent the Ohio agency agreed to go along)
to gather information for the purposes of determining whether
placing the minor with mother would be detrimental.
department cannot, however, use Ohio‟s denial of placement under
the ICPC as a proxy for the constitutionally required finding of
detriment supported by clear and convincing evidence.
support the termination of mother‟s parental rights, the
department must point to specific evidence from which we can
reasonably imply a finding by the juvenile court that it would
be detrimental to place the minor with mother.
The department fails to point to any such evidence.
extent the department argues that mother “fail[ed] to follow
through with [her] responsibilities” to Z. K., we disagree that
the evidence of mother‟s actions here was sufficient to support
a finding of detriment by clear and convincing evidence.
social worker‟s testimony at the section 366.26 hearing in
January 2011 that “the last time [she] had telephone contact
with” mother was “[p]robably October or November of . . . 2010,”
without more, does not support a finding of detriment.
not know why there was no contact, and it cannot be reasonably
inferred from the lack of contact by itself that the reason for
the lack of contact must reflect something about mother that
tends to show it would be detrimental to place the child in her
Given that the department had the burden of proving
detriment, any lack of information here has to be held against
the department, not against mother.
Likewise, the lack of a psychological evaluation by a
psychiatrist that the department and State Adoptions had
requested does not support a finding of detriment.
department itself admitted, there was absolutely no evidence
mother had any mental illness or disorder that would affect her
ability to parent Z. K.
The only such suggestion came from
father, who claimed mother suffered from severe mental illness,
including hospitalizations -– an accusation the department
determined there was no evidence to support.
Moreover, it must
be noted that mother did obtain and provide a psychological
assessment by an MFT intern.
While the department asserted to
the court that that assessment was “uninformative and useless,”
the department offered no evidence to support this
characterization of the document and failed to offer the
assessment itself as evidence in the matter.
conclusionary characterization of the assessment is not the sort
of clear and convincing evidence necessary to support a finding
of detriment necessary to terminate parental rights.
As for mother‟s alleged “failure to correct two ICPCs in
order to obtain custody,” that is both factually incorrect and,
in any event, insufficient to support a finding of detriment.
In the first ICPC study, the only concerns raised were that
mother‟s apartment was too small (assuming mother was living
with a man, which she denied), her income was too low, the
outside stairs were dangerous, and there might be a man living
with her (which, again, she denied).
Contrary to the
department‟s suggestion, however, mother did “correct” these
Indeed, in its addendum report to the court on
September 10, 2010, the department specifically indicated that
it was once again pursuing placement of Z. K. with mother
because mother had “addresse[d] the issues of her housing and
income that were problems raised by the first [ICPC report]”
because she had “moved into a two bedroom apartment, [and]
obtained full-time employment.”
As for the incomplete second ICPC study, it does not
support an implied finding of detriment either.
asserts that mother “would not allow the state of Ohio to
conduct a [second] home study,” but the evidence cited does not
support that assertion.
The Ohio evaluator did not state that
mother refused to allow a second home study; rather, she
reported that mother wanted to delay the study “to give her a
chance to find another job,” but the evaluator refused,
asserting that the study “had to be completed within 60 days of
the day it was received.”
Thereafter, mother did not call
again, and the evaluator closed the study without following up
These facts hardly support a finding that mother “would not
allow” a second home study.
Indeed, given that placement was
denied following the first study in part because of mother‟s
income, it is understandable that mother would have been
reticent to complete the second study after losing her job but
before finding another.
Mother had no reason to know that her
lack of income could not rightfully be used as a basis for
denying her custody (see In re G.S.R. (2008) 159 Cal.App.4th
1202, 1212), and every reason to believe that it would.
these facts, mother‟s failure to call the Ohio evaluator after
the evaluator insisted the study had to be completed by
November 30 does not support a finding of detriment to the
minor, let alone constitute clear and convincing evidence in
support of such a finding.
Moreover, it appears from the evaluator‟s letter that
completion of the study was delayed because mother needed more
time to get a background check completed on Lewis Ruth, who now
was living with her.
But the department fails to explain why it
was mother’s responsibility to provide such a background check
in the first place.
“[I]t is the party opposing placement who
has the burden to show by clear and convincing evidence that the
child will be harmed if the noncustodial parent is given
(In re Karla C. (2010) 186 Cal.App.4th 1236, 1243.)
Upon learning that Lewis Ruth was living with mother, it was the
department’s responsibility to provide evidence that that
situation would be detrimental to Z. K. if the minor were placed
in mother‟s custody; it was not mother‟s responsibility to prove
Thus, mother‟s “failure” to provide a background
check on Ruth does not support a finding of detriment.
