Opinion
A153111 A153253
12-04-2018
In re A.S, a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Appellant, v. L.J., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV170134)
I.
INTRODUCTION
Humboldt County Department of Health and Human Services (the department) and minor's counsel appeal the juvenile court's order dismissing the dependency petition for nine-year-old A.S, contending that the juvenile court erred as a matter of law when it failed to make the required findings under Welfare and Institutions Code section 390 and California Rules of Court, rule 5.695, abused its discretion by refusing to allow the department to present testimony from certain witnesses, and failed to consider its options under rule 5.616 concerning out-of-state placement before dismissing the dependency petition.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
All rule references are to the California Rules of Court.
We find the juvenile court did not abuse its discretion in ruling that the department was not allowed to present testimony from certain witnesses. We find that the juvenile court did err when it failed to make the required findings under section 390 and rule 5.695 and failed to consider its options under rule 5.616 before dismissing the dependency petition. We reverse the order dismissing the petition and remand to the juvenile court for further proceedings.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Petition and Detention Hearing
On July 17, 2017, the department filed a juvenile dependency petition under sections 300, subdivisions (b)(1) (failure to protect) and (c) (serious emotional damage) alleging that Mother had failed to protect A.S. who was at risk of harm and serious emotional damage due to witnessing domestic violence between Mother and Father, and that A.S. was at risk due to Mother's untreated mental illness and Father's inability or unwillingness to protect the child from the conduct of the mother.
The detention report explained the petition arose out of an incident on July 11, 2017, when the family was staying at a campground and the parents got into a fight over money. During the argument, and in the presence of A.S., Mother stated she was going to begin making pornographic videos in front of A.S. in order to make money. Mother stated she was going to slit her own throat and slit Father's throat. Mother yelled that the father was beating her, even though the father was not near Mother and was not hurting her. Father called his adult daughter, C.S., who took A.S. away. Father stayed behind with Mother because he was afraid to leave her by herself during her manic episode. Mother is allegedly bipolar and had not been taking her medication.
The report noted that both parents were very thin and Mother had scab marks all over her, which could indicate substance abuse. C.S. reported that A.S. had told her she was afraid when her parents were fighting, and she had seen them both hit each other.
A.S. told the social workers that her family had moved around and lived in Tahoe and Colorado. When they lived in Tahoe, she remembered one incident in which her parents were arguing, and Father punched Mother in the mouth. Mother's mouth was bleeding and Father had knocked out part of Mother's tooth. Mother grabbed A.S. and then left the house. A.S. stated Father is usually the one who hits first and then Mother hits back. They say the "B" word and the "F" word during their fights. "Her parents fight almost on a daily basis."
During an interview, A.S. described the incident on July 11th as a fight between her parents. The family was sleeping in a tent when Mother woke up and began rummaging through their things, and Father got mad that she awakened him. Father punched Mother with a closed fist and they began to yell the "B" word and the "F" word at each other. Mother punched Father on the arm. A.S. got into the car and then Mother followed, and they drove away Mother drove up and down the road and saw Father walking. Mother stopped the car and they began to fight again. Father asked someone to call C.S. and she came to pick up A.S. Mother said that she wanted "to kill [A.S.'s] dad and get rid of him." A.S. was crying when her parents were fighting.
C.S., who is A.S.'s adult half-sister, reported that she called the local sheriff's office to report the incident. C.S. stated that she witnessed Mother pretending to slit Father's throat in front of A.S. A.S. typically stays with C.S. every weekend. After the incident, C.S. brought her back to where she was staying. A.S. said she was not worried about being with her sister C.S. A.S. stated she worried about going back to her parents. She did not want to voice her worries, but she wrote down: "I get skard to go with them I do not like wen thay fighte."
During July 13-14, 2017, the social workers tried repeatedly to contact both Mother and Father by phone and got no answer. Finally, Mother returned the call and stated that Father had been physically violent to her in front of A.S. on July 11, 2017. Mother stated she wanted A.S. returned to her and she would not be getting back together with Father.
On July 18, 2017, the juvenile court held a detention hearing, where Mother submitted on the issue of detention. Father, noted as an alleged father in the detention report, was not present.
