MARTIN v. SUPERIOR COURT OF STATE OF CALIFORNIA COUNTY OF ORANGE JUVENILE COURT

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Court of Appeal, Fourth District, Division 3, California.

James MARTIN and Arlene Martin, Petitioners, v. SUPERIOR COURT OF the STATE OF CALIFORNIA, COUNTY OF ORANGE (JUVENILE COURT);  Department of Social Services of the County of Orange;  Ms. Sue Delarue, Director of the Department of Social Services of the County of Orange, Respondents.

Civ. 30759.

Decided: February 09, 1984

Meir J. Westreich, Santa Ana, for petitioners. Adrian Kuyper, County Counsel, and Stefen H. Weiss, Deputy County Counsel, Santa Ana, for respondents County of Orange and Department of Social Services. Marvin F. Cooper, Santa Ana, for respondent Superior Court of the State of California, County of Orange. Alicemarie Stotler, for Naomi R., a minor. Ronald Y. Butler, Public Defender, and Duane Neary, Deputy Public Defender, for real party in interest Phillip R., natural father of the minor. Jeanne Blackwell, Anaheim, for real party in interest Teresa Ceja Silva de Garcia.

OPINION

In this original proceeding we examine an appalling breach of this state's obligation to care for one of its own dependent children.

I

Naomi R. was born in Orange County on June 11, 1978.   Her mother was a Mexican national domiciled in Orange County and married to Naomi's American father, Phillip R.   There are two other children of this union, Naomi's older sister, Natalie, and younger brother, Matthew.

In September 1980 Naomi's mother died, and a few months later all three children were removed from the home of their father and declared dependent children of the juvenile court (Welf. & Inst.Code, § 300, subd. (a)).  In February 1981 Naomi and Natalie were placed in the licensed foster home of petitioners James and Arlene Martin.   Matthew was placed in a different foster home, and Natalie was moved to that home later in the year.   Naomi remained with the Martins.

After more than a year of inadequate effort by the father to achieve a plan of family reunification, senior social worker Lois Cherness of the Department of Social Services (DSS) began an investigation to develop a plan for permanent placement in preparation for the juvenile court's second annual review in November 1982.   To that end a social service report was sought and obtained from authorities in Iowa concerning possible placement of Naomi R. with a paternal aunt who lives in that state.   The report was negative.

Cherness then considered two other possibilities, permanent placement with the Martins or with Naomi's maternal aunt, Teresa Ceja Silva de Garcia, who resides in Los Mochis, Sinaloa, Mexico.   Three half siblings born to Naomi's mother before her marriage to Naomi's father, although residing locally, were apparently unavailable or unsuitable for permanent placement.

Encouraged by Cherness, Silva traveled to Orange County to be interviewed and to provide references.   Meanwhile, the Martins, who were already in the process of adopting another foster child with the blessing of a different DSS social worker, offered long-term placement but hesitated to make an immediate commitment to adopt Naomi as well because of the expense involved in two concurrent legal proceedings.

Cherness retained a clinical psychologist to assist in making a recommendation in what she perceived as a closely balanced placement choice between Silva and the Martins.   His report, pertinent portions of which we set forth in the margin, strongly supported continued placement with the Martins.1

Nevertheless, and despite the fact Naomi did not speak Spanish nor Silva English, Cherness recommended placement with Silva.   She offered these reasons:  the Martins current hesitation to adopt, Silva's blood relationship, and a hunch Naomi was not so loved as the Martins' remaining natural child and the child they were already in the process of adopting.   At a hearing in February 1983, a juvenile court commissioner accepted Cherness' recommendation and instituted a plan to change Naomi's placement from the Martins to Silva.   The Martins, who now declared their willingness to adopt, retained counsel.   His request for a rehearing, supported by yet another opinion of a clinical psychologist favorable to the Martins (relevant excerpts set forth in the margin),2 was denied by Byron K. McMillan, presiding judge of the juvenile court.

