In re Dimitri M.

Filed 5/21/08 In re Dimitri M. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from orders of the Superior Court for the County of Los Angeles. Stephen Marpet, Commissioner. Affirmed in part and reversed in part.

Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Plaintiff and Respondent.

_________________________________

SUMMARY

A mother appeals from dispositional orders removing her two sons, Dimitri and T., from her custody. The orders placed Dimitri with his noncustodial, nonoffending father in the state of Alabama, and terminated jurisdiction over Dimitri. T., whose father is unknown, was sent on an extended visit to Alabama in the home of Dimitris father. We affirm the orders with respect to Dimitri, but reverse the orders as to T. because they violate the Interstate Compact on Placement of Children and interfere with the mothers right to attempt reunification with T.

FACTUAL AND PROCEDURAL BACKGROUND

C.M. is the mother of Dimitri M. and T.M. Dimitri and T., then aged 5 and 3 respectively, were taken into protective custody by the Department of Children and Family Services on February 28, 2007, after the mother left them unattended in a motel room for several hours. Both Dimitri and T. suffer from a seizure disorder requiring medication. Dimitri also has severe developmental delays and cerebral palsy; he cannot talk, will always wear diapers, and does not recognize danger. T. can say a few words, but has a speech delay in addition to his seizure disorder, and wears diapers.

The police were called to the motel room. Dimitri was confined to a high chair, and T. was running around the room putting things in his mouth, repeatedly attempting to eat inedible objects. The room had trash strewn about, including sharp objects such as plastic forks, and medications and syringes were within T. reach. The police observed luggage and a bus ticket indicating the family was from Alabama. When the mother returned she was arrested for child endangerment. The mother told police she left to get the children something to eat, and was not gone long; she strapped Dimitri into the high chair and T. was asleep when she left. When asked why she left them alone, given all their problems, mother said, I dont know, I wasnt thinking.

The social worker who was called to the scene spoke with family friend Willie B. (whom mother married on April 20, 2007 and who has a criminal record with multiple arrests for forgery and burglary) Willie B. told her that mother was relocating from Alabama to avoid a stalker and to begin a new life with her children; he knew of no major mental health issues but said that the mother may be a little slow. The social workers detention report stated the mother identified Darius S., an Alabama resident, as the father of both children.

At the detention hearing on March 5, 2007, neither parent was present. The court ordered the minors detained and ordered various services for them. The Departments jurisdictional/dispositional report of April 13 described interviews with the mother, Darius S. and others, and revealed that:

        When Darius was informed of the childrens detention, he sounded shocked. He was unaware the mother had left Alabama with the children, and expressed concern about their welfare, their special needs and medications. Darius reported that the mother had never left the children alone before, to his knowledge. He also reported that he had taken a paternity test in September 2006 and was not T. father. He told the social worker that he still calls himself the father of both boys, pays child support for Dimitri, and want[ed] both boys. He said he had seen both boys on Christmas Eve. Other paternal family members (grandmother, uncle, and grandfather) expressed love for both boys and wanted them to come and live with Darius and the paternal grandmother and aunt.

        The Departments assessment indicated the mother, although stating her regret about what she had done, demonstrated a lack of emotion regarding the removal of her children and the seriousness of her actions, and changed her story several times in respect of when she left the motel room, where she went, whether she was accompanied by Willie B., and so on. The report also pointed out that a medical report indicated the mother had once left the children in a hospital room alone for 40 minutes or so, when Dimitri was 3 and T. was 18 months old

        The Department recommended release of Dimitri to his father and termination of jurisdiction over Dimitri; reunification services for mother and T.; a psychological evaluation for mother; monitored visitation; and initiation of procedures under the Interstate Compact for Placement of Children (ICPC or compact) for the placement of T. with Darius in Alabama, in an effort to maintain the siblings together.

The juvenile court held the following hearings and took the following actions:

        On April 13, 2007, mother was present, as was a maternal uncle. Darius was present, along with Dimitris paternal grandfather and uncle. The court sustained the allegations in the petition. It observed Darius appeared to be the presumed father of Dimitri. It ordered expedited ICPC procedures for placement of the minors with Dimitris father; reunification services for the mother; investigation of any custody or child support orders that might exist in Alabama; and investigation of UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) issues.[1]

        An April 26, 2007 report from the Department indicated that Darius told the social worker he holds himself out to be T. father, and would adopt T. if the mother were unable to reunify; there were no custody orders in Alabama; there was a child support order for Dimitri, filed January 2, 2003; and expedited ICPC procedures were initiated on April 23, 2007. At the April 26 hearing, mothers counsel reported that mother told her Darius had not been a part of the childrens lives, seeing them four times in four years; that mother wanted the children placed with her and was very upset about them being sent back to Alabama; and mother had immediately enrolled in parenting classes and programs as the Department requested. The court indicated that the proper forum for litigation over custody would be Alabama, and that it was assuming emergency jurisdiction under the UCCJEA.[2] The court ordered both children released to their father in Alabama. (At the hearing, the court order[ed] that both the two children return, Dimitri, home of parent, father; and T., an extended visit.) Mothers visits were to remain monitored.

