Superior Court of San Mateo County, No. 79641, Marta Diaz, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The juvenile court found that Karla C. (Karla) was at risk of continuing sexual abuse at the hands of a stepfather in the home of her mother, P.E. (Mother), and that Mother had failed to protect Karla from the abuse. The court took jurisdiction over Karla under Welfare and Institutions Code section 300, subdivision (d) and removed Karla from Mother's physical custody.*fn2 At the conclusion of a contested disposition hearing, the juvenile court decided to place Karla, at least temporarily, with her father, G.C. (Father), a Peruvian national who lives in Peru. Mother appeals from the juvenile court's disposition orders, contesting the ordered placement of Karla with Father outside the territorial boundaries of the United States. Because it is not clear from the record before us that the juvenile court will have the ability to enforce its continuing jurisdiction over Karla after placement in Peru, we reverse the order and remand for a further hearing to determine the enforceability of the juvenile court's jurisdiction in Peru, and to allow the court to then impose any measures that may be appropriate to ensure that its jurisdiction is maintained.
The jurisdictional findings which brought Karla under the court's dependency protection are undisputed, and the only question before us is the propriety of the court's dispositional order which would place Karla with Father.
Before discussing the facts of this case, we first address the governing statute. "The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (non-custodial parent)." (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. omitted, superseded on other grounds, as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58 (Adrianna P.).) "[S]section 361.2 governs the child's temporary placement with the non-custodial parent and the provision of reunification services to the parents, and also permits the court to grant legal and physical custody of the child to the non-custodial parent." (In re V.F., supra, at p. 969.)
"When a child has been removed from the physical custody of his or her parents under section 361, subdivision (c), the court must place the child in a safe home or setting, free from abuse or neglect. (§ 16501.15.) . . . Section 361.2 governs placement when the child has a parent 'with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300.' (§ 361.2, subd. (a), italics added.) It directs that before the child may be placed in out-of-home care, the court must first consider placing the child with the non-custodial parent, if that parent requests custody. [Citations.]"*fn3 (Adrianna P., supra, 166 Cal.App.4th at p. 55, fns. omitted.)
The non-custodial "parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent's choices will be 'detrimental to the safety, protection, or physical or emotional well-being of the child.' [Citations.]" (In re Isayah C. (2004) 118 Cal.App.4th 684, 697.) Thus, it is the party opposing placement who has the burden to show by clear and convincing evidence that the child will be harmed if the non-custodial parent is given custody. Clear and convincing evidence is evidence that establishes a high probability and leaves no substantial doubt. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) It is " 'sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]' [Citations.]" (Ibid.)
"If the court places the child with the non-custodial parent, the court initially has three alternatives. The court may order the non-custodial parent to assume custody of the child, terminate juvenile court jurisdiction and enter a custody order. (§ 361.2, subd. (b)(1).) It may continue juvenile court jurisdiction and require a home visit within three months, after which the court may make orders as provided in subdivision (b)(1), (2) or (3). (§ 361.2, subd. (b)(2).) Or the court may order reunification services to be provided to either or both parents and determine at a later review hearing under section 366.3 which parent, if either, shall have custody of the child. (§ 361.2, subd. (b)(3).)"*fn4 (Adrianna P., supra, 166 Cal.App.4th at p. 55, italics omitted.)
Reunification services are generally required when a child is removed from parental custody. (§ 361.5, subd. (a).) However, when a court places a dependent child with the non-custodial parent pursuant to section 361.2, it has discretion, but is not required, to order reunification services to the formerly custodial parent. (See § 361.2, subd. (b); In re Gabriel L. (2009) 172 Cal.App.4th 644, 651; In re Erika W. (1994) 28 Cal.App.4th 470, 475-478 (Erika W.).) "If the previously non-custodial parent can provide a safe and stable permanent home for the child and the evidence establishes that the other parent cannot, reunification services may be offered only to the previously non-custodial parent since this serves the Legislature's goals by placing the child in parental custody and providing for a safe and stable permanent home for the child. . . . [¶] If, on the other hand, the previously non-custodial parent who is now assuming custody does not appear to be an appropriate permanent placement for the child, and the previously custodial parent has the potential to provide a safe stable permanent home for the child, reunification services can be offered to the previously custodial parent in the hope that this parent will remedy his or her deficiencies and reunify with the child. . . . [¶] . . . [¶] . . . '[T]he purpose of reunification services is to facilitate the return of a dependent child to parental custody.' [Citations.] . . . When a child is placed in nonparental custody, reunification services are necessary to promote a possible return of the child to parental custody. However, when a child is placed in parental custody, this goal has already been met and therefore reunification services are not necessary." (Erika W., supra, 28 Cal.App.4th at pp. 476-478, italics omitted.)