On March 24, 1983, we stayed an order which permitted removal of Naomi from the United States by Silva the following day.   Nevertheless, Silva, with knowledge of the stay, decamped for Mexico with Naomi.   Silva's counsel explained the departure was necessitated by a “family emergency” in Mexico.   We note in passing the emergency did not involve Naomi;  and our stay obviously operated only to prevent her departure, not Silva's.   Also, Silva did not return the child as directed.

On April 5, 1983, after some equivocation, Cherness finally traveled to Mexico to retrieve Naomi.   Upon her return, with the approval of the juvenile court, she placed Naomi temporarily with a half sister, Lulu Sanchez, not the Martins.   A series of increasingly acrimonious legal maneuvers and counter maneuvers ensued in the juvenile court;  and on April 26, we filed an unpublished opinion granting a peremptory writ of mandate to require rehearing of the question of Naomi's placement pending resolution of the freedom petition.   We held the commissioner applied the wrong standard at the previous hearing.3  No review of our decision was sought by Silva or DSS, although the Martins petitioned for hearing in the Supreme Court because we declined to require placement with them pending rehearing.   That petition was denied, and our decision became final.

Shortly afterward, both the Martins and Silva and her husband petitioned for adoption.   Naomi's father consented to the Martins' petition but opposed that of the Silvas.

The State Department of Social Services then filed its statutory report recommending denial of the Martins' petition.   The state social worker specifically declined to interview Naomi in the company of the Martins but relied heavily on Naomi's expressed desire to live with “Mama Teresa” in Mexico.   According to the report, the Martins “appear in a general sense to be a fine family.”   Bizarrely, however, the report concludes, “the minor's best interest will be served by placement with her maternal relatives.   Ethnic heritage and cultural values would be maintained in that placement with these relatives and is the stated desired placement by the minor herself.”   Two pages earlier the report reveals, “[t]he State Department of Social Services has not had an opportunity to undertake investigation of the concurrent adoption petition filed by Mr. & Mrs. Silva de Garcia.”   How this agency could recommend against adoption by a “fine family” who had cared for the child for several years with state approval in preference to a foreign placement in a home no agency had investigated is beyond our comprehension.   How an American child's “ethnic heritage and cultural values” are better served by a rural Mexican upbringing simply because she had one Mexican parent, whom she no longer remembers, is also beyond us, unless the agency is indulging in some sort of plantation racism.

On July 1, 1983, the juvenile commissioner, who sat by stipulation as a judge pro tem, set the rehearing directed by our peremptory writ for July 20, 1983, and ordered a further psychological examination of Naomi by the juvenile court's evaluation and guidance unit.   Later the same day, counsel appointed for the minor filed an ex parte application for rehearing before Judge McMillan to challenge the commissioner's orders.   The court scheduled a rehearing for July 8, 1983.   Counsel for the Martins did not receive notice of the rehearing until July 5, 1983.

On July 8, although the case was already pending before the juvenile court commissioner acting as judge pro tem by stipulation, Judge McMillan elected to hear it.   Then, instead of dealing with the subject matter of the short-notice rehearing, he made the following series of orders in the respective cases affecting Naomi:  (1) the Silvas' freedom petition pursuant to Civil Code section 232 would be heard August 15, 1983;  (2) the Martins' adoption petition would be heard August 22, 1983;  and (3) a new eleventh-hour application by county counsel on behalf of DSS to allow Naomi to be taken back to Mexico by the Silvas was granted and stayed just until July 12, 1983, at 5 p.m.—and only then in order to complete the previously scheduled psychological evaluation.4  The Martins raised, but the court rejected, the 30-day automatic stay provisions of section 917.7 of the Code of Civil Procedure.5

Court was adjourned with the following request:

“Mrs. Evans [deputy county counsel representing DSS]:  So, this is a partial hearing on the remand and the court could reinstate the orders of February 22nd or at least that part concerning placement of the minor or temporary placement of the minor?   Could it be considered that then?

“The Court:  Yes.

“Mrs. Evans:  Thank you, Your Honor.”

