IN RE: STEPHANIE M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. NORMA M. et al., Defendants and Appellants.
In this case, the Department of Social Services (the Department) has asserted custody on an emergency basis over a minor Mexican national, whose Mexican parents illegally brought her into this country, and has recommended she not be returned to the custody of a willing and capable caretaker, her Mexican grandmother. The Department's approach here raises questions as to the propriety of its insistence that California authorities must be able to supervise the welfare of a Mexican citizen, if returned to her own country, and the reasonableness of its evident requirement that foreign nationals (e.g., relative caretakers) must conform to the views held by California social workers. As we will explain, we find the juvenile court abused its discretion by refusing to return this child to the custody of her maternal grandmother in Mexico, for placement under the supervision of the appropriate Mexican social services agency.
Norma M. (Mother) and Jose M. (Father) separately appeal the judgment of the juvenile court terminating their parental rights and denying their motion for modification of the placement order concerning their daughter, Stephanie M. (Welf. & Inst.Code, §§ 366.26, 388.) 1 Stephanie, who was born in Mexico but who arrived in the United States with Mother when she was nine months old, was found to come under the jurisdiction of the juvenile court because of battering injuries she suffered while in her parents' care. (§ 300, subds. (a) & (b).) The basis of the parents' motion to modify the placement order was their request to have Stephanie placed with her maternal grandmother (Grandmother), a resident of Guadalajara, Mexico, with whom Stephanie and her mother had lived for the first nine months of her life. This placement would have modified the order continuing Stephanie in San Diego County foster care, in which she had been placed when the dependency proceedings began and where she had remained for over 20 months as of the time of the hearing on the motion. Although Grandmother had expressed interest in having Stephanie placed with her from the inception of the dependency proceedings, that placement was never made due to certain concerns which the Department had concerning her ability to protect Stephanie.
In support of their argument that the judgment should be reversed, the parents argue there was a fatal defect in the juvenile court's jurisdiction over Stephanie because of its failure to give earlier notice of the pendency of the proceedings to the Mexican consulate pursuant to certain provisions of two international treaties on the subject of consular relations between countries.2 In a related claim, they contend the juvenile court erroneously refused to let counsel for Grandmother, provided by the Mexican consul, participate on behalf of Grandmother as a full-fledged party to the proceedings. In supplemental briefing requested by this court, the parties have also addressed the issue of the existence of juvenile court jurisdiction over Stephanie under the Uniform Child Custody Jurisdiction Act (UCCJA). (Civ.Code, § 5150 et seq.) The United Mexican States (Mexico) have also filed a brief as amicus curiae on the jurisdictional issue (Cal.Rules of Court, rule 14(b)), and have delivered to this court, via the juvenile court, a letter rogatory requesting the immediate surrender of dependent child Stephanie to an appointed Mexican guardian.3
In addition to the substantial questions presented on jurisdiction, these appeals focus upon the juvenile court's alleged abuse of discretion in refusing to modify the foster care placement order to place the child with Grandmother, based on asserted rights of familial association and the importance of cultural ties. As will be explained below, we conclude this judgment must be reversed because the juvenile court's decision on placement of the child constituted an abuse of discretion, and modification of the prior order was in the best interests of this child. Because we reverse the order denying the modification in placement, the judgment terminating parental rights is also reversed. The disposition we order constitutes this court's response to the letter rogatory submitted by the Mexican government.
FACTUAL AND PROCEDURAL BACKGROUND
Stephanie was born January 26, 1989, in Guadalajara, Mexico, where she lived with her mother and her maternal grandparents until October 29, 1989, when she and Mother moved to Oceanside, California, to join Father, who was working there. At that time, Mother was 17 years of age and Father was 20 years old. They lived in a small apartment with two other Mexican couples.
Stephanie's parents took her to the hospital on February 11, 1990, after she stopped breathing and partially lost consciousness. She began to recover when given oxygen and was sent to Children's Hospital to rule out nonaccidental trauma. She was discovered to have bruises on her forehead, cheek, abdomen, right upper groin, and upper left arm. The bruising on her cheek had a handmark pattern with a thumb mark. She also had a two-week-old fracture of her upper left humerus (arm bone) with fresh bruising and swelling, a fractured left clavicle, and a spirally fractured left tibia (shinbone). She was also limp and pale and was diagnosed as having recently suffered an episode of suffocation, most likely a hand held over the nose and mouth. She was diagnosed as suffering the battered child syndrome.
The parents explained that Stephanie had fallen off a chair about two weeks before she was taken to the hospital. Mother knew that her arm was hurt, but it did not seem to be broken. She took Stephanie to a masseuse, according to Mexican custom, hoping that the massage would cure the problem. The masseuse advised the parents to take Stephanie to a doctor because of the possibility that the arm was broken. Mother made plans to return to Mexico for medical consultation, but her plans fell through. The parents did not take Stephanie to a doctor until two weeks later when Stephanie was found to have stopped breathing. A hospital hold was placed on Stephanie and she was discharged to foster care two days after her hospital admission. No special treatment other than Tylenol was required for her injuries.
On February 15, 1990, the Department filed a petition to establish dependency jurisdiction of the juvenile court under sections 300, subdivisions (a) and (b) (serious physical harm inflicted nonaccidentally and substantial risk of serious physical harm and illness). It was also alleged that although Stephanie had suffered multiple bruises and fractures, the parents had failed to provide adequate medical treatment. Stephanie was placed in foster care at detention and the social worker was ordered to evaluate the homes of available relatives. The day after the detention hearing, the social worker, Ana Baker, spoke with Stephanie's maternal grandmother, Mrs. Teresa Hernandez (Grandmother), who stated that “she wishes to care for the minor and feels that she can protect the minor from any harm.” Grandmother again expressed her wish to care for the minor two weeks later, and stated she would return to the United States for the trial if necessary to help the parents and protect the minor.4 In a social study prepared for a readiness hearing on February 27, 1990, the social worker stated that only the grandmother and the maternal aunt were possible relative placements, and no home evaluation on the maternal aunt would be done because she preferred to have the maternal grandmother care for the minor. The social worker noted, “Our CPS [Child Protective Services] trans-border liaison, Ted Silva, could request that the Department of Social Services in Guadalajara, Mexico, supervise the minor, but that would take some time.” The social worker's evaluation also stated:
“Although the grandmother wants to care for the minor, I feel that it would be very hard to supervise and protect the minor in Mexico. Based on the current status of this case, it is anticipated that the reunification is likely to occur by August 12, 1990.”
Stephanie was continued in foster care until the time of the contested jurisdictional hearing, set for April 10, 1990. Before that time, a home evaluation of Grandmother's home was made through a Mexican social services agency, Sistema Para El Desarrollo Integral de la Familia Jalisco (DIF).5 This home evaluation was very positive, as the home was large and there was sufficient income to care for Stephanie. The Mexican social worker recommended placing Stephanie with her grandparents in Guadalajara. At the readiness hearing on February 27, 1990, the court granted the social worker discretion to detain the minor with the maternal grandmother after consultation with the minor's counsel.
By the time of the contested jurisdictional hearing on April 10, 1990, Stephanie had been moved to a different foster home in Encinitas, in order to facilitate visits with her parents. Three days before the hearing, the new foster parents, Brian P. and Lynn P., wrote a letter to the juvenile court expressing their concerns about any potential return of Stephanie to Mexico to live with her grandmother. Two pediatricians who had seen Stephanie recently were of the opinion that she had been malnourished for some months previously, possibly including the time when she was still living with her grandmother. Stephanie also showed fear of dark-skinned men. However, the social worker's supplemental report for the April 10, 1990 hearing recommended that Stephanie be placed with her grandmother, since it appeared that Stephanie and her grandmother were still bonded with each other, and the DIF home evaluation of Grandmother was positive. DIF was willing to take the case and supervise Stephanie if she were placed with her maternal grandparents.6
Medical reports prepared at the time of Stephanie's original hospitalization described her as well-developed, well-nourished, and healthy-appearing. However, the report of the pediatrician whom the foster mother consulted stated that if Stephanie had arrived in the United States in December 1989, it was likely that she had been malnourished before her arrival. It was later established that Stephanie had arrived as of late October 1989. Another pediatrician's report was unable to conclude whether the malnutrition had occurred before Stephanie's arrival in the United States.
At the jurisdictional hearing on April 10, 1990, both parents submitted on the reports and a true finding was made as to the allegations that dependency jurisdiction was proper under section 300, subdivisions (a) and (b). The court continued Stephanie in foster care and ordered further reports on Grandmother in Guadalajara and on the pediatrician referred to in the foster parents' letter. A further hearing was set for disposition on May 2, 1990.
