Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP01466 Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
O’LEARY, J.
This case is heartbreaking to review not only because Tyler H.’s (Tyler’s) parents let him down by failing to reunite with him after nearly three years, but also because we see our court system has fallen short in protecting Tyler’s best interests. Vincent H. (Father) and N.N. (Mother) are the parents of Tyler, who will be four years old in November 2010. The dependency proceedings started in Orange County in July 2007 when Tyler was just seven months old. After approximately three months, the case was transferred to Los Angeles County where Mother had relocated. Early on in the proceedings it became apparent Mother and Father were struggling with their reunification case service plans. However, the case stalled in Los Angeles County for over two years (from July 2007 to November 2009). When it finally came time for the scheduled selection and implementation hearing under Welfare and Institutions Code section 366.26 (on November 12, 2009), the Los Angeles County juvenile court abruptly transferred the case to Orange County, causing further delay. However, no one appealed that transfer order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
The Orange County juvenile court accepted the case, as required by the California Rules of Court. The Orange County juvenile court reasonably believed the case had been erroneously transferred on the eve of the selection and implementation hearing (hereafter the.26 hearing), and it noted with dismay the delay caused by transferring the case to Orange County had caused Tyler unnecessary anxiety and he was “in desperate need of permanency.” The court denied Orange County Social Services Agency’s (SSA’s) motion on January 6, 2009, to return the case to Los Angeles. However, at the end of January, and over the parents’ objections, the Orange County juvenile court held a transfer-out hearing. The court recognized there was no change of circumstances, but it reasoned the Los Angeles County court erred and it would be in Tyler’s best interest to have the case handled in Los Angeles.
This transfer order has further postponed resolution of Tyler’s case. Indeed, by filing an appeal Father has effectively stalled the.26 hearing for an additional six months. The dependency statutory scheme wisely mandates an 18-month maximum time period for reunification (§ 361.5, subd. (a)(3)), and yet this case is fast approaching three years in the California court system.
We reverse the January 28, 2010, transfer order because it was based on improper factors, and in any event, further delay caused by another intercounty transfer would be detrimental to Tyler’s best interest. As we will explain, the Orange County juvenile court reached a contrary result on the same issue previously decided by the Los Angeles County juvenile court. Because there was no new evidence or changed circumstances, in essence the Orange County court acted as an appellate court, conducted a de novo review, and reversed the Los Angeles County court’s valid order. This was improper. Tyler has waited long enough for the.26 hearing, and there is no legal impediment to preclude the Orange County juvenile court from considering and making the ruling as soon as feasibly possible, especially in a case where the parents have unresolved issues and statutorily no additional time remains for further reunification services.
I
Tyler was six weeks old on January 12, 2007, when a petition was filed in Orange County alleging Tyler and his five half-siblings (who are not the subject of this appeal) were at risk of abuse or neglect. Mother had been arrested for child cruelty after injuring her eldest daughter. Mother had previously received family maintenance supervision from the Los Angeles County juvenile court in 1995 after the birth of her second child, who tested positive for cocaine. Mother and Father had a substance abuse history. Father had an extensive criminal record dating back to 1983. SSA returned the children to Mother and Father under the Conditional Release Intensive Supervision Program (CRISP). The petition was sustained as to the eldest daughter, and dismissed as to Tyler and his siblings. In early March, the eldest daughter was returned to Mother under a plan of family maintenance.
Several months later, in late July 2007, a second petition was filed in Orange County after Mother tested positive three times for methamphetamine. Father had been arrested for an outstanding warrant regarding a traffic violation. Their children were taken into protective custody, including seven-month-old Tyler. The children were placed with a maternal aunt in Orange County.
The parents got off to a good start with addressing their issues, but their progress was short lived. In August 2007, Father tested positive and admitted using methamphetamine. Father was arrested, and a child abuse report was filed following an incident of domestic violence: Mother was standing outside a car and reached inside when Father drove away, dragging her 50 feet. Father’s two oldest children were inside the car at the time. Father was charged with assault, corporal injury to a cohabitant, and child endangerment. Mother was granted an emergency protective order.
