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In Re andrew J., A Person Coming Under the Juvenile Court v. andrew J

February 6, 2013

IN RE ANDREW J., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES ET AL., PLAINTIFFS AND RESPONDENTS,
v.
ANDREW J., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe, Judge. (Kern Co. Super. Ct. No. JD128055; San Bernardino Co. Super. Ct. No. J-201792)

The opinion of the court was delivered by: Wiseman, Acting P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

Andrew J., now 17 years old, became a dependent of the juvenile court in San Bernardino County in 2005. Since October 2010, he has resided with extended family members in Kern County, and his permanent plan is to remain with them until he reaches adulthood. Andrew has significant behavioral issues that threaten his successful transition to independent living as an adult. The San Bernardino County Juvenile Court attempted to transfer his case to Kern County so that he could receive vital services near home. The Kern County Juvenile Court, however, immediately transferred the case back to San Bernardino County based on its disagreement with the San Bernardino court's findings regarding Andrew's place of legal residence. This transfer took place on February 2, 2012, and Andrew's ability to access services has been hampered for the past year.

This case is procedurally tangled. Kern County urges us to dismiss the appeal on non-substantive grounds. We decline to do so and conclude there is no obstacle that prevents this case from being decided now. The rejection of Andrew's transfer to Kern County made by San Bernardino County was erroneous and we order it be reversed.

As we will explain, two reasons warrant reversal. First, the Kern court could not simply reject the transfer because its understanding of the record differed from that of the San Bernardino court. It could have set a new transfer hearing based on new evidence or changed circumstances, if there had been any. Alternatively, the Kern County Department of Human Services could have appealed the San Bernardino court's order. The Kern court, however, could not simply overrule another juvenile court. In addition, the Kern court abused its discretion when it found retransfer to San Bernardino County to be in Andrew's best interest as there was no evidence in the record in support of this finding. To the extent the Kern court factored in the cost to the Kern agency of providing services to Andrew in deciding what was in Andrew's best interest, this was error.

The parties raised a third issue--whether Andrew is automatically made a resident of San Bernardino County by Welfare and Institutions Code section 17.1, subdivision (e). Our holdings on the other issues make it unnecessary to resolve this question.

FACTUAL AND PROCEDURAL HISTORIES

Andrew was born on October 16, 1995. In 2005, when he was nine, a sheriff's deputy found him and one of his two sisters dirty and disheveled locked out of their house in San Bernardino County. No adults were home and the house lacked water service and heat. San Bernardino County Children and Family Services (the San Bernardino agency) investigated and found that the three siblings' mother was incarcerated on a charge of heroin possession. Andrew's assumed father, who had schizophrenia, was in prison serving a term of 25 years to life, and the whereabouts of the fathers of the two sisters were unknown. The children had been left in the care of one of the mother's friends and then another.

The San Bernardino agency filed a juvenile dependency petition. Ultimately, on January 10, 2007, the San Bernardino County Juvenile Court terminated both parents' parental rights. The court approved a permanent plan of adoption for Andrew. Beginning in December 2006, he was placed with Mr. and Mrs. D. as his prospective adoptive parents. Mr. and Mrs. D. are relatives of Andrew's former stepfather. We have not found in the record an indication of where Mr. and Mrs. D. lived when Andrew was placed with them, but by 2010 they lived in Kern County.

As might be expected of a child left an orphan at the age of nine by a drug-addicted mother and a mentally ill father, Andrew exhibited various behavioral problems over time. In 2006, the San Bernardino agency reported that Andrew was very bright, but was not doing well academically as he had difficulty focusing, was constantly off-task, and got into mischief often. By August 2007, when he was 11 years old, his condition had worsened. Mr. and Mrs. D. reported that he had been lying, stealing, and behaving aggressively toward them.

In December 2006, Mr. and Mrs. D. had said they would consider Andrew to be their child and would provide him with a permanent home, but eight months later they withdrew their offer to adopt Andrew and requested his removal from their home. Andrew was placed in a group home, with neither Mr. and Mrs. D. nor any other family available as a concurrent placement. In the group home, Andrew confronted issues of depression, separation, and loss. He was sometimes teased and made fun of, and on those occasions he mutilated himself with an object. He was failing all his subjects in school, refused to complete schoolwork assignments, and said he was afraid to ask for help. His sisters had been adopted by a family a long distance away and he was not being given the opportunity to visit them. He received residential treatment from a psychotherapist in the group home.

By July 2008, the behavior that led to his ejection from the home of Mr. and Mrs. D. was "ameliorating," but his academic performance was still below state standards. A report prepared in May 2009 by a social worker at the group home indicated that Andrew related well with and was not aggressive toward other children. He generally followed adults' directions at the home, except that he often ran away from supervised areas along with other children and would be missing for hours. He also received numerous detentions and suspensions at school for disruptiveness, cutting classes, and being late. He had difficulty completing his homework and was failing several classes. Andrew was diagnosed with depression and disruptive behavior disorder and prescribed Wellbutrin, which was later discontinued because of negative side effects. An evaluation by a school psychologist found Andrew qualified for an Individualized Education Plan (IEP).

In January 2010, Andrew was nearing age 15, the maximum age at his group home. No prospective adoptive family was available. The San Bernardino County Juvenile Court ordered a change in Andrew's permanent plan from adoption to "Planned Permanent Living Arrangement" (PPLA). A social worker for the San Bernardino agency then contacted Mr. and Mrs. D., who agreed to have Andrew return to live with them. He moved in with them in Kern County on October 1, 2010. By January 2011 they had again agreed to adopt him and he expressed his wish to be adopted. The court changed his permanent plan back to adoption.