        On June 13, 2007, a dispositional hearing was held. The court terminated jurisdiction over Dimitri, with sole legal and physical custody to the father, and monitored visits for the mother. The courts order was stayed to July 12 to allow fathers counsel to submit a proposed family law order giving the father custody. T.s matter was also continued, and T.s visit with Darius was extended until we can place with the father through the ICPC. Family reunification services were ordered with respect to T.

        On July 12, 2007, a final judgment was entered giving the father legal and physical custody of Dimitri, and giving mother supervised visitation to be determined by the parents. T. remained on an extended 30 day visit with the step-father . . . in the State of Alabama.[3]

Mother appealed. The Department subsequently filed a motion to take additional evidence on appeal, consisting of seven minute orders of the juvenile court from August 9, 2007, through February 7, 2008, in the last of which the court found Darius to be the presumed father of T., and ordered that T. remain in his custody in Alabama. We granted the motion, and the mother then filed a request for judicial notice of her notice of appeal from the courts order finding Darius to be T.s presumed father. We grant the mothers request for judicial notice.

DISCUSSION

The mother argues that the evidence was insufficient to justify removal of Dimitri and T. from her physical custody; the court abused its discretion by denying mother reunification services and terminating jurisdiction over Dimitri with a family law order; and the court exceeded its jurisdiction by sending T. on an extended visit with a non-relative in Alabama without compliance with ICPC procedures. We agree with the last contention, and reverse the juvenile courts orders with respect to T., but otherwise affirm the orders.

1. The evidence was sufficient to justify removal of

Dimitri and T. from mothers physical custody.

Mother points out the court was required to find by clear and convincing evidence that a substantial danger existed to the health of the children if they were returned to the mother, and that there was no reasonable means to protect them without removal. (Welf. & Inst. Code, 361, subd. (c)(1).)[4] Specifically, she contends the court failed to make a number of required findings, including the requisite determination as to whether reasonable efforts were made to prevent or eliminate the need for removal of the minor and the courts failure to state the facts on which the decision to remove the minor is based. ( 361, subd. (d).)

We conclude the evidence sufficed to justify removal of the children from the mothers custody. When a parent challenges a disposition order on the basis of insufficient evidence, we review the record in the light most favorable to the trial court to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on clear and convincing evidence. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 852.) Certainly the mothers leaving two developmentally disabled toddlers, who cannot speak and have seizure disorders, alone in a hotel room with medications and sharp objects within reach justifies the conclusion there is a substantial danger to their physical health, and no reasonable means to protect them without removing them. (The police report shows T. repeatedly attempting to eat inedible objects, include a sharp plastic fork, buffing foam from a shoe shine brush, and a roll of plastic trash bags.) The mother protests that she made only one mistake, and regretted it; because she had to face criminal charges for what she did, she was aware of the gravity of her mistake; and there was no neglect over an extended period of time. Some mistakes, however, are too grave to be rectified by an acknowledgment of error, and the mother offered no testimony on this or any other point. Indeed, while mothers counsel objected to the termination of jurisdiction over Dimitri with custody to the father, no argument was proffered as to alternatives to removal that would protect the children. Certainly a reasonable trier of fact could conclude there was clear and convincing evidence of substantial danger to the children, and lack of reasonable means to protect them, absent removal from the mother. (Tyrone W. v. Superior Court, supra, 151 Cal.App.4th at p. 852.)

It is true, as the Department concedes, that the juvenile court did not make express findings at the dispositional hearing on June 13th. However, its minute order of June 13 states, at least with respect to T., the courts findings, by clear and convincing evidence, that a substantial danger existed and there was no reasonable means to protect him without removal.[5] The order also states the courts finding that [r]easonable efforts have been made to prevent or eliminate the need for removal of the minor from the

home . . . . The court clearly did not, however, state the facts on which the decision to remove the minor [was] based, as required by section 361, subdivision (d).) Nonetheless, the facts underlying the removal of the children were not controverted; the only controversy is whether those facts justify the removal. While the juvenile court should have expressly stated its findings and the facts justifying removal on the record at the hearing, the necessary findings may be implied if the record supports them, as it does here. (See In re Andrea G. (1990) 221 Cal.App.3d 547, 552 [express findings concerning elements which compose a detriment finding not required; [s]ince the juvenile court received evidence concerning these elements, it impliedly took them into consideration when it made its determination regarding detriment]; In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84 [court failed to make express determination that no substantial probability existed that minor would be returned to parents custody within the next six months; substantial evidence would amply have supported such a determination].) Accordingly, there was no error in removal of the children from the mothers custody.