Mother and Father separated. Mother moved to Long Beach, Los Angeles County. Tyler remained living in Santa Ana, Orange County. In September 2007, the Orange County juvenile court granted SSA’s motion to amend the petition to include the new domestic violence allegation. Approximately one week later, the court transferred the case to Los Angeles County, where Mother was residing. The case remained in Los Angeles County until November 2009.
After receiving the case, the Los Angeles County juvenile court held a disposition hearing. The social worker reported Mother and Father had reunited. Father had not visited Tyler because he had “issues” with the caretaker. He was angry his son was taken away, and he refused the social worker’s offer to visit Tyler at other places. In January 2008, Father told the social worker the system was unfair and he no longer wanted to be monitored. Father stated he would rather wait until Mother got the children back, and then he would work out things with Mother to see Tyler. After many continuances, the Los Angeles County juvenile court held the disposition hearing and declared Tyler a dependent of the court on February 21, 2008. It ordered family reunification services for both parents and monitored visits for Father.
In August 2008, the Los Angeles County Department of Children and Family Services (DCFS) Social Worker, Nirmala Gupta, reported father was a fugitive, having failed to appear in his criminal case. Mother did not know where he was, but speculated he might be in Michigan. He had not visited Tyler in six months. Mother had failed to appear for drug tests in May, June, and July. Mother stopped contacting Gupta in the middle of May, and stopped visiting her children after the first week of June. The six-month review hearing was continued several times.
In November 2008, Father failed to appear in the Los Angeles County juvenile court for the six-month review hearing and the court terminated Father’s reunification services. Mother was living in Garden Grove, Orange County, and she had recently taken steps to comply with her case plan, despite Orange County SSA’s refusal to assist with family services because it was an “open case” in Los Angeles County. Mother did not yet have adequate housing to care for the children, and she missed a few drug tests. The Los Angeles County court granted an additional six months of reunification services. In May 2009, the court issued a criminal protective order restraining Father from harassing Mother. Father began participating in a batterers’ intervention program.
On June 5, 2009, Father filed a section 388 petition seeking modification of the court’s order terminating reunification services. The court denied the petition, finding Father had not shown a change of circumstances or that modification would be in Tyler’s best interests.
In a report prepared for the 12-month review hearing, Gupta reported Mother and Father were residing together in Garden Grove, Orange County. Father had not contacted Tyler in over a year, but he had recently started monitored visits with Tyler in June 2009. Mother had tested positive for cocaine, and Gupta was concerned Father was also using drugs. Gupta filed a section 388 petition requesting a change for Mother’s visits to be monitored, and to order both parents into drug programs if the parents tested positive for drugs.
At this time, only Tyler and one of his sisters remained living with their aunt in Santa Ana. Their siblings had been placed with other relatives or biological fathers. The Los Angeles County juvenile court held a contested 12-month review hearing on July 16, 2009, noting it was well beyond the 18-month deadline (the children were detained in July 2007). The court terminated Mother’s reunification services and scheduled the.26 hearing. It denied the social worker’s section 388 petition.
On July 17, 2009, Gupta filed a second section 388 petition, again seeking monitored visitation and drug testing for both parents. The court granted the request for monitored visits but denied the request for Father to test.
In August 2009, Father filed a section 388 modification petition requesting family reunification services, custody of Tyler, or removal of.26 hearing from the calendar. The court granted a hearing on the petition and asked DCFS to prepare a response. Gupta filed a report on September 28, 2009, stating Father had completed an in home family service program in early 2007 relating to an earlier dependency case, but Tyler was detained after he completed this program. Thereafter, Father failed to complete the parenting education program, the drug treatment program, the anger management classes, or any aspect of his reunification plan in this case. She recounted Father’s violent history with Mother and his failure to maintain contact with Tyler for over a year. Gupta opined Father still had anger management issues. It was reported that during recent visits Father would become angry, raise his voice, and argue with Mother in front of Tyler. Gupta recommended Father’s petition be denied and the court proceed with the.26 hearing. The Los Angeles County juvenile court continued Father’s modification petition and the.26 hearing to November 12, 2009. It also ordered DCFS to assess if the case should be transferred to Orange County.