The relationship between Andrew and Mr. and Mrs. D. again deteriorated. Andrew began smoking marijuana, stealing, lying about his whereabouts, defying instructions, and not completing school assignments. At the same time, Mr. D. became seriously ill. By January 2012, Mr. and Mrs. D. once more were unwilling to adopt Andrew, though they agreed to keep him in their home. The court changed Andrew's permanent plan back to PPLA and accepted the social worker's specific recommendation to modify the plan to "permanent placement with [the D.] family."

After returning to Mr. and Mrs. D.'s home in Kern County, Andrew continued to have behavioral and emotional difficulties. He was deficient in self-directed decisionmaking, had low self-esteem, experienced an excessive need to be accepted by peers, and had an overwhelming tendency to follow the lead of his peers regardless of the consequences. The social worker was concerned that some of his activities--the stealing and marijuana smoking--could lead to involvement with the criminal justice system. His academic performance was below state standards, and he failed two classes in 10th grade.

From Mr. and Mrs. D.'s home in Kern County, Andrew encountered severe difficulties in obtaining services through the San Bernardino agency to help him cope with his problems. The family had lost "a major portion of their transportation system," according to the social worker's report. Andrew's psychotherapy services were terminated because it was no longer possible for Mr. and Mrs. D. to drive him two hours to the therapist's office. As of January 2012, the San Bernardino agency's social worker had unsuccessfully attempted to obtain in-home psychotherapy for Andrew through the Kern County Mental Health Access Unit.

Andrew's Court Appointed Special Advocate (CASA) attempted to obtain wraparound services for Andrew, but in January 2012 he wrote that, "because Andrew lives in a different county than the one his case originated in, funding has become a source of contention and services have yet to be provided."*fn2 The CASA also believed (1) it was important for Andrew to be referred to a CASA program in his area, (2) that "the family is unreasonably over-critical of Andrew," and (3) he needed a local advocate to voice his concerns.

For these reasons, in January 2012, the San Bernardino agency recommended that Andrew's case be transferred to Kern, the county in which Andrew had lived for over a year. At a hearing, the social worker stated that obtaining wraparound services was the primary reason for requesting the transfer. Andrew's counsel agreed that better services would be available to the family if the case were transferred. The court ordered the transfer on January 13, 2012, finding that Andrew's legal residence was the home of Mr. and Mrs. D. in Kern County and that the transfer was in his best interest. The court's order specifically called for wraparound services in Kern County.

The Kern County Juvenile Court set a transfer-in hearing for February 2, 2012. The Kern County Department of Human Services (the Kern agency) prepared a report for the hearing. The social worker who authored the report acknowledged that Andrew "does appear to be in need of services to assist in his behavior at this time." She implied that Andrew could receive services without the transfer, however, because the San Bernardino agency's last report had stated that "services are being sought through the child's school and via in-home psychotherapeutic services through SB 780." The report omitted the fact that those efforts had not succeeded by the time the San Bernardino court issued the transfer order, and that the San Bernardino agency believed the transfer was necessary to obtain services.

The Kern agency's report also concluded that Andrew was a legal resident of San Bernardino County because his parents' parental rights were terminated in that county. The Kern agency relied on Welfare and Institutions Code section 17.1, which defines juvenile wards' counties of residence under various circumstances. The Kern agency's report asserted that retransfer to San Bernardino County was in Andrew's best interest. The only comments in the brief report that appear relevant to this assertion are that Andrew "maintains contact with several members of his biological family, including a sister who was adopted in San Bernardino County," and "[s]hould the child's current placement fail, it appears that it would then be in the child's best interests to place him back in San Bernardino County." The report concluded by recommending an immediate transfer of Andrew's case back to San Bernardino County.

The transfer-in hearing was very brief. Andrew was represented, for purposes of that hearing only, by the Kern County Public Defender's office. Rather than articulating Andrew's interest in and arguing for his right to a transfer, Andrew's Kern County deputy public defender argued that Andrew could receive services in Kern County only via a contract between the two counties, not via a transfer of his case. Counsel said, "I just spoke briefly with [Mr. and Mrs. D.]. They wanted this case to be transferred to Kern County because they're actually interested in [wraparound] services for Andrew, although it's my understanding we always contract with other counties when we have children placed out of county, so there isn't--to me, I don't know of any barrier from that." Andrew's counsel also argued that the Kern agency was correct in its argument that Andrew was a resident of San Bernardino County under Welfare and Institutions Code section 17.1.

The Kern court granted the Kern agency's request to transfer the case back to San Bernardino County. The court's discussion was, in its entirety, as follows:

"I believe legally the recommendations are correct, and I will adopt them as follows:

"Proper notice has been provided to the child, [Andrew], and his caretakers. Transfer of the child's case is accepted from the County of San Bernardino.

"The child's legal residence is in the County of San Bernardino under Welfare & Institutions Code 17.1, subdivision (e). Transfer of the child's case is in the child's best interest.

"The child's case is transferred to the County of San Bernardino.

"All prior orders not specifically set aside or modified by this Court order are to remain in full force and effect."

Back in San Bernardino on February 22, 2012, at the hearing on the transfer back in from Kern, the court and counsel were puzzled.

"THE COURT: Well, what do we do with this?

"[Deputy county counsel]: Well, it's kind of strange. It does not seem right what Kern is doing because the interpretation would be that whenever parental rights have been terminated you can ...


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