Filed 3/26/15 In re J.G. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re J.G. et al., Persons Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E061587

         Plaintiff and Respondent,                                       (Super.Ct.No. J254676 & J254677
                                                                          & J254678 & J254679 & J254680
v.                                                                        & J254681 & J254682)

J.G.,                                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall, Judge. Reversed.

         Roni Keller, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel,

for Plaintiff and Respondent.




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                                              I

                       STATEMENT OF THE CASE AND FACTS

       Appellant J.G., Sr. is the father of seven minors – J1 (now 10 years old), J2 (now 8

years old), J3 (now 7 years old), J4 (now 6 years old), D. (now 5 years old), J5 (now 3

years old), and J6 (now 2 years old).

       This dependency was originally filed in the Orange County Superior Court. The

children were removed due to allegations of substance abuse. Mother and father failed to

reunify, and the case was set for a Welfare and Institutions Code1 section 366.26 hearing

to determine a permanent placement plan.

       The children were originally placed in Orange County. However, after the section

366.26 hearing was set, the maternal grandmother moved and the children were placed

with her in San Bernardino County. Therefore, the Orange County Court transferred the

case to San Bernardino County prior to the section 366.26 hearing. The San Bernardino

Court, however, concluded that it was in the best interest of the children for the case to

remain in Orange County and transferred the case back.

       Father now challenges the San Bernardino County Court’s order transferring the

case back to Orange County. Father has also filed a request for judicial notice of the

opinion in a related appeal, case No. G049954 from the Court of Appeal, Fourth

Appellate District, Division Three. We reserved ruling on the request for consideration

with father’s appeal. We hereby grant father’s request for judicial notice. For the

       1All statutory references are to the Welfare and Institutions Code unless
otherwise specified.

                                              2
reasons set forth below, we reverse the court’s order transferring the case back to Orange

County.

                                             II

          STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

       Father’s involvement with Orange County Children and Family Services (OCCFS)

in this case began in August of 2012, after mother and the youngest child, J6, tested

positive for methamphetamine at the time of J6’s birth. Mother admitted to relapsing into

drug use and stated that she had been using methamphetamine for approximately six

months while she was pregnant with J6. Mother also had a long history with OCCFS,

dating back to 2007, and had tested positive for methamphetamine when she gave birth to

J3 in March of 2007.

       At the time of the detention, mother and all of the children were living with the

maternal grandmother in a one-bedroom apartment. Mother and the children were

sleeping on the living-room floor. Father was living with a nearby relative and had never

been the sole caretaker of the children. Father also had a long history of substance abuse

dating back to 2003 and continued to abuse drugs despite having completed a drug

diversion program in 2010.

       On December 10, 2012, at the disposition hearing, the juvenile court declared the

children dependents of the court, granted custody to the social services director, and

ordered reunification services for both parents.

       During the reunification period, father made little progress. The social workers

were unable to contact him on a consistent basis, he failed to complete his parenting

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classes, and he missed several drug tests. At the May 29, 2013, six-month review

hearing, the court found that father’s reunification progress was minimal, terminated

reunification services, and set a section 366.26 hearing.

       The social worker prepared a section 366.26 report recommending termination of

parental rights and the permanent plan of adoption. At the time of the report, the children

were placed with a maternal cousin in Anaheim, California. The social worker concluded

that all the children were adoptable.

       The social worker prepared an addendum report dated October 8, 2013, indicating

that the placement with the maternal cousin would no longer be appropriate due to

allegations of child abuse in the home. The social worker changed the recommendation

from adoption to long-term foster care.

       On January 7, 2014, the social worker prepared an addendum report for section

366.26 hearing. The report changed the recommendation back to termination of parental

rights and adoption. It had taken the maternal grandmother some time to find suitable

housing on her own but she was able to do so. On December 11, 2013, the five older

children were placed in the maternal grandmother’s new home in Hesperia in San

Bernardino County. The younger two children, J5 and J6, were placed with foster

parents in Dana Point, California.

       On February 28, 2014, the juvenile court granted father’s motion for relative

placement for all of the children and ordered that the two youngest children, J5 and J6, be

placed in the home of the maternal grandmother with their siblings.



                                             4
       On April 8, 2014, the social worker prepared another addendum report. The social

worker reported that on March 1, 2014, the younger two children were placed with their

siblings in the maternal grandmother’s home. The social worker reported that it was

unlikely that an adoptive home study would be approved for maternal grandmother and

that, because the two younger children were recently placed in her home, the maternal

grandmother would not be eligible for Kin-GAP financial assistance for at least six

months. The social worker recommended that the court appoint the maternal

grandmother as legal guardian.