2. The trial court did not err in terminating jurisdiction

over Dimitri.

Mother argues the juvenile court should have provided her with family reunification services for Dimitri, rather than terminating jurisdiction. She argues the record shows no involvement by Darius in Dimitris life; Darius did not know she had left Alabama with Dimitri, and had not seen Dimitri since Christmas Eve (two months before the detention). She contends the court exceeded its legal discretion by failing to consider whether Dimitris well-being was better supported by providing a reunification period between him and his Mother, and she complains that the court did not address the destructive consequences of depriving Dimitri of his relationship with his Mother . But mother cites no authority for her claim, other than the general principle that a juvenile court must look to the totality of a childs circumstances when making decisions regarding the child. (In re Chantal S. (1996) 13 Cal.4th 196, 201.) We see no error.

The law is clear: when a court orders the removal of a child, it must first determine if there is a noncustodial parent who desires custody. If that parent requests custody, the court must place the child with the parent, unless the court finds such placement would be detrimental to the well-being of the child. ( 361.2, subd. (a).) Darius requested custody, and no evidence was presented that Dimitris placement with him would be detrimental to Dimitri quite the contrary, as other paternal relatives supported Dimitris return to Alabama (his paternal grandmother was a registered nurse familiar with his needs) and he could return to the same school in which he had been enrolled. The statute further allowed the court, once it placed Dimitri with his father, to order that Darius become legal and physical custodian, and in that event the statute required the court to terminate its jurisdiction over the child. ( 361.2, subd. (b)(1).) The courts determination that Darius should become Dimitris legal and physical custodian was the sensible choice, given Dariuss residence in Alabama.[6] As for depriving Dimitri of his relationship with his mother, the court did nothing of the sort. When there is a change of custody, the rights of the parent who no longer has custody are always affected, and [w]hen the newly custodial parent lives at a distance the effect is exacerbated. (Tara S. v. Superior Court (1993) 13 Cal.App.4th 1834, 1839.) But the mother has not lost her parental rights, and the custody order provides for her supervised visitation according to a schedule to be determined by the parents. No abuse of discretion is shown.[7]

3. The juvenile court erred in sending T.

on an extended visit to Alabama without

compliance with the ICPC.

The mother contends the juvenile court erred in sending T. on an extended visit to Darius in Alabama without complying with the ICPC (Fam. Code, 7900 et seq.), effectively thwarting mothers ability to visit and reunify with T. The Department does not controvert mothers claims, but argues that any error has now been rendered harmless and moot, because the juvenile court on February 7, 2008, found Darius to be T.s presumed father.

We agree the trial court erred in ordering T. on an indefinite visit with Darius, without compliance with the ICPC. While the issue may be moot in the sense that the juvenile courts subsequent orders if legally sustainable provided a further basis for placing T. with Darius, it is nonetheless appropriate for us to address the legality of the juvenile court orders that were presented to us for review. We briefly summarize ICPC requirements before applying them to this case.

The ICPCs purpose is to facilitate cooperation between participating states in the placement and monitoring of dependent children. (In re Johnny S. (1995) 40 Cal.App.4th 969, 974-975.) A sending agency (here, the Department) may not send into another state any child for placement in foster care or as a preliminary to a possible adoption 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 . . . . (Fam. Code, 7901, art. 3, subd. (a).) The child may not be sent into the receiving state until that state notifies the sending agency, in writing, that the proposed placement does not appear to be contrary to the interests of the child. (Id., 7901, art. 3, subd. (d).)

