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In Re Z. K., A Person Coming Under the Juvenile Court Law. v. L. K

October 25, 2011

IN RE Z. K., A PERSON COMING UNDER THE JUVENILE COURT LAW. TEHAMA COUNTY DEPARTMENT OF SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
L. K., DEFENDANT AND APPELLANT.



(Super. Ct. No. J11421)

The opinion of the court was delivered by: Robie , J.

In re Z.K. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 many ways, this case represents a mother's worst nightmare come horrifyingly to life. Five years after her husband disappeared with their infant son (Z. K.) from Las Vegas, Nevada, the child's mother (L. K.) -- who had returned to her home state of Ohio but had never stopped looking for her son -- discovered over the Internet that the child was in Tehama County, California, where her husband had been arrested and the child placed in foster care. Mother immediately contacted the Tehama County Department of Social Services (the department) to request custody. Presumably because of mother's meager financial circumstances (she was on government aid as she pursued a college degree), she could not arrange for an immediate reunion with the minor, but she clearly expressed that she desperately wanted him back.

Unfortunately, by the time mother managed to locate Z. K., the dependency proceedings had already progressed to the stage of the hearing to select a permanent plan for the child (Welf. & Inst. Code,*fn1 § 366.26) -- which in this case was adoption by the current foster mother. Despite this fact, under the law mother had a constitutional right to custody of her child unless and until someone proved by clear and convincing evidence that giving her custody would be detrimental to the minor. But nobody in Tehama County -- not the department, not mother's court-appointed attorney, and not the court -- recognized or acknowledged this right. Instead of presuming, as the law required, that placement of Z. K. with mother would be to his benefit and trying to determine if there was clear and convincing evidence showing otherwise, the department -- with the complicity of the juvenile court, and with no meaningful opposition from mother's attorney -- essentially required mother to prove her fitness to be Z. K.'s custodial parent through multiple home studies and psychological examinations. When mother failed to meet the department's expectations, the department sought -- and obtained from the juvenile court -- the termination of mother's parental rights, without any proof (let alone proof by clear and convincing evidence) that she had abandoned, abused, or neglected the child or that a return of the child to her custody would be to the child's detriment.

On mother's appeal from the juvenile court's order terminating her parental rights and ordering a permanent plan of adoption for the minor, we agree with mother that by terminating her parental rights without finding it would be detrimental to the minor to be placed in her custody, the juvenile court violated mother's constitutional right to due process of law, which is rooted in her fundamental interest in the care, companionship, and custody of her child. We also agree there was no evidence to support an implied finding of detriment.

In the absence of any evidence of detriment, the juvenile court had a duty -- both constitutional and statutory -- to place the child in mother's custody. Accordingly, we will reverse and remand with directions to the juvenile court to do so.

FACTUAL AND PROCEDURAL BACKGROUND

Z. K. was born in July 2004 to L. K. and her husband, J. K.*fn2 When the minor was three months old, father and the paternal grandmother forced mother out of the home they were sharing in Las Vegas. When mother returned to visit the minor, she discovered that father and the paternal grandmother had left with Z. K., changed their telephone numbers, and left no forwarding address. Mother stayed in Las Vegas, often living in a tent or homeless shelters, and searched for father and the minor for three to six months. Unable to locate her child, mother eventually returned to her home state of Ohio where her mother and extended family reside. Unknown to mother, father had moved to California with the minor.

On May 4, 2008, three-year-old Z. K. was taken into protective custody after he was found wandering, unsupervised, near a busy roadway in Red Bluff. The paternal grandmother did not call police to report the child missing until almost three hours later. Father was interviewed by police and arrested for possession of methamphetamine. Z. K. was not placed with the paternal grandmother, as requested by father, because she admitted to having smoked methamphetamine two days earlier.

The department filed a section 300 petition on behalf of the minor alleging father had failed to protect the minor, allowing the child to wander unsupervised near a busy roadway. The petition further alleged that, thereafter, father was arrested for possession of methamphetamine. At the time of his arrest, father had broken pieces of a glass methamphetamine pipe and two knives in a nightstand within easy reach of the minor. Mother's whereabouts were unknown. Father told the social worker that mother was "'in a mental institution in Farmersville, Ohio,'" and that "'[s]he does not want anything to do with [Z. K.]. She left a couple of months after he was born.'"

The juvenile court sustained the allegations in the petition regarding father but dismissed a section 300, subdivision (g) allegation that mother had left the minor without any provision for support. The department instigated a search for mother but did not locate her.*fn3 Z. K. was declared a dependent child of the court and placed in a foster home. The juvenile court ordered reunification services for father but not for mother, as she had not been located and was possibly institutionalized. (§ 361.5, subds. (b)(1) and (e).)

Father failed to reunify with the minor. He was arrested several times during the reunification period on additional drug-related charges. He was also expecting another child with his girlfriend and had stopped visiting Z. K. Mother had still not been located and the department had stopped looking in August 2008. At the 12-month review hearing on June 11, 2009, the juvenile court terminated reunification services as to both parents and set a section 366.26 hearing for September 8, 2009, for selection of a permanent plan for the child. The "Notice Of Hearing On Selection Of A Permanent Plan" prepared by the department advised that the department was recommending termination of parental rights and implementation of a plan of adoption.