In October 2009, DCFS filed a section 387 petition regarding Tyler’s caregiver because she could no longer care for him or his sister. The court set a pretrial resolution conference to coincide with the.26 hearing scheduled in November. It declared Tyler and his sister to be a sibling set and ordered DCFS to use its best efforts to place the children closer to the parents’ residence in Orange County.
In November 2009, Gupta filed a report stating Tyler and his sister had been placed in an adoptive home in Los Angeles County. She recommended the court terminate parental rights because the children were likely to be adopted by this new family. Gupta noted family reunification services had been terminated as to both parents and Tyler would be best served by continued court supervision in Los Angeles County. She reminded the court of DCFS’s policy not to transfer a case after the.26 hearing has been scheduled.
At the November 12 hearing, the court read and dismissed the section 387 petition. The court noted Tyler’s parents lived in Orange County, and it ordered the case transferred to Orange County over DCFS’s objection. It scheduled the next hearing for December 24, 2009.
On December 23, the Orange County juvenile court held a “transfer-in” hearing, and formally accepted the case from Los Angeles County. SSA recommended the court accept the transfer but suggested it immediately set a transfer-out hearing to return the case to Los Angeles County for the.26 hearing. SSA asserted the transfer had improperly occurred within less than 30 days of a scheduled.26 hearing. The Orange County juvenile court recognized the error and expressed concern the case would need to be further delayed. It noted none of the witnesses were available and minor’s newly appointed counsel needed an opportunity to see the children. The court decided to schedule a trial setting conference to determine the posture of the case before rescheduling the.26 hearing.
SSA social worker, Chris Martinez, filed a report in January 2010. Martinez stated Tyler remained in an adoptive home in Los Angeles County. The caretaker was committed to adopting the children, and she traveled four hours round trip to facilitate a visit with the parents at the end of December. At the visit, Mother became upset when she heard Tyler call the caretaker “mommy.” DCFS opined the child would be best served if Tyler continued receiving services and court supervision in Los Angeles County. Martinez agreed, and he recommended transferring the case back to Los Angeles County for the.26 hearing.
At the next hearing, counsel for SSA moved to transfer the case to Los Angeles County. SSA stated it was unclear if the Los Angeles County juvenile court had granted Father’s section 388 modification petition. The Orange County juvenile court expressed dismay at the factors causing such an extreme delay in the case and further anxiety for the children. The court determined keeping the case in Orange County would not be in Tyler’s best interests, but the court believed it had no choice but to accept jurisdiction of the case. It denied the motion to transfer the case. The court recognized there were conflicting orders in the case, and it telephoned the Los Angeles County juvenile court for further information to no avail. The court continued the matter and ordered SSA to obtain further information from DCFS.
A few weeks later, Martinez clarified in a report that the Los Angeles County court had set a hearing on Father’s modification petition for August 17, 2009, but it was continued until December 24 for a hearing in Orange County. Martinez repeated DCFS had extensive knowledge of the case and believed Tyler would be best served in Los Angeles County, but Martinez also recognized Mother and Father resided in Orange County. Martinez was “not aware of any law or regulation that would allow a recommendation that the matter be transferred back to Los Angeles County at this time.”
On January 28, 2010, the Orange County juvenile court held a transfer-out hearing pursuant to California Rules of Court, rule 5.610. A DCFS social worker attended the hearing and confirmed much of the information contained in the reports. SSA and Tyler’s counsel agreed it would be in Tyler’s best interest to transfer the case to Los Angeles County based on the long history of the case and the location of witnesses. Father requested the case remain in Orange County based on his residence and because he felt he was treated “extremely unfair” in Los Angeles County.
The court concluded it was in Tyler’s best interests to transfer the case to Los Angeles County. It noted the case had a long history in Los Angeles County where family reunification services were offered, terminated, and the.26 hearing was pending. The court stated Tyler, his caretaker, the social workers, and attorneys familiar with the case were all located in Los Angeles County. The court concluded it did not appear from the record whether the Los Angeles County court actually made a finding it would be in Tyler’s best interests to transfer the case to Orange County but rather transferred the case because of the parents’ residence. The court also determined it could not proceed with the.26 hearing if Father’s section 388 petition was set in Los Angeles County. Finally, the court concluded “in terms of judicial economy and to achieve the most appropriate, the fairest, [and] the best informed results for [Tyler is] to have the matter handled by folks who have a full understanding of the case....”