In sum, "when a nonoffending non-custodial parent requests custody under section 361.2, subdivision (a), he or she is requesting sole legal and physical custody of a child. However, the court may not immediately grant that parent sole legal and physical custody. The court must first determine whether it would be detrimental to the child to temporarily place the child in that parent's physical custody. If there is no showing of detriment, the court must order the Agency to temporarily place the child with the nonoffending non-custodial parent. The court then decides whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction." (In re Austin P. (2004) 118 Cal.App.4th 1124, 1134-1135.)
II. Factual and Procedural Background Section 300 Petition and Detention Report
On June 24, 2009, the San Mateo County Human Services Agency (Agency) filed a juvenile dependency petition on behalf of Karla, who was born in July 2004. The petition, brought pursuant to section 300, subdivision (d), asserted that Karla was sexually abused by her stepfather, Martin S. It was alleged that Martin S. stroked his penis in front of Karla and asked her to stroke his penis, which she did on three occasions. It was further alleged that Martin S. had "tickled" Karla's vagina, telling Karla not to tell anyone because Mother and Mother's baby would die.*fn5 When Karla's allegations first surfaced, Mother did not believe her and accused her of telling lies. On June 22, 2009, Karla was placed in protective custody at a shelter care foster home.
The detention report indicated that, at the time of the abuse, Karla lived with Mother, Martin S., the maternal grandmother, and Martin S.'s brother in a one-bedroom apartment. Karla shared a bedroom with Mother and Martin S.*fn6 The maternal grandmother was told by Karla of the sexual abuse. The maternal grandmother was unsure if she should believe Karla, but shared Karla's disclosures with a mandatory reporter. When Mother was told of the abuse, "[s]he said that she did not believe [Karla] and that she [could] not believe that [Martin S.] would ever do this to her daughter. She said over and over that [Karla] does not know what she is saying and that someone might be telling her to say such lies." When Karla was present in the room, Mother repeatedly asked her why she was saying things that were not true. Mother telephoned relatives in front of Karla, telling them that Karla was lying. Karla appeared frightened and was crying.
Mother reported that she and Father were never married, that Father was deported from the United States when Karla was one and a half years old, and that Father lived in Callao, Peru. Mother further reported that Father did not pay child support but speaks with Karla on the phone twice a month when Karla visits her paternal grandmother.
Detention was recommended because of the Agency's concerns about Mother's ability to protect Karla's emotional and physical state. The court ordered Karla removed from Mother's home and detained in shelter care. The court also ordered crisis counseling and supervised visitation with Mother. The first in a series of restraining orders was issued against Martin S.
Jurisdiction Report and Determination
The jurisdiction/disposition report noted that Karla continued to be detained in shelter care. It further advised that the social worker had telephone contact with Father, who stated that he and Mother lived together, in Miami, when Karla was born and that he had been deported to Peru when Karla was six months old. Father told the social worker that he had maintained telephone contact with Karla, that Karla visited his mother regularly in Concord, and that, in 2008, she visited him in Peru.
The jurisdiction/disposition report confirmed that Karla told police investigators that Martin S. had asked her to touch his penis on three different occasions and had touched her vagina. The police report was attached, which indicated that, after his arrest, Martin S. admitted asking Karla to touch his penis three times, "but also said there have been many more times." Martin S. also told police that he had taken a shower with Karla and Mother. The detective noted that, when he entered the bedroom to interview Karla at her home, a movie showing two people having sex was playing on the television.