Thus, incredibly, the scheduled rehearing never occurred, but the original hearing we had overturned was reheard and the error compounded.   A matter which had been conscientiously studied at considerable expense of time and effort by this court, by the juvenile commissioner, and was to be reconsidered by him as a judge pro tem only twelve days hence was suddenly mooted in whole or substantial part, after the fact of a hearing in which no witnesses were called and no evidence taken, and by a judge who did not preside at the original hearing.

The Martins, given but four days (two of them consumed by a weekend) to petition this court, did so with only minutes to spare.   We immediately stayed the order permitting removal of Naomi from California;  and all counsel, including the Silvas', were contemporaneously notified by telephone.   Silva again removed Naomi to Mexico in violation of our order, however, and there they remain.

There is little to commend a recitation of the scenario which ensued, but some highlights are necessary to what follows.   We issued a series of what turned out to be ineffective peremptory orders designed to regain this state's physical jurisdiction over Naomi until the freedom petition and adoption proceedings could be resolved on the merits.   The orders were made final on issuance (Cal.Rules of Court, rule 24(c)).

For example, we ordered Judge McMillan, DSS, and the county counsel to take immediate steps to secure return of Naomi to the jurisdiction.6  The sum total of their efforts was close to zero.   Judge McMillan took the Martins' motion for a bench warrant to issue under submission—and kept it there.   DSS wrote a letter to the Silvas;  and the county counsel did virtually nothing.7  Weeks passed.   County counsel sought relief from our orders in the Supreme Court.   His position?   This state had lost jurisdiction to recover Naomi.   Hearing was denied.

Rather than pursue wholly deserved contempt remedies, which might have prolonged the proceedings without securing return of the child, we directed the presiding judge of the Superior Court of Orange County to order urgent and appropriate steps to recover Naomi, including notifying Silva to return her pursuant to Civil Code section 5160,8 and to reassign the case to a judge other than Judge McMillan.   Although we made no attempt to select any particular judge among fifty some possibilities, the presiding judge apparently perceived our order as an intrusion on his authority and rejected the direction to reassign.   He instead referred our order to Judge McMillan, who finally directed Naomi's return after adding his own unauthorized caveat.   Per Civil Code section 5160, subdivision (3), he required the Martins to post $1,250 in travel expenses.   We immediately ordered Judge McMillan to recuse himself and again directed the presiding judge to issue our orders without the added proviso.   After oral argument in this court, both judges finally complied.   Petitions for hearing by county counsel and the judges were denied.9

 Publicity surrounding the case and unnecessary and self-serving communications to the Mexican consulate by the county counsel have now aroused the government of that country, which must be bewildered by the willingness of this state's agents to exile an American citizen, age five, without so much as a hearing on the Civil Code section 232 petition or the adoption proceedings.10  We are told the formal process of obtaining Naomi's return by letters rogatory is now necessary before she might be allowed to return.   Even then the agents of this state charged with her welfare and counsel for the Silvas will undoubtedly make use of the delay to argue the bond between Naomi and the Martins no longer exists.

We address two questions:  (1) whether the juvenile court erred in refusing to observe the automatic stay of Code of Civil Procedure section 917.7 and (2) whether this proceeding has been mooted by reason of the dogged dereliction of responsibility of DSS, county counsel, and the former presiding judge of the juvenile court in not moving expeditiously and effectively to obtain Naomi's return.

II

 We have no difficulty finding Code of Civil Procedure section 917.7 (ante, at p. 910, fn. 5.), which automatically stays for thirty days a “judgment or order allowing, or eliminating restriction against, removal of the minor child from the state ․,” applied to Judge McMillan's order of July 8, 1983.   County counsel argues the section is limited to judgments or orders affecting “custody,” not temporary placement orders under section 362, subdivision (a) of the Welfare and Institutions Code.   The latter section provides in part, “When the court orders removal [from the parents] the court shall order the care, custody, control, and conduct of such minor to be under the supervision of the probation officer who may place the minor ․”  There are a number of obvious answers to this contention.

