Opinion
H025202.
7-30-2003
In re COREY R., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. THOMAS R., Defendant and Appellant.
Cory R. and his half brother Charles C. were placed in Louisiana with Charless paternal uncle after the juvenile court terminated reunification services for their mother and for Corys father. Coreys father now appeals from the order terminating his parental rights (Welf. & Inst. Code, § 366.26, subd. (i); Cal. Rules of Court, rule 39.1A) arguing that Cory was improperly placed in Louisiana in violation of the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq) and that there was insufficient evidence of Corys adoptability. Although we find that the juvenile court violated the express provisions of the ICPC by sending Corey to Louisiana and that the Santa Clara County Department of Family and Childrens Services (Department) may be subject to sanctions for its noncompliance, we conclude that reversal and remand would be futile since Louisiana has now sent the ICPC approval. Additionally, we conclude that the juvenile courts finding that Corey was adoptable is supported by substantial evidence; therefore, we affirm the order terminating parental rights.
Cory and Charles had different fathers. Charless father died prior to the dependency.
All further statutory references are to the Welfare and Institutions Code; all rule references are to the California Rules of Court unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Five-year-old Corey and one-year-old Charles were taken into custody in August 2001 after their mother failed to comply with Voluntary Placement Services, tested positive for drugs, and failed to appear at a scheduled drug test appointment. At the time, Coreys father was in prison. Based on a petition filed pursuant to section 300(b), the juvenile court detained the children in August 2001. Subsequently, at the jurisdicational/dispositional hearing in October 2001, the court ordered reunification services for their mother and Coreys father after finding the allegation of the petition to be true. The juvenile court also ordered the children placed in foster care in Alameda County.
While the parents were participating in reunification services, Charless paternal aunt and uncle, who live in Louisiana, asked for custody of the children. The mothers cousin who lives in Vacaville also asked for custody, but the Department rejected her request because her husband had a recent criminal conviction. In January 2002, the Department sent an ICPC application to Louisiana on behalf of Charles, but Corey continued on track for reunification with his father who was making progress on his reunification plan and was visiting the children. After a domestic violence disturbance with his girlfriend in January, however, the father advised the Department that he may be picked up on a parole violation. Thereafter, he disappeared and his whereabouts were unknown. When the mother made little progress on her reunification plan, the Department recommended terminating services. On May 23, 2002, the Department sent an ICPC application to Louisiana on behalf of Corey. On May 28, 2002, the juvenile court terminated services and set a section 366.26 selection and implementation hearing.
On June 5, 2002, Charless aunt and uncle filed a section 388 petition seeking custody of both Charles and Corey. The maternal cousin filed a competing petition. The juvenile court sent the matter to mediation which concluded with a stipulation. On July 1, 2002, pursuant to the stipulation, the maternal cousin withdrew her petition and the court granted the paternal aunt and uncles petition, placing both children in Louisiana immediately. Coreys ICPC application had not yet been approved when he left for Louisiana. Louisiana did not actually approve the placement until March 27, 2003, several months after the juvenile court had terminated parental rights at the section 366.26 hearing held on November 1, 2002.
We granted the childs attorneys request for judicial notice of documents which include a number of "Interstate Compact Placement Requests" dated July 24, 2002 and November 28, 2002 and approved on March 27, 2003. (See In re Jayson T. (2002) 97 Cal.App.4th 75.)
DISCUSSION
Application of the ICPC
The father first contends that the juvenile court violated the ICPC when it placed Corey in Louisiana. The ICPC is an agreement among California and other states that governs the "sending, bringing or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption . . . ." (Fam. Code, § 7901, art. 3, subd. (b).) "By its terms, the ICPC apples only to a placement. [Citations.]" (In re Luke L. (1996) 44 Cal.App.4th 670, 682.) The parties here dont dispute that the juvenile courts order sending Corey to Louisiana on July 1, 2002, was, in fact, a placement. Accordingly, the ICPC applies to this case.
While the section 366.26 report dated September 24, 2002 characterizes Coreys stay as a "visit until ICPC foster placement [is] approved," and the termination order extends the "visit," the juvenile courts original July 1, 2002 order states, "minors are placed with [uncle and aunt]."
The ICPC prohibits sending a child to another state "unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein." (Fam. Code, § 7901, art. 3, subd. (a).) Specifically, the sending agency must give written notice to appropriate authorities in the receiving state (Fam. Code, § 7901, art. 3, subd. (b)), and the child may not be sent "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, art. 3, subd. (d).) At the time the juvenile court placed Corey in Louisiana, the Department had not received approval for the placement from the appropriate public authorities in Louisiana. Sending a child into a home for placement prior to completion of ICPC procedures is equivalent to a conditional or contingent placement which is barred by the ICPC. (In re Luke L., supra, 44 Cal.App.4th at p. 682.) Therefore the juvenile court erred in making the placement prior to receiving the ICPC approval from Louisiana.
The question we must resolve here is what remedy, if any, is now available for this violation. The ICPC itself provides for sanctions for any violation of its provisions. (Fam. Code, § 7901, art. 4.) However, the father has not sought sanctions. He asks us to reverse the order placing Corey in Louisiana. The Department urges us to find that the father waived this claim by failing to raise it below, or that it is invited error because the father agreed to the placement. Because of the policy considerations underlying the ICPC, neither contention is compelling.