The jurisdiction/disposition report indicated that the social worker had interviewed Mother, who admitted that she did not originally believe Karla and told Karla that she was not telling the truth. However, Mother said that, as of July 21, 2009, she believed "whatever Karla said." Nonetheless, Mother also stated that she blamed Karla's maternal grandmother because " 'she let Karla watch Spanish soap opera (novelas) about people being molested by family members and people having sex so she opened up Karla's mind to those kind of things.' " Mother also admitted visiting Martin S. in jail and anticipated some continued relationship with him because she was having his baby. The social worker expressed concern that Mother has been more protective of Martin S. than of her own child. However, the report also noted that Karla and Mother appeared to be bonded and that Karla appeared to be physically well-cared for by Mother.
The report noted that the social worker had conducted a telephone interview with Father. When it was explained why Karla was removed from Mother's custody, Father said he believed Karla and was very concerned about her protection. Father also stated that he wanted to be involved in the dependency proceedings and would like custody of Karla. If this was not possible, Father indicated that he would like Karla placed with his mother or a paternal uncle or aunt. Mother indicated that she wanted Karla returned to her care, but if that was not possible, she would like Karla placed with a maternal relative other than the maternal grandmother. Karla indicated that she wanted to go home with Mother.
The report stated that Karla had begun crisis counseling and supervised visits with Mother. The Agency reported that Mother exhibited difficulty respecting the rules and in controlling her emotions during visitation. However, the Agency also stated that Mother and Karla were affectionate and Karla appeared at ease during visits. The social worker wrote: "[Karla] appears to be a happy child but does seem very confused about why she is not with her mother and states she misses her mother. Since [Karla] has refused to discuss anything about her home and seems to shut down, the undersigned believes [Karla] feels a sense of guilt and she appears very concerned about harming her mother or unborn sibling." Karla's foster mother also observed Karla engaging in sexualized play.
The social worker wrote that "[she] believe[d] that had the disclosure not come to the attention of the Agency, [Mother] would have kept the disclosure a secret, not believe[d] anything [Karla] had stated and continue[d] to have [Martin S.] in the home[.] [T]herefore, returning [Karla] to [Mother's] care would continue to put the child at risk for abuse and neglect." The report continues: "[Mother] states that [Father] has not provided financial support for [Karla] and at this time, [Karla] has not wished to speak with [F]ather by phone even though she has been asked on several different occasions[.] [T]herefore; placing [Karla] with [Father] in Peru would not be in [Karla's] best interest as [Mother] has been the child's primary caretaker all her life."
The social worker provided the following evaluation: "This case is very disturbing as here is a five year old child who disclosed that she was being sexually abused by her step-father and her mother immediately blame[d] her stating . . . she is a liar and making up stories. [Mother] is also more protective of the man who abused her child than her child. [Mother] showed no empathy for [Karla] and her only concern was that [Martin S.] not be prosecuted and then, her immediate family members also concede[d] with her that [Karla's] statements can not be trusted. [Mother's] assertion now that she believes [Karla's] statements is at best, unbelievable as demonstrated by her behavior and statements. She blames Spanish TV shows and the maternal grandmother for 'opening up' [Karla's] mind, and continues to regularly visit [Martin S.] in jail. [Mother] and her family have also been attending the criminal court hearings and appear more concerned with talking to [Martin S.'s] defense attorney than the Assistan[t] District Attorney who is attempting to get justice for [Karla]. The undersigned contends that this is not what a protective patent [sic] would do and [Mother] needs to be educated and informed about the impact of her actions and learn what the inherent responsibilities of a parent truly are which begins with protecting your child no matter what."
The jurisdiction hearing was held on July 29, 2009. Mother admitted the allegations of the petition. The court declared Father to be Karla's presumed father. The court sustained the dependency petition and adjudged Karla to be a dependant of the juvenile court. The court continued the matter to September 2, 2009, for disposition.
First Addendum Report to Jurisdiction/Disposition Report
On September 1, 2009, a first addendum report to the jurisdiction/disposition report was filed by the Agency. The report indicated that the social worker asked Karla if she would like to live with Father. Karla "stated 'no' and that she wants to be with her mother and new baby brother." However, Karla stated that she would visit Father with her maternal grandmother.