Naomi was not “placed” in Mexico by a probation officer.   She was allowed to be taken there by court order.   When a child is put by court order beyond the “care, custody, and control” of the probation officer, which Naomi concededly has been, her custody has obviously changed.   The county counsel's semantics are just that, empty legalisms designed to create a dangerous exception in a statute that was carefully crafted to be all encompassing.11  Nothing in the statutory scheme remotely suggests the Legislature intended to give probation officers or social workers greater powers to place children beyond the jurisdiction of this state than natural parents bound by custody orders.   The reverse is true, in fact;  Welfare and Institutions Code section 368 requires court approval for a resident dependent child to leave the state.

Code of Civil Procedure section 917.7 is broadly drawn to reach all categories of proceedings involving the care of minors.   It applies to all orders “which award, change, or otherwise affect the custody, including the right of visitation, of a minor child in any civil action, in an action filed under the Juvenile Court law, or in a special proceeding․”  And the automatic stay portion of the statute is even broader:  “Further, in the absence of a writ or order of a reviewing court providing otherwise, the provisions of the judgment or order allowing, or eliminating restrictions against, removal of the minor child from the state are stayed by operation of law for a period of 30 days from the entry of the judgment or order and are subject to any further stays ordered by the trial court, as herein provided.”   (Emphasis added.)   Thus, removal from the state need not depend on a change of custody (or even a “placement”), merely the elimination of a previous ban on removal from the state;  the statute applies by its literal terms whether custody is changed or not.

The history of section 917.7 of the Code of Civil Procedure convincingly establishes this was indeed the intent of the Legislature.   The statute was passed in 1955 to overturn the holdings of Lerner v. Superior Court (1952) 38 Cal.2d 676, 242 P.2d 321 and Gantner v. Superior Court (1952) 38 Cal.2d 688, 242 P.2d 328 at the suggestion of the State Bar.   Both cases involved appeals of orders allowing temporary removal of a child by a parent from this state (although Lerner is complicated by a custody issue).   The Supreme Court held the orders in each case were automatically stayed pending appeal.   The rulings deprived the child in Lerner of a year of education in a private school in New Jersey and the child in Gantner of a visit to Australia.

The legislative committee of the State Bar explained its position as follows:  “The Committee recognizes that trial court's findings are not always infallible and that the right of appeal in these situations is a substantial one.   Nevertheless, it is our considered opinion that the present rule favors the minority of cases and should be changed, in the interest of the welfare of the child.”  (Committee Reports, Administration of Justice (1954) 29 State Bar J. 224, 225.)   The thirty-day stay provision for orders allowing children to leave the jurisdiction was a carefully considered feature of the bar's proposal:  “Orders of the trial court permitting removal of the minor child from the jurisdiction during an appeal or the period for appeal, substantially affect the right of appeal.   For that reason, as proposed by the Conference, such orders are automatically stayed for 30 days.”  (Id., at pp. 225–226.)

The Legislature was not unaware of the purpose and scope of the automatic stay:  “The proposed new section also deals specifically with provisions of an order or judgment permitting the child to be removed from the jurisdiction.   These would be stayed for a period of 30 days by operation of law.   Likewise this matter is subject to power of the appellate court to act in aid of its jurisdiction.   When an appeal has been taken or is to be taken, removal from the jurisdiction seriously affects both the appellate court's jurisdiction and the right of appeal.  (See e.g., Lerner v. Superior Court, 38 Cal.2d 676, 242 P.2d 321;  Gantner v. Superior Court, 38 Cal.2d 688, 242 P.2d 328.)  [¶] It is expressly to be noted that the new section is not limited to custody orders in domestic relations cases but would apply ‘in any civil action, action filed under the Juvenile Court Law, or special proceeding.’ ”   (Senate Interim Judiciary Committee, 3rd Progress Report to the Legislature, Senate Journal (1955), Appendix, Vol. 2., pp. 34–35;  see also “Recent Legislation” (1956) 44 Calif.L.Rev. 141, 142–143.)