The original order placing Corey in Louisiana is dated July 1, 2002. The father did not file an appeal from this order and any appeal therefrom is now untimely. (§ 395; In re Daniel K. (1998) 61 Cal.App.4th 661, 667.) Nor may he revive an attack on this appealable order from an earlier hearing, that has since become final, through his appeal of the section 366.26 order. (In re Jesse W. (2001) 93 Cal.App.4th 349, 355-359; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1152.) However, because the juvenile court reaffirmed and extended the Louisiana placement in its order terminating parental rights, again before receiving approval from the authorities in Louisiana, the ICPC issue is properly before us on appeal.
The purpose behind the ICPC is two-fold. First, it is intended "to facilitate cooperation between participating states in the placement and monitoring of dependent children." (Tara S. v. Superior Court (1993) 13 Cal.App.4th 1834, 1837.) In addition to the paramount consideration of protecting children, " protection of the receiving state is also an important purpose. The states have agreed that their public officers (and also private individuals and agencies) placing children from or into their territory are required to follow the procedures of ICPC. This is intended as a protection against receiving states having children "dumped" upon them. When children are placed without proper preparation, or when interstate placements go awry, the receiving state usually becomes responsible for rescuing the child and is thereafter usually saddled with the burden of finding suitable care and nurturing and paying for it. " (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 461.)
Because the requirements of the ICPC are intended to protect the interests of the participating states as well as the child, a parent cannot waive the issue by failing to raise it. (Cf. In re Nikki R. (2003) 106 Cal.App.4th 844, 849; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Further, the fathers stipulation to the out of state placement does not preclude a subsequent argument that the Department failed to comply with the requirements of the ICPC. A parents agreement to an out of state placement cannot relieve the Department of its obligation to comply with the provisions of the ICPC or the juvenile court of its obligation to assure that compliance, because the provisions of the ICPC are mandatory. (Fam. Code, § 7901.)
The Department next contends that any error was harmless because Louisiana had already approved the aunt and uncles home for Charles and that the court had a copy of the completed home study report at the time of the July 1, 2002 placement order. The Department cites no authority for this contention, and the proposed harmless error analysis is also inconsistent with the ICPCs purpose of protecting the child and the receiving state. ICPC approval must indicate that the placement is not "contrary to the interests of the child." (Fam. Code, § 7901, art. 3, subd. (d).) The approval of a home for one child does not mean that the home will be approved for another. Each child has his own special needs and requires individualized attention and care. The juvenile court cannot assume that a family approved for one sibling will be approved for another because a family who takes one child may be physically or emotionally incapable of caring for another. In fact, the aunt and uncles space constraints do appear to have delayed Coreys ICPC approval. Finally, each child placed in another state, creates a separate obligation for the receiving state, should the placement fail. (In re Emmanuel R., supra, 94 Cal.App.4th at p.461.) For these reasons, a juvenile court cannot rely on an ICPC approval for a sibling in placing another child.
The proper remedy for the violation of the ICPC is to reverse the order placing the child. (In re Luke L., supra, 44 Cal.App.4th at p. 674.) However, under the circumstance here, we will not reverse the order terminating parental rights. Since the date of the termination hearing, the Department has received the ICPC approval from Louisiana. Even if we were to reverse and remand, our disposition would require the juvenile court to reinstate its original findings if it found that all ICPC requirements were met. (Cf. In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1424, 285 Cal. Rptr. 507.) Since Lousiana has approved the placement, there is nothing further for the juvenile court to review and remand would serve no purpose.
In reaching this conclusion we note that we in no way sanction the resort to after the fact ICPC approval. This practice not only contravenes the explicit mandates of the ICPC, it also subjects the Department to the possibility of sanctions.
Adoptability Finding
In challenging the order terminating his parental rights, the father contends that the juvenile courts finding that Corey was adoptable is not supported by substantial evidence. "The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the childs age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile courts order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]" (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) Here, there was sufficient evidence to support the juvenile courts finding that Corey was adoptable. Corey is a healthy six-year-old with no apparent learning disabilities or emotional problems. He is developmentally on target. Although he had been prone to temper tantrums while in foster care, his current caretakers reported that he was not acting out in this way. Finally, the fact that he was receiving speech and language services and may be assessed for special education services does not make Corey unlikely to be adopted. Few children in the dependency system or the general population are perfect. Many in the dependency system have survived substantial physical and emotional turmoil which often results in behavioral and health issues. Children with issues even significantly more substantial than Corey are routinely found adoptable. (See, e.g. , In re Jeremy S. (2001) 89 Cal.App.4th 514.)
The juvenile court also properly considered Coreys pending adoption by his brothers uncle and aunt in its adoptability analysis. "While, generally, the present existence or nonexistence of prospective adoptive parents is, in itself, not determinative, it is a factor in determining whether the child is adoptable. A prospective adoptive parents interest in adopting is evidence that the childs age, physical condition, mental state, and other matters relating to the child are not likely to discourage others from adopting the child. [Citations.]" (In re Erik P., supra, 104 Cal.App.4th at p. 400.) Charless aunt and uncle sought to adopt Corey in order to keep the brothers together. They had taken all the necessary steps in order to adopt Corey and Corey has continuously resided with them in their home in Louisiana since July 2002. The juvenile court properly considered this adoptive situation in determining Coreys adoptability. Therefore, the adoptability finding was supported by substantial evidence.
DISPOSITION
The order terminating parental rights is affirmed.
WE 14 CONCUR: PREMO, J., BAMATTRE-MANOUKIAN, J.