B. Jurisdiction Report and Hearing
In the jurisdiction report, the department reported the social worker's conversation with Mother who stated she could not recall much of what happened on July 11, 2017. She said that Father hit her 25 times on the head while she was driving the car that day. She pulled over and while they were on the side of the road, C.S. arrived and took A.S. away.
Mother recounted a prior incident when they lived in Tahoe in which Father was physically violent in front of A.S. Father punched Mother in the mouth and Mother spit blood into Father's face. Mother left Father after the incident but then got back together with him. During another incident, Mother went to pick up Father and Father began to scream in front of A.S that Mother was going to murder him.
Mother stated the physical abuse began about three years ago but she had never contacted law enforcement. A.S. had been witnessing the abuse for several years. Mother said Father had never abused A.S. except once during an incident that took place a few weeks before when A.S. tried to intervene and defend Mother. Father hit A.S. in the head by her ear with an open hand.
Mother told the social worker that on July 13, 2017, she sought a Domestic Violence Restraining Order (DVRO) against Father. She said that she and A.S. would need therapy because they had been traumatized by Father's abuse. The social worker contacted the sheriff's department and found that Mother had reported the domestic violence incident but had not wished to press charges. Mother filled out a DVRO petition, in which she described the domestic violence that occurred on July 11, 2017, as well as other domestic violence incidents that had taken place in the past. Mother stated that A.S. had witnessed her being abused. She recounted other instances of abuse in September 2013, threats of violence from July 2015 to August 2016, and "verbal, mental and physical abuse" in May 2017. She claims that Father threatened to kill her and himself, broke her hand and her nose, and gave her black eyes and other injuries. She said she suffered from three years of panic attacks and stress related to an eating disorder.
In its report, the department's assessment was that A.S. may be seriously physically or emotionally harmed if Mother does not address her mental health issues and if the parents continue to engage in domestic violence in front of her.
At the jurisdictional hearing, the department agreed to waive section 300, subdivisions (b)(2) and (c)(2) and Mother agreed to submit on counts b-1 (failure to protect) and c-1 (serious emotional damage). It was agreed that the allegations under section 300, subdivisions (b)(2) and (c)(2) could be considered in fashioning services. Mother also agreed to submit to a mental health and an AOD assessment. The juvenile court found by clear and convincing evidence that A.S. was a child described in subdivisions (b)(1) and (c) and sustained the petition.
The alleged Father was not present.
C. Disposition Report and Hearing
Prior to the disposition hearing, the department filed a pretrial statement recommending that the court declare A.S. to be a dependent of the court and maintain A.S.'s relative placement with her adult sister, C.S., in Humboldt County. A.S. reported that she likes living with her adult sister and enjoys her room. She likes her school "very much" and was doing well there. The department further recommended that Mother be provided with family reunification services and that an expedited Interstate Compact on the Placement of Children (ICPC) be ordered so that Mother could obtain supervised services in Colorado. The department took the position that because California is A.S.'s home state where she has been living the past four years, the juvenile court had jurisdiction to declare her a dependent of the court. Mother claimed that she and A.S. now resided in Colorado, even though Mother had been receiving food stamps in Humboldt County. Mother filed a "Memorandum re: California Jurisdiction Under UCCJEA." Mother argued that California was not A.S's "home" state since A.S. now lived with her in Steamboat Springs, Colorado, and the juvenile court in California was without jurisdiction under the UCCJEA.
" 'The purpose of the ICPC is to facilitate cooperation between participating states in the placement and monitoring of dependent children.' " (In re C.B. (2010) 188 Cal.App.4th 1024, 1032.) The ICPC does not apply to the placement with an out-of-state parent. (Id. at pp. 1035-1036.) 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 Suhey G. (2013) 221 Cal.App.4th 732, 743.)
The department argued Mother's request for placement in Colorado needed to be monitored pursuant to an ICPC to assist Mother with obtaining services. Child welfare services in Colorado could do an assessment of Mother's home for child safety and provide services once an ICPC was in place.
The disposition report noted Mother reported that she was "getting started" with mental health services. Mother told the social worker she was doing her own substance abuse testing. When the social worker asked Mother to complete a hair follicle drug test arranged by the department, Mother became angry and made derogatory comments about the social worker and refused to take the test.
