IN RE: CHRISTINA M.

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Court of Appeal, Sixth District, California.

IN RE: CHRISTINA M., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY & CHILDREN'S SERVICES, Plaintiff and Respondent, v. MICHAEL M., Defendant and Appellant.

No. H013335.

Decided: July 20, 1995

Sixth District Appellate Program and Jeffrey M. Evans, Santa Clara, for defendant and appellant (Under appointment by the Court of Appeal). Steven M. Woodside, Santa Clara County Counsel and Diane L. Bennett, Deputy County Counsel, for plaintiff and respondent. George W. Kennedy, Santa Clara County Dist. Atty. and Robert J. Masterson, Deputy Dist. Atty., for respondent Minors.

Michael M. appeals an order of the juvenile court allowing his 13–year–old daughter Christina to move to Missouri with her foster family.   Appellant contends that the court order violated the Interstate Compact on Placement of Children (hereafter, the Compact) and was based on insufficient evidence that a move was in Christina's best interest.   In addition, he asserts, Christina's unavailability as a witness violated appellant's due process rights.

I. FACTS

Christina and her younger sister Owaila were made dependents of the Santa Clara County Juvenile Court in 1985, after their father voluntarily placed them in foster care.   Christina was four years old.   The children were “special needs” children with behavioral and emotional difficulties.   The Santa Clara County Department of Family and Children's Services (hereafter, the Department) placed them with the Hand in Hand Foundation in May 1986.   They spent three years in its residential program before they were placed together in a foster family.

The first two foster home placements were unsuccessful.   Owaila's behavior was more problematic than Christina's, but the placements failed because of the girls' behavioral problems, the parents' personal problems, and the strain the placement of the children as a pair put on the families.1  Christina had peer difficulties, problems in school, and difficulty with attachment and demonstrating appropriate affection.   Moreover, she was “very needy for parents.”

By the end of the second placement, however, the girls had made considerable improvement.   They were returned to their previous group home where they stayed for a short time until they were “ready to reinvest in a family.”

Russ and Barbara Revel and their biological children were that family.   The girls were placed with them in 1993.   Christina “managed to successfully, psychologically invest in this family” and during the year she and her sister lived with the Revels, she came to love them.

In 1994, while vacationing in Missouri where they had relatives, the Revels bought a farm.   They arranged for the escrow period to last a year or longer if necessary.   They then placed their Watsonville home on the market, expecting it to take about nine months to sell.   It sold in one day.   The plan to close escrow on the farm and leave for Missouri at the end of the 1995 school year changed to a plan to leave for Missouri on August 17, 1994, so they would arrive before the start of the school year on August 29.

Christina wished to move with the Revels, but Owaila did not.   Although Christina felt responsible for her little sister, she nevertheless told Fred Barnes of the Hand in Hand Foundation:  “This is where she wanted to grow up and [she] was very clear in stating that she realized [Owaila] did not want to go and that didn't make any difference to her.   She was ready to do her thing and grow up in this family.”   Barnes believed that if she were removed from the family “she would have a difficult time ․ [making an attachment] again.”

The girls had not lived with appellant since 1986, although they had supervised visitation with him four times a year and continued contact with him was important to Christina.   Appellant had been diagnosed with a mixed personality disorder with borderline and schizoid characteristics.   He displayed wide mood swings and demonstrated a near exploding anger over his own parents' rejection and his wife's abandonment.   Although appellant “tries hard” with respect to his participation in the reunification services, reunification was terminated in 1986.   When the issue of Christina's move was discussed with him, he was opposed.   He testified that “it distances her bonding with me as her father who is interested in her well-being and distances herself from her sister.”

On August 12, 1994, the trial court allowed Christina to go “on a temporary visit with the foster family with the understanding that ․ you may have to come back․”   The minute order shows that Christina was detained in the shelter on a “paper admit” but was “OTd (out temporarily) to her foster parents” in Missouri.   The hearing on the out-of-state placement was continued to September 13, 1994, and a regular review hearing remained set for October 24, 1994.