       In an addendum report dated April 28, 2014, the social worker explained that

maternal grandmother’s home study could not be approved because she had no means of

financial support, she had not maintained stable housing, and she had not shown that she

could set appropriate boundaries with the birth parents. The social worker speculated that

if maternal grandmother had more time to stabilize, she might be able to get through the

home study process. The social worker also opined that because all the children were

now in San Bernardino County, the case should be transferred out so San Bernardino

County would do the assessment. The court agreed. On April 28, 2014, the court

ordered San Bernardino County to assess the maternal grandmother for adoption and

transferred the case.

       A San Bernardino County social worker prepared a transfer-in memorandum

recommending that the case be transferred back to Orange County. The memorandum

stated that the Orange County court had violated inter-county transfer protocols by

transferring the case after a section 366.26 hearing had already been set. The

                                            5
memorandum noted that it was not considered in the children’s best interests to accept a

transfer when there is not a viable permanent plan in place. Additionally, the social

worker cited section 17.1, subdivision (d), and noted that there were some significant

stability concerns with the placement with maternal grandmother.

       On May 22, 2014, the San Bernardino County juvenile court held a transfer-in

hearing and formally accepted the case. The court found that there was a change in

circumstances because the case was inappropriately transferred out of Orange County

while the section 366.26 hearing was pending. The court set a transfer-out hearing for

the afternoon session of the same day.

       At the transfer-out hearing, the court disclosed that it had an opportunity to discuss

the case with Judge Serbino in Orange County who had ordered the transfer and

confirmed that the case was still “in the midst of a .26 with an issue as to the suitability

and the permanence of a placement here with the maternal grandmother.” The court

found that under section 17.1, subdivision (d), and due to the improper transfer of the

case, it was in the children’s best interest to return the matter to Orange County.

                                              III

                                         ANALYSIS

       Father’s sole contention on appeal is that the juvenile court erred in transferring

the case out of San Bernardino and back to Orange County because the children’s place

of residence is Orange County.

       Before transferring a case, the court must determine the children’s residence and

“consider whether transfer of the case would be in the child’s best interest. The court

                                              6
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.)

       An inter-county transfer of a dependency case is reviewed for abuse of discretion.

(In re J.C. (2002) 104 Cal.App.4th 984, 993.) The court, however, conducts a de novo

review of the interpretation of relevant statutes and rules. (In re R.D. (2008) 163

Cal.App.4th 679, 684-686.)

       A. Residency of the Children

       Section 17.1 governs the determination of the children’s residence. Section 17.1

states, in pertinent part:

       “Unless otherwise provided under the provisions of this code, to the extent not in

conflict with federal law, the residence of a minor person, or a nonminor dependent, as

described in subdivision (v) of Section 11400, shall be determined by the following rules:

       “(a) The residence of the parent with whom a child maintains his or her place of

abode or the residence of any individual who has been appointed legal guardian or the

individual who has been given the care or custody by a court of competent jurisdiction,

determines the residence of the child.

       “(b) Wherever in this section it is provided that the residence of a child is

determined by the residence of the person who has custody, ‘custody’ means the legal

right to custody of the child unless that right is held jointly by two or more persons, in

which case ‘custody’ means the physical custody of the child by one of the persons

sharing the right to custody.

       ...

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       “(d) If the residence of the child is not determined under subdivision (a), (b), (c),

or (e), the county in which the child is living shall be deemed the county of residence, if

and when the child has had a physical presence in the county for one year.”

       In this case, father argues that section 17.1, subdivision (a), applies. San

Bernardino County Children and Family Services (CFS), however argues that section

17.1, subdivision (d), applies. We agree with father.

       Here, maternal grandmother was given the care and custody of the children. On

December 17, 2013, the social worker reported that the older five children were placed

with maternal grandmother in Hesperia on December 11, 2013. The social worker,

therefore, recommended that the matter be removed from the 15-day review calendar

regarding placement. The court ordered as recommended. At the hearing on December

17, the court also stated that it had “read, considered and accepted into evidence social

services court report(s) dated 12-17-2013.”

       Thereafter, father moved to order the two younger siblings with maternal

grandmother. At a hearing on February 28, 2014, the juvenile court granted father’s

motion and ordered placement of J5 and J6 with the maternal grandmother. They were

placed with maternal grandmother on March 1, 2014.2




       2The foster parents of J5 and J6 appealed the court’s placement order. The Court
of Appeal, Fourth District, Division Three, in case No. G049954, affirmed the court’s
placement with maternal grandmother. (Case No. G049954, p. 19.)


                                              8
         Hence, maternal grandmother, who resides in San Bernardino, has been given “the

care or custody by a court of competent jurisdiction” of the children. Therefore, the

children’s place of residence under section 17.1, subdivision (a) is San Bernardino.