We find it impossible to imagine a situation where the statute could have more application than the present one.   This child was placed with nonparents in a new home, new family, and new country.   When the order was made, a placement hearing, two potentially meritorious adoption proceedings, and a hearing to determine whether the father's parental rights should be terminated were all scheduled to be heard in a short time.   Discovery potentially requiring Naomi's presence was ongoing in at least one of the cases.   The child had already been taken by Silva from the country once in violation of our previous order and had to be retrieved by a social worker.12  No evaluation of the Mexico placement similar to that done by Iowa social workers with respect to the father's sister was ever done, either by California or Mexican authorities.   The child did not even speak the local language, and neither of the Silvas speaks English.   Finally, no provision was made to assure she would be subject to the orders of California courts despite our previous warning (see fn. 3, ante );  and now those chiefly responsible for her protection, DSS and the county counsel, actually argue “A writ ordering return of Naomi is beyond the jurisdiction of the court,” although they claim to be her legal custodians and the Silvas a mere temporary placement.   All this, it should be remembered, was brought about in a hearing called on very short notice to consider other matters.   In rejecting the clear application of Code of Civil Procedure section 917.7, the juvenile court erred, grievously.

III

 We asked the parties to file supplemental briefs addressing the question of whether the pending proceeding, which was brought originally to attack her “temporary placement” in Mexico, has now become moot by reason of the inability of the agents of this state to recover physical custody of Naomi, despite—as we have seen—reasonably urgent and strong encouragement by us to do so.13  (See Bender v. Superior Court (1957) 152 Cal.App.2d 817, 314 P.2d 54.)

The county counsel, true to form, advises, “We see nothing further that can or should be done to obtain the return of the minor.   The matter is not that of a child in a foreign jurisdiction relative to the child, but rather a foreign jurisdiction relative to the Petitioners.   From a pragmatic position, the Court has done all it can.   Case law recognizes this limitation and provides for dismissal as moot any case in such circumstances.   That is the proper outcome here.”   Counsel for the Silvas concurs, of course.14  We find this position incredible, particularly as taken by the office of a public attorney for the agency charged with the lawful custody of Naomi and the same officer of the court responsible for engineering the exile of this five-year-old United States citizen in derogation of the rights of her father, foster parents—and herself, while at all times providing false assurance the child would be returned on demand.

Our request for briefs on the subject of mootness was not intended to suggest a doubt as to whether this state should continue its effort to secure Naomi's return for appropriate proceedings, only whether there remained any good reason to keep the matter in this court in the meantime.   County counsel's position that “nothing further ․ should be done to obtain the return of the minor” is yet another example of misguided, almost malevolent, advocacy.

Neither can we accept the Martins' suggestion that we permit the adoption proceedings to go forward and direct the outcome adverse to the Silvas should they fail to appear with Naomi.   Certainly the Martins have no reason to believe the Silvas will produce Naomi voluntarily or that DSS and the county counsel will do anything to secure her return without coercion.   Sadly, neither do we.   However, we do not now—nor did we ever—have any interest in the outcome of the pending litigation.   It is certainly possible placement with the Silvas is, and always was, the best option.   Our only concern has been to assure that the legal custodian of Naomi, the State of California and its agents of the County of Orange, fulfills its responsibility for her health, welfare, and safety and the respective courts involved afford all interested parties due process of law.   We may have failed in these goals, but dictating the outcome of the pending proceedings will not accomplish them.

Rather, we concur generally with counsel for Naomi who correctly observes, “The ultimate goal of this litigation must at some point be declared:  a full and fair hearing under the laws of California.   Those persons who wish to receive the benefit of our laws should stand ready to present their case;  those who do not appear have waived their right to be heard.   The Martins, by the way, appear to have ample evidence to support their position without further discovery, but it is not beyond the realm of possibility that the further evaluation they seek be attempted in Los Mochis.   Perhaps a lack of cooperation, were that to be encountered, would be preferable evidence in support of their Petition for Adoption anyway.   If the Martins prevail but their decree of adoption appears empty, they at least have a final judgment entitling them to Naomi's custody which is far more than they have now.   If the Silva[s] appear and prevail, Naomi will have had the due process of our laws accorded to her, she can reside in Mexico with California's blessings, and she can be free to visit her relatives in California.   The spectre, raised at oral argument, that the superior court might deny both Petitions for Adoption and thereby leave Naomi forever a dependent child was perhaps unduly pessimistic.   The trial court would probably have the perception to realize that granting one petition or the other is surely in the child's best interest.   The trial court could also probably figure out which family has so far manifested its willingness to abide by all lawful orders of the California courts.”

