A.L. v. Superior Court

Filed 8/8/06 A.L. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Cynthia Bashant, Judge. Petition denied.

A.L. seeks writ review of orders terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26.^[1] She contends the juvenile court erred by not placing her son, R.B., with her and R.B.'s father, R.B., Sr. (the father), in Texas and by finding that to do so would require approval through the Interstate Compact on the Placement of Children (ICPC). We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On September 29, 2004, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300 on behalf of six-month-year old R.B. and his three older half-siblings, Dylan L., Miles L. and Briana L.,^[2] alleging the father had subjected six-year-old Dylan to excessive discipline by hitting him with a belt and causing extensive bruising that required medical care. Dylan said the father became angry because he was whining, took him into the bedroom, locked the door, took off his pajamas and underwear and beat him with a belt. Dylan said he was afraid of the father. Ten-year-old Briana said the father hit her with a belt also. She said when A.L. married the father A.L. became mean also. Eight-year-old Miles said the father hit him too, and A.L. did nothing when the father hit them. The hospital social worker said Dylan's bruises were the worst she had ever seen.

The children were detained with their maternal grandparents (the grandparents). The social worker reported A.L. and the father seemed to think the beating did not constitute abuse. There were four prior referrals to Child Welfare Services concerning the family dating to 1999 and involving general neglect and physical and emotional abuse.

At the jurisdictional/dispositional hearing on October 19, 2004, the court found the allegations true, declared R.B. a dependent child, removed him from parental custody and placed him in relative care.

For the six-month review hearing the social worker reported R.B. and the older children remained with the grandparents, A.L. worked in a hospital and the father was in the United States Navy. The parents' case plans included therapy, parenting classes and psychological evaluations, and the father was required to attend an anger management class. A.L. completed a parenting class and started therapy, but did not actively participate and had irregular attendance. She denied and minimized the father's abuse. She said she was at home during the incident and heard Dylan crying, but did not do anything about it.

At the six-month review hearing on April 18, 2005, the court found the parents had made some progress and continued R.B. a dependent child, placed with relatives.

The psychologist who completed an evaluation of A.L. did not find she had any major psychopathology or cognitive deficit that would present a risk to children. The psychologist who evaluated the father said he did not respond honestly to questions, so did not produce a valid psychological profile. The psychologist commented neither parent appeared to understand the difference between discipline and abuse.

For the 12-month review hearing, the social worker reported that in June 2005 the father completed his Navy service and the parents moved to Texas to live near the father's relatives. In August A.L. gave birth to a baby girl, C.B. Texas Child Protective Services were notified of the children's dependency in San Diego and took C.B. into protective custody, placed her in foster care and offered the parents reunification services.

At the 12-month hearing on October 17, 2005, the court found the parents had made some progress, but returning R.B. to their care would pose a risk of detriment. It continued him a dependent child in relative care.

For the 18-month hearing on May 2, 2006, the social worker reported R.B. and his half-siblings continued to live with the grandparents. The older children were happy there and wanted to remain. They missed A.L., but were afraid of the father and were in therapy to help them deal with his abuse. The father and A.L. began therapy in Texas in November and at the time of the report had attended 14 sessions. Their therapist reported they had benefited from counseling and education and were accepting responsibility for the father's abuse of Dylan. The father completed parenting and anger management classes. A.L. had weekly telephone contact with the children. She wanted R.B. to be placed with her in Texas, but was willing for the other children to stay with the grandparents in San Diego. The social worker opined R.B. would be at high risk in A.L.'s care.

Each parent completed another psychological evaluation after moving to Texas. The psychologist who administered A.L.'s evaluation stated she appeared to lack the insight and empathy required to protect her children. A.L. denied and rationalized the father's behavior, lacked self-confidence and would be expected to be passive and dependent. She admitted the father may have disciplined Dylan "too hard," but believed he would not do it again. She expressed no conflict about leaving the children in San Diego, thought she was a good parent and, even though she had not seen them for three months at the time of the evaluation and had not cared for them for one year, said she was very involved in their lives. The psychologist opined unless A.L. made significant changes through therapy, she would defer to the father and place her own needs above those of the children.

