Nahid H. v. Superior Court of Sacramento Cty. (53 Cal. App. 2d 1051, 1997)

Opinion

PUGLIA, P. J.

This case presents a microcosm of global themes; war and revolution, the clash of cultures, generational conflict, bureaucratic inflexibility and the enduring strength of maternal ties.

Petitioner Nahid H. (mother) petitions for an extraordinary writ (Cal. Rules of Court, rule 39.1B; hereafter rule 39.1B) to compel respondent juvenile court to vacate its order setting a permanency planning hearing for her daughters Azadeh M. and Nadieh M. (Welf. & Inst. Code, § 366.26; further statutory references to sections of an undesignated code are to the Welfare and Institutions Code). Mother requests further that we order the dependency proceedings dismissed or, alternatively, direct the juvenile court to develop a reunification plan designed to bridge the physical and emotional rift between her and her daughters (the minors). For the reasons stated below, we shall order the juvenile court to vacate the order setting a permanency planning hearing and develop a reunification plan as requested.

Before reaching the merits, we address the request of real party in interest, Sacramento County Department of Health and Human Services (