San Diego County Department of Social Service v. Norma M. (7 Cal. 4th 295, 1994)

Opinion

MOSK, J.

I. Introduction

The Court of Appeal reversed the order of the juvenile court denying a motion for change of placement of a minor from foster care to her grandmother’s care. The Court of Appeal concluded that the lower court’s error in ruling on the motion for change of placement also required reversal of its ensuing order terminating parental rights. The minor and the San Diego County Department of Social Services (Department) petitioned for review, arguing that the Court of Appeal erred in substituting its judgment for that of the juvenile court, in failing to accept the proffer on appeal of new evidence regarding the child’s best interests and in ordering her immediate transfer to her Mexican guardian without further hearing in the juvenile court. In response, the parents and Mexico, as amici curiae, have questioned the jurisdiction of any court of this state to determine the custody of the minor, who is a Mexican national.

We conclude that the juvenile court properly exercised jurisdiction under the Uniform Child Custody Jurisdiction Act. (Fam. Code, § 3400 et seq.) We also conclude that the juvenile court did not abuse its discretion in denying the motion for change of placement. Accordingly, the judgment of the Court of Appeal must be reversed. Because we reverse, we do not reach the other issues presented by the minor and the Department.

II. Facts

Stephanie M. was born on January 26, 1989, in Guadalajara, Mexico. She lived in her maternal grandmother’s home with her mother until she was nine months old. She moved with her mother in October 1989 to Oceanside in San Diego County, to join her father. All three were Mexican citizens who had entered the United States illegally.

On February 15, 1990, the Department filed a petition to establish the jurisdiction of the juvenile court over Stephanie under Welfare and Institutions Code section 300, subdivisions (a) and (b), alleging that the child had suffered nonaccidental injuries and that the parents had failed to provide adequate medical treatment. It was alleged that on February 11, 1990, the parents brought Stephanie to the hospital because she had stopped breathing. The child was diagnosed as suffering from battered child syndrome. In addition to three bone fractures and substantial bruising, she had recently been suffocated.

The parents denied any abuse and explained that Stephanie had suffered an accident in which her arm was broken and that they had sought treatment from a masseuse, according to purported Mexican custom.

At the detention hearing on February 15, 1990, the juvenile court found a prima facie showing had been made that Stephanie was a person described in section 300, subdivisions (a) and (b), and ordered her placed in foster care. The court ordered the Department to evaluate the homes of relatives for possible placement and authorized detention of the minor with those relatives if appropriate.

Stephanie’s maternal grandmother told the social worker assigned to the case that she wished to care for the child. On February 27, 1990, the court set the matter for a contested jurisdictional hearing and authorized the Department to place the child with her grandmother after consultation with the child’s counsel. The child remained in foster care, however.

The. jurisdictional hearing was held on April 10, 1990. Before the court was the Department’s report containing psychological evaluations describing the parents’ inadequate functioning and denial of abuse. The Department recommended that Stephanie be placed with her grandmother, as the two were attached to each other, the Mexican social service report was positive and the Mexican agency was willing to assume supervision of the case. The Department’s counterpart in Guadalajara, the Sistema Para El Desarrollo Intégrale de la Familia Jalisco, had evaluated the grandmother’s home favorably, finding it large and the family in possession of sufficient income to care for Stephanie. This agency also recommended placing Stephanie with her grandmother.

Also before the court at the jurisdictional hearing were medical reports describing the seriousness of the injuries inflicted on the child, and reports from the receiving hospital that the parents denied inflicting the injuries, which were clearly nonaccidental. The foster parents proffered evidence that their pediatrician thought it likely Stephanie had been undernourished before her arrival in the United States. They also stated that Stephanie was afraid of her father, and indeed, exhibited extreme fear of most men. They expressed concern that to release the child to her grandmother in Mexico would invite contact with the parents that would be dangerous for the child.

The court found the allegations of the petition true and continued Stephanie in foster care, ordering further reports on the grandmother’s suitability and on the question of Stephanie’s malnutrition.