The disposition report noted Mother loves A.S. and wants to reunify with her. Mother had traveled from Colorado for regular visits with A.S. Mother stated she would like to engage in case plan services in Colorado and participate in mental health and domestic violence services.
Although Mother claimed she would not reunite with Father, the report noted that she had left Father numerous times in the past but later reconciled with him.
The department's position was that Mother needed to receive mental health services, drug testing, and address the domestic violence issues before A.S. could be safely returned to her care. Her case plan would include weekly counseling to address cycles of domestic violence, parenting education, and substance abuse testing. The report also recommended that Mother complete a mental health assessment. The department's recommendation was for the court to order family reunification services to Mother and to keep A.S. in out-of-home placement with her adult sister C.S. The department's position was that Mother's progress towards alleviating or mitigating the causes that led to A.S.'s removal was "minimal."
The disposition hearing was originally scheduled for August 22, 2017 but was postponed three times at Mother's request. Mother also filed a motion to disqualify the judge, which further delayed the hearing. The contested hearing finally went forward on November 3, 2017.
At the disposition hearing, the court noted it had reviewed the disposition report prepared by social worker Kristin Ellis. Mother's counsel cross-examined Ms. Ellis. Ellis stated she had no information about Mother participating in domestic violence counseling in Colorado. Ellis stated that even if the Father was in Humboldt and Mother and A.S. were living in Colorado, A.S. could still be exposed to domestic violence involving her parents. Ellis noted that according to Mother, she and A.S. had been living in Colorado when Mother returned with A.S. to Humboldt County for a visit. This is when the current domestic violence incident occurred. The department wanted to observe Mother and document her behavior change over time to make sure she was protecting A.S. from exposure to violence. Ellis stated she also could not verify the steps Mother had taken toward mitigating the circumstances leading to the detention. Although Mother reported engaging in drug testing and mental health services, the department could not verify it. Ellis also confirmed that the department was unable to assess Mother's home in Colorado. All they had to document her living situation was "a lease agreement for a 100 something-square-foot area in an address" not on a map.
By the time of the disposition hearing, the disposition report was 70 days old. The social worker had not written an updated report.
Ellis testified that A.S. had to be declared a dependent before the department could request an ICPC. An ICPC would allow the department to work with social service agencies in Colorado to verify all of the information provided by Mother. The department could have obtained the information if Mother had been willing to sign releases. Despite repeated requests, Mother had not provided any signed releases to the department to allow them to verify the information in Colorado. The department concluded that A.S. could not be safely be returned to Mother because of the "pattern of domestic violence, the fact that we cannot verify some of the mother's services, and that we cannot assess her home and her situation where she lives."
Mother testified she moved to Colorado in May 2017. She enrolled A.S. in school and then enrolled her in the Boys and Girls Club. Mother stated the domestic violence began in 2013 and she sought a temporary restraining order in December 2013. She filed for divorce in 2014. She later reconciled with Father, and he moved back in with Mother and A.S. in May 2014. Mother dismissed the divorce action. In July 2015, Father became abusive again. Mother stated she was in domestic violence counseling with Advocates, Community Partners in Colorado. She had not provided Advocates with any documents from this case or the temporary DVRO.
Mother described the July 2017 incident as Father assaulting and beating her "near death." She said that she was camping with A.S. and came out of the tent and Father was there. Father started screaming at her and she put A.S. in the car and drove away. She said they went to breakfast and then when she pulled off the road to use her phone, Father was standing there, and he was screaming and acting crazy. He attempted to drive her car and then she took over driving, but Father began repeatedly punching her in the head. She pulled over again and Father yelled to somebody to have C.S. come to pick up A.S.
Mother testified that she filed a request for a DVRO against Father after this happened. She had a mental health assessment and sought domestic violence counseling in Colorado. She did her own hair follicle testing. Mother admitted that she had missed several hair follicle testing appointments that the social worker had scheduled for her.
Mother disputed A.S.'s description of what happened on July 11th. She claimed Father was not camping or sleeping with them that morning. She also disputed that when she went to the sheriff's department she did want Father arrested and she did want to press charges.