On September 13, Christina was not present.   She had been subpoenaed “through the department” at 4:45 p.m. the day before the hearing but she had not been personally served.   Appellant requested a continuance to secure her presence because “[w]ithout us having her here, we don't have her firsthand voice for the court to consider ․ what she really wants.”   The court responded:  “we had that firsthand voice the last time she was in court․  [¶] ․ [T]here was no question that she wanted to go.”   The court found that appellant had made an insufficient showing for a continuance and “given the evidence I've heard,” Christina's presence was “not necessary.”   The continuance was denied.

The court then found that “Christina's particular needs require placement outside the county.   Specifically, to be placed with the Revel family [in Missouri].”  The court order “approv[ed] ․ continued placement in the foster home of Barbara & Russ Revel,” ordered visitation with appellant, and ordered that Christina continue to receive services from the Permanent Placement Program.   The previously scheduled review hearing set for October remained on calendar.   This appeal ensued.

II. ISSUES ON APPEAL

Appellant contends that the court failed to comply with the Compact by failing to give Missouri authorities advance notice of its intent to send Christina there.  (Fam.Code, § 7901.) 2  Second, appellant contends that the statutory prerequisites for an out-of-state placement were not met because there was no showing that “ ‘there are no appropriate placements' in appellant's county of residence.”

Next, appellant contends that insufficient evidence supports the court's finding that the Missouri placement was in Christina's best interests.   Finally, appellant asserts that the juvenile court's finding that Christina's testimony at trial was “not necessary,” violated his due process rights.

III. INTERSTATE COMPACT

Defendant contends that before Christina was permitted to move to Missouri, the court should have complied with the statute which required the court, as the “sending agency” (In re Eli F. (1989) 212 Cal.App.3d 228, 237, 260 Cal.Rptr. 453), to “furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state” (§ 7901, art. 3, subd. (b)).  Subdivision (c) of the same article requires the sending agency to afford the out-of-state officials the opportunity to familiarize themselves with the minor's situation, and subdivision (d) of that article requires the receiving state to send written notice “to the effect that the proposed placement does not appear to be contrary to the interests of the child.”

In her respondent's brief, Christina counters that the court's order merely continued the previously made placement with the Revels.   Consequently, “Christina was not ‘placed’ outside of the state as contemplated by the Compact.”   Christina states that she “and her sister had been placed in the Revel foster home for almost one year before the contemplated move to Missouri took place.   They were both doing well․”

 The purpose of the Compact is to ensure that a child in one state who is being sent to a caretaker in another state will be safe.   It provides:  “It is the purpose and policy of the party states to cooperate with each other in the interstate placement of children to the end that:

“(a) Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.

“(b) The appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.

“(c) The proper authorities of the state from which the placement is made may obtain the most complete information on the basis on which to evaluate a projected placement before it is made.

“(d) Appropriate jurisdictional arrangements for the care of children will be promoted.”  (§ 7901, art. 1.)

 It is evident from this article and article 3, which states conditions for placement (notice to the receiving state, transmission of information to it, and written acceptance by it), that the consumption of some time is necessary for compliance with the Compact.   During that time “[t]he child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.”  (§ 7901, art. 3, subd. (d).)

However, in the instant case, time was of the essence.   The Revels' leisurely plan to move in a year became a plan to leave forthwith.   If Christina could not go with the Revels because she could not be placed with them in Missouri until full compliance with the Compact, the alternative would have been removal from her “family” and disruption of her first successful foster home placement.

 We do not believe the Compact was meant to be applied so inflexibly that emergency moves cannot be accommodated.  “The juvenile court has broad discretion to decide what means will best serve the child's interest and to fashion a dispositional order accordingly.  [Citation.]”  (In re Corey A. (1991) 227 Cal.App.3d 339, 346, 277 Cal.Rptr. 782.)   In order to secure the best interest of the child by placement “in a suitable environment and with persons ․ having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care” (§ 7901, art. 1, subd. (a)), the Compact and the dependency laws must be read together.   Consequently, we hold that under these circumstances the juvenile court may continue an established foster family placement even if a move by the family takes the minor into another state while placement according to the Compact is in the process of being effectuated.