The ICPC does not apply to placement with a parent. (In re Johnny S., supra, 40 Cal.App.4th at pp. 979, 977 [the provisions of the ICPC are not mandatory in connection with placement of a child with a natural parent in another state; the ICPC is intended to apply only to interstate placements for foster care and preliminary to a possible adoption]; see also Tara S. v. Superior Court, supra, 13 Cal.App.4th at pp. 1838-1839 [when child could not be returned to the custody of her mother, the noncustodial, nonoffending father in another state had a right to custody of the child].) Nor does the ICPC apply to mere visits by dependent children across state lines, because a visit is not a placement within the meaning of the ICPC. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 459-460 [ICPC procedures are not required for simple visits (i.e., visits ordered for their own sake and not as a prelude to placement)].) However, an order causing a child to be sent to another jurisdiction without a specific date of return to the sending jurisdiction constitutes a placement, and the compact must be applied. (Cal. Rules of Court, rule 5.616 (b)(1)(B).) The same is true of an order with a return date more than 30 days from the start of the visit or beyond the ending date of a school vacation period. (Ibid.; see also In re Luke L. (1996) 44 Cal.App.4th 670, 681-682 [court order placing child in Illinois contingent on completion of ICPC procedures was error; the ICPC does not permit contingent or conditional placement orders; child should have returned to California at conclusion of her visit to Illinois]; cf. In re Emmanuel R., supra, 94 Cal.App.4th at pp. 459, 460-461 [implementing regulation adopted by the AAICPC (Association of Administrators of the ICPC) states that a request for a home study made by the agency proposing to send a child on a visit will conclusively establish that the intent of the proposed stay is not a visit].)

In this case, the juvenile courts collective orders sending T. on an extended visit to Darius who is not T.s natural father in Alabama functioned, in effect, as a placement order. The Department recommended initiation of expedited ICPC procedures for placement of T. with Darius on April 13, 2007, and the juvenile court so ordered. Two weeks later, the court order[ed] the children released to their father who resides in the State of Alabama. (At the April 26 hearing, the court stated it was ordering for T. an extended visit, and that a one-way ticket for the kids was needed.) The children went to Alabama on May 10, and at the June 13 dispositional hearing, the court stated that: We are going to order that the visit with the father be extended until we can place with the father through the ICPC. The juvenile courts orders on their face leave no doubt that T.s extended visit was of indefinite duration and constituted a placement to which the ICPC applied. (Cal. Rules of Court, rule 5.616 (b)(1)(B); In re Emmanuel R., supra, 94 Cal.App.4th at p. 463 [conditional or contingent placement orders disguised as visitation remain prohibited].) The ICPC does not permit a child to be sent into the receiving state until that state gives the appropriate notification to the sending agency. (Fam. Code, 7901, art. 3, subd. (d).) In addition, it can scarcely be doubted that the courts order sending T. to Alabama seriously interferes with the mothers efforts to reunify with T., making visitation an element critical to promotion of the parents interest in the care and management of their children exceedingly difficult. (In re Luke L., supra, 44 Cal.App.4th at p. 679.) In short, the courts dispositional orders with respect to T. violated the ICPC and must therefore be reversed.[8]

DISPOSITION

The courts dispositional orders are reversed to the extent they ordered T. on an extended visit with Darius without compliance with the ICPC and without consideration of the mothers right to attempt reunification. In all other respects, the orders are affirmed.

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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[1] The UCCJEA (Fam. Code, 3400 et seq.) is the exclusive method of determining the proper forum for custody disputes involving other jurisdictions. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1136.)

[2] [A] California court can take temporary emergency jurisdiction over a child who is present in the state in order to protect the child from mistreatment or abuse. (In re Angel L., supra, 159 Cal.App.4th at pp. 1137, 1140 [[o]nce the court detained the children and declared them dependents of the court, its temporary emergency jurisdiction ripened into permanent jurisdiction and California became their home state].)

[3] There is no evidence in the record that mother and Darius were ever married.

[4] All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.

[5] Even where a new standard of proof has been effected by a legislative change, a reviewing court may presume that a judicial officer handling a specialized caseload applied the appropriate new standard, without an express articulation of the standard. (In re Katrina C. (1988) 201 Cal.App.3d 540, 549.)

[6] Section 361.2, subdivision (b), gives the court several options when it places the child with the nonoffending parent. It may order the parent to become the legal and physical custodian; it may order the parent to assume custody subject to the jurisdiction of the juvenile court and require a home visit; and it may order the parent to assume custody subject to the supervision of the juvenile court.

[7] Mother also contends the custody order does not include the necessary attachment entitled Reasons for No or Supervised Visitation Addendum to Custody Order Juvenile (form JV 200/JV 205). But both Form JV-200 (Custody Order Juvenile Final Judgment) and Form JV-205 (Visitation Order Juvenile) are in the record, and mother cites no authority for her claim that the addendum she describes is required.

[8] While we reverse the juvenile courts dispositional orders as to T., we are not in a position to comment on the propriety of the juvenile courts subsequent orders. Nor should our reversal be construed as an order that T. be returned to California or otherwise removed from Dariuss care.