Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. 510130, Nancy Barnett Williamsen, Commissioner.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CORNELL, J.
M.O., the daughter of T.C. (mother), was placed with a foster family when she was diagnosed with a life-threatening medical condition that neither mother nor father, T.O., Sr., could deal with at the time. The first time we considered this case, we concluded that the Stanislaus County Community Services Agency (the agency) had not provided mother with reasonable reunification services and reversed the order terminating reunification services issued after the first 12-month review hearing.
T.C. v. Superior Court (Dec. 4, 2008) F056074 (nonpub. opn.).
This appeal is from the order issued after the second 12-month review was held pursuant to Welfare and Institutions Code section 366.21, subdivision (f). As we shall explain, we conclude the juvenile court erred (1) in denying mother’s request for a contested hearing, (2) in concluding compliance was required with the Interstate Compact on the Placement of Children (ICPC), and (3) in considering M.O.’s bond with her foster parents before reunification services properly were terminated. Thus, we will reverse the order issued after the 12-month review and remand for another 12-month review, including a contested hearing if mother requests one.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL SUMMARY
Mother has five children, four of whom are T.O., Sr.’s, biological children. The family came to the attention of the agency in 2006 when then two-year-old M.O. was admitted to Children’s Hospital Central California (the hospital) with a life-threatening illness. When the hospital had difficulty contacting mother and father, it contacted the agency. M.O. initially was diagnosed with aplastic anemia and later with leukemia. She underwent a two-year course of chemotherapy that was completed in mid-2009.
Upon investigation, the agency discovered that mother and father had drug dependency issues, and mother was experiencing drug-induced psychosis. Mother and father agreed to place M.O. in voluntary foster care and to participate in substance abuse programs.
At the end of six months, M.O. continued to need specialized medical care. Since voluntary services were limited to six months, the agency filed a petition prior to the expiration of the voluntary services alleging all five children fell within the provisions of section 300, subdivisions (b) and (g). The unopposed petition was found true. M.O. was removed from the care and custody of her parents, while the other four children remained in their parents’ custody with family maintenance services. Reunification services were provided to assist mother and father in reunifying with M.O.
By the six-month review hearing, mother and father were living with the other four children in a clean and sober program. They had not tested positive for any illegal drugs, visits with M.O. were going well, and there were no concerns about their care for the other children. Both parents expressed a desire to reunify with M.O., but the report noted that they had not been able to find suitable housing near the hospital, a prerequisite to regaining custody. The agency recommended an additional six months of reunification services to permit reunification with M.O. and an additional six months of family maintenance services for the other children. The juvenile court’s order adopted the recommendations of the agency.
At the time of the first 12-month review, the family’s circumstances could best be described as chaotic. Mother began living with another man, left him, and then returned. She was attempting to find housing in Madera to meet the requirement that she reside within 20 minutes of the hospital, but she did not have a job and could not afford housing. Mother and father devised a plan whereby father would remain with the children in Modesto and mother would remain in Madera to look for work and housing. When mother’s housing and employment in Madera became stable, then the rest of the family would join her. Both parents continued to visit M.O. and both had completed almost all other aspects of their reunification plan.
At the contested hearing, the social worker for the agency identified the primary obstacle to mother and father regaining custody of M.O. was that they were not able to find suitable housing close to the hospital. The juvenile court confirmed that housing was the major obstacle to reunification and found there was not a substantial probability that M.O. would be returned to the home within the one month left in the 18-month reunification period. Reunification services to M.O.’s parents were terminated.
This court granted mother’s petition for an extraordinary writ and directed the juvenile court to vacate its order terminating reunification services and setting a section 366.26 hearing. We issued our order after concluding the agency had not provided reasonable reunification services to mother. Our opinion noted that the only issue precluding reunification at the 12-month hearing was mother’s inability to obtain housing in the vicinity of the hospital, and that the agency had made little effort to assist mother in doing so. We ordered the juvenile court to provide mother with six additional months of reunification services.
While the petition for an extraordinary writ was pending, mother filed an application with the juvenile court requesting it change its order and place M.O. with her. Mother filed documents establishing (1) she was residing in Arizona; (2) she had obtained an Arizona driver’s license and had access to a vehicle with which she could transport M.O. to medical appointments; (3) she lived within 20 miles of Banner Children’s Hospital, which had a pediatric oncology department; and (4) she had obtained employment. The juvenile court denied the petition without a hearing, concluding (1) there was insufficient evidence that M.O.’s needs would be met at Banner Children’s Hospital; (2) there was not ICPC application or approval; and (3) there was no showing that mother had “adequately separated from her significant other.”
We issued our opinion granting mother’s petition for an extraordinary writ a few days later. The juvenile court held a hearing within two weeks of receiving our opinion. Without objection by any party, the juvenile court vacated its prior order, found that reasonable reunification services had not been provided to mother, and ordered six additional months of reunification services for both mother and father. The juvenile court also ordered an ICPC be initiated with Arizona and requested the agency to expedite the process, if possible.