At the disposition hearing on May 2, 1990, the court received the social worker’s report, which noted that two pediatricians agreed that Stephanie had been malnourished in the past. The social worker stated that she had requested a second evaluation of the grandmother’s home, as the grandmother herself had been absent when the Mexican social service agency had evaluated it before. The social worker recommended continued foster care. Also before the court was the report of an investigator employed by Stephanie’s counsel, declaring that the grandmother had told the investigator that she did not believe the parents had abused Stephanie, and that the girl had breathing problems as an infant The grandmother told the investigator, however, that if the child were placed with the grandparents, they would put the child’s interest above that of the parents, and would not allow the parents to take Stephanie without court approval.

The court declared Stephanie a dependent of the court and continued her placement in foster care pursuant to section 361, subdivision (b), ordered reunification services for the parents and notified the parents that their parental rights could be terminated if they failed to complete reunification within 12 months. The parents did not appeal.

On July 20,1990, Voices for Children was appointed as special advocate/ guardian ad litem for Stephanie.

At the six-month review hearing held on October 31, 1990, pursuant to section 366, the parents had complied with the reunification plan but continued to deny abuse. The social worker recommended against placement with the grandmother because the grandmother did not believe the parents had abused the child and would therefore be unable to protect the child against further abuse by the parents. The foster parents reported that Stephanie was upset by her parents’ weekly visits.

The social worker and special advocate recommended continued foster placement but increased visitation with the parents. The special advocate evaluated the grandmother, noting her visits but questioning her ability to protect Stephanie from the parents. She reported that the parents wished to return to Mexico once they regained custody of the child, but did not wish to live with the grandmother. The special advocate noted conflicting evidence regarding Stephanie’s malnutrition in Mexico, and the grandmother’s insistence that Stephanie’s parents could not have abused her. The psychologist working with the parents also noted their continued denial of abuse and recommended continued foster care.

The court ordered continued foster placement and supervised visitation, along with therapy for the parents.

On May 1,1991, the case was set for a contested 12-month review on July 8, 1991, and that hearing was continued to July 23, 1991.

On June 6, 1991, the juvenile court received a letter from the consul general of Mexico serving in San Diego, noting its duty to protect and aid Mexican nationals and asking the court to consider the grandmother’s demonstrated interest in custody of the child, that the Mexican social service agency had concluded in its second evaluation that the grandmother could meet the needs of the child, and that the entire family, including the child, were Mexican citizens. The consul general asked the court to consider placing the child with the grandmother.

Also on June 6, 1991, the foster parents applied for de facto parent standing, emphasizing their close connection with the child since her placement with them on March 22, 1990, and their desire to adopt the child. The court granted them de facto parent status.

At the 12-month review hearing held on July 23, 1990, the grandmother was present with counsel and 2 representatives of the Mexican consulate, who did not object to the jurisdiction of the juvenile court nor request the intervention of the Mexican consulate or government as a party.

At the hearing, the court had before it the report and recommendation of the Department, which observed that the parents continued to deny the abuse and treated the child inappropriately during visits. It also noted that the child displayed fear of the parents and emotional upset after her visits with them. The Department acknowledged a cautiously favorable psychological evaluation of the grandmother and her attachment to Stephanie. The psychologist noted the grandmother’s passive personality, but recommended supervised placement with the grandmother, and opined that Stephanie would not be injured by severance of ties with her parents. An updated Mexican social service report continued to recommend placement with the grandmother. The Department recommended that reunification services be terminated and that a hearing pursuant to section 366.26 be held to establish a plan for adoption, guardianship or long-term foster care. The parents and all parties submitted on the basis of this report and recommendation.

The court found that return of Stephanie to her parents would create a substantial risk of harm to her physical or emotional well-being, that there was no substantial probability of her return to her parents by the 18-month review date, and that reasonable services had been provided to the parents.

The parties did not agree as to placement. The parents requested placement with the grandmother or an aunt in Long Beach. The social worker recommended foster care.

The court ordered increased visitation with the grandmother and set the matter for a contested hearing on September 23, 1991, subsequently continued to October 28, 1991, stipulated to be pursuant to section 388, with the issue to be litigated designated as whether the minor should be placed in the current foster home or with a relative.