We are somewhat dubious of the notion that a just determination of these matters can be made without Naomi's presence, but all counsel profess a desire to go forward.   We withhold our skepticism pending review of any appeals which may result.

In the meantime, each of our interim orders directing the respective government agencies and lower courts to take various steps to accomplish Naomi's return have become final and remain in full force and effect and subject to enforcement by contempt, which has yet to be sought.   Should there remain the slightest doubt, let a peremptory writ of mandate issue directing Larry Leaman, Director of the Department of Social Services of the County of Orange, Adrian Kuyper, County Counsel for the County of Orange, and the presiding judge of the juvenile court to make all reasonable efforts to secure the return of Naomi R. to the jurisdiction of the State of California,15 so long as she remains a dependent child of this state.  (See Welf. & Inst.Code, § 366.25, subd. (f).) 16  The alternative writ is discharged and the previous stay of further proceedings is dissolved.   Counsel for Naomi R. shall prepare and serve the peremptory writ.   The Martins shall recover their costs from respondents.

FOOTNOTES

1.   “Naomi was quite creative and imaginative in providing detailed responses to the TAT and MTS.   There were no signs of dysphoria, significant conflict, or pathology.   Parent figures were seen as being nurturant and reliable.   The MTS provided opportunity to inquire about Naomi's recollections of her past, and perception of her current situation in a non-threatening way.   Her earliest memory, interestingly, was of being toilet trained (‘mommy trained me with the training potty’) by Mrs. Martin, and this was regarded as a pleasant association.   There were several indications of strong bonding between Naomi and the Martins, especially with Mrs. Martin.   Naomi perceives them as her only parents, seeks Mrs. Martin for comforting, and identifies with her and wants to be like her.   She is a girl who is eager to grow up, and unlikely to regress a great deal under stress—more preferable defenses would be withdrawal, avoidance, and denial.   There were indications that she respects but does not fear the foster parents, and feels very close to them.  [¶] In summary, developmental and cognitive assessment reveals normal to slightly advanced skill attainment in all areas, with no apparent deficits.   Clinical impressions and projective testing suggest good emotional adjustment, well developed ego and superego functioning, and firm attachment to the foster parents.  [¶] I would recommend that, if Naomi's bonding to the foster parents is to be the factor considered in planning at this time, that there is no question that she should remain on a permanent basis in the Martin family.   There is a strong feeling of family, and in fact the Martins are perceived by Naomi as her only family.   She has repressed her earlier, perhaps traumatic experiences (loss of parents, possible molest/abuse/neglect), which occurred, fortunately, at an early enough age and do not seem to have permanently impeded her psychological development.   She has made a great deal of progress in her placement.   I feel that a move away from the Martins is not indicated and would be very disruptive;  there would likely be serious bonding problems in a new environment and she may not be able to trust or attach again.   It appears to be in her best interest to remain in the Martin home․”