Even though Mother reported that she had moved to Colorado, Mother admitted to being in Humboldt County on June 18, 2017, and from July 9 to July 13, 2017, and being in the Tahoe area for a week around June 25th.
Mother stated she did not believe witnessing the abuse caused behavioral changes in A.S. She also stated that she had no history of bipolar disorder and did not suffer from an eating disorder.
Social Worker Newton testified she originally provided referrals for Mother for services in Humboldt County in August 2017 and then provided referrals in Colorado in October 2017. Newton's recommendation was for the court to order reunification services for Mother. She could not recommend returning A.S. to Mother because the department could not verify that all the issues leading to detention had been addressed. Mother had not provided any releases for information about her services in Colorado. Newton had requested them multiple times. The court asked Newton what Mother would have to do to satisfy the department that she could protect A.S. Newton responded Mother needed to sign the releases, so Newton could talk to the Colorado service providers to ensure that Mother is receiving appropriate services to end the cycle of domestic violence. The department also wanted to rule out any mental health issues that could impact A.S. The department felt Mother needed assistance from child welfare services in Colorado.
The department argued that under the uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), California was the default jurisdiction for A.S. It requested that if the juvenile court was going to order A.S. returned to Mother, the court order an expedited ICPC to keep the family maintenance case open. The department argued that the case law clearly demonstrated that repeated exposure to domestic violence has a significant detrimental impact on children and requires treatment. The studies show the average victim of domestic violence leaves seven times before they leave for good, and Mother has shown a pattern of leaving Father and returning. The department's position was that Mother needed treatment and the department needed to be able to verify that Mother was engaged in services in Colorado.
Minor's counsel argued it wanted an ICPC in place to have a social worker in Colorado monitor Mother and A.S. Counsel stressed the need for Mother to be in treatment since Mother had identified multiple incidents of domestic violence and threats of violence that had taken place before this incident. Even after moving to Colorado in May 2017, she returned to see Father for Father's Day in June 2017. The fact that Mother noticed no change in A.S.'s behavior also suggested that domestic violence had been an ongoing part of this child's life. Minor's counsel requested that an expedited ICPC be completed before A.S. was returned to her Mother. This would have A.S. "home by Christmas with services in place in Colorado."
At the close of the disposition hearing, the juvenile court decided to return A.S. to Mother, stating it wanted A.S. to return to Mother "right away." The juvenile court explained that it was a question of deciding between dismissing the petition or ordering informal supervision. The juvenile court wanted to allow A.S. to return to Mother with "proof provided and the permission signed so that the department can check up that she's going to mental health, Mind Springs, and that's she's going to the DV [treatment]." The court stated that keeping A.S. in Humboldt County was not safe for her because "right now, this child lives in southern Humboldt with the abusers of the child." The court found "the biggest best step is to get as far away from southern Humboldt as possible."
The disposition report noted that Father's whereabouts were unknown. He was last known to be staying in a tent in Southern Humboldt. He was not present at the disposition hearing.
The court wanted to place Mother and A.S under informal supervision in Colorado pursuant to section 360, subdivision (b). The department responded that informal supervision was not an option without a finding of dependency because the court lacked the authority to order an expedited ICPC and an expedited ICPC was needed in order to implement any out-of-state supervision. The court replied "All right. Then I'm going to dismiss the petition today." The department requested a stay of the court's order to seek emergency appellate relief, which the court denied. The court stated its priority was to remove the child from the proximity to Father. "Mom may move to Colorado. Mom may get back together with this person, but that's not what I am here to decide."
III.
DISCUSSION
A. The Juvenile Court Failed to Make Specific Findings under Section 390
If a court elects to dismiss a section 300 petition at the dispositional hearing, it must comply with section 390 and make specific findings: "that the interests of justice and the welfare of the minor require the dismissal, and that the parent or guardian of the minor is not in need of treatment or rehabilitation." (Welf. & Inst. Code, § 390.)
Both the department and the minor's counsel argue the juvenile court failed to make the necessary findings and therefore the dismissal of the section 300 petition must be reversed.