         CFS argues that section 17.1, subdivision (a) does not apply to this case. Instead,

CFS argues that section 17.1, subdivision (d), applies. Since the children did not reside

in San Bernardino for one year, it could not be deemed the county of residence. CFS’s

argument, however, is unavailing because section 17.1, subdivision (a), applies, as

discussed above.

         Notwithstanding, CFS contends that grandmother had not been given the care and

custody of the children because “[t]he care and custody of the children remained vested

with the juvenile court and was expressly delegated to OCCFS at the December 10, 2012

dispositional hearing, when the court declared the children dependents of the court and

granted custody of the children to the social service director.” This argument is without

merit.

         When a child is removed under section 361, the care, custody, control, and

conduct of the child is to be under the supervision of a social worker. The social worker,

however, does not take actual care and custody of the child, but rather supervises the

child’s placement. The child may be a dependent of the juvenile court, but care and

custody of the child is exercised by their placement, whether by a relative caregiver, as in

this case (see, §§ 361.3, subdivision (7)(B) and 362.04, subdivision (a)(1)), or by a foster

caregiver (see, §§ 361.49, 362.04, subdivision (a)(1), and 366, subdivision (a)(1).)



                                               9
       Orange County was not the children’s residence throughout their dependency, as

suggested by CFS, just because the children were removed at disposition in Orange

County. If this were the case, there would never be any need to transfer cases from one

county to another.

       In this case, the court placed the children in the maternal grandmother’s care. She

was given both the care and custody of the children. Therefore, section 17.1, subdivision

(a), applies. Because the maternal grandmother resides in San Bernardino with the

children, the residence of the children is San Bernardino, not Orange County.

       B. Best Interest of the Children

       Notwithstanding, even if section 17.1, subdivision (d), applies as CFS suggests,

the San Bernardino County Juvenile Court abused its discretion in entering the transfer-

out order and returning the case to Orange County. “This is because the court failed to

take account of the overarching principle of the best interests of the child[ren].” (In re

R.D., supra, 163 Cal.App.4th at p. 685.)

       In In re R.D., Los Angeles County Department of Children and Family Services

(DCFS) originally had jurisdiction of the juvenile dependency case wherein R.D. and the

natural mother resided in Los Angeles County. R.D. was placed with a maternal relative

in San Bernardino County. The Los Angeles Juvenile Court entered orders to transfer the

supervision of the case to the San Bernardino County Department of Children’s Services.

The San Bernardino County Court accepted the transfer and then transferred the matter

back to Los Angeles. DCFS appealed the order. (In re R.D., supra, 163 Cal.App.4th at

p. 681.)

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       In that case, we stated that even if R.D.’s legal residence was in Los Angeles

County, “the San Bernardino County Juvenile Court acted improperly, because it wholly

disregarded, and made no finding concerning, the overarching principle of the best

interests of the child. At a transfer-out hearing, the transferring court is required to make

findings not only as to the child’s residence, but also as to whether the transfer is in the

child’s best interests.” (In re R.D., supra, 163 Cal.App.4th at p. 687.)

       In In re R.D., supra, 163 Cal.App.4th 679, we found that because both the legal

guardian and the child actually lived in San Bernardino County and the placement

required ongoing supervision, “‘the focus of the proceedings should have been which

county could best monitor the [child’s] well-being and the suitability of [his] placement

on a monthly basis, as well as keep tabs on [his] academic progress and other needs.’

[Citation.] . . . The only reasonable conclusion is that the child’s best interests are served

by having the case supervised in San Bernardino County.” (Id. at pp. 687-688.)

       Here, the San Bernardino Juvenile Court stated that the case “is still in the midst of

a .26 with an issue as to the suitability and the permanence of a placement here with the

maternal grandmother.” Therefore, the court found that “it is in the best interest of these

children that the matter go back to Orange County and that the Court will find it promotes

the best interest of the children to do so.” We disagree.

       Just as in In re R.D., supra, 163 Cal.App.4th 679, we fail to see how the

supervision of the maternal grandmother and the children, who reside in Hesperia, would

be best done by a social worker in Orange County, and not by a social worker in San

Bernardino County. A social worker charged with supervising a placement must, as

                                              11
frequently as possible, visit a placement and make recommendations of local services

available for support. A local social worker is far more likely and able to fulfill these

duties as opposed to a social worker who works in Orange County. Because the children

are residing in San Bernardino County, “the only reasonable conclusion is that the

child[ren]’s best interests are served by having the case supervised in San Bernardino

County.” (Id. at p. 688.)

                                             IV

                                      DISPOSITION

       The juvenile court’s order transferring this matter to Orange County is reversed.

The case is remanded to the San Bernardino Juvenile Court to accept the transfer-in of

this case from Orange County.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                                            J.

We concur:


RAMIREZ
                        P. J.


CODRINGTON
                            J.




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