2.   “Rapport was immediately established with the child therefore it was easy to see what her interests and needs are.   The child[:]  She talks about Michael and Rose and the activities they enjoy together.   The family is closely knit.   They are active in church[;]  Mrs. Martin teach[es] Sunday School and is President of the United Methodist Women.   There is positive and deep bonding between this child, Mrs. Martin and all the children.   The child depends on the family for the satisfaction of her emotional needs.  [¶] In the personal interview with the child she volunteered her acquaintance with Aunt Teresa.   The child said ‘She wants me to go to her house—I don't want to.’   The child is aware of a possible change and some anxiety was noted.   The anxiety noticed on the Draw A Person became more meaningful at that point.   Out of this anxiety some regressive gestures were noted by this examiner[,] wondering if they would become more pronounced if an actual custody change is made.  [¶] This examiner's anxiety and concern lie in the cultural shock the child will experience in a new environment including Country, culture, family and siblings she has not met.   She does not appear to have bonding with the Aunt that will enable her to handle large scale changes like those proposed.   The child is already bonded and thriving with all of the expectations and there would be virtually no shred of security to depend on.   Being familiar with the area the geography, the terrain with a complete change of living mode certainly represents detrimental consequences in the over-all development of this child.   It seems appropriate to this examiner that the timing of any change or circumstance be considered very carefully at the time when the child is now mastering expectations and that the removal of these expectations for a set of different [ones] is much more taxing than this child can handle at this time.”

3.   The commissioner used the “seriously detrimental” standard of section 366.25, subdivision (d)(1)(C) or subdivision (d)(3) of the Welfare and Institutions Code;  the record is unclear which.   We held, in effect, the “best interests of the child” test should have been used (see Civ.Code, § 4600, subd. (b)(2)).   A separate opinion warned the juvenile court of the hazards of a foreign placement:  “I concede that the deceased mother's family is highly motivated to provide the minor with the best available care.   Nevertheless, the interest of the State of California in her future requires a far greater showing than was produced here to assure her health, education and emotional well-being in their custody.   Further, if the juvenile court reaches the same disposition on rehearing, stringent controls must be employed to assure ․ proper exercise of California's paramount responsibilities and interests․  If this cannot be accomplished, foreign placement must be precluded on this ground as well.”  (Martin v. Superior Court (Apr. 26, 1983) 4 Civ. 30521 (conc. opn. of Crosby, J.).)

4.   When asked by Judge McMillan to express his view of county counsel's request, court-appointed counsel for Naomi, Mr. LaFlamme, appeared to agree with the Martins' position that Naomi had been brainwashed on the first unlawful trip to Mexico and since by her half sister, but dutifully espoused the current wishes of his five-year-old client:  “I think that she ought to go to Mexico.   The reason that I think that she ought to go to Mexico, she is committed to it.   She has committed her life to it, so to speak.   She has been programmed to do it.   I have read Mr. Westreich's objections to doing it, which are the basis for his motions to have further psychological evaluation of the minor.   I am willing to admit that the minor very well could have been programmed by the Silvas and by the social worker and by the person with whom she is living, so on and so forth, but the fact remains she wants to go to Mexico, and I don't know whether or not discovering that she has been programmed is going to make any significant difference as to whether or not she goes to Mexico.   That's the only reason that we shouldn't send her.   As it stands right now I think we ought to send her.”  (Emphasis added.)   We appointed new counsel to represent Naomi before this court.

5.   Code of Civil Procedure section 917.7 provides, “The perfecting of an appeal shall not stay proceedings as to those provisions of a judgment or order which award, change, or otherwise affect the custody, including the right of visitation, of a minor child in any civil action, in an action filed under the Juvenile Court Law, or in a special proceeding, or the provisions of a judgment or order for the temporary exclusion of a party from the family dwelling or the dwelling of the other party, as provided in Section 4359 of the Civil Code.   However, the trial court may in its discretion stay execution of such provisions pending review on appeal or for such other period or periods as to it may appear appropriate.   Further, in the absence of a writ or order of a reviewing court providing otherwise, the provisions of the judgment or order allowing, or eliminating restrictions against, removal of the minor child from the state are stayed by operation of law for a period of 30 days from the entry of the judgment or order and are subject to any further stays ordered by the trial court, as herein provided.”

6.   We also directed the district attorney to seek Naomi's return pursuant to Civil Code section 4604.   Reading between the lines of subsequent proceedings, it appears he has done nothing, erroneously believing a notice per Civil Code section 5160 which contains a date certain is prerequisite to action (see fn. 8, infra ).   The statute does not so provide.