The psychologist who administered the father's second evaluation stated the father is impulsive, has a low tolerance for frustration and could have problems with anger. The psychologist said it was imperative for him to take responsibility for his actions and participate fully in services and opined the prognosis for success was highly guarded.

The social worker testified the parents were complying with their service plans in Texas, but R.B. could not be safely returned to them because they had not seen him for one year, A.L. had limited ability to protect him, and the father's psychological evaluation indicated he continued to have issues with anger and a low tolerance for frustration.

A.L. said she and the father had decided long ago that once he got out of the military they would move to Texas to be near his family. She testified she called the children about two to three times each week. She said she successfully completed therapy in January 2006 and she and the father were no longer participating in services.

The court considered a statement from the Department of Family and Protective Services, Texas Interstate Placement Section, that because the parents had a child in protective custody in Texas, an ICPC home study of them was not prepared.

The court found reasonable services had been offered or provided and the parents had made some progress, but returning R.B. to their care would be detrimental. It continued him a dependent child, placed with relatives, terminated reunification services and set a section 366.26 hearing.

A.L. petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

A.L. contends the court erred in not placing R.B. with her and argues an ICPC home approval was not required for the placement.

"The purpose of the ICPC is 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.) The ICPC governs "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).) The ICPC defines "placement" as "the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution . . . ." (§ 7901, art. 2, subd. (d).)

There is a conflict among the states as to whether the ICPC applies to a child's out-of-state placement with a parent.^[3] Here, it is not necessary to decide whether the court erred in concluding the ICPC applied because, even without an ICPC evaluation, ample evidence was presented to show R.B. would be at substantial risk in the parents' care. The court stated the case involved very serious physical abuse and, although the parents appeared to have gotten involved in services and made some progress in therapy in Texas, it could not place R.B. with them without a system of monitoring the placement. The court stated also it was concerned because the parents had moved to Texas and had not seen two-year-old R.B. for nearly one year and he was bonded to his siblings and not to them.

The social worker listed numerous reasons why R.B. would be at risk in the parents custody, including he was very young and could not protect himself; he was not bonded to the parents and had not seen them for one year; A.L.'s psychological evaluation and her actions showed she minimized the father's abuse of Dylan and put her own needs and those of the father above the children's needs; she attended only 14 therapy sessions and did not start therapy in Texas until C.B. was almost three months old; the father's psychological evaluation gave a highly guarded prognosis for success; he continued to be impulsive and had a low tolerance for frustration; and, although he had completed an anger management class, anger could continue to be an issue.

By continuing to live with the father and leaving the children in San Diego and moving to Texas with him, A.L. clearly placed her relationship with him above her relationships with her children. A.L. testified she and the father had completed their services in Texas, but there was no indication C.B. had been returned to their care. The social worker testified even if the parents were complying with their case plans in Texas, R.B. could not be returned safely to them. The court was entitled to rely on the social worker's opinion. (In re Casey D. (1999) 70 Cal.App.4th. 38, 53.) It did not err in not placing R.B. with the parents.

DISPOSITION

The petition is denied.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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^[1] All statutory references are to the Welfare and Institution Code unless otherwise specified.

^[2] The older children are not subjects of this petition.

^[3] See, e.g., Tara S. v. Superior Court, supra, 13 Cal.App.4th 1834; and In re Johnny S. (1995) 40 Cal.App.4th 969 (the ICPC is not required for out-of-state placement with a parent); and Arizona Dept. of Economic Sec. v. Leonardo (Ariz.Ct.App. 2001) 200 Ariz. 74 [22 P.3d 513]; Green v. Div. of Family Servs. (Del. 2004) 864 A.2d 921; and State ex rel. Juvenile Dep't of Clackamas County v. Smith (1991) 107 Or.App. 129 [811 P.2d 145] (the ICPC does apply to such placement).