The report also indicated that the social worker had spoken to Mother about Karla living with Father. The report provided: "[Mother] stated that she has raised Karla all of her life and that [Father] has had limited contact with Karla . . . . [Mother] stated that she does not believe [Father] has steady employment and he has never provided any financial support for Karla since he was deported in 2004. [Mother] also stated that [Father] has a drinking problem and prior domestic violence against her. [Mother] also stated that [Father] repeatedly calls her when he is intoxicated so that is how she knows her [sic] continues to abuse alcohol[.] [Mother] is concerned that Karla would be exposed to [Father's] drinking and [that he] would not be able to provide her with the opportunities that the United States can offer as there are many problems in Peru. [Mother] also stated that all of her family who has been a regular part of Karla's life are [sic] here in the United States and that a great deal of [Father's] family also resides in the United States."
Mother continued to have twice weekly visits with Karla that "continued to go very well." The report stated: "Karla continues to look forward to the visitation and now is very excited as [Mother] will . . . bring her half-sibling to the visits." Karla also continued to have weekly therapy that was "going well." Karla's therapist, Maria Hernandez (Hernandez), indicated that Karla needed intensive therapy and "to send her to her father in Peru would be further traumatizing."
The report provided the following summary of another telephonic interview with Father: "[Father] stated that he and mother lived together in Miami, Florida in July 7, 2004 when Karla was born. [Father] stated that in November 2004 he was deported back to Peru when [Karla] was just four months old. [Father] stated that after he was deported back to Peru, [Mother] and [Karla] traveled to Peru and stayed with [Father] from December 2004 until March 2005. [Father] stated that [Mother] and [Karla] returned to the United States and then returned to Peru in July 2005 so [Father] could celebrate [Karla's] first birthday with her. [Father] stated that in October 2005 [Karla] and [Mother] returned to the United States. [Father] stated that in 2006 he attempted to re-enter the United States illegally again but was detained at the border in Texas. [Father] stated [Mother] and [Karla] may have visited him while he was detained to be deported back to Peru but could not recall any dates. [Father] did not see [Karla] again until September 2008 when [Karla] was four years old because the maternal grandmother took [Karla] to visit Peru. [Karla] stayed with [Father] in Peru during the . . . visit which was from September 2008 until November 2008. [Father] stated that he enrolled [Karla] in pre-school while she was in Peru for two-months and took many photographs of her. [Father] stated that during the nearly three year period he did not see [Karla], he spoke with her two times a month when [Karla] was visiting the paternal grandmother. [Father] conceded that during this time [Karla] was between a year and [a] half and four years old so the telephone conversations were very limited due to [Karla's] young age. [Father] also stated that it is true that he never provided any child support but sent 'gifts' to the paternal grandmother to give to [Karla.]"
The Agency obtained information from the California Law Enforcement Telecommunication System (CLETS) that showed Father had been arrested, on September 16, 1999, for petty theft and again, on February 14, 2001, for burglary and as a fugitive from justice. Father's deportation documents showed the following: (1) an arrest for larceny, on October 27, 2000, with a conviction on April 7, 2001; (2) charged with flight/escape, on September 22, 2001, with an unknown disposition; (3) an arrest for assault and larceny, on November 21, 2001, with an unknown disposition; (4) an arrest for assault and two counts of larceny, on May 8, 2002*fn7; (5) an arrest, on July 6, 2002, for driving under the influence, with a later conviction; (6) charged with flight/escape on August 7, 2002; (7) an arrest for a probation violation, on August 19, 2002; (8) charged with a second probation violation on August 26, 2002; (9) an arrest for battery, on April 30, 2003, with an unknown disposition; (10) an arrest, on August 1, 2004, for trespassing and resisting an officer, with the disposition being pretrial diversion; (11) an arrest, on November 7, 2004, as a deportable alien.
The report provided the following assessment: "[Mother's] over all demeanor has continued to improve as she is more cooperative and states she is eager to begin services. Despite [having] given birth recently, [Mother] is willing to begin and participate in the Agency's Parent Education Class and wants to begin individual therapy and be a part of the services Karla is receiving. All of this is positive, however, it can not be ignored that for the majority of the time this case has been investigated, [Mother] was aligned with the perpetrator as she was visiting him on a regular basis and minimizing the allegations. [Mother] needs services in order to truly come to terms with the disclosure of the child and address her damaging reaction of denying the allegations and blaming [Karla] despite the perpetrator's confession. Also, she has just given birth to the perpetrator's child and needs services around placing strict boundaries if she is to continue some kind of relationship regarding the newborn and needs to be assessed as time passes that she will be protective of Karla.