The grandmother moved for standing as a party. At the hearing on the motion held September 10, 1991, the court granted standing to provide a statement to the court, present evidence and refute allegations against her in any hearing at which she was present.

At the contested hearing pursuant to section 388, the parties stipulated that the entire court file could be considered on the question of a change of placement from foster parents to grandmother. In addition, there was extensive testimony.

The Department’s social worker testified that she had been supervising visits between the child and her grandmother since August 1991. She described the child as extremely emotionally fragile and in need of stability. She did not recommend placement with the grandmother because the grandmother was passive and had not acknowledged the parents’ responsibility for the abuse. The grandmother testified that she had at first thought that the parents’ roommates had injured the child, but that she had acknowledged the parents’ responsibility since February 1990. She conceded that she had told the special advocate in April 1991 that she did not think the parents had hurt the child and that the injuries were the result of a fall. She also testified that if the child were placed with her, she would obey all court orders regarding parental visitation, would not allow the mother to reside with her, and would accept the foster parents into her home for visitation. A representative of the Mexican consulate testified that the Mexican social service agency had assured her they would supervise the child’s placement with the grandmother, but would not return her to the United States if that placement were ineffective.

A psychologist expert in the field of child abuse testified that Stephanie exhibited signs of an extensive history of emotional trauma and had post-traumatic stress reaction to severe abuse suffered in her first year of life. He found the child fragile, with a great need for stability. He was of the opinion that if her attachment with the foster parents were disturbed she would suffer considerable psychological disruption. He believed that the child’s primary bond was to the foster mother, and that to sever this bond would damage the child. He saw no primary or even secondary bond between the child and the grandmother. He acknowledged that if the child stayed in the foster home, she would have to confront cultural identity issues later in her development.

The foster mother testified that the grandmother did not visit or contact the child between March 1990 and March 1991. She testified that the child was reluctant to visit the grandmother and had adverse emotional reactions to the visits, including toileting accidents, biting, fantasy injuries and sleep disturbance.

In addition, the court had before it the report of a psychologist who evaluated the grandmother and found her passive but adequate to care for the child as long as she had clear guidelines. The psychologist questioned the grandmother’s ability to prevent the parents from becoming part of her household. The special advocate reported a similar concern with the grandmother’s passive nature, and concluded she was not equipped to provide the special psychological support that the child would need, nor to protect the child from further harm from her parents. Another psychologist reported on visits between the grandmother and the child, and concluded that the child exhibited anxiety in being separated from her foster mother, and had no significant relationship with her grandmother.

The court denied the motion for change of placement on the ground that the child’s special emotional needs and lack of primary emotional bond with the grandmother made a change not in her best interest.

At the hearing on January 15, 1992, held pursuant to section 366.26, but denominated a continuation of the earlier hearing, the court found that Stephanie was adoptable and that none of the circumstances that would make termination detrimental to the minor existed. Parental rights were terminated.

On March 17, 1992, the court of the State of Jalisco in Mexico asserted jurisdiction over Stephanie and appointed a guardian. On April 9, 1992, the Mexican government delivered to the juvenile court a letter advising the court of the Mexican court’s assertion of jurisdiction and requesting the California court to take the letter under consideration.

Both parents appealed. The Court of Appeal concluded that the juvenile court had erred in denying the motion for change of placement and that therefore, the ensuing order terminating parental rights must also be reversed.

III. Jurisdiction

A. International Law

Mother argues that the juvenile court lacked jurisdiction over the matter under review because the failure of the juvenile court and the Department to give notice to the Mexican consulate of the pendency of this dependency action violated the Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes of April 24, 1963. (21 U.S.T. 77, T.I.A.S. No. 6820, hereafter Convention.)

We agree with the Court of Appeal that any failure to give notice according to the Convention did not deprive the juvenile court of jurisdiction. Article 37 of the Convention, upon which mother relies, provides that: “If the relevant information is available to the competent authorities of the receiving State, such authority shall have the duty: [