APPEAL from the Superior Court of Riverside County. Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Super. Ct. No. RIJ118567).
The opinion of the court was delivered by: Richli J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
"One of the key elements of any interstate compact is uniformity in interpretation. Uniformity, however, is lacking with respect to the issue of whether the [Interstate Compact on the Placement of Children (ICPC)] applies to the placement of a child with a natural parent . . . ." (Butler, Child Welfare -- Outside the Interstate Compact on the Placement of Children -- Placement of a Child with a Natural Parent (1992) 37 Villanova L.Rev. 896, 916.)
As we will discuss, California cases have consistently held that the ICPC does not apply to an out-of-state placement with a parent. They have even gone so far as to invalidate statewide rules and regulations that purported to make the ICPC apply. Other jurisdictions that have taken the same position include Arkansas (Ark. Dept. of Human Servs. v. Huff (2002) 347 Ark. 553, 562-564 [65 S.W.3d 880, 886-888]), New Hampshire (In re Alexis O. (2008) 157 N.H. 781, 788-791 [959 A.2d 176, 182-185]), New Jersey (State, DYFS v. K.F. (2002) 353 N.J.Super. 623, 631-636 [803 A.2d 721, 726-729]), Washington (In re Dependency of D.F.-M. (2010) 157 Wash.App. 179, 182-191 [236 P.3d 961]), and the Third Circuit (McComb v. Wambaugh (3rd Cir. 1991) 934 F.2d 474, 481).
This brings California into conflict with those jurisdictions holding that the ICPC does apply to an out-of-state placement with a parent. These include Alabama (D.S.S. v. Clay Co. Dept. of Human Res. (Ala.Civ.App. 1999) 755 So.2d 584, 590), Arizona (Arizona Dept. of Economic Sec. v. Leonardo (2001) 200 Ariz. 74, 79-83 [22 P.3d 513, 518-522]), Delaware (Green v. Div. of Family Servs. (2004) 864 A.2d 921, 926-928), Massachusetts (Adoption of Warren (1998) 44 Mass.App.Ct. 620, 623-624 [693 N.E.2d 1021, 1024-1025]), Mississippi (K.D.G.L.B.P. v. Hinds County DHS (Miss. 2000) 771 So.2d 907, 913), New York (Faison v. Capozello (2008) 50 A.D.3d 797, 797-798 [856 N.Y.S.2d 179, 179-180]), and Oregon (State ex rel. Juvenile Dept. of Clackamas County v. Smith (1991) 107 Or.App. 129, 132, fn. 4 [811 P.2d 145, 147]).*fn2
We find the decisions in California and elsewhere holding that the ICPC does not apply to be far better reasoned than those holding that it does. Accordingly, we see no reason not to follow our sister California courts. We are publishing this opinion, however, to point out that the resulting lack of uniformity is dysfunctional, that courts and rule makers have not been able to fix it, and hence that it may call for a multistate legislative response.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Beginning of the Dependency
B.B. (the father) and C.B. (the mother) are married. They have three children. C.B., a boy, is eight. T.B., another boy, is six. H.B., a girl, is one.
In August 2009, when H.B. was born, the mother tested positive for methamphetamine. The father was out of state, working offshore in the Gulf of Mexico as an underwater welder. He was "gone for 3 months or more at a time . . . ." The mother and the children were living temporarily with the mother's grandmother. However, they were planning on moving to the Gulf area to be with the father.
The Department of Public Social Services (the Department) believed the father was aware of the mother's drug abuse, because he had been present when she was arrested in December 2008 for being under the influence of a controlled substance.
On August 25, 2009, the Department filed a dependency petition concerning all three children. Although it purported to detain them, it detained them from the "father only"-- in other words, it left them with the mother. At the initial detention hearing, the juvenile court approved the detention of the children from the father only, and it placed them in the custody of the mother.
The only allegation of the petition with respect to the father was that "[t]he father failed to protect his children, despite the mother's substance abuse history and prior arrests for being under the influence of a controlled substance, [in that] the father left the [s]tate and allowed his children to remain in the mother's care." (Allegation b-4.)*fn3
On September 2, 2009, the social worker contacted the father by telephone. The father said he knew that the mother had two prior drug-related arrests, but he added that she did not use drugs when he was around. He said he had gone to work outside the state "to make a better life for his family . . . ." He was making about $6,000 a month. His paychecks were sent to the mother, who in turn sent him small sums, as needed. He wanted the whole family to move to the Gulf area.
In the jurisdictional/dispositional report, the social worker concluded that there was insufficient evidence to sustain Allegation b-4: "[T]he family concurs that the father left the state to provide a better life for his family. . . . [T]hey were supposed to [go] to . . . [the Gulf area] to reside with the father. . . . [H]e was not aware of [the] mother's recent substance abuse and felt that the mother and children were safely staying with the maternal great grand[-]mother until he was able to move them to [the Gulf area]."
On September 29, 2009, the mother tested positive for methamphetamine. On October 6, when a social worker made an unannounced home visit, she discovered that the mother had moved out, taking the children with her. The Department therefore filed an amended petition.
The father immediately returned to California. On October 13, 2009, when a social worker called him, he reported that the mother and the children were with him. The Department detained the children, but only from the mother. In other words, it placed them with the father, on the condition that the mother not live with them.
On October 14, 2009, at the detention hearing on the amended petition, the juvenile court approved the detention of the children from the mother only, and it ...