Lastly, we reject the department‟s assertion that mother‟s
failure to file a section 388 petition was an implied concession
by mother that placement of Z. K. in her custody would be
The juvenile court and the department were well
aware, since the time mother first contacted the department,
that she was seeking placement of the minor with her as the
noncustodial parent, and everyone -- the department and the
court included -- proceeded as though the court could place Z.
K. with mother at the section 366.26 hearing without regard to
whether mother had filed a section 388 petition (a point we will
discuss further hereafter).
Unlike the father in In re P.A.,
supra, 155 Cal.App.4th at page 1209, upon which the department
relies, mother‟s counsel did not appear and indicate that a
section 388 petition was the appropriate method by which to
obtain the relief sought and then fail to file such a petition.
Instead, everyone here proceeded as if a section 388 petition
Thus, we will not construe the failure of
mother‟s attorney to file one as a concession of detriment.
In sum, we conclude that due process requires a finding of
detriment to the minor, by clear and convincing evidence, before
terminating a parent‟s parental rights.
Such a finding was not
made in this case, nor can one be supported by the evidence in
Accordingly, the order terminating mother‟s
As we discuss further hereafter, subdivision (a) of section
388 provides that “[a]ny parent or other person having an
interest in a child who is a dependent child of the juvenile
court . . . may, upon grounds of change of circumstance or new
evidence, petition the court in the same action in which the
child was found to be a dependent child of the juvenile
court . . . for a hearing to change, modify, or set aside any
order of court previously made or to terminate the jurisdiction
of the court.”
parental rights and ordering a permanent plan of adoption for
the minor must be reversed.
This does not, however, end our
Statutory Right To Placement
In addition to the due process requirement previously
discussed, a proper finding of detriment to the minor is also
statutorily required to place a minor with someone other than
his noncustodial parent.
Section 361.2 establishes the procedures a court must
follow for placing a dependent child following removal from the
custodial parent pursuant to section 361.
(1995) 38 Cal.App.4th 1813, 1820.)
(In re Marquis D.
When a court orders removal
of a minor under section 361, the court first must determine
whether there is a parent who wants to assume custody who was
not residing with the minor at the time the events that brought
the minor within the provisions of section 300 occurred.
(§ 361.2, subd. (a).)
“If that parent requests custody, the
court shall place the child with the parent unless it finds that
placement with that parent would be detrimental to the safety,
protection, or physical or emotional well-being of the child.”
(§ 361.2, subd. (a), italics added.)
The juvenile court must
make the detriment finding by clear and convincing evidence.
(In re Isayah C. (2004) 118 Cal.App.4th 684, 700.)
Subdivision (c) of section 361.2 requires the juvenile court to
“make a finding either in writing or on the record of the basis
for its determination . . . .”
Thus, “a nonoffending parent has a constitutionally
protected interest in assuming physical custody, as well as a
statutory right to do so, in the absence of clear and convincing
evidence that the parent‟s choices will be „detrimental to the
safety, protection, or physical or emotional well-being of the
(In re Isayah C., supra, 118 Cal.App.4th at p. 697.)
It is not the nonoffending parent‟s burden to show that she is
capable of caring for her child.
Rather, it is the party
opposing placement who has the burden to show by clear and
convincing evidence that the child will be harmed if the
nonoffending parent is given custody.
Section 361.2 is designed to apply at the disposition phase
of the dependency proceeding, when the court first elects to
remove the child from the custody of the custodial parent.
does not -- at least, not in the course of an ordinary
dependency case -- apply at the 366.26 hearing.
The purpose of
“[a] hearing pursuant to section 366.26 [is] to select and
implement a permanent plan for the children”; “[t]he court need
not continue to consider the issue of reunification at the
section 366.26 hearing.”
(In re Marilyn H. (1993) 5 Cal.4th
Indeed, at a section 366.26 hearing, “the juvenile
court‟s dispositional options [ordinarily] do not include return
to parental custody.”
(Marilyn H., at p. 310.)
The issue of a
return to parental custody can be raised late in the dependency
proceeding, however, by means of a section 388 petition to
change, modify, or set aside a previous order based on a change
in circumstances or new evidence.
(See Marilyn H., at pp. 307-
Here, mother was not located and did not begin
participating in the dependency case until nearly a year and
one-half after the disposition hearing and until after the
section 366.26 hearing had already been continued twice.
absence of a section 388 petition to modify or set aside the
disposition order, there was no legal basis for the court to
consider placement of the minor with mother at the section
Nevertheless, as we have previously noted,
everyone -- the department and the court included -- proceeded
over the course of the year after mother appeared as if that was
an option the court had.