II
We are troubled by the fact a three-year-old child has essentially spent his entire life in the dependency system, without any sense of permanency or stability. The statutory scheme mandates that a permanency hearing take place within 18 months after the date the child was originally removed from the parents’ physical custody. (§ 366.22.) Moreover, services cannot be extended beyond 18 months absent extraordinary circumstances that are not present in this case. (§ 361.5, subd. (a)(3).) The rules could not be clearer, yet they inexplicably appear to have been ignored in this case: To briefly summarize: Tyler was taken into protective custody July 2007. Father’s services were terminated in November 2008, at the “six-month review hearing, ” which was really the 16-month benchmark. Despite Mother’s dismal progress, her services were not terminated until July 2009, at the “[12]-month review hearing, ” but actually the hearing marked the passage of two years since Tyler had been taken into protective custody. The case was transferred to Orange County in December 2009 (delaying the case five additional months). The case was then ordered returned to Los Angeles County at the end of January 2010, making the case two and one half years old and no closer to the.26 hearing. The inevitable appeal followed, further delaying the case approximately six months. Tyler deserved better than this.
In a nutshell, the applicable rules provide a dependency case can be transferred anytime the minor’s county of residency has changed, but the court must also take into consideration the child’s best interests. (§ 375; Cal. Rules of Court, rule 5.610; In re J.C. (2002) 104 Cal.App.4th 984, 992 [“Legislature has mandated that the juvenile courts consider ‘the best interests of the minors in all deliberations’” including transfer orders]; In re Lisa E. (1986) 188 Cal.App.3d 399, 405 [transfer to proper appellate court can be denied if the transfer would delay the proceeding to the detriment of the child].) A transfer order will not be overturned absent a clear abuse of the court’s discretion. (In re J.C., supra, 104 Cal.App.4th at p. 993.)
California Rules of Court, rule 5.610 “permits, but does not require, a court to transfer a juvenile case to the county where the child resides. Conversely, section 375 permits, but does not require, a court to transfer a juvenile case to the county where the parent resides. The two provisions provide alternative bases for transferring a dependency case to another county. These provisions do not necessarily conflict, as when a single juvenile court decides whether a case should be serviced in the county where the child resides or where the parent resides. (See In re Christopher T. (1998)
Unlike the other published cases we found concerning intercounty transfer orders, Tyler’s case has not been repeatedly transferred between two counties because his parents keep moving. (E.g. In re J.C., supra, 104 Cal.App.4th at p. 986 [“The case bounced back and forth between the two counties five times over nine months before appellant initiated this appeal”].) Rather, here there have been only three transfers: (1) The Orange County juvenile court handled the first three months of the case before transferring it to Los Angeles County when Mother relocated. (2) The Los Angeles County juvenile court handled the case for approximately two years (October 4, 2007, to November 12, 2009). Although Mother had moved to Orange County sometime around November 2008, the Los Angeles County juvenile court did not hold a transfer-out hearing until the eve of the.26 hearing in November 2009.
(3) The Orange County juvenile court held a transfer-out hearing at the end of January 2010. Accordingly, this case differs from the others because the issue lies not with frustration of multiple transfers, but with whether there was a proper legal and factual basis to support the third transfer.
The procedures and rules for transfer-in and transfer-out hearings are delineated in California Rules of Court, rules 5.610 and 5.612. In a transfer-out hearing, the court is required to make two findings: (1) “the identity and residence of the child’s custodian[;]” and (2) “whether transfer of the case would be in the child’s best interest. The court may not transfer the case unless it determines that the transfer will protect or further the child’s best interest.” (Cal. Rules of Court, rule 5.610(e).) The court must prepare an order of transfer, “entered on Juvenile Court Transfer Orders (form JV-550), which must include all required information and findings.” (Cal. Rules of Court, rule 5.612(f).) After ordering the case transferred, a complete certified copy of the case file must be sent to the receiving county within 10 days. (Cal. Rules of Court, rule 5.610(h).) The rule specifies the transfer order can be appealed by the receiving county, but “Notwithstanding the filing of a notice of appeal, the receiving county must assume jurisdiction of the case upon receipt and filing of the order of transfer.” (Cal. Rules of Court, rule 5.610(i).)