The social worker's supplemental report prepared for the May 2, 1990 hearing contained accounts of her interviews with the two pediatricians consulted by the foster mother. Dr. Keeley told her that Stephanie had the appearance of being malnourished in the past, but for an unknown time. Dr. Goldstein told her that in her opinion Stephanie had been malnourished before she came to the United States, but the medical report and the social worker's report differed in estimating her arrival date.
A report prepared by Stephanie's counsel's investigator in April 1990 stated that Grandmother did not think Stephanie had been physically abused by the parents, and the child had been seen by doctors in Mexico for breathing problems. However, if Stephanie were placed with her, the grandmother and grandfather would put her interests before those of the parents and would not allow the parents to take Stephanie unless it were approved by the court. At the disposition hearing, the juvenile court followed the social worker's recommendation to place Stephanie in foster care, with the grandmother to be further investigated.
In July 1990, the juvenile court appointed a special advocate, Betty Ann Ravin, for Stephanie's case. She submitted a report for the six-month review hearing held on October 31, 1990. In evaluating the prospect of returning Stephanie to her grandmother's custody, the special advocate noted that Grandmother had visited the family in the United States last winter to help them through the crisis, and there were questions concerning the amount of protection Grandmother could provide if the parents were uncooperative with an award of custody to her. Evaluating Stephanie's health, the special advocate noted that the foster mother reported Stephanie arrived in March 1990 with an apparent milk allergy and that this allergy could possibly explain some of the malnourishment Stephanie had suffered. The special advocate relied on Dr. Goldstein's report which said that Stephanie was markedly malnourished in February 1990 and it was unlikely she had attained that degree of malnutrition within the past two months, making it likely she was at least somewhat malnourished in Guadalajara. However, the special advocate further noted that medical records for Stephanie's first nine months of life in Guadalajara showed she had received regular vaccinations and had had some regular care. The special advocate also placed some emphasis upon Grandmother's statements to the first social worker, Ana Baker, categorically denying any possibility the parents could have caused the injury. In summary, the special advocate recommended increased visitation between Stephanie and her parents.
Social worker Vincent Peppard prepared a six-month review report for the October 31, 1990 hearing. He recommended continued foster care for Stephanie, noting that although the parents had attempted to comply with the reunification plans to the best of their ability, they still posed a risk to Stephanie because they continued to claim she was injured by falling off a chair and was not intentionally hurt. The social worker recommended against placing Stephanie with her maternal grandparents because Grandmother was reported to have stated she did not believe the parents could have been responsible for Stephanie's injuries and that she must have fallen off the chair. Peppard therefore did not consider Grandmother able to adequately protect Stephanie from further harm. Increased visitation with the parents was recommended with an eye toward reunification. The court made orders accordingly: continued foster placement and supervised visitation, along with therapy for the parents. The parents' therapist was ordered to report to the court concerning their progress, and did so, stating that they continued to consistently deny they had abused or inflicted nonaccidental injury on Stephanie, but could not explain how she had suffered her serious physical injury. They admitted they had failed to provide adequate medical attention to Stephanie and had failed to recognize the extent of her injuries. The therapist concluded that the parents were making an honest effort to learn better parenting skills, and deserved the opportunity to have more direct contact with their daughter to practice the “lessons” they were learning.
In preparation for the 12–month review hearing, Stephanie's attorney, at the request of the foster parents, obtained authorization to have her developmentally assessed by psychologist Dr. Raymond Murphy. Dr. Murphy evaluated Stephanie in April 1991 as being in a “very fragile developmental period that requires a great deal of attention and detail to issues such as stability, security and nurturing.” He noted that Stephanie appeared to have a strong bond with her foster mother, and that reunification of Stephanie with her natural parents would have to be carried out in a very guarded and careful fashion in order to prevent serious emotional disruption.
The social worker's 12–month review report noted that Stephanie was in generally good health, although she was being treated for a visual problem that was thought to have been related to the injuries she suffered while in the care of her parents. She was wearing eyeglasses and a patch over her right eye in order to stimulate her left eye. Although the parents had partially complied with their reunification plan, the social worker evaluated them as lacking an understanding of why Stephanie had been taken into custody and what was expected of them in order to have her returned to their care. However, the social worker predicted reunification with the parents would be possible by the 18–month review hearing.
The special advocate also prepared a report for the 12–month review hearing. She did not detect any sense of responsibility for Stephanie's injuries on the part of the parents. Although the parents were confident that they could provide for Stephanie's care if the family returned to Guadalajara, they did not ask what medical care would be required or express interest in Stephanie's medical needs.
Additional information supplied by the social worker for the 12–month review hearing included that an ophthalmologist consulted about Stephanie's visual problems discounted any possibility that they were due to physical abuse, finding the eye problem was congenital in origin.
The juvenile court made orders at the 12–month review hearing, including continued foster care, a psychological evaluation to be performed of Grandmother, and a home evaluation for the paternal (sic ) aunt. A contested review hearing was scheduled for July 8, 1991.
On June 6, 1991, about a month after the 12–month review hearing, the consul general of Mexico based in San Diego sent the juvenile court a letter in pursuit of its special responsibility to assist Mexican nationals in United States court proceedings, stating that Grandmother had requested its assistance in obtaining custody of Stephanie. The consul noted that the DIF study of Grandmother's home had been favorable, and requested that the court consider granting custody to Grandmother.
Shortly thereafter, the foster parents sought and were granted de facto parent status for Stephanie. They represented that they had not interfered with reunification services, and their special knowledge was needed to assist the court in the proceedings. At the contested 12–month review hearing, their counsel emphasized that their status as de facto parents had not been sought for purposes of custody determination.
In additional information submitted by the social worker for the contested review hearing on July 8, 1991, the social worker noted that Dr. Heller's psychological evaluation of Grandmother was generally favorable, recording affection between Grandmother and Stephanie, and such placement was recommended as long as there was a court order and outside monitoring to ensure that Grandmother did not delegate to the parents the role of Stephanie's principal caretaker. Dr. Heller had pointed out that Grandmother was passive in nature, which could impair her ability to protect Stephanie from her parents in the future. Dr. Heller had also studied the bonding between Stephanie and her parents and concluded that it would not emotionally distress Stephanie if that bond were disrupted. It was also noted that DIF had performed an updated home evaluation of Grandmother, which was favorable. DIF offered to provide ongoing supervision of the family if Stephanie were placed there.
The social worker also investigated the possibility of placing Stephanie with her maternal great-uncle and -aunt, who were willing to provide a permanent placement. However, further background checks were being performed at that time.7 The social worker stated that the parents' therapist reported they were still in denial as to their responsibility for injuring Stephanie, but had made substantial progress and were likely to be able to reunify. In visitation, the foster mother reported Mother continued to handle Stephanie in a rough manner during visits and Stephanie experienced emotional distress and nightmares after such visits. Accordingly, the social worker recommended that a selection and implementation hearing be set to determine a permanent plan for the minor, and that reunification services be terminated. (§ 366.26.)
After a short continuance, the contested review hearing was held July 23, 1991. In attendance at the July 23, 1991 review hearing were not only Mother, Father, Grandmother, the maternal great-aunt, another relative, the current and previous social worker, attorneys for the parents, child, and the Department, but also two representatives from the consul of Mexico and an attorney appearing for Grandmother. The parents and all parties agreed to submit on the Department's recommendation for a selection and implementation hearing. The court found that return of Stephanie to her parents would create a substantial risk of detriment to her well-being, and there was no substantial probability of return by the 18–month date. Reasonable services had been provided, and further mandatory services were terminated. The matter was set for a contested selection and implementation hearing (§ 366.26) on November 22, 1991. Since Grandmother had sought de facto parent standing, the court set a special hearing September 10, 1991, on the issue of her standing in the proceedings. Since Grandmother and the parents were requesting placement of the minor with Grandmother or with the maternal great-aunt and -uncle, a contested placement hearing was set for September 23, 1991. The parties stipulated that this hearing would be conducted as a modification motion under section 388 and the issue would be whether placement should continue in the current foster home or be changed to placement in a relative's home. This placement hearing eventually began on October 28, 1991.
At the hearing on Grandmother's request for standing on September 10, 1991, the court noted the issue was complicated by the question “as to whether it was the fault of the Department for not following up” on the studies conducted by DIF, and “whether we can hold any of those actions on the time line against Grandma.” Standing was then granted on due process grounds to the extent that Grandmother could provide a statement to the court and could present any evidence to refute any allegations made regarding her in any hearing at which she was present. Counsel provided for her by the Mexican consulate was allowed to assist her in that manner. (Cal.Rules of Court, rule 1412(f); Super.Ct. San Diego County Rules [Local Rules], div. VI, rule 1.3(c).) Pending the contested placement hearing, the court terminated the parents' visits for two weeks and expanded Grandmother's visits in order to attempt to determine the relationship between Stephanie and Grandmother.