An order dismissing a dependency petition is ordinarily reviewed for substantial evidence. (In re J.L. (2014) 226 Cal.App.4th 1429, 1433-1436; In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) The proper interpretation of a statute or the application of a statute to undisputed facts are questions of law reviewed de novo. (In re R.C. (2011) 196 Cal.App.4th 741, 748.) Here appellants allege the juvenile court failed to make the statutorily required findings to dismiss the petition, which does not raise a question of the application of a statute to undisputed facts. The court weighed the disputed facts at the disposition hearing but failed to set forth any findings on the record. We therefore apply the substantial evidence standard. "We review the juvenile court's jurisdictional findings for sufficiency of the evidence. [Citations.] We review the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible." [Citation.] ' "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." ' " (In re J.L., supra, at p. 1433.)
Mother cites In re Destiny D. (2017) 15 Cal.App.5th 197, 211 to support her position that the juvenile court has broad authority to enter orders to protect a dependent child and to reunite the family and terminate jurisdiction as quickly as possible. We agree with the court in Destiny D. that dismissal at disposition is rarely done and should be reserved for only the most unusual case. In Destiny D., the appellate court set forth the standard for dismissal: "In holding the juvenile court has statutory authority to terminate dependency jurisdiction at the conclusion of a disposition hearing, we do not intend to suggest such action should be the norm. To the contrary, it will be an unusual case when protections imposed at disposition will be sufficient to permit the conclusion that termination is appropriate." (Ibid., italics added). The court confirmed that jurisdiction should not be terminated unless the court concludes "services and ongoing supervision are not necessary to protect the child." (Ibid.)
Division Three of this court also addressed the issue of terminating dependency jurisdiction early at the conclusion of a disposition hearing in In re Carl H. (2017) 7 Cal.App.5th 1019 (Carl. H.). The mother and Carl Sr. had an eight-year-old son, Carl Jr. The mother was only 14 years old when Carl. Jr. was born, and Carl Sr. was abusive to her. However, due to domestic violence in the home with Carl Jr.'s step-father, Kevin F., Carl. Sr. was given full custody of Carl Jr. (Id. at p. 1023.) The mother had two children with Kevin F., Harmony and Melody. (Ibid). All three children frequently stayed with their grandmother, whose home was unsafe due to extensive clutter and prescription medications left in reach of the children. (Id. at pp. 1023-1025.) When Carl Jr. was six years old he ingested methadone at the grandmother's home and had to be taken to the hospital. (Id. at p. 1023.)
A petition was filed as to Harmony and Carl Jr. when 17-month-old Melody ingested methadone at the grandmother's house and died while grandmother and Carl Sr. were present in the home. (Carl H., supra, 7 Cal.App.5th at pp. 1024-1025.) The department recommended out-of-home placement for Carl Jr. with reunification services for Carl, Sr. (Id. at p. 1027.) Carl Sr. allowed Carl Jr. to stay in unsafe surroundings where he was exposed to medication and marijuana. (Id. at p. 1027.) Carl Jr. testified that up until the time Melody died, he was handling medication for his grandmother. (Id. at p. 1025.) The agency argued Carl Sr. put Carl Jr. "in a situation that an eight-year old shouldn't be required to make determination that one drug is potentially fatal, and one isn't." (Id. at p. 1032.)
The juvenile court found the allegations in the petition that Carl Jr was at risk of harm due to easy access to dangerous medications untrue, because Carl Jr. was aware the medications were dangerous. (Carl H., supra, at p. 1031.) The court also found untrue the allegation the grandmother's home was unsafe because Carl Sr. cleaned up the bedroom he shared with Carl Jr. and Carl Jr. seemed to be able to negotiate in the clutter. (Id. at p. 1031.) The court did find true the allegation that Mother had caused another child's death through abuse and neglect. (Ibid.) But because there were no remaining allegations against the Father, Carl Sr., the juvenile court viewed him as the non-offending parent and believed the child should be returned to him. (Id. at pp. 1032, 1036). After declaring Carl Jr. a dependent child, the juvenile court dismissed the petition for Carl Jr. in favor of family law custody orders awarding joint legal custody to parents with sole physical custody to Carl Sr. (Id. at pp. 1032-1033, 1036.)