The rule regarding transfer-in hearings specifies, “The receiving court may not reject the case, ” and it provides strict guidelines for when the hearing must be conducted. (Cal. Rules of Court, rule 5.612(a)(1).) At the transfer-in hearing, the receiving court can appoint counsel and “must commence [proceedings] at the same phase as when the case was transferred. The court may continue the hearing for an investigation and report” for 10 or 15 days, depending on whether the child is detained in custody. (Cal. Rules of Court, rule 5.612(c).)
Finally, most relevant to this case, the rules provide, “If the receiving court believes that a change of circumstances or additional facts indicate that the child does not reside in the receiving county, a transfer-out hearing must be held under rules 5.610 and 5.570. The court may direct the department of social services... to seek a modification of the orders under section 388 or 778 and under rule 5.570.” (Cal. Rules of Court, rule 5.612(f).)
The Orange County juvenile court listed four reasons to support its transfer-out order: (1) There was an unresolved modification petition filed in Los Angeles County; (2) the Los Angeles County court did not make a finding transfer to Orange County would be in Tyler’s best interests; (3) it was in Tyler’s best interests to transfer the case to Los Angeles County; and (4) judicial economy.
Before we begin our analysis, we note and appreciate the Orange County juvenile court initially tried to directly communicate with the Los Angeles County trial judge about the case. Unfortunately, the Los Angeles County court was not helpful. Because the status of the case was confusing, open lines of communication would have likely eliminated the need for this appeal.
Based on the reports from SSA and DFCS, the Orange County juvenile court determined the Los Angeles County court did not make a “best interest” finding. This was a mistake. The Los Angeles County juvenile court completed, dated, and signed the Juvenile Court Transfer Orders form (JV-550), expressly containing the two requisite findings for a transfer order, i.e., Tyler’s parents now resided in Orange County and transfer was “in the child’s best interests.”
It appears from our record that the Orange County juvenile court mistakenly focused on the contents of the prior minute order and statements the Los Angeles County juvenile court made on the record. Those sources suggest the court transferred the case simply because Tyler’s parents lived in Orange County and it was difficult for them to come to court hearings in Los Angeles. There was no discussion on the record of Tyler’s best interests. However, we cannot ignore that our record contains the court’s signed order on the JV-550 form, expressly containing a best interests finding. Over DFCS’s objection, the court executed this order. If there were doubts or concerns about whether the proper findings were made to support the order, the appropriate remedy would have been to challenge the order on appeal. (Cal. Rules of Court, rule 5.610(i); In re Carlos B. (1999) 76 Cal.App.4th 50, 55.) This court, and the Orange County juvenile court, must presume the prior order was properly based on the two required findings, as printed on the JV-550 form.
It is well settled: “‘“If an order is appealable... and no timely appeal is taken therefrom, the issues determined by the order are res judicata.”’ [Citations.] ‘An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.’ [Citation.] Appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. [Citation.]” (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.)
Consequently, we have an unfortunate situation where the Orange County juvenile court made its own best interest finding, which was contrary to the one made by the Los Angeles County juvenile court. This was improper. If a receiving court disagrees with the finding underlying the transfer order it has no authority under the rules to act as an appellate court and overrule the prior valid order. “‘The receiving court may not reject the case.’ This could not be clearer.” (In re J.C., supra, 104 Cal.App.4th at p. 990, italics omitted.) If the receiving court disagrees with the transfer order, the rules specify it can reconsider the issue only if new evidence or changed circumstances arise relating to the child’s residence (Cal. Rules of court, rule 5.612(f)) and transfer would not be detrimental to the child’s best interests (In re J.C., supra, 104 Cal.App.4th at p. 992).