At the contested modification hearing, the parties stipulated that the court could consider the entire file on the placement issues. It was clarified that the modification motion was made by the parents, not by Grandmother. The adoptions social worker, Marina Hynds, first testified that she had supervised four visits between Stephanie and Grandmother. Although Grandmother had shown concern about Stephanie's milk and food allergies, she had not asked about Stephanie's eye problem. Hynds did not recommend placement with Grandmother on the grounds that Stephanie was emotionally fragile and it was unclear whether Grandmother could protect Stephanie since she still appeared to be denying the parents had abused her. Hynds also had concerns about the early malnourishment reports. Although Hynds spoke Spanish, she had not interviewed Grandmother. She understood from other social workers that during the past week Grandmother now acknowledged that the severe abuse had occurred.
Grandmother testified at the modification hearing that Stephanie's health had been pretty good during the nine months that she had lived in Grandmother's house, and Stephanie had had monthly doctor visits and vaccinations. She had pneumonia shortly before she left for the United States; however, she was cleared to travel by her doctor. Grandmother had been named Stephanie's godmother and had particular religious responsibilities toward her. Grandmother testified that when Stephanie's injuries first occurred, Grandmother told Mother the parents would have to face the consequences and that if the parents had hurt the child, Grandmother would take her back to Mexico. She told the social worker at that time that the parents had probably hurt the child, but she didn't know. As of July 1991, Grandmother still believed that Stephanie's injuries could have been caused by her fall from a crib. When Grandmother talked to the special advocate in April 1991, she said she couldn't see how the parents had injured Stephanie, since she had not seen them beating her. At that time she still believed there could be reunification. Grandmother explained that she had not visited Stephanie between April 1990 and March 1991, since she had been told, apparently by the Department, she could not come in and ask for custody while the parents were making their reunification efforts.8 When she learned in April of 1991 that the parents might not get their child back, she came back to visit Stephanie.
A representative of the Mexican consulate, Marcella Merino, testified at the hearing regarding cultural differences between Mexico and the United States concerning the extended family and the godparent's role. She stated DIF would assist Grandmother if placement were made with her, would supervise her home and would offer psychological counseling and all needed visits. DIF would report to the court as requested.9 If Stephanie were returned to Mexico, she would stay in Mexico even if her parents returned to the United States. However, their plans were unknown at that time. If Stephanie did poorly in her placement with the grandparents, DIF and the Mexican court would protect her and would deal with the problems.
The foster parents, as de facto parents, argued that at this postdispositional phase of the proceedings there was no relative placement preference accorded pursuant to section 361.3. (See In re Jessica Z. (1990) 225 Cal.App.3d 1089, 275 Cal.Rptr. 323.) Grandmother's attorney responded that relative placement was still a viable option, and that Grandmother had not previously been given the opportunity to respond to the concerns raised about placement with her.
In making its ruling, the juvenile court first stated that the parents had had the responsibility to have placement with the grandmother considered earlier, and observed that Grandmother had not been shut out of the proceedings and had been present at many of the hearings. The court then ruled that a prima facie case had been made out to support modification on the basis that Grandmother had shown an ability to protect the child. However, the matter was continued for a month in order to make the determination of whether the change in placement was in Stephanie's best interests, according to the section 388 modification procedure used. Pending that determination, the selection and implementation hearing under section 366.26 was to trail the matter.
At the continued placement hearing, testimony was taken from the previous social worker, Peppard. He had opposed detention with Grandmother from the 6–month review stage of the proceeding because she had minimized the physical abuse and the parents' role. He continued to have those concerns through his transfer of the case in July 1991. During that time, he had had contact with Grandmother twice, in August 1990 and in April 1991. Both times, she requested or demanded placement with her, although she did not specifically request visitation. The reason he did not offer Grandmother visitation was that he was focusing on the parents at that time. A secondary concern which he had against placement with Grandmother was the issue whether Stephanie had been malnourished in her early life.
Psychologist Dr. Murphy testified regarding the April 1991 developmental assessment he had made and his observations of Stephanie with Grandmother in November 1991. He also reviewed videos of Stephanie taken after visitations with Grandmother. These showed Stephanie had undergone emotionally traumatic experiences, although he could not tell the causation of those. He saw no primary bond between Stephanie and Grandmother, although Stephanie recognized and played with Grandmother and showed no anxiety around her. He opined that a primary bond could form with Grandmother with appropriate therapy and Grandmother's ability to meet Stephanie's needs. A transitional period of three to six months with increased visitation and visitation in the foster parents' home would be necessary to create such a bond. Dr. Murphy also stated that Stephanie's identity issues could be a problem in the foster home, since Stephanie was a dark Hispanic child while her foster parents were White. He could not be conclusive which identity crisis would be worse, continued foster care or removal from the foster home. Although he did not recommend that Stephanie be removed from foster care, he opined that emotional disruption to Stephanie from placement with Grandmother could be minimized with a gradual transition. No special treatment other than short-term counseling was indicated.
Foster mother Lynn P. testified that Stephanie did not want to go on visits with Grandmother, and after visits slept more than usual, cried and had toilet accidents. She also woke more at night. The foster mother described a distressing incident during the second week after the increase in visitations with Grandmother in which Stephanie believed she had a nosebleed, although she did not. It took the foster mother 30 minutes to calm her down. According to the foster mother, Stephanie does not deal well with changes in her life. However, if Stephanie were taken from her care, the foster mother would assist to the best of her ability. The foster parents first considered adopting Stephanie after the selection and implementation hearing was recommended. An adoption assessment prepared by the Department found her not to be adoptable except by the foster parents, due to her fragile emotional state.
In argument on the placement issue, the Department's attorney stated that foster placement had been made at the appropriate time, and that at this postdispositional stage of the proceedings, there should be no concrete relative preference now under section 361.3. He argued that there was no indication Stephanie would have medical insurance in Mexico.10 The Department's attorney also stated there was no indication that Stephanie would be afforded psychological programs in Mexico.11 The court and counsel discussed baptism photographs of Stephanie taken in October 1989, which the court stated showed the child was not well nourished.12 The court noted that it did not consider any language problem to be a significant issue, since Stephanie would be able to learn Spanish.
Grandmother's attorney addressed the court, stating that the first social study performed by DIF, dated March 5, 1990, did not get to the court file for the early placement hearings, and that the court did not receive a DIF report until the Mexican consul wrote its first letter June 6, 1991, when the second study was made available. Grandmother's attorney then argued that since Grandmother had heard the reunification proceedings with the parents were on track, she believed it was not her time to put herself forward. At that point, the de facto parents objected that there was no evidence to that effect, which was sustained as to Grandmother's belief she should not come forward.13 Grandmother's attorney pointed out that the parents' current intentions seemed to be to stay in the United States.
In his comments, the foster parents' attorney pointed out that the system seemed to be under siege by the parties seeking to change placement. He and the minor's attorney both recommended against placement with Grandmother, on the basis of Stephanie's bonding with her foster parents and because she had special medical and psychological needs. Grandmother was evaluated as being somewhat passive and possibly unable to protect Stephanie. Mother's and Grandmother's counsel countered that Grandmother had shown a great deal of initiative in injecting herself into the proceedings in a foreign country, over a language barrier, and by repeatedly asserting her interest in caring for Stephanie.
In issuing its ruling on the modification motion, the court first commented that it was unmistakable that it was late in the game that Grandmother came into this child's problems in the United States, even though she had been involved early in the child's life. The court reluctantly came to the decision that the placement should not be changed at this time, even though there was a family tie between Stephanie and Grandmother. Had circumstances been different, the court said, that might very well have led to such a placement. However, the court commented, “Circumstances were not different. We are where we are.” There had been a whole year with no contact, even assuming that Grandmother had been under the impression Mother and Father were going to get the child back. Although the court saw no reason to believe Stephanie would not be given the proper medical attention in Mexico, and that the malnutrition and eye problem now seemed to be non-issues in the case, there were still signs that Stephanie was emotionally troubled. Stephanie still had residual problems from the earlier abuse, and there was no primary bond with Grandmother. The court determined it should disregard the issues of whether the Mexican government would return Stephanie to the San Diego court if she had problems there, and instead focused on whether it was in her best interests now to make a transition to Grandmother's home. Based upon the evidence showing Stephanie's parenting right now was with her foster parents and that her foster parents could best deal with her current problems, the court found it was not in Stephanie's best interests to transfer her placement to Grandmother. The court noted there was testimony that Stephanie still had a fear of people within her own ethnic group, males particularly, and it would not be good for her to place her with such people full time. The court then continued the trailing selection and implementation hearing until January 15, 1992.