On appeal, Carl Jr. argued the juvenile court erred in dismissing the petition after establishing dependency jurisdiction. (Carl H., supra, 7 Cal.App.5th at p. 1022.) Under section 390, a petition may not be dismissed "unless the court makes the statutorily required findings, namely: (1) 'that the interests of justice and the welfare of the minor require the dismissal' and (2) 'that the parent or guardian of the minor is not in need of treatment or rehabilitation.' " (Id. at p. 1038.) " 'Such dismissals are rare and usually occur only when the goal of protecting the child has been achieved without court intervention.' " (Ibid.)
Division Three agreed and concluded that the juvenile court had failed to make the findings as required under section 390 and the record would not support such findings had they been made. (Carl H., supra, 7 Cal.App.5th at pp. 1038.) Carl, Sr., chose to place Carl Jr. at risk by living with the grandmother, "even after Carl Jr. was poisoned by the methadone left freely around the house in reach of the children." (Ibid.) Carl Sr. exposed his son to marijuana. Carl Sr. "had a sexual relationship with Mother when she was a minor, impregnating her when she was 13 or 14 years old. He abused her in front of their son. He exhibited callous disregard for the lives and well-being of his son's young half-sisters when they were in Grandmother's home, feeling no responsibility to protect them from obvious hazards there. He lacked appropriate housing." (Ibid.) Noting that these facts were not in dispute, the court stated "[o]n this record, it is difficult to understand how a trier of fact could conclude Carl Jr.'s welfare and the interests of justice demanded that the court terminate its dependency jurisdiction." (Ibid.)
1. Interests of Justice and Welfare of the Minor
Like the juvenile court in Carl H., the juvenile court here failed to make the required findings under section 390, and the record would not support such findings if they had been made. In making a finding under section 390, "it is incumbent on the juvenile court to take into account the child's physical, emotional, and psychological needs; the circumstances of the child's parents; and any other factor that may affect the child's welfare, both current and prospective." (In re Y.M. (2012) 207 Cal.App.4th 892, 912.)
The reports and testimony established that Mother and Father repeatedly subjected A.S. to the risk of harm and emotional damage from witnessing domestic violence. The domestic violence occurred over a three-year period and it caused A.S. to be scared to be with her parents. The department could not verify that Mother was participating in services in Colorado. Mother never signed the necessary releases to allow the department to obtain any information. Mother also admitted she never provided information about the sustained dependency petition to the service providers in Colorado. Mother failed to appear at scheduled drug tests.
In sustaining the petition, the juvenile court found A.S. to be a child described under section 300, subdivision (b) and found counts B1 and C1 to be true by clear and convincing evidence based on A.S.'s exposure to domestic violence. By the time of the dispositional hearing, almost three months later, there was no evidence that Mother had resolved any of the issues leading to the sustained petition. The juvenile court correctly identified Mother's move as one positive step, but even though Mother had moved to Colorado, in the past, she had repeatedly returned to California to be with the abusive Father. The current incident of domestic violence occurred after Mother allegedly moved out of the area. Although the court accepted Mother's statements that she was engaged in services in Colorado, two social workers testified the department was unable to verify this information or determine what progress Mother had made in her case plan.
Mother acknowledges that the juvenile court failed to make any findings as required under section 390 but contends that the record establishes that the juvenile court made implicit findings supported by substantial evidence. Mother moved to Colorado, engaged in services there, and obtained a DVRO against Father, In her care, A.S. was a star student who received many awards. A.S. had always lived with Mother until her removal. Mother testified that A.S. did not show any behavioral changes as a result of witnessing the domestic violence incidents that would show she was suffering or at risk of suffering emotional harm. She would be safer living with Mother than in Humboldt County.
None of this evidence supports a finding that the interests of justice and welfare of A.S. "require" the dismissal of the petition. To the contrary, these factors strongly support the department's position that it needed to remain involved in the case. Supervision was required to ensure that Mother followed through with the temporary restraining order and received counseling to understand about the cycle of domestic violence and the significant detrimental impact it has on children who have been exposed to it. The department needed to verify A.S. was living in an appropriate residence for a 9-year-old child since Mother's lease agreement for a 140 square foot apartment had an address that the social worker was not able to locate on the map. While Mother argues that it was simply not safe for Mother (and A.S.) to live in Humboldt county where the Father lived, there is no evidence that A.S.'s placement with her adult half-sister C.S. in Humboldt County put her in any jeopardy. A.S. reported to her social worker that she liked living with C.S., had her own room, and was doing well in school. The department reported that the siblings have a strong connection. A.S. was used to regularly staying with C.S. on the weekends for visits. Further, once served, Mother's DVRO would prohibit Father from having any contact with either Mother or A.S.