7.   At the outset, we directed county counsel to report progress:  “The County Counsel is ordered to inform this court in a declaration under penalty of perjury on or before July 22, 1983, as to what steps the juvenile court, the County Counsel, and the Department of Social Services have undertaken to secure the return of the child.   The County Counsel is further ordered to file a similar declaration every Friday succeeding July 22, 1983 until a declaration is filed to the effect that the minor has been returned.”   We should have added a Miranda warning.   Most every week since, Deputy County Counsel Weiss has filed a confession of contempt on behalf of his employer and his client at DSS.

8.   Civil Code section 5160 provides, “(1) The court may order any party to the proceeding who is in this state to appear personally before the court.   If that party has physical custody of the child the court may order that he appear personally with the child.   If the party who is ordered to appear with the child cannot be served or fails to obey the order, or it appears the order will be ineffective, the court may issue a warrant of arrest against such party to secure his appearance with the child.  [¶] (2) If a party to the proceeding whose presence is desired by the court is outside this state with or without the child the court may order that the notice given under Section 5154 include a statement directing that party to appear personally with or without the child and declaring that failure to appear may result in a decision adverse to that party.  [¶] (3) If a party to the proceeding who is outside this state is directed to appear under subdivision (2) or desires to appear personally before the court with or without the child, the court may require another party to pay to the clerk of the court travel and other necessary expenses of the party so appearing and of the child if this is just and proper under the circumstances.”

9.   We clearly had the power to enforce each of these orders designed to tear down judicial and administrative roadblocks to Naomi's prompt return.  (Code Civ.Proc., § 128, subds. (a)2, (a)3 and (a)4;  § 177, subd. 2;  § 187;  § 923.)   If a judge can be disqualified to avoid “the appearance of unfairness,” he certainly can be removed for its actual manifestation or wilful failure to follow direct orders of a higher court.  (People v. Swanson (1983) 140 Cal.App.3d 571, 574, 189 Cal.Rptr. 547.)   Both occurred here.   Moreover, it is not for a lower court to select which rulings of a higher court it will choose to honor.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

10.   Naomi is, as we understand it, considered a citizen of Mexico under the law of that country by dint of her mother's nationality.

11.   County counsel also forgets our stay of Judge McMillan's order allowing Naomi's removal is an independent and sufficient ground for requiring her return, apart from section 917.7 of the Code of Civil Procedure.

12.   DSS and county counsel have developed a remarkable case of amnesia as to methods of recovering dependent children of this state.

13.   Two matters have become moot.   Petitioners attack a discovery request which was denied without prejudice to its being renewed 30 days later.   They may now make the request again, if desired.   Second, there is no need to consider the placement issue on the merits.   Should Naomi return, it is inconceivable the juvenile court would allow her to leave the jurisdiction a third time before the pending proceedings are resolved.

14.   At oral argument she stated the Silvas would obey an order to return.   That has not happened.   Whether this is the result of bad faith on their part or intervention by Mexican authorities triggered by county counsel's intermeddling, or perhaps some combination, we do not know.

15.   We also asked the parties to brief the subject of what additional steps might be undertaken and have been advised the juvenile court finally issued warrants for Naomi R. and the Silvas within the last week.   Counsel for Naomi and counsel for the Martins suggest the appointment of experts in Mexican law to help prepare letters rogatory and Mexican attorneys to assist in Mexico.   The juvenile court has so far refused.   These steps should be taken if more direct and expedient methods fail, however.   If the various government agencies involved still refuse to react in an effective manner within a reasonable period after the filing of this opinion, the juvenile court should make the suggested appointments—among some of the less drastic measures at its disposal.   The Martins also suggest we appoint a referee to work to obtain Naomi's return and retain jurisdiction for that limited purpose.   We decline.   That is the proper role of the juvenile court, and we assume it will now respond appropriately.

16.   We are aware of the potential Catch-22 in this order;  but, obviously, the state should not desist in its efforts to recover Naomi R. if the Martins succeed on their adoption petition.

CROSBY, Associate Justice.

TROTTER, P.J., and SONENSHINE, J., concur.