"[Father] has maintained contact with the Agency and it appears he is truly concerned about [Karla]. However, the [social worker] is concerned that [Father] lacks the understanding of the trauma [Karla] has been through and of [Karla's] needs as he has focused on only what he wants to occur. . . . It would not be in [Karla's] best interest to send her to Peru where [Father]'s ability to provide [for] and support [Karla] is unknown and there does not appear to be any services comparable to intensive services that [Karla] needs and can be provided within the United States. Also, [Karla] has stated that she wants to be returned to her mother and newborn half-sibling and if that is not possible at this time, she has many extended family members who are available to care for her such as [a maternal cousin and his wife] who are eager to care for Karla and have an understanding of the time and commitment needed. Therefore, it is respectfully recommended that [Karla] be made a Dependent in out of home placement and that the Court grant the [Agency] discretion to place [Karla] with [the maternal cousin and his wife.] It is also respectfully recommended that [M]other and [F]ather be offered Family Reunification Services"
Second Addendum Report to Jurisdiction/Disposition Report
On September 1, 2009, the Agency filed a second addendum report to the jurisdiction/disposition report. The report attached a written report from Karla's therapist, which provided: "In my assessment of Karla, I have observed sexualized play in play therapy, which is indicative of sexual abuse and concurs with CPS findings. She is also showing aggressive behaviors and sexualized play towards younger children as reported by foster mom. . . . [¶] Therapist's findings thus far indicate that: [¶] 1. Child needs weekly individual play therapy to help her process trauma and freely express herself. [¶] 2. Child needs a safe, consistent, loving home where stability is provided. [¶] 3. Child needs to be believed, heard around the traumatic events to help decrease shame and guilt. [¶] 4. Mother needs psycho education about child abuse, how to respond appropriately to child's behaviors and how to keep child safe, both emotionally and physically. [¶] 5. Child needs to maintain healthy relationships with extended family, which were previously in place, as well as continued supervised visits with her mother. [¶] It is imperative to the well being of [Karla] that she receives the aforementioned in a consistent manner, maintaining continuity of care with care-providers. Any major transitions at this time need to be therapeutically supported so as to minimize the potential retriggering of traumatic responses that are acute in relation to her coping."
On September 2, 2009, the court ordered an interim placement with a maternal cousin and continued the matter for a contested disposition hearing on October 29, 2009.
Third Addendum Report to Jurisdiction/Disposition Report
On October 27, 2009, the Agency filed a third addendum report to the jurisdiction/disposition report. The Agency reported that Karla liked living with a maternal cousin and his wife and appeared to have closely bonded with them. "Karla has no major difficulties adjusting to her new placement and she rarely cry's [sic] for her mother as she previously had at the former foster placement. Karla appears happy and well cared for . . . ."
With respect to Mother's progress, the Agency observed that Mother's demeanor and openness to services continued to improve and Mother had been attending parent education classes regularly and begun therapy. Mother asserted that she had not been visiting Martin S. and will not be in a relationship with him because she wants Karla returned to her custody as soon as possible. The parenting class instructor related that Mother's " 'overall progress has been slow' in regards to participation in the class and talking about why she is attending the class other than being court ordered." Based on his experience, " 'usually by the half way mark, parents have disclosed at least some part about why they are there.' " However, Mother had not so disclosed, while all the other participants had. The parenting class instructor also indicated that, during a class exercise in which the students were asked about their family strengths, Mother had spoken primarily about Martin S., saying that he "is a good man, a hard worker and that she wants her family back together." Thus, Mother appeared to remain very aligned with Martin S.
Mother had only attended two therapy sessions, but Mother's therapist stated that Mother "has been cooperative and engaged in the therapy process and seems open to working on the CPS issues that brought her into treatment." Mother's therapist also indicated that "[Mother] has demonstrated high motivation to engage in treatment so she can ...