One month later, the juvenile court held a review hearing, at which time it signed the ICPC forms. Three months later, counsel for M.O. filed a request with the juvenile court seeking a bonding study between M.O. and her foster parents. The agency supported the request, noting that it had observed “a strong, huge bond between” M.O. and her foster parents. The juvenile court denied the request.
The above events provided the setting for the hearing designated as the second 12-month review hearing. (§ 366.21, subd. (f).) The agency prepared a report that indicated M.O. remained in placement with her foster parents, while the dependency proceedings for the other children had been dismissed eight months earlier. Mother and father were living with relatives in Arizona. The home was confirmed to be located in close proximity to an appropriate children’s hospital. The ICPC was not yet completed, although preliminary comments by the investigating social worker described the family as “‘rough around the edges, in a chaotic environment, but with a good heart.’” Father was frustrated because he again was required to complete paperwork related to custody of M.O. This frustration resulted in M.O.’s parents responding slowly to the social worker’s requests for information. The social worker had called only one reference, and that reference did not make positive comments about father. There was no evidence or reason to suspect that either mother or father was using illegal substances. Neither parent, however, had been drug tested since moving to Arizona, and neither was currently attending aftercare meetings.
The agency’s evaluation stated that mother and father appeared to be clean and sober, and the family appeared to be doing well in Arizona. They had stable housing and income, had access to a family vehicle, were cooperating with the agency, and had visited M.O. On the other hand, the report noted that M.O. was doing well in her current placement and the transition to living with her family would be difficult. The agency recommended that the permanent plan remain reunification with the parents, and it would be in M.O.’s best interests to begin a trial visit with mother and father.
At the hearing, the agency presented a letter from the social worker from the hospital, who had minimal contact with the family. She expressed concern about mother and father’s ability to care properly for M.O. and her specialized needs. Counsel for the minor objected to the possibility of a trial visit, arguing that there was no bond between M.O. and her biological family. Counsel also recommended that services for mother and father be terminated because there was no chance that the family would reunite with M.O. within the next six months. Counsel stated she would request a contested hearing if at any time the recommendation would be to return custody of M.O. to her parents. Counsel for mother and father requested a contested hearing if the juvenile court was not going to approve the recommended trial visit.
The juvenile court refused to set a contested hearing, stating it was unclear whether the ICPC was going to be approved for mother and father. “Just because the parent lives out of state does that mean that automatically I.C.P.C. is going to be granted.”
The juvenile court also doubted there was a substantial probability of return of M.O. to her parents’ custody because of the limited visitation. “What we have is a mom who’s visited one time since December, a dad who’s visited two times since December. Four or five phone calls since December. I’m not sure how I can make those findings [that there is a substantial probability that M.O. would be returned to the parents’ custody]. [¶] Granted, the parents live out of state, but we also have to consider that it was their choice to live out of state. This is not a situation where they initiated dependency until parents were out of the state. It was not until the dependency process that they made this choice.”
Nonetheless, the juvenile court, with “great reluctance,” found M.O.’s parents regularly participated and made substantive progress in the reunification process. The juvenile court granted the social worker discretion to allow the parents to have overnight visits with M.O., but ordered those visits to occur “within the appropriate distance to” the hospital.
DISCUSSION
Mother has identified three errors made by the juvenile court, any of which, by itself, would provide grounds for reversal of the order at the second 12-month review. The combination of errors leaves no doubt about the outcome of this appeal.
I. Refusal to Conduct a Contested Review Hearing
First, the juvenile court erred by rejecting mother’s request for a contested hearing.
Section 366.21 governs status review hearings for children over which the juvenile court has jurisdiction. All interested persons are entitled to notice of the hearings and are entitled to appear with counsel. (§ 366.21, subds. (a), (b).) The social worker is required to file a supplemental report 10 days before the hearing, and each party is entitled to a copy of that report. (Id., subd. (c).) At both the six-month and 12-month review hearings, the juvenile court must “order the return of the child to the physical custody of his or her parent … unless the court finds, buy a preponderance of the evidence, that the return of the child to his or her parent … would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.” (Id., subds. (e), (f).) The juvenile court also is required at both hearings to determine whether reasonable reunification services were provided to the parents and must state the factual basis for its findings. (Ibid.)
Section 366.21 does not specifically state that parents are entitled to a contested review hearing at either the six-month or 12-month review. Nonetheless, every case we located that considered the issue concluded that due process requires a contested hearing if requested. (See, e.g., David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777-780 (David B.); In re James Q. (2000) 81 Cal.App.4th 255, 266-267 (James Q.).) The analysis of each court is similar.