At the time of the disposition hearing, Mother had not succeeded in her attempts to serve Father with a copy of the temporary restraining order.
The juvenile court stated that it understood the impact of domestic violence on both children and adults and their health. However, it felt that it was not safe to keep A.S. in Humboldt County because the abuser, her Father, lived there. While the juvenile court did express a concern about A.S.'s safety and the need to put some physical distance between A.S. and the "abusive" father, simply moving A.S. to Colorado would not provide adequate protection for A.S. from witnessing further episodes of domestic violence between her parents. The court appeared to acknowledge this when it stated: "Mom may get back together with this person, but that's not what I am here to decide." As the department points out, the purpose of the dependency process is to protect the child and ensure Mother gets the necessary services to prevent future incidents. The child's prospective welfare is a relevant part of the inquiry. (See In re Y.M., supra, 207 Cal.App.4th at p. 912.) The court's duty is to determine if Mother can protect A.S. from future incidents. It does not appear that the juvenile court understood that it needed to make this determination before dismissing the petition. While the court believed Mother required services including domestic violence counseling, once it dismissed the petition, there was nothing in place to ensure she received them in the future.
2. Need for Treatment and Rehabilitation
The juvenile court did not and could not find that the goal of protecting A.S. had been achieved or that Mother was not in need of treatment or services. The reports documented that Mother needed mental health counseling, drug testing and domestic violence counseling. Mother had displayed a pattern of suffering abuse and then returning to Father over a period of three years. She needed to engage in services to stop the cycle of violence. There was also evidence before the court that A.S. needed services to cope with her exposure to years of domestic violence.
Here the juvenile court did not make any findings on the issue of whether the Mother needed treatment or rehabilitation. All the court stated was that Mother needed to provide a signed release so the department could "check up" on her and ensure she was going to mental health treatment and domestic violence counseling. While the court stated that it wanted to place the child with Mother in Colorado under supervision with appropriate services, when the department advised the court that it could not do so unless A.S. was declared a dependent of the court, the court chose to dismiss the petition instead. The juvenile court also made no finding that ongoing supervision was not necessary to protect A.S.
Mother argues that substantial evidence supported the juvenile court's order dismissing the petition because she was not in need of treatment or rehabilitation. Mother stated that she was no longer with Father and had permanently ended the relationship. But Mother had returned to Father in the past after domestic violence incidents. She testified that she obtained restraining orders against the Father for this incident. However, the most recent temporary restraining order had been served on Father. She had told the sheriff's department she did not want to press charges against him. Mother stated that she planned to file for divorce. She had previously filed for divorce from Father in 2014 but dismissed the petition shortly afterwards because they had reconciled. She had housing and employment in Colorado and could care for A.S. on her own. To show her commitment to her daughter, she had driven back and forth from Colorado for visitation. Most of this information was unverified. More importantly there is no evidence in the record that Mother had successfully completed any of the services she claimed to have received in Colorado which might have obviated the need for continued supervision.
In sum, as the department argues, the juvenile court never made findings that A.S.'s welfare required dismissal of the petition. The court made no findings that A.S. was now safe even though Mother had returned to the abusive relationship with Father on prior occasions. And the juvenile court made no findings that Mother no longer required services or treatment. The juvenile court's limited comments showed it too believed that Mother needed treatment and wanted the department to continue its supervision.
3. Alternatives to Dismissal
Both the department and the minor's counsel argued for the need to seek an expedited ICPC report from Colorado to ensure Mother had safe housing and was engaged in services. Minor's counsel argues on appeal the court misunderstood its authority under the ICPC.
