R.People v. Superior Court CA2/5

Filed 11/25/15 R.P. v. Superior Court CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

R.P. et al., B268111

Petitioner, (Los Angeles County Super. Ct. No. CK58667) v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al.,

Real Parties in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Anthony Trendacosta, Judge. Petition granted. Roberto Flores; Quinn Emanuel Urquhard & Sullivan, Lori Alvino McGill, for Petitioner. No appearance by Respondent. Mary C. Wickham, Interim County Counsel, Kim Nemoy, Principle Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services.

Children’s Law Center of Los Angeles-CLC 1 and Jennifer M. McCartney for Real Party in Interest Minor Alexandria P. ________________________________

On November 12, 2015, this court filed its notice of intent to treat de facto parents’ petition for writ of supersedeas as a petition for writ of mandate in the first instance, commanding the dependency court to vacate its placement order dated November 3, 2015, and remanding the cause with direction to apply the burden of proof articulated in In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1354 (Alexandria P.). This court has received and considered letter briefs from the parties. We now issue the writ in the first instance. When the issue of placement was first addressed by the dependency court in its decision filed December 9, 2013, it concluded, “In this case, the [de facto parents] were unable to meet their burden by clear and convincing evidence, that either the child currently had extreme psychological or emotional problems or would definitely have them in the future.” On appeal, this court held that the dependency court erred only in its characterization of the burden on the de facto parents, and that the correct burden was proof “by clear and convincing evidence that there is a significant risk that a child will suffer serious harm as a result of a change in placement.” (Alexandria P., supra, 228 Cal.App.4th at p. 1354.) We remanded the matter to the dependency court with directions to determine if good cause existed to deviate from the Indian Child Welfare Act’s adoptive placement preferences. (Alexandria P., supra, at p. 1357; 25 U.S.C. § 1915.) As contemplated by our opinion, upon remand the dependency court considered additional evidence and arguments before rendering its decision. In its written decision, the court described the burden on the de facto parents in language that is identical, word- for-word, to the language we disapproved as an incorrect statement of law in the prior appeal.