“Review hearings are a critical aspect of the dependency system in two respects. First, findings made at those hearings often form the basis of an order at the permanent plan hearing terminating parental rights. [Citation.] In order to terminate parental rights, the juvenile court must expressly make two findings: ‘(1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated.’ [Citation.]
“Of course, as we have seen, it is at the review hearings that crucial determinations regarding reunification efforts and the return of the minor are made. [Citation.] This is not news. When the statutory revisions of 1982 were reviewed several years later, they were found to be insufficient. The Legislature established a task force to look into the matter. More statutory reforms followed. [Citation.] Of particular pertinence here, the task force declared, ‘“the critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that [further] reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.” [Citation.] The task force’s intent was “to eliminate duplication between the regular review hearings and the termination hearing. Therefore, the decisions made at the review hearing regarding reunification are not subject to relitigation at the termination hearing. This hearing determines only the type of permanent home.” [Citation.]’ [Citation.]
“From the perspective of the parent, review hearings are the essential mechanisms by which he or she may be foreclosed from any further relationship with the child. Parents have a liberty interest in their relationship with their children. This interest is fundamental and, therefore, may not be extinguished without due process. [Citation.] Family preservation, of which reunification services constitutes an integral component, is the ‘first priority’ through the review hearing stage of dependency proceedings. [Citation.] During this time, the parent has the best opportunity he or she ever will have to make the strongest case possible in favor of returning the child to parental custody. Thus, review hearings represent one of the ‘[s]ignificant safeguards … built into the current dependency scheme.’ [Citation.]” (James Q., supra, 81 Cal.App.4th at pp. 262-263.)
Because a parent’s fundamental interest in preserving his or her family is implicated at these hearings, a parent must have the right to protect his or her rights. A parent’s rights are protected by ensuring the parent has notice of the hearing, has the opportunity to present evidence, and has the opportunity to cross-examine adverse witnesses. (David B., supra, 140 Cal.App.4th at pp. 778-779; James Q., supra, 81 Cal.App.4th at p. 265.) Nor can a parent’s rights be protected if the parent is required to provide the juvenile court with an offer of proof demonstrating the need for a contested hearing. A parent must be provided with the opportunity to make his or her case (James Q., at p. 267) and to test the adverse evidence through cross-examination of adverse witnesses. “Cross-examination is not just the ‘Hail Mary pass’ of a desperate attorney; it is a recognized method of challenging adverse witnesses, one protected by fundamental notions of due process of law and fundamental fairness. [Mother and father are] entitled to [their] day in court.” (David B., supra, 140 Cal.App.4th at p. 775.)
II. ICPC Not Required When Placing a Child with an Out-of-state Parent
Second, the juvenile court erred by requiring completion of the ICPC process before considering visitation or placement of M.O. with her parents in Arizona. As we shall explain, the ICPC does not apply to visitation or placement of a child with either parent when that parent resides in another state.
The ICPC is an agreement between the states, including California, which governs the procedures that must be followed if one state wants to “send, [or] bring … into any other party state any child for placement in foster care or as a preliminary to a possible adoption.” (Fam. Code, § 7901, art. 3, subd. (a).) The ICPC’s intent is to ensure cooperation between states in the placement and monitoring of children. (Tara S. v. Superior Court (1993) 13 Cal.App.4th 1834, 1837 (Tara S.).) “Placement” is defined as “the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution.” (Fam. Code, § 7901, art. 2, subd. (d).) Since the compact applies only to placements for foster care or preliminary to adoption, both of which preclude custody by a parent, and “placement” is defined to include placement of a child in a home or institution that does not include family, the compact does not apply to either visits or placement of a child with his or her biological parents.
Every California case that has considered the issue has reached the same conclusion. (In re John M. (2006) 141 Cal.App.4th 1564, 1572 (John M.) [ICPC does not apply to out-of-state placement with a parent]; In re Emmanuel R. (2001) 94 Cal.App.4th 452, 458-459 [ICPC does not apply to out-of-state visits or placement with a parent]; In re Johnny S. (1995) 40 Cal.App.4th 969, 977 (Johnny S.) [ICPC does not apply to out-of-state placement with a parent]; Tara S., supra, 13 Cal.App.4th at pp. 1837-1838 [ICPC does not apply to out-of-state detention with a parent].) To the extent California Rules of Court, rule 5.616 conflicts with the statute, it is ineffective. (John M., at p. 1575; Johnny S., at p. 978.)
This is not to suggest that the agency and the juvenile court are precluded from utilizing the ICPC procedures in this case. The agency and the juvenile court should verify that mother and father can provide a safe home for M.O. before she is returned to their custody. One method for doing so is to request the assistance of Arizona using the ICPC procedures.