It is far too late in the proceeding
for anyone to complain about the lack of a section 388 petition
seeking placement of the child with mother pursuant to section
361.2, inasmuch as everyone in the case has, since mother
appeared nearly two years ago, proceeded as if such a petition
was before the court.11
Based on this conclusion, we need not address mother‟s
argument in her reply brief that her attorney‟s failure to file
a section 388 petition constituted ineffective assistance of
counsel. We do note, however, that there could be no good
tactical reason for failing to file such a petition. We
likewise express some consternation at the passivity of mother‟s
appointed attorney in pursuing mother‟s stated goal of obtaining
custody of the minor. The record contains no papers filed by
mother‟s attorney, and while we recognize it was the
department‟s burden to prove detriment, and not vice versa,
there was no wisdom in the virtual silence by mother‟s counsel
in the face of the very real possibility (which, in fact, became
reality) that mother‟s parental rights would be terminated. Not
In effect, the issue of placement with mother was before
the juvenile court by consent of all the parties -- a consent
manifested through their failure to argue otherwise or object to
the court‟s consideration of placement with mother on the basis
that no section 388 petition requesting such placement had been
Thus, we face the question not only of whether the
juvenile court erred in terminating mother‟s parental rights
(which we have answered already), but also whether the court
erred in refusing to place the minor in mother‟s custody without
a finding of detriment.
We find the latter error also.
the juvenile court did not find that placement of the minor with
mother would be detrimental to the minor‟s safety, protection,
or physical or emotional well-being and because, as previously
discussed, such a finding cannot be supported by the evidence in
the record, it was error for the court not to place the minor in
only did mother‟s counsel fail to provide virtually any input to
the court on mother‟s behalf, mother‟s counsel did not even
inform the department and the court that detriment to the minor
had to be shown by clear and convincing evidence before her
client‟s parental rights could be terminated.
Given the difficulty inherent in mother protecting her own
rights from across the country with limited financial resources,
in the event the juvenile court does not terminate its
jurisdiction over Z. K. upon placing the minor with mother on
remand, the court should consider appointment of a different
attorney to represent mother‟s interests in the proceeding.
Mother is entitled to an advocate who will, with skill,
ingenuity, and enthusiasm, in fact, advocate for her interests
to the fullest extent of the law, and she did not get that with
her first appointed counsel.
In the absence of any evidence that placing the minor in
mother‟s custody would be detrimental to the minor, mother was
entitled to custody of her son, and the juvenile court erred in
Accordingly, we direct the juvenile court
to place the minor in mother‟s custody.
Subdivision (b) of section 361.2 gives the juvenile court
three options when it places a dependent child with a
nonoffending, noncustodial parent.
Specifically, the court can
(1) “[o]rder that the parent become legal and physical custodian
of the child” and “terminate its jurisdiction over the child”
(§ 361.2, subd. (b)(1)); (2) “[o]rder that the parent assume
custody subject to the jurisdiction of the juvenile court and
require that a home visit be conducted within three months”
(id., subd. (b)(2)); or (3) “[o]rder that the parent assume
custody subject to the supervision of the juvenile court” (id.,
On remand, the juvenile court here shall be
entitled to choose among these options in the exercise of its
Under the circumstances of this case, however, where the
juvenile court terminated mother‟s parental rights without
making the requisite finding of detriment and without even
understanding that such a finding was necessary -- despite clear
case law to the contrary -- we conclude it is in the interests
of justice for a different judge to hear the proceeding on
Accordingly, on our own motion, we so order.
Civ. Proc., § 170.1, subd. (c).)
As previously noted, we also
strongly recommend that the court appoint new counsel for mother
in the event the court chooses to retain jurisdiction over the
minor pursuant to section 361.2, subdivision (b)(2) or (b)(3).
The order terminating parental rights and ordering a
permanent plan of adoption for the minor is reversed, and the
case is remanded to the juvenile court for further proceedings
in accordance with this opinion.
The stay of proceedings
previously issued by this court is vacated upon the finality of
, Acting P. J.
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
---In re Z. K., a Person Coming Under
the Juvenile Court Law.
TEHAMA COUNTY DEPARTMENT OF SOCIAL
(Super. Ct. No. J11421)
Plaintiff and Respondent,
ORDER CERTIFYING OPINION
Defendant and Appellant.
The opinion in the above-entitled matter filed
October 25, 2011, was not certified for publication in the
For good cause it appears now that the
opinion should be published in the Official Reports and it is so
BY THE COURT:
, Acting P. J.
APPEAL from a judgment of the Superior Court of Tehama
County, Richard Scheuler, Judge. Reversed with directions.
Michelle Jarvis; Monica Vogelmann under appointment by the
Court of Appeal, for Defendant and Appellant.
William James Murphy, County Counsel and Sylvia Duran,
Deputy County Counsel, for Plaintiff and Respondent.