Our record shows this case has been litigated in Los Angeles County for the past two years, and the attorneys and social workers in Los Angeles County likely are more familiar with the case. Tyler spent the majority of his life in the foster care system, supervised primarily by one DCFS social worker. His adoptive home was in Los Angeles, and he was bonded to the caretakers. Father and Mother’s reunification services were terminated long ago, which generally shifts the focus to Tyler’s interest in permanency with his current caregivers in Los Angeles County. Certainly it would be more efficient if those more familiar with the case—the social workers, attorneys, foster parents, and other witnesses—could attend the permanency hearing. But as stated above, these very same facts were before the Los Angeles County juvenile court and it determined transferring the case would be in Tyler’s best interests. The Orange County juvenile court and this court have no jurisdiction to consider the issue de novo. The Orange County court failed to refer to any new evidence or changed circumstances that would justify further delay and another transfer-out hearing. We appreciate the trial court mistakenly believed the Los Angeles County court failed to make a “best interest” finding, but ultimately, we must conclude its decision to reconsider that issue based on the same factual circumstances was error.
The court stated two other reasons to support the transfer that we will only briefly address. We could find no rule, and SSA cites to none, prohibiting the Orange County juvenile court from considering and ruling on Father’s pending section 288 modification petition. To the contrary, California Rules of Court, rule 5.612(c), plainly provides: “The proceedings in the receiving court must commence at the same phase as when the case was transferred.” (Italics added.) As applied to this case, the Orange County juvenile court, “the receiving court” was required to “commence at the same phase when the case was transferred” and consider both the pending modification petition and schedule the.26 hearing. The Los Angeles County court transferred the case file, containing Gupta’s report recommending the court deny Father’s petition due to his failure to timely comply with the terms of his reunification plan, his long absence from Tyler’s life, and his unresolved anger management issues. Given the significant passage of time since the petition was filed, an addendum report could be requested regardless of which county hears the matter. But the need for a status update is certainly not a valid reason to transfer the case and cause further unnecessary delay for Tyler. Another postponement caused by a transfer would not be in Tyler’s best interests.
The court’s “judicial economy” reason also does not support the transfer order in this case. Familiarity with the case, convenience of witnesses, expense, and other technicalities all reasonably support a transfer order except when the case is almost three years old. Tyler’s best interest will be met by a permanent and stable home, not by hearings and more continuances. The record shows, the DCFS social worker was able to attend the transfer-out hearing in Orange County, and we presume she can assist SSA in preparing any reports needed before the permanency hearing if necessary. We are confident the Orange County juvenile court, although less familiar with the case, will be able to hold the.26 hearing as soon as feasibly possible and decide what permanent plan is best for Tyler.
We found instructive the California Rules of Court, advisory committee comment: “Juvenile court judicial officers throughout the state have expressed concern that in determining whether or not to transfer a juvenile court case, the best interest of the subject child is being overlooked or at least outweighed by a desire to shift the financial burdens of case management and foster care. The advisory committee has clarified rule 5.610 in order to stress that in considering an intercounty transfer, as in all matters relating to children within its jurisdiction, the court has a mandate to act in the best interest of the subject children. [¶] Juvenile Court Transfer Orders (form JV-550) was adopted for mandatory use commencing January 1, 1992. Although the finding regarding the best interest of the child was noted on the original form, the language has been emphasized on the amended form.” (Cal. Rules of Court, rule 5.610, italics omitted.)
After the.26 hearing, depending on the outcome, the Orange County juvenile court may have additional facts and changed circumstances to warrant a transfer-out hearing. We would encourage greater communication between courts, “much in the way California courts communicate with courts in other states under the Uniform Child Custody Jurisdiction and Enforcement Act [citations].” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2010) § 1.12[4] (Practice Tip: Communication Between Courts Regarding Transfer) p. 1-21.)
III
We reverse the January 28, 2010, transfer order.
WE CONCUR: BEDSWORTH, ACTING P. J.MOORE, J.
60 Cal.App.4th 1282 (Christopher T.).) In such a case, the juvenile court must consider the best interests of the minor when it chooses between the two alternatives. (Id.
at p. 1292.)” (In re J.C., supra, 104 Cal.App.4th at p. 992.)