We agree that Family Code section 7901, the ICPC, does not apply to placement with a parent out of state. Rule 5.616 provides:
"When a child will be placed with his or her parent in another state, compliance with the requirements of the ICPC is not required. However, the court has discretion to take the steps it deems necessary to ensure the child's safety and well-being in that placement. Those steps may include:
(1) Directing the child welfare agency to request an independent, non-ICPC home study or courtesy check;
(2) Directing the child welfare agency to enter into a contract with a public or private agency in the receiving state to obtain a home study or other needed information;
(3) Directing the child welfare agency to enter into an informal agreement with a public or private agency in the receiving state, or requesting a courtesy check from such an agency, to obtain needed information; or
(4) Any other steps that the court deems necessary to ensure the child's safety and well-being." (Rule 5.616(g).)
"[C]ompliance with the ICPC is not required for placement with an out-of-state parent." (In re John M. (2006) 141 Cal.App.4th 1564, 1575.) However, a state may request an ICPC evaluation "as a means of gathering information before placing a child with such a parent." (In re Suhey G., supra, 221 Cal.App.4th at p. 743.) The ICPC also permits "a sending public agency to enter into a voluntary agreement with 'an authorized public or private agency in the receiving state' for the performance of services related to the case by the agency in the receiving state." (John M., supra, at p. 1572.)
In John M., where the court sought to place a teenaged child with an out-of-state parent with limited information about the parent's circumstances, the appellate court concluded: "What the court should have done was continue the hearing, leaving John in his temporary placement for the period of time necessary to gather information about [the father]. In light of John's age, his special needs, and the court's estimate that it would take about a month or six weeks to receive an ICPC report, good cause existed for a continuance. A continuance would not have been contrary to John's interests." (John M., supra, 141 Cal.App.4th at p. 1572.)
A court is required to consider alternative means of providing services when the child is placed with an out-of-state parent. (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1264; In re John M., supra, 141 Cal.App.4th at p. 1572.) This is not limited to an ICPC evaluation. In Patrick S., where the juvenile court did not order an ICPC evaluation of the out-of-state father, the appellate court stated it could have considered other alternatives: "In view of [the father]'s exemplary service in the Navy, his long history of compliance with child support orders, P.S.'s age and abilities, and the lack of any risk to his physical health or safety, the court could have, but did not, consider whether ordering [the father] to comply with services, regularly communicate with the Agency and make P.S. available to the social worker was a reasonable alternative to ICPC monitoring." (Id. at p. 1264.)
Here, the juvenile court could have ordered the expedited ICPC evaluation that was requested by both the department and minor's counsel or considered alternative options to a home study or continued monitoring. This would have allowed the court to make the necessary findings about whether dismissal of the petition was in the interests of justice and whether services were still needed. Given the record, there was strong evidence that Mother needed continued services as did A.S. and the department could have worked with Colorado to monitor and ensure those services. Alternatively, the court could have considered other ways to provide continued monitoring and services to ensure A.S.'s safety without simply dismissing the petition and stating it was not the court's concern whether Mother reunited with Father in the future now that Mother lived in Colorado. The court could have utilized rule 5.616 to return A.S. to Mother in Colorado while also assuring her safety and well-being in Mother's care.
We find the juvenile court erred when it failed to make the required findings under section 390 and failed to consider its options under rule 5.616 before dismissing the dependency petition.
B. The Juvenile Court Failed to Comply with Rule 5.695
In addition to its failure to comply with section 390, the juvenile court also failed to comply with rule 5.695. The rule provides the juvenile court may dismiss a dependency petition "with specific reasons stated in the minutes." (Rule 5.695(a)(1).) Although Mother argues there are no published cases on what constitutes reversible error under rule 5.695, the issue was addressed by Division Three of this court in Carl H., supra, 7 Cal.App.5th at 1039. Division Three concluded the "term 'specific reasons' plainly refers to the findings required by section 390, which rule 5.695 implements. Any other interpretation would be inconsistent with the legislative intent expressed in the statutory enactment, and therefore invalid." (Carl H., supra, 7 Cal.App.5th at p. 1039.) The minutes or minute order dismissing a petition must set forth the findings required by section 390. Here, the minute order simply stated: "Petition is dismissed." The court failed to make the necessary findings orally or in writing, which requires reversal under both section 390 and rule 5.695.
IV.
DISPOSITION
The order dismissing the petition is reversed and the matter is remanded to the juvenile court for further proceedings.
/s/_________
LEE, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------