At the hearing under section 366.26, the parties stipulated that the entire record was to be considered. Parental rights were severed, Stephanie was found adoptable, and judgment issued accordingly. Mother and Father timely appealed the judgment.
We consider the heart of this appeal to be the attack upon the court's refusal to modify the placement order to place Stephanie with Grandmother, an order which is subsumed in the final judgment terminating Mother's and Father's parental rights. Before we discuss the alleged abuse of discretion in this placement determination, we shall discuss the jurisdictional challenges raised by the parents on due process theories, based upon the Vienna Convention and the U.S.–Mexico Consular Convention. We further discuss the basis for jurisdiction in this case provided by the UCCJA. Our analysis of the placement issues presented will then include a discussion of the proper standing to be accorded Grandmother.
Jurisdictional ChallengesAUCCJA Issues
As a threshhold matter in our consideration of the weighty jurisdictional issues presented, we note that supplemental briefing requested by this court has supplied us with an analytical shortcut in the jurisdictional area. Specifically, upon this court's receipt of the Mexican government's letter rogatory requesting immediate return of Stephanie to her duly appointed Mexican guardian, we requested that the parties provide briefing on the question of Mexican assertion of jurisdiction in this matter. In this supplemental briefing, all parties, including amicus curiae (the Mexican consul general), agree there was a basis for the juvenile court's initial assertion of jurisdiction over Stephanie on an emergency basis in the UCCJA, Civil Code section 5152, subdivision (1)(c)(ii).14 Such emergency jurisdiction was based on Stephanie's injuries, and continued at the time of her discharge from the hospital, due to the need for an appropriate caretaker for the child. At that point, a basis for concurrent jurisdiction in both California and Mexico existed under Civil Code section 5152, subdivision (1), due to Stephanie's “significant connections” or “significant relationship” with both forums under Civil Code section 5152, subdivision (1)(b). (Plas v. Superior Court (1984) 155 Cal.App.3d 1008, 1013–1016, 202 Cal.Rptr. 490.) 15
Under Civil Code section 5172, the general policies of the UCCJA extend to the international arena. That section further provides:
“The provisions of this title relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.” 16
The terms of the UCCJA have been applied in juvenile court cases. (In re Fathom K. (1985) 173 Cal.App.3d 773, 219 Cal.Rptr. 294.) 17 Due to the concurrent bases for jurisdiction that are present here, the question has been raised in supplemental briefing whether the juvenile court should have stayed these proceedings under the doctrine of forum non conveniens in order for Mexican proceedings to take place. (Civ.Code, § 5156, subds. (1) and (3).)
“ ‘[T]he question of whether jurisdiction exists is distinct from the question of whether it should be exercised․ Even if a determination that jurisdiction exists is made, the court may decline to exercise jurisdiction, or it may stay the proceedings upon the condition that custody proceedings be initiated in another state.’ [Citations.] [¶ ] The [UCCJA] contemplates that where there is concurrent jurisdiction, only one state should exercise jurisdiction. [Citations.]” (Plas v. Superior Court, supra, 155 Cal.App.3d 1008, 1018, 202 Cal.Rptr. 490.
Civil Code section 5155, subdivision (3) provides guidance for a court which is informed during the course of its proceedings that a custody proceeding was commenced in another state after it assumed jurisdiction; it is required to inform that other court of its proceedings “to the end that the issue may be litigated in the more appropriate forum.” (Id.) Here, the juvenile court was made aware at the time of the jurisdictional hearing, April 1990, that DIF in Guadalajara had conducted an investigation of Grandmother's home, and had thus apparently opened its own case in Mexico. The juvenile court was again notified by the Mexican consul's letter in June 1991 that Mexico desired that the grandmother be considered as a placement alternative. However, no formal court decree was issued by the Mexican government until March 8, 1992, after the termination of parental rights judgment was rendered and appeal was taken.
While there would have been a factual basis on this record for an exercise of the juvenile court's discretion to defer to Mexican jurisdiction over Stephanie, due to the nationality of all family members (Civ.Code, § 5155, subd. (3)), the fact remains that the issue of the applicability of the UCCJA was not fully litigated at trial. Accordingly, we find it would be improper to base our decision upon its requirements. Instead, we take the proceedings as we find them in this record, and return to the issue of whether the allegedly inadequate compliance by the juvenile court with the requirements of the two consular conventions created a fatal defect in the jurisdiction of the juvenile court.
The parents' theory concerning lack of jurisdiction is that a judgment is subject to attack as void if there was no due process notice before it was rendered. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 483–484, 488, 229 Cal.Rptr. 771.) By analogy to the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.), they claim that the government of Mexico is entitled to notice of proceedings affecting its nationals, and that lack of such notice voids any judgment issued. (See In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1426, 285 Cal.Rptr. 507.)
In particular, the parents base their due process notice arguments on the language of the two consular conventions as follows:
“Article 5, Consular functions
“Consular functions consist in:
“(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;
“(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State․
“Article 37, Information in cases of death, guardianship or trusteeship, wrecks and air accidents
“If the relevant information is available to the competent authorities of the receiving State, such authority shall have the duty:
“(b) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments ․” (Italics added.)
“[U.S.–Mexico Consular Convention:]
“Article VI, subdivision 2, Consular officers shall, within their respective consular districts, have the right:
“(a) to interview and communicate with the nationals of the State which appointed them;
“(d) to assist the nationals of the State which appointed them in proceedings before or relations with authorities of the State.” (Italics added.) 18
Under the federal constitution, such treaties made under the authority of the United States are part of the supreme law of the land and judges in every state are bound thereby. (Sei Fujii v. State of California (1952) 38 Cal.2d 718, 721, 242 P.2d 617.) 19
Here, the parents contend that the degree of notice and participation afforded the Mexican consulate in these proceedings, both before and after Grandmother received its assistance, violated the above-quoted terms of the two consular conventions. We first note that the parents seem to make an unwarranted assumption that the government of Mexico, through its consul, was a party entitled to constitutionally mandated due process notice from the inception of the proceeding. In Ansley v. Superior Court, supra, 185 Cal.App.3d 477, 483, 229 Cal.Rptr. 771, the legal point that the absence of due process notice creates a fatal defect in jurisdiction is limited to a parent's right to such notice. Instructive on the issue of any separate right to notice on the part of the Mexican consul is this discussion by an authority on consular law:
“In view of the paucity of literature dealing with the consular role in child custody cases, it is useful to summarize relevant provisions of the US Foreign Service Manual below:
“As the Manual states, the basic principle of international law:
“ ‘that a person residing or travelling abroad is subject to the laws of the host country and the jurisdiction of its courts—applies to minors as well as to adults․'
“Consuls therefore have no legal authority to obtain physical custody of children and return them to the requesting parents. Any recovery of children must be effected in accordance with local laws․
“More specifically, the consular role in child custody disputes is:
“ ‘to help inquiring parents locate children abroad, to monitor the welfare of children on the request of a parent, to contact or refer a distressed parent to local governmental or private social agencies which can provide assistance, to provide general information about child custody laws and procedures ․ and to furnish a list of attorneys if the parents cannot resolve their differences themselves or seem to need legal advice or assistance.’ ” (Lee, Consular Law and Practice (2d ed. 1991) pp. 349–350, fns. omitted.)
In light of these well-established principles, neither the plain text of these treaty agreements nor any statute or court rule of which we are aware supports the parents' claim that the juvenile court lacked jurisdiction to proceed here due to a failure to earlier notify the consulate of the pendency of the proceedings. Specifically, the Vienna Convention, at article 5, subdivisions (h) and (i), requires the consular functions enumerated to be conducted “within the limits imposed by the laws and regulations of the receiving State,” and “subject to the practices and procedures obtaining in the receiving State.” (Ibid.) Under article 37, subdivision (b), the duty to inform the consul of pending proceedings is “without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments.” The drafters of the Vienna Convention and the U.S.–Mexico Consular Convention did not specifically address the field of juvenile dependency law, nor did they specify any sanction to be imposed as a result of a violation of any duty to give notice to a consulate of matters affecting its nationals.20
Moreover, although the rule-making body of the California judiciary, the Judicial Council, would presumably be empowered to make rules concerning appropriate notification to be given in cases involving foreign nationals, it has not found it necessary to address this problem. As we have explained above (see fn. 19, ante ) we have taken judicial notice of the “Joint Agency Agreement Between Mexican Consulate and the San Diego County Department of Social Services,” entered into April 29, 1992, which was evidently designed to obviate the problems arising from a lack of timely notice of such proceedings. We believe the existence of this agreement makes it unnecessary for us, an intermediate appellate court, to create a judicially declared rule requiring the type of notice that was not given the consulate here, and determining the consequences of a failure to give such notice.
