TARA S. v. Superior Court
TARA S., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES Et Al., Real Parties in Interest
- Area
- civil
- Panel
- Howard B. Wiener (author)
Analysis
The trial court denied the mother's motion to dismiss the dependency petition and ordered the minor detained with her father in Minnesota. The Court of Appeal denied the writ, holding that the Interstate Compact on Placement of Children (ICPC) did not apply to placement with a natural parent and that due process was satisfied by the evidence presented.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to dismiss and order detaining minor with father in Minnesota“We therefore conclude the court did not err in not invoking ICPC when it permitted the minor to be detained with her father pending future jurisdictional and dispositional hearings in the juvenile court.” | abuse of discretion | correct | agree with court The court correctly applied the ICPC, which is limited to foster care and adoption, and found no due process violation given the evidence of the father's fitness and the mother's lack of custody rights at that stage. |
Authorities
- relied: McComb v. Wambaugh (1991) 934 F.2d 474 — Article 2, subdivision (d) of the ICPC limits the places where minors may be placed, not the persons with whom they may be placed.
- relied: Attorney General's Opinion (1978) 61 Ops.Cal.Atty.Gen. 535 — The ICPC applies when a child is placed with a parent in another state.
The appellate opinion: sound — The opinion correctly distinguishes between placement in a facility versus placement with a parent, aligning with the statutory text of the ICPC. It adequately addresses the due process concerns by noting the evidence of the father's fitness and the mother's lack of exclusive custody rights.
How this analysis was made · dispute it
unusual dispositionAt a dependency detention hearing the juvenile court denied the father's and DSS's motion to dismiss the petition but ordered the child detained with her noncustodial, nonoffending father in Minnesota without obtaining Minnesota's approval under the Interstate Compact on Placement of Children, and without a contested hearing. The Court of Appeal denied the mother's petition for writ of mandate, holding the ICPC does not apply to placement with a natural parent and that neither due process nor the mother's parental rights were violated.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order detaining the minor with her father in Minnesota without invoking the ICPC (Civ. Code, § 264 et seq.)“We therefore conclude the court did not err in not invoking ICPC when it permitted the minor to be detained with her father pending future jurisdictional and dispositional hearings in the juvenile court.” | unclear | correct | agree with court The question is one of statutory construction of the compact. The court reads article 2(d) ('family free or boarding home') together with article 3, which confines the compact to foster care or preliminary-to-adoption placements, and follows the Third Circuit's McComb v. Wambaugh, which held article 2(d) describes places not persons. Rejecting the contrary 1978 Attorney General opinion is defensible because such opinions are advisory only, and the textual reading is coherent. No standard of review is articulated, though the issue is effectively one of law. |
Rejection of claim that California's payment of therapy and phone costs triggered the ICPC“California is not paying any of Brian’s expenses associated with Brianna’s move to Minnesota. There is nothing to invoke the ICPC.” | unclear | correct | agree with court The court resolves this on the record: the father represented he was paying for the child's needs, insurance was expected to cover therapy, and the phone charges were the mother's collect calls. Because the court had already held the ICPC inapplicable to parental placements, this factual point is largely cumulative. The reasoning is thin but follows from the first holding. |
Placement of the child out of state at the detention hearing without a contested evidentiary hearing (due process challenge)“There was no reason for the court not to place Brianna with her father. There was no violation of due process.” | unclear | correct | unsure The court acknowledges the mother could not cross-examine the father or social worker, no one had inspected the Minnesota home, and the child's therapist advised against the placement, yet concludes no contested hearing was required because a nonoffending noncustodial parent has a right to custody. The result is consistent with the statutory preference for placement with a noncustodial parent, but the court cites no authority on what process is due at a detention hearing and does not engage with the therapist's contrary recommendation or the detriment inquiry. The conclusion is defensible but under-reasoned. |
Rejection of claim that the de facto change of custody to Minnesota violated the mother's constitutional right to parent“However, petitioner has not lost her parental rights. Even if the petition is dismissed she will have equal custody rights to Brianna.” | unclear | correct | agree with court The court reasons that an interim detention order does not terminate or permanently diminish the mother's rights, that custody will be addressed by the California court if jurisdiction is found, and that even if the ICPC had applied the remedy would not necessarily be return of the child given the father's right to custody. The home-state concern under the UCCJA is raised by the mother but not squarely answered with authority. The result is reasonable but the analysis skips the jurisdictional point. |
Authorities
- relied: McComb v. Wambaugh (1991) 934 F.2d 474 — Article 2(d) of the ICPC limits the places where children may be placed, not the persons with whom they may be placed; the compact does not apply to a placement with a natural parent.
The appellate opinion: sound with gaps — The core holding that the ICPC does not govern placement of a dependent child with a natural parent is well supported by the compact's text and the only appellate authority cited, and it has since been followed in California. The opinion is brief, states no standard of review, and disposes of the due process and UCCJA home-state arguments without citing authority or confronting the record facts it acknowledges cut the other way.