 Analyzed from this point of view, the record does not support appellant's assertion that the order continuing Christina with the Revels was made pursuant to and in violation of the Compact.

First, as defined in the Compact, “ ‘[p]lacement’ means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution․”  (§ 7901, art. 2, subd. (d).)  In this case, the original “arrangement for the care of a child” with the Revels was made in 1993, not at the hearing on September 13, 1994.   Second, the participants were well aware at the time of the hearing that the Compact placement process was still incomplete.   Both verbally at the September 13 hearing and in the social worker's report dated the day before the hearing, the Department stated “[t]he undersigned will make a referral to Missouri Interstate Compact to set up services and approval for such placement.”   At the hearing, the Department informed the court that it had already initiated the contacts with the receiving state required by the Compact.3  Between the request to the court to allow Christina to go out of state on August 12 and the hearing on September 13, Christina was officially “detained” at the children's shelter although she was physically “out temporarily” on a “visit” to Missouri.   Finally, when the trial court made its order continuing placement with the Revels, it specifically stated it was relying on Welfare and Institutions Code section 361.2, subdivision (d).

Welfare and Institutions Code section 361.2, subdivision (d), authorizes placement with a foster family, and subdivision (e) allows out-of-county placement.   Subdivision (e) states in pertinent part:  “(2) In the event that there are no appropriate placements available in the parents' or guardians' county of residence, a placement may be made in an appropriate place in another county․”

“Where the court has ordered a minor placed under the supervision of the probation officer and the probation officer has found that the needs of the child cannot be met in any available licensed or exempt facility, including emergency shelter, the minor may be placed in a suitable family home that has filed a license application with the State Department of Social Services, if all of the following certification conditions are met:

“(1) A preplacement home visit is made by the probation officer to determine the suitability of the family home.

“(2) The probation officer verifies to the licensing agency in writing that the home lacks any deficiencies which would threaten the physical health, mental health, safety, or welfare of the minor.

“(3) The probation officer notifies the licensing agency of the proposed placement and determines that the foster family home applicant has filed specific license application documents prior to and after the placement of the minor.   If the license is subsequently denied, the minor shall be removed from the home immediately.   The denial of the license constitutes a withdrawal of the certification.”  (Welf. & Inst., § 361.2, subd. (g).)

The requirements of this statute were substantially met.   The Revels had been licensed in California and were in the process of being licensed in Missouri.   The Department started the process for out-of-state placement in compliance with the Compact but had not yet completed it.   The Missouri social worker visited Christina in the Revel home in Missouri.   As Christina's brief expresses it, “[t]he court satisfied itself on this concern by the report from the social worker [Gayleen Williamson] who stated that she had contacted Family Services in Joplin, Missouri, and that agency indicated that they would provide supervision for the family and assist them in obtaining a temporary foster care license․   Christina also had begun to receive special education services.”   Williamson also testified to her arrangements for courtesy supervision by the department of social services in Joplin, Missouri, until she could obtain a court order placing Christina with the Revels in Missouri.   Moreover, the court had reports of Christina's year of highly satisfactory placement with the Revels and her substantial improvement and of her adjustment to the move.   Williamson reported to the court that she telephoned Christina and the Revels in Missouri.   She reported that Christina was very happy and that she told Williamson to tell the court:  “I want to stay here.”

The court's order continuing placement with the Revels complied with requirements of California dependency law and did not violate the Compact.

IV & V ***

VI. DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   The appeal involves Christina only as Owaila elected to remain in California.

2.   Further statutory references are to the Family Code unless otherwise stated.

3.   On June 1, 1995, this court granted the Department's request to take judicial notice of documents which established that the process required by the Compact was completed on May 3, 1995.

FOOTNOTE.   See footnote *, ante.

PREMO, Associate Justice.

COTTLE, P.J., and ELIA, J., concur.