As we have already discussed above, there was an adequate basis for the juvenile court's initial assertion of jurisdiction over Stephanie, due to the emergency circumstances created by her injuries. (Civ.Code, § 5152, subd. (1)(c)(ii).) There was also an ongoing basis for jurisdiction during the juvenile court proceedings, due to her need for care in a safe environment. Moreover, Mexico did not definitively assert its formalized competing claim to jurisdiction until March 8, 1992, when its court order for guardianship and custody was rendered and then delivered to this court by way of the juvenile court. Under these circumstances, the juvenile court was not required to initiate proceedings to determine the matter in terms of forum non conveniens under the UCCJA. (Civ.Code, § 5156.) Nor did the lack of earlier notice to the Mexican consulate of the pendency of the proceedings work a deprivation of due process in this case which would have voided the proceedings and orders made.
Thus, the juvenile court had jurisdiction to litigate the placement issues. However, as we will discuss in part II of this opinion, post, the juvenile court had the duty upon the facts presented to it to give serious consideration to placement of Stephanie with Grandmother within the existing framework of the dependency proceedings. We next turn to a consideration of the manner in which the juvenile court exercised the jurisdiction that it had.
Before reaching the merits of the parents' claims that the court's denial of their motion to modify the placement order for Stephanie was an abuse of discretion, we find it necessary to address the issue of the propriety of the type and amount of standing and participation afforded Grandmother in the dependency proceedings. In addition to claiming a lack of due process in connection with their jurisdictional arguments, the parents argue there was a denial of due process in the limitations on Grandmother's participation at the placement proceedings. Specifically, they contend she should have been accorded de facto parent standing (Cal.Rules of Court, rule 1412(e); In re B.G. (1974) 11 Cal.3d 679, 692, fn. 18, 114 Cal.Rptr. 444, 523 P.2d 244), and she should have had appointed counsel accordingly to assist her in controverting the allegations that she would not be an appropriate caretaker for Stephanie.21
Although the juvenile court denied Grandmother's request for standing as a de facto parent (Cal.Rules, of Court, rule 1412(e); Local Rules, div. VI, rule 1.3(b)), it accorded her standing as a relative, as contemplated by California Rules of Court, rule 1412(f) and Local Rules, div. VI, rule 1.3(c). Such a relative has the right to be noticed of dependency proceedings and to be present there if such presence would not be disruptive and would be consistent with the best interest of the child; she also has the right to participate in the court proceedings by submitting statements either orally or in writing, regarding her interest in the child, any information she might have relating to the child, and her recommendation to the court. (Ibid.)
At the conclusion of the first stage of the modification hearing regarding the requested change in placement, the court evaluated Grandmother's participation as follows:
“Grandmother has not been shut out of this proceeding, which often the cases that hit the books have shown that grandparents are after-noticed and have come late to the proceeding. The grandmother's own testimony was that she was called by the social worker and told by the social worker, ‘call us collect.’ So, I mean, she has been an active participant. She has received very able counsel now. And it is a somewhat awkward position for counsel. But I don't think that you've been shy about consulting with the parents' counsel. And you have been present in the courtroom and certainly allowed all lat[ ]itude to do that.”
In reviewing the juvenile court's determination to deny de facto standing, we apply these rules:
“Whether a person falls within the definition of a ‘de facto parent’ depends strongly on the particular individual seeking such status and the unique circumstances of the case. However, the courts have identified several factors relevant to the decision. Those considerations include whether (1) the child is ‘psychologically bonded’ to the adult; (2) the adult has assumed the role of a parent on a day-to day basis for a substantial period of time; (3) the adult possesses information about the child unique from the other participants in the process; (4) the adult has regularly attended juvenile court hearings; and (5) a future proceeding may result in an order permanently foreclosing any future contact with the adult. [Citations.] If some or all of these factors apply, it is immaterial whether the adult was the ‘child's current or immediately succeeding custodian.’ [Citations.] Because a court can only benefit from having all relevant information, a court should liberally grant de facto parent status.” (In re Patricia L. (1992) 9 Cal.App.4th 61, 66–67, 11 Cal.Rptr.2d 631, fns. omitted.)
Here, the facts were that Stephanie had lived her first nine months of life with Grandmother and had been separated from her for only four months when the dependency proceedings began. Grandmother consistently showed interest in the case and attended many hearings, presenting herself as a willing and able relative caretaker. Clearly, the evidence would have supported the granting of Grandmother's motion for de facto status. However, despite the general restrictions placed upon the manner in which Grandmother could participate in the proceedings, the juvenile court was well advised of her interest in being a placement for Stephanie and the entire modification proceedings appropriately focused upon that alternative. Both the juvenile court and this court have been presented with adequate information concerning Grandmother to reach a decision on the placement matters. No deprivation of due process which would have voided the proceedings occurred in this respect.
Having concluded that there was no jurisdictional or major procedural impairment in the proceedings, we turn to the main issue presented, placement of the child. We first discuss the discretionary nature of a juvenile court judge's ruling upon a motion for modification under section 388, and analyze these facts in light of the preference for relative placement established by section 361.3. Finally, we shall discuss the interrelationship of the rulings on the modification motion under section 388 and the termination of parental rights under section 366.26.22
Abuse of Discretion Standard
In the modification procedure used here, the court first determined that the parents had made a prima facie showing that there had been a change in circumstances and that Grandmother was able to provide adequate protection to Stephanie. However, the court then held an extensive hearing on the issue of whether such a change in placement would be in the best interests of the child. At that stage, it was the parents' burden to show by a preponderance of the evidence that there was new evidence or changed circumstances, and that a modification of the prior order in light of that showing would be in the best interests of the child. (In re Audrey D. (1979) 100 Cal.App.3d 34, 45, 160 Cal.Rptr. 802; Cal.Rules of Court, rule 1432(f).) In In re Heather P. (1989) 209 Cal.App.3d 886, 892, 257 Cal.Rptr. 545, this court explained that the “best interests of the child” standard set forth in section 388 is sufficiently clear, and indicates that:
“Although the specific factors a court must consider vary with each case, each child's best interests would necessarily involve eliminating the specific factors which required placement outside the parent's home.” (Ibid.)
In making such a ruling, “it is well established that the modification or termination rests in the sound discretion of the trial court and, in the absence of a clear showing of abuse of discretion, an appellate court is not free to interfere with the trial court's order. [Citation.]” (In re Corey (1964) 230 Cal.App.2d 813, 831–832, 41 Cal.Rptr. 379.) Further, although a trial court has broad discretion in awarding custody or in modifying a prior award, “the judge must exercise discretion upon a consideration of the evidence. [Citation.] The court's exercise of discretion in child custody determinations is seldom overruled. But the court may not make an award of custody without a consideration of all the evidence. [Citation.] A failure of the trial court to consider all the evidence is a failure to exercise discretion and requires reversal of the determination. [Citation.]” (Schlumpf v. Superior Court (1978) 79 Cal.App.3d 892, 901, 145 Cal.Rptr. 190.)
Further on the issue of the standards to be applied in reviewing the juvenile court's decision to deny the requested modification in placement, this court recently observed in In re Sean E. (1992) 3 Cal.App.4th 1594, 1599, 5 Cal.Rptr.2d 193, that under the statutory scheme, it is apparent “there is a tension between the timely resolution of dependency cases and the thoughtful exercise of judicial discretion. There are some cases which may necessitate additional time so that the changing relationship between the minor and his or her parents can be examined. (See § 352.) Provided the court complies with the statutory requirements authorizing continuances under section 352 there is no legal impediment for slight unjustified delays.”
Relative Placement Preference
Section 361.3, subdivision (a) provides in relevant part:
“In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether such a placement is appropriate, the probation officer and court shall consider the ability of the relative to provide a secure and stable environment for the child․
“(c) For purposes of this section:
“(1) ‘Preferential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.
“(2) ‘Relative’ means an adult who is a grandparent, aunt, uncle, or sibling.”