The agency and the juvenile court, however, must keep two facts in mind. First, there are other procedures that could be utilized. The ICPC permits the agency to enter into a voluntary agreement with a public or private agency in Arizona for the performance of services related to the case. (Fam. Code, § 7901, art. 5, subd. (b); John M., supra, 141 Cal.App.4th at p. 1572.)
Second, since the ICPC is not applicable to placement with the parents, a favorable recommendation from Arizona is not a prerequisite to placement of M.O. with her parents. The juvenile court must consider all of the information presented, and the statutory requirements, before determining whether M.O. should be allowed to visit or be placed with mother and father. Because the juvenile court apparently believed that a favorable ICPC recommendation was a prerequisite to placement of M.O. with mother and father, it erred.
III. Improper to Consider M.O.’s Bond with Foster Parents
Third, the underlying theme throughout this appeal is the belief by the agency and M.O.’s counsel that it would be in M.O.’s best interests to be placed for adoption with her foster parents. It appears from some of the comments and actions in this case that the juvenile court may have reached the same conclusion. While the record certainly supports the conclusion that the foster parents have done a remarkable job of caring for M.O. under very difficult circumstances, and undoubtedly would be excellent adoptive parents, this is not an issue that should be considered at this point of the proceedings.
The Legislature has specifically set forth the principles that must guide the juvenile court. Family preservation is the primary focus during the first 12 to 18 months of dependency proceedings. (David B., supra, 140 Cal.App.4th at p. 778.) Until a hearing is held pursuant to section 366.26, “the parent’s interest in reunification is given precedence over the child’s need for stability and permanency.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Only after the juvenile court has terminated services and ordered a section 366.26 hearing may it consider the quality of a child’s relationship with his or her guardians. (Rita L. (2005) 128 Cal.App.4th 495, 507.) The juvenile court erred to the extent it considered M.O.’s bond with her foster parents in making any of the previous orders.
IV. Mother and Father’s Relocation
Finally, we feel compelled to comment on the parents’ decision to relocate to Arizona. Both the juvenile court and the agency consider this decision to have been a poor one, one that will make it difficult, if not impossible, for the parents to reunify with M.O. If one considers the entire record with an open mind, it is possible that the parents felt they were left with no option if they hoped to reunite with M.O.
M.O. was placed in foster care when she was diagnosed with life-threatening medical conditions. Mother and father, to their credit, recognized that they were not in any position to provide M.O. the care she needed and voluntarily placed her in foster care and agreed to receive family maintenance services. When the maximum term of six months for voluntary foster care was reached, M.O.’s parents did not oppose the petition filed by the agency, determining that all of the children should be found to be dependents of the juvenile court.
Both mother and father then proceeded to do what was required to regain custody of M.O. and the other children. Their efforts were not perfect, and there were certainly missteps, but progress was made until the first 12-month review hearing was held. By that time, the only issue preventing reunification was that neither mother nor father had obtained stable housing in close enough proximity to the hospital so they would be able to respond to any emergency that should occur as a result of M.O.’s medical condition. The juvenile court decided at that 12-month review hearing to terminate reunification services for both mother and father, thus making it extremely unlikely they ever would reunify with M.O. We reversed that order because the agency did not provide reasonable reunification services to mother and father.
Before we reversed the order terminating reunification services, instead of giving up, mother and father took matters into their own hands. They moved to Arizona where they would receive support from family members, the support the agency failed to provide. Mother obtained employment. They gained access to a vehicle to ensure they would have the ability to take M.O. to medical appointments and would be able to respond to medical emergencies. They retained custody of their other four children, with the juvenile court eventually terminating jurisdiction over these children. They made sure their residence was within close proximity to a children’s hospital that could meet M.O.’s medical needs. After doing these things, they applied to the juvenile court for an order to gain custody of M.O. The juvenile court denied the request without holding a hearing, even though mother and father apparently had done everything that was asked of them.
An unbiased view of these facts would lead one to conclude that mother and father did not move to Arizona to abandon M.O., but did so because there was no assistance available to them in California that would permit them to reunify with M.O. Moving to Arizona was the only possible option they had if they hoped to reunify with M.O. And now, the agency and the juvenile court appear to be punishing mother and father for this choice. This is not appropriate.
CONCLUSION
We will reverse the order from the second 12-month review. We will order the juvenile court to hold another 12-month review and allow a contested hearing, if mother requests one. Our conclusion renders the remaining contentions of mother moot.
We understand that by the time this opinion is issued, circumstances may have changed and the positions of the parties may have changed with them. We also are cognizant that this is the second time mother successfully has sought relief from this court. The result of the prior errors has been to extend the reunification period significantly. This extended time period has prevented the permanency and finality that all parties surely desire. This goal can be reached if all parties cooperate to comply with the applicable law.
DISPOSITION
The order from the 12-month review is reversed and the matter is remanded to the juvenile court with instructions to hold another 12-month review and allow a contested hearing, if mother requests it.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.