Opinion — Wiener
Opinion
WIENER, J.On October 7, 1992, a petition was filed alleging the minor, Brianna, was at risk of physical and sexual abuse due to her mother’s substance abuse (Welf. & Inst, § 300, subds. (b) and (d)). The child was placed in a confidential foster home. At the detention hearing on December 10, 1992, the minor’s biological father, Brian C., with the concurrence of the department of social services (DSS) moved to dismiss the petition. The court denied the motion to dismiss believing there would be insufficient safeguards to protect Brianna from her mother’s behavior and possible abduction. The court ordered a short transition and that the child be detained with Brian at his home in Minnesota. The child has been living with her father and stepmother since that time.
I
Mother complains about the placement saying the court may not detain a child out-of-state without the approval of the receiving state, here Minnesota, under the Interstate Compact on Placement of Children (ICPC) (Civ. Code, § 264 et seq.). The purpose of the ICPC is to facilitate the cooperation between states in the placement and monitoring of dependent children. Article 2, subdivision (d) defines placement as “in a family free or boarding home or in a childcaring agency or institution.” Article 3 sets out conditions for placement which are limited to “foster care or as a preliminary to a possible adoption.” Petitioner relies on an Attorney General’s opinion which states the ICPC applies when a child is placed with a parent in another state (61 Ops.Cal.Atty.Gen. 535, 537 (1978)). The Attorney General interprets the definition of “placement” in article 2, subdivision (d) and concludes that since there is nothing in the term “family free home” to limit it to any particular home it therefore must include the home of the natural mother or father. (61 Ops.Cal.Atty.Gen., supra, at p. 539.) We disagree. Such an interpretation does not make sense in light of article 3 which limits the ICPC to foster care and possible adoption—neither of which would involve natural parents. As pointed out in McComb v. Wambaugh (3d cir. 1991) 934 F.2d 474, article 2, subdivision (d) limits the places where minors may be placed, not the persons with whom they may be placed (McComb v. Wambaugh, *1838 supra, 934 F.2d at p. 480). We therefore conclude the court did not err in not invoking ICPC when it permitted the minor to be detained with her father pending future jurisdictional and dispositional hearings in the juvenile court. 1
II
Petitioner suggests the ICPC must apply here in any event because the State of California is paying for therapy in Minnesota for Brianna and for long-distance phone calls. However, Brian, in his opposition says he is providing for all of Brianna’s needs including therapy. At the hearing it was contemplated that Brian’s medical insurance would cover the therapy. The court also pointed out that if Brian had the ability he would be expected to pay for everything including previous care for Brianna in a foster home. As for the phone calls, this was for mother’s long-distance collect calls which was assisting the mother, not Brian. California is not paying any of Brian’s expenses associated with Brianna’s move to Minnesota. There is nothing to invoke the ICPC.
Ill
Petitioner argues sending Brianna out of the state without a contested hearing violates due process. Here, the social worker documented Brian’s home life and circumstances. However, he did not visit Minnesota. No one had seen Brian’s home. Mother did not have a chance to question or cross-examine either Brian or the social worker. Brianna’s San Diego therapist advised that she not be placed with Brian. However, it is unclear why a contested hearing is needed. Brian was found by clear and convincing evidence to be Brianna’s father. He has equal rights to custody of his child. When Brianna could not be returned to the custody of her mother, Brian, the noncustodial, nonoffending parent had a right to the child.
The Minnesota child protective service and police checks were negative. The court was also provided with letters of support, references, a lease, medical and car insurance and photographs. Brian and his wife came to San Diego, talked with the social worker and appeared in court. There was no reason for the court not to place Brianna with her father. There was no violation of due process.
IV
Petitioner then argues her constitutional right to parent is affected by the de facto change of custody. Placement in Minnesota interrupts contact *1839 between mother and Brianna. In addition, if Brianna stays in Minnesota for more than six months, Minnesota will then become the home state of the child for purposes of a child custody dispute. And this will occur if the child is not returned immediately. For, if, at the next hearing, the petition is dismissed, then California cannot order Brianna’s return; if it is not dismissed, mother will appeal and the six months to establish residency in Minnesota will have passed before she gets relief.
When there is a change of custody, the rights of the parent who no longer has custody are always affected. When the newly custodial parent lives at a distance the effect is exacerbated. However, petitioner has not lost her parental rights. Even if the petition is dismissed she will have equal custody rights to Brianna. If a true finding is made, a California court will address the custody issues.
Even had the ICPC applied and not been followed it is not clear the remedy would be to return the child to San Diego. Brian is the noncustodial nonoffending parent and absent good cause has every right to custody of Brianna.
The peremptory writ is denied. The alternative writ is discharged.
Kremer, P. J., and Nares, J., concurred.
Interestingly, the county states that had the juvenile court ordered “visitation” the issue of ICPC would not be presented. We decline to decide this case on the basis of this alleged distinction.
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