A little more than a week before the September hearing date, the department requested a continuance so that it could serve mother with notice of the section 366.26 hearing by publication in Las Vegas. The court continued the hearing to November 30, 2009, and ordered service by publication. The department did not, however, publish notice in Las Vegas. Instead, having received information that mother was residing in Ohio, a week before the November hearing date the department requested another continuance so that the department could publish notice in Ohio. Accordingly, the juvenile court continued the section 366.26 hearing to February 1, 2010.

Meanwhile, mother and the maternal grandmother had continued to search for Z. K., and the maternal grandmother discovered on the Internet a link to a report indicating father had been arrested and the child found wandering the streets. The maternal grandmother called child protective services in Tehama County and left messages. Someone finally returned her calls on December 1, 2009, and put department personnel in contact with mother, who immediately, both by telephone and in writing (on December 2), explained her circumstances and requested custody of Z. K.

Among other things, mother informed the department that since her return to Ohio, she had attended college to obtain her associates degree as a medical administrative assistant and was scheduled to graduate in only a few weeks. She also planned on continuing her education to obtain a bachelor's degree as a medical administrative specialist. She had reliable transportation, sufficient to get to work and appointments.

On December 8, 2009, the department filed a supplemental report with the juvenile court and provided the court with a copy of mother's December 2 letter. At a hearing on December 14, the court appointed legal counsel for mother.

Despite the knowledge of mother's whereabouts, her circumstances, and her request for custody of the minor, on January 27, 2010, the department filed a section 366.26 hearing report in advance of the February 1 hearing recommending termination of the parental rights of both parents and requesting that the permanent plan for the child be adoption by the current foster mother. In the report, the department noted that mother had been in frequent telephone contact with the social worker since December 2, 2009, "wishe[d] to be reunited with her son, . . . and w[ould] do whatever is requested by the Court to achieve that goal." Nowhere in the report did the department address whether returning the child to mother's custody would be detrimental to the child.

At the hearing on February 1, the department submitted another supplemental report that consisted of an e-mail from mother of that same date. In the e-mail, mother pleaded that she "desperately want[ed] to be back in [the child's] life" and stated that she had recently begun taking parenting classes to help her understand how to raise a disabled child. (Z. K. has been diagnosed as mildly mentally retarded.) Father's attorney requested that the matter be set for a contested section 366.26 hearing. When the court proposed a hearing date in early March, mother's attorney informed the court that mother was "on a limited income" and needed additional time to make plans to travel to California for the hearing. The hearing was set for March 24.

On March 4, 2010, the department requested that the court continue the section 366.26 hearing to June, "as recent changes in the mother's circumstances need to be addressed." The department noted that mother was "requesting services and placement of the minor, and an Interstate Compact on the Placement of Children (ICPC) [home study] will need to be done."*fn4

At a hearing on March 15, the court continued the matter to June 21 for a resetting of the contested hearing to give the department time to file an amended recommendation.

On March 23, 2010, mother and the maternal grandmother came to California from Ohio to visit the minor. (Presumably this visit was in conjunction with the March 24 hearing date, which had since been continued.) Mother participated in several visits over a period of three days, all of which went well. It was concluded that mother had the capacity to develop a maternal relationship with the minor.

The department received the ICPC home study report from the Scioto County Children Services Board in Ohio in April 2010. Mother was found to have no criminal history and no child protective services history. She was living in a small second-floor, one-bedroom apartment where she had lived for over two years. The apartment appeared to be clean and adequately furnished. Mother was planning to move to a three-bedroom apartment as soon as her current landlord finished renovations. Until then, she would have Z. K. sleep in the bedroom and she would sleep on the living room couch. She was unemployed at the time, but actively seeking employment. She was receiving $115 in cash assistance and $200 in food assistance monthly and was using the proceeds from student loans to help pay her $429 in monthly expenses. She had a male friend she identified as Lewis Ruth whom she saw several times a week but who did not reside in her apartment. He could provide child care assistance if needed, as could her mother and relatives.

The ICPC home study was "denied,"*fn5 however, based on the following concerns: (1) the adequacy of mother's income; (2) the possibility that mother was living with Lewis Ruth (based on the presence of fishing poles, hunting hats, and tools in the home and mother's apparent statement to a caseworker at the Ohio Department of Job and Family Services at an unspecified time that she was living with Ruth); (3) the adequacy of bedding space for Z. K. if Lewis Ruth was, indeed, living in the apartment; and (4) the hazardous condition of the outside wood stairs leading up to the apartment.*fn6

At the hearing on June 21, mother's counsel stated that before the matter was set for a contested hearing she needed a report from the department, including the home study. The department's attorney stated she had faxed the study to mother's counsel in May but nonetheless would prepare a report and attach the study to the report. To allow the ...


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