Two cases from the Sixth District Court of Appeal have interpreted this statutory language. First, in In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493–1495, 257 Cal.Rptr. 1, the court stated that even if error had occurred at the jurisdictional stage of those proceedings when the probation officer failed to suggest relative placement of the child with a maternal great-aunt, this error was insignificant when viewed in light of the later occurrences in the case. Specifically, the mother had failed to reunify with the minor, and a permanency planning hearing resulted in a finding that the child should be freed for adoption. At that stage, “there is no longer any reason to give relatives preferential consideration in placement. The overriding concern at this point is to provide a stable, permanent home in which a child can develop a lasting emotional attachment to his or her caretakers.” (Id. at pp. 1493–1494, 257 Cal.Rptr. 1.) Since the great-aunt did not become involved in the case until a late stage of the proceedings when the focus was on establishing a permanent plan for the child, and when the child had become “ ‘firmly bonded’ ” to foster-adoptive parents, there was no error in continuing her placement with foster parents over the request of the great-aunt. (Id. at p. 1494, 257 Cal.Rptr. 1; see also § 281.5 [requiring a probation officer who removes a child from parental custody to prefer placement with a relative if consistent with the child's best interests and parental reunification].)
In re Jessica Z., supra, 225 Cal.App.3d 1089, 1098–1099, 275 Cal.Rptr. 323, followed up on In re Baby Girl D., supra, 208 Cal.App.3d 1489, 257 Cal.Rptr. 1, and stated:
“While Baby Girl D. holds that section 361.3 does not apply at the permanency planning hearing stage, it does not delineate whether the statute applies beyond the dispositional hearing. Although we conclude that nothing in the history of section 361.3 mandates that the preference cease once a dispositional order is filed, we are loathe to establish a blanket rule as to when the statute ceases to apply.”
First explaining that the proper approach was to review the statutory mandate in light of the factual showing made by the record (In re Jessica Z., supra, 225 Cal.App.3d 1089, 1095, 275 Cal.Rptr. 323), the court held it was not error for the juvenile court to refuse to accord preference to a grandmother under section 361.3, subdivision (a) at the time of a 12–month review hearing. (Id. at p. 1100, 275 Cal.Rptr. 323.) The record showed that the grandmother had refused to take the child before the dispositional hearing, but then expressed interest in having the child placed with her at the time of the six-month and twelve-month review hearings. By the time of the 12–month review hearing, significant bonding to the foster parents had developed. In light of those facts, the court expressed the opinion that the juvenile court at the six-month hearing “should have ordered, and the social worker should have made, a thorough assessment of the propriety of placing Jessica with her maternal grandmother, an assessment which should then have been promptly reviewed by the court.” (Id. at p. 1099, 275 Cal.Rptr. 323.) However, since the appeal was not taken by the mother until the time of the 12–month review hearing, and by that time the chances of reunification were diminishing, the Court of Appeal refused to find the juvenile court had erred in determining that it would have been detrimental to remove the child from foster placement. (Id. at p. 1100, 275 Cal.Rptr. 323.) In connection with the mother's claim of ineffective assistance of counsel, the court rejected any argument that section 361.3 required the counsel for a parent to pursue the possibility of relative placement. Instead, the court said, “[T]hat responsibility falls to the probation officer and to the court.” (Id. at p. 1101, 275 Cal.Rptr. 323; see also In re Rodger H. (1991) 228 Cal.App.3d 1174, 1184–1186, 279 Cal.Rptr. 406 [where the court found that grandparents who had requested at the jurisdictional hearing to have the child placed with them were entitled under section 361.3 to have their home investigated and evaluated, and that the failure to do so was reversible error].)
Following the approach of In re Jessica Z., supra, 225 Cal.App.3d at page 1095, 275 Cal.Rptr. 323, we review the statutory mandate of section 361.3 “in light of what the record reveals of the chronology of [the child's] relatives' interest in her custody.” At the original detention hearing, the court ordered that appropriate relatives were to be evaluated regarding placement. The initial social study stated that Grandmother was interested in being a placement for the child, and the maternal aunt was interested only if Grandmother was not. The social worker noted that the trans-border liaison could request DIF supervision in Grandmother's home, “but that would take some time.” The recommendation noted that although Grandmother wanted to care for Stephanie, the social worker felt it would be hard to supervise and protect Stephanie in Mexico, assuming that reunification was still likely with the parents by the six-month hearing date. Grandmother was present at the readiness hearing held two weeks after the initial detention, and the court ordered that the social worker had discretion to detain Stephanie with Grandmother after consultation with minor's counsel.
A supplemental report was prepared for the April 10, 1990 jurisdictional hearing. It included a positive evaluation of Grandmother's home by DIF and a positive recommendation to place Stephanie with Grandmother. The foster mother's letter dated three days before the jurisdictional hearing raised concerns about Stephanie's degree of malnutrition, and suggested that it must have occurred during the time she lived with Grandmother. In an abundance of caution, the juvenile court at the jurisdictional hearing continued the dispositional issues until May 2, 1990, for further reports on Grandmother and from the doctor who had diagnosed the malnutrition. Around that time, on April 20, 1990, an investigator for the minor's counsel interviewed Grandmother by telephone, when Grandmother reported that DIF had positively evaluated her home. Grandmother said that she did not think Stephanie was physically abused by the parents, and said Stephanie had been seen by doctors in Mexico for breathing problems. She reported that her daughter had told her that Stephanie fell off a chair and that she never saw her daughter hit Stephanie. Grandmother then stated that if Stephanie were placed with her, “she feels her [sic ] and her husband would always take into consideration the minor's interest before the parents. She said that she and her husband would not permit the parents to take the minor unless it was approved by the court. She said the minor should be with the family who loves her and will care for her. [Grandmother] said she is willing to follow thru [sic ] with the services for this minor.”
At the continued dispositional hearing, the juvenile court followed the social worker's supplemental recommendation for foster placement, and the special advocate was subsequently appointed. The six-month review hearing social study continued to report Stephanie was “severely” malnourished upon her entry into foster care, and that the social worker recommended against detaining her with Grandmother since Grandmother did not believe the parents were responsible for the injuries. More information on the malnourishment issue was provided by the special advocate's report for the six-month review hearing, stating that Stephanie had a milk allergy as of her entry into foster care, which could explain some of her thinness. The special advocate was not sure what degree of protection Grandmother could provide if the parents were uncooperative.
Up to this point, the juvenile court had the hard information that DIF had positively evaluated Grandmother's home, and Grandmother was willing and eager to care for Stephanie. Social worker Peppard testified at the placement hearing that he had contact with Grandmother twice in August 1990 and later in April 1991. Both times Grandmother requested and demanded placement with her. She did not request visitation, nor did she ask in particular about Stephanie's medical needs or emotional well-being. While Peppard believed Grandmother was qualified to provide material care, he recommended against placement of Stephanie with her because he believed she denied the parents' role in the abuse and believed what the parents said. A secondary concern was whether Stephanie had been malnourished. He testified that he had not offered Grandmother visitation, presumably because he was still focusing on the parents as the primary targets of reunification. The positive information that the Department had conflicted strongly with its subjective evaluation of Grandmother as unworthy of placement due to her alleged failure to adequately admit the parents' potential role in the abuse Stephanie had suffered. It thus appears that Grandmother did not conform to the mold that the Department had in mind for her.
Moving on to the time of the 12–month review hearing, the social worker's report revealed the parents had partially complied with their reunification plan, and the focus of the Department was still on the parents. The report does not reveal any investigation into placement with Grandmother at that time. Evidently, placement was not considered an important issue at the time; such a determination reaps consequences in terms of bonding with the current caretaker.
It was learned around this time (the 12–month hearing) that Stephanie's eye problems were congenital in nature and were not related to the abuse she had suffered. Visitation between the parents and Stephanie was not going well, according to extensive logs supplied by the foster parents. At the 12–month review hearing, the court ordered a psychological evaluation to be performed of Grandmother and a home evaluation for the paternal (sic ) aunt.
A month before the continued date of the 12–month review hearing set for July 8, 1991, the Mexican consul wrote the court requesting that Grandmother's request for placement be considered. The DIF evaluation of Grandmother's home dated June 5, 1991, was very positive. The psychological evaluation of Grandmother was also positive, and the evaluator recommended placement of Stephanie in Grandmother's home “as long as there is a Court Order and Outside monitoring to ensure that she abstain from delegating to them [natural parents] the role of Stephanie's principal caretaker.” The evaluator pointed out a passivity in Grandmother which she feared might impair her ability to protect Stephanie from her natural parents in the future. Grandmother told the evaluator that she accepted the possibility that the parents had hit the child, since she had to believe the pictures of the bruises. Matters came to a head at the continued contested review hearing of July 23, 1991, when Grandmother, assisted by counsel provided by the consulate, moved for standing. Once again, although the factual information and the professional evaluations generally supported Grandmother's status as a potential placement, the Department's subjective evaluation of Grandmother's character appeared to interfere with the positive nature of the available information about her. Moreover, the Department continued to focus on parental reunification, perhaps disregarding the importance of the placement decision.
In reports prepared for the motion on standing, the special advocate repeated that there were concerns about Grandmother's appropriateness as a placement, due to possible neglect (malnourishment) of Stephanie during her early infancy, and the distance from San Diego which might make juvenile court supervision difficult. However, the special advocate noted that DIF had already opened a case on Stephanie. In Grandmother's declaration in support of her motion for standing, she stated she was able to provide medical insurance coverage for Stephanie, had not meant to disbelieve the injuries Stephanie had suffered, and had been told in Mexico that she had to wait until the parental rights were resolved in order to seek placement of Stephanie.
In a later report (Sept. 23, 1991) concerning the contested placement matter, the special advocate continued to emphasize that Grandmother had not immediately admitted that the parents were responsible for Stephanie's injuries, and that they might have been accidental in nature. Grandmother nonetheless felt that if the parents were responsible, then they would have to pay the consequences. When Grandmother was asked by the special advocate if she could attend to Stephanie's medical and emotional needs, “she assured me she would love Stephanie as one of her own children and that the family's love would help Stephanie, and Stephanie would be better naturally, once she was returned to her family where she belonged.” Grandmother believed that her love alone would solve most of Stephanie's problems, although she did not ask in detail about the nature of the problems. The special advocate reiterated that the distance to Guadalajara would make difficult both the juvenile court's supervision of the placement with Grandmother and continued visits between Stephanie and her foster parents to help her adjust. She recommended against placement with Grandmother.
During September and October, Grandmother visited regularly with Stephanie, and the visitations were generally successful although Stephanie was anxious about her separation from her foster mother. Grandmother had not visited Stephanie between April 1990 and March 1991 since she was told she could not come in and ask for custody while the parents were making their efforts toward reunification. When she learned the parents might not get their child back, she came back to visit in April 1991. In response to questioning by the court about the original medical reports for Stephanie, Grandmother stated she was told that Stephanie had showed both old and fresh injuries at the time she was admitted to the hospital. She stated she believed now that either one or both of the parents had inflicted those injuries. According to the consul's representative, DIF would supervise Grandmother's home, and would offer psychological counseling and social worker visits if needed. If Stephanie did poorly with the grandparents, DIF and the Mexican court would protect her.
On October 30, 1991, the juvenile court made its prima facie finding on the modification motion that there was an adequate showing to support a change in placement to Grandmother. At that point, an adoption assessment for Stephanie stated she would likely be adoptable only by her current foster parents, because of her fragile emotional state. The special advocate again reported that she did not believe Grandmother understood or was concerned about Stephanie's emotional problems. The court's ruling to conclude the modification proceedings was that it would not be in Stephanie's best interests to place her at that time with Grandmother.
At the time that the court granted Grandmother's motion for standing, it conscientiously noted that a complication in the proceedings was “whether it was the fault of the Department for not following up [on the DIF studies] and whether we can hold any of those actions on the time line against Grandma.” Evidently, at later proceedings, the court did make such a conclusion that the delay had to be held against Grandmother. The court also stated at the time of the prima facie ruling on the modification motion that the parents had the responsibility to have the placement with Grandmother considered at each stage of the proceedings. However, the plain language of section 361.3 does not support such an interpretation, as the court in In re Jessica Z. explained:
“Nor does section 361.3 impose on counsel for an indigent parent of a dependent child any obligation to pursue the possibility of relative placement; that responsibility falls to the probation officer and to the court.” (In re Jessica Z., supra, 225 Cal.App.3d at p. 1101, 275 Cal.Rptr. 323.)
At the time of argument on Stephanie's best interests in the modification proceedings, the court showed itself to be under several mistaken impressions. Essentially, it disregarded some of the evidence presented. (See fns. 10, 11, 12, 13, ante; also see Schlumpf v. Superior Court, supra, 79 Cal.App.3d 892, 901, 145 Cal.Rptr. 190.) It recalled that the evidence of the baptism photos showed the child was not well nourished, whereas at an earlier stage of the proceedings the court had evaluated the photos as not showing emaciation one way or the other. The court sustained the foster parents' objection that there was no evidence Grandmother had a belief she should not come forward, whereas there was such evidence at the time of the motion for standing and in Grandmother's testimony. The court in its decision evaluated Grandmother as coming here late in the game in these child's problems. However, Grandmother had shown consistent interest in the child from the beginning of the dependency proceedings, and the court had earlier questioned whether the Department's failure to follow up on the DIF investigations should properly be held against Grandmother. The court correctly evaluated the malnutrition and eye condition evidence as “non-issues” in the case, in light of the entire record. It declined to speculate on whether Mexico would send Stephanie back if any placement with Grandmother were a failure, stating that the issue was Stephanie's current best interests. The court correctly stated that language development was not a major issue in the case, due to Stephanie's young age. While the court was concerned that Stephanie had fear of her own ethnic group, it chose to deal with that fear by continuing to separate and alienate her from that group.
We cannot evaluate the court's exercise of discretion in denying the modification motion without discussing the important issue of Stephanie's bonding to her foster parents. Dr. Murphy was convinced that Stephanie's primary bond was with her foster mother and that while such a bond could possibly be developed in the future between Stephanie and Grandmother, he did not recommend a transition in order to foster such a bond. Although he predicted that Stephanie could have self-identity issues in the future as a Mexican child in a Caucasian home, he could not predict whether that identity crisis would be better or worse than the identity crisis which could be caused by her removal from foster care.
The court in In re Venita L. (1987) 191 Cal.App.3d 1229, 236 Cal.Rptr. 859 perceptively discussed the issue of bonding in connection with its ruling that a finding of detriment to return to a natural parent could not be assumed from affirmative evidence of bonding of the child to her foster parents. The court said:
“[Venita] went to live with her foster parents when she was less than a year old; she has lived with them since that time. According to the evidence presented, her bonding was a natural and inevitable phenomenon. [¶] If a child's immediate bonding or attachment to foster parents could outweigh all other considerations, then reunification services, especially in the case of a very young child such as Venita L., would serve no meaningful purpose. At best the court would merely pay lip service to the concept of parenting as a fundamental constitutional right․ [¶] We do not minimize the importance of bonding in the critical early years of childhood. Likewise, we understand bonding in this type of case is the result of circumstances which may include special love and care by the foster parents, as well as deficits of some kind on the part of the natural parents.” (In re Venita L., supra, 191 Cal.App.3d at p. 1240, 236 Cal.Rptr. 859.)
At some point, bonding between a child and a foster parent may become so strong that it would be detrimental to the child if the new relationship is terminated. (Id. at p. 1241, 236 Cal.Rptr. 859.)
While we cannot minimize the importance of Stephanie's bonding to her loving foster parents, we are loathe to place this newly created relationship above the interests of loving grandparents, who have consistently shown an interest in the child, and whose supposed deficits have, upon examination, been found not to be substantial or determinative. While Grandmother did not cite the appropriate litany or incantation that the Department apparently wanted to hear, she did consistently present herself as a willing and loving relative caretaker who had the best interests of this child at heart.
We place some weight upon the competition of nationalities involved here. For what reason did the Department evidently assume that its sister agency, DIF, was incapable of adequately protecting Stephanie, a Mexican national with Mexican parents, in her Mexican grandmother's home? The Department repeatedly expressed concern about the distance involved and the difficulties in supervising a Mexican placement. Why then did it not defer jurisdiction to Mexico? It seems the Department may have had problems in taking into account cultural differences between Mexican families and the conventional wisdom of child welfare services in California.
We believe the juvenile court appropriately foreshadowed the proper result in this case when it questioned, at the time of the motion for standing, whether the Department's slowness in following up on the positive DIF home evaluation could properly be held against Grandmother. In light of the evidence presented supporting modification of placement concerning changed circumstances and the issues of supposed malnutrition, eye problems, language barriers, ethnic identity problems, psychological evaluations, and acceptance of the parents' responsibility for the injuries, we believe the juvenile court abused its discretion in concluding not even a preponderance of the evidence supported modification of the prior order. (In re Audrey D., supra, 100 Cal.App.3d 34, 45, 160 Cal.Rptr. 802; In re Heather P., supra, 209 Cal.App.3d 886, 892, 257 Cal.Rptr. 545.) While we agree with the court in In re Jessica Z., supra, 225 Cal.App.3d 1089, 275 Cal.Rptr. 323, that no bright-line rule is possible concerning the expiration, if any, of the relative placement preference granted by section 361.3, we believe this record supports extending such preference to Grandmother even at the modification stage of the proceedings. We conclude that the court abused its discretion in evaluating Stephanie's best interests so as to deny the motion to modify her placement.
Relationship of the Sections 388 and 366.26 Hearings
We have already referred above to the “tension between the timely resolution of dependency cases and the thoughtful exercise of judicial discretion.” (In re Sean E., supra, 3 Cal.App.4th 1594, 1599, 5 Cal.Rptr.2d 193.) When the parents moved for modification of placement, they impliedly sought a continuance of their termination hearing if that modification were to be granted. Under section 352, a court is authorized to continue any dependency hearing beyond the time limit in which the hearing is otherwise required to be held, on request of counsel for the parent or other party. Since we find that the juvenile court should have granted the requested modification in placement, there is an inherent factual contradiction between the modification order, which we reverse with directions specified below, and the judgment terminating parental rights. (In re Sean E., supra, at p. 1599, 5 Cal.Rptr.2d 193.) 23 Our reversal of the modification order necessarily requires a reversal of the termination judgment as well. (Ibid.) Upon the Mexican court's assertion of jurisdiction, Mexican law concerning parental rights will be applied as deemed appropriate.
The judgment is reversed regarding the modification order and the termination of parental rights. The juvenile court is directed to grant the motion for modification and to fashion a transitional plan to extend no more than 60 days, with increasing visitation and contact between Stephanie and Grandmother. The juvenile court is directed to transfer custody of Stephanie to the Mexican authorities as contemplated in the letter rogatory no later than 60 days from the issuance of the remittitur in this case.
Concurrent with the issuance of the remittitur, the clerk of this court is directed pursuant to the Additional Protocol to the Inter–American Convention on Letters Rogatory, May 8, 1979, 18 International Legal Materials 1238, Transmission and Processing of Letters Rogatory, § IV, art. 4, to return the letter rogatory and attached documents, accompanied by a copy of this opinion, to the appropriate Mexican authorities for delivery to the judicial authority that issued said letter rogatory.
1. All statutory references are to the Welfare and Institutions Code unless otherwise specified.
2. The treaties relied on are the Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes (Vienna Convention), April 24, 1963, 21 U.S.T. 77, art. 5, subds. (h) & (i), article 37, subdivision (b), T.I.A.S. 6820 and the United States of America and Mexico Consular Convention (U.S.–Mexico Consular Convention), August 12, 1942, 57 Stat. 800, 125 U.N.T.S. 301, article VI, section 2, subdivisions (a) & (d).
3. The letter rogatory is a means of international transmission of a procedural act in one nation (e.g., a court order) to a judicial or administrative authority of another nation. (Additional Protocol to the Inter–American Convention on Letters Rogatory, May 8, 1979, 18 Internat. Legal Materials 1238, Transmission and Processing of Letters Rogatory, § IV, art. 4.)
4. Grandmother and her family are culturally middle-class Mexican citizens. In 1991, Grandmother was 38 years old and her husband, Stephanie's grandfather, 39 years old. They had their two younger children, ages 5 and 13, living with them.
5. Guadalajara, in Jalisco, is a city of over six million people. DIF is a large social welfare agency which functions similarly to its counterparts in the United States.
6. Although information about the parents' progress with their reunification plan is somewhat peripheral to the issues on this appeal, we include facts about the parents for background and because they may be involved with the child in the future. Psychological evaluations of Mother and Father were performed before this hearing. Father was evaluated as being passive and dealing with stress and problems by increasing his tolerance and relying on others; he said Stephanie got the bruises on her face because she tried to walk and fell. Mother's psychological evaluator felt that she could express frustration and anger by physically harming her daughter, even without intention of harming her. Mother's youthfulness, inexperience, isolation and lack of any proper support system could have led to impulsivity and frustration, but if she were allowed to return to Guadalajara, she would be able to function adequately.
7. The further investigation revealed that as of July 1991 the great-uncle and -aunt's family had had no history of referrals to the local (Long Beach, California) children's services bureau or police department.
8. In her declaration to the court in support of her motion for standing, Grandmother stated she had been told in Mexico that she had to wait until the parental rights were resolved in the United States proceeding to seek placement on her own behalf.
9. The special advocate prepared a report for the placement hearing which raised concerns over whether it would be difficult for the juvenile court to supervise a placement in Mexico.
10. The record shows that Grandmother's declaration stated she would be able to provide medical coverage for Stephanie.
11. According to the consul's representative, psychological counseling would be made available to Stephanie and the grandmother through DIF.
12. Earlier in the proceedings, the court had stated that the baptism photographs did not show one way or the other whether Stephanie was emaciated.
13. The record contains evidence that Grandmother earlier presented her belief that she should not come forward while reunification proceedings were pending with the parents.
14. Civil Code section 5152, subdivision (1)(c)(ii) provides that the appropriate court may render a child custody decree if, among other circumstances: “[I]t is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.”
15. Due to Stephanie's migrant status, it does not appear that either California or Mexico can properly lay claim to being her home state within the meaning of Civil Code section 5152, subdivision (1)(a), since she had not been residing in either place within six months before commencement of the proceeding. As noted above, emergency jurisdiction is provided by Civil Code section 5152, subdivision (1)(c)(ii).The “significant connection” basis for jurisdiction set forth in Civil Code section 5152, subdivision (1)(b) reads as follows: “It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.”
16. We deem the recent Mexican court order appointing a guardian for Stephanie, submitted to this court by letter rogatory, to meet these standards since it was made with full knowledge of the extensive California juvenile court proceedings which we review.
17. On the related issue of the assertion of California juvenile court jurisdiction over Mexican national juveniles who have allegedly committed offenses in California, see the opinion of this court in In re Manuel P. (1989) 215 Cal.App.3d 48, 263 Cal.Rptr. 447.
18. We are not impressed by the Department's argument that because dependency proceedings are not denoted “guardianship” proceedings, the terms of these treaties do not apply. Surely the language of such far-ranging documents must be read broadly, and dependency law is similar enough to private guardianship proceedings that we must decide the issues presented. (See § 326, appointing a guardian ad litem for a dependent child.)
19. In Sei Fujii, supra, 38 Cal.2d 718, 721, 242 P.2d 617, the Supreme Court discussed circumstances in which treaties are or are not self-executing. In this case, we have been requested by the Department to take judicial notice of a “Joint Agency Agreement between Mexican Consulate and the San Diego County Department of Social Services” entered into on April 29, 1992, after the judgment was issued and appealed in this case. (Evid.Code, §§ 452, 459.) This agreement is apparently intended to formalize the juvenile court's duty to notice the Mexican consulate in all cases involving Mexican nationals. As such, it appears that it is in execution of the consular convention provisions. Such an agreement will go far in preventing the problems presented by this case.
20. The lack of such penalty in the consular conventions renders inapposite the analogy drawn to the Indian Child Welfare Act of 1978, which expressly provides at 25 United States Code section 1914 that any action placing an Indian child in foster care or terminating parental rights to such a child may be invalidated upon a showing of lack of notice given. (In re Kahlen W., supra, 233 Cal.App.3d 1414, 1426, 285 Cal.Rptr. 507.)
21. It is appropriate for the parents to raise the issues concerning the appropriateness of the standing granted to Grandmother because of the closely interwoven interests of the parents' relationship with Stephanie and Grandmother's relationship with Stephanie. (In re Patricia E. (1985) 174 Cal.App.3d 1, 6, 219 Cal.Rptr. 783; see In re Albert B. (1989) 215 Cal.App.3d 361, 263 Cal.Rptr. 694; Charles S. v. Superior Court (1985) 168 Cal.App.3d 151, 214 Cal.Rptr. 47.)
22. We find no waiver of the placement issues through the parents' submission to the court upon the Department's recommendation for termination of parental rights. (See In re Tommy E. (1992) 7 Cal.App.4th 1234, 1236–1239, 9 Cal.Rptr.2d 402.) It was at all times clear that the modification proceedings were contested and there was no submission by the parents to the existing placement plan.We note, however, that to the extent Mother challenges orders made at the 12–month referral and review hearing, such challenges are untimely under section 366.26, subdivision (k).
23. Our reversal of the judgment with directions in this unusual case should not be construed as a departure from the principles expressed in In re Arturo A. (1992) 8 Cal.App.4th 229, 243–246, 10 Cal.Rptr.2d 131, concerning the general reluctance of an appellate court to act as a fact-finding body or to conduct, in effect, review hearings on appeal. Due to the international jurisdiction issues presented and the need for resolution and implementation of the letter rogatory, we deem it appropriate to direct a clear disposition of this case by the juvenile court.
HUFFMAN, Associate Justice.
WIENER, Acting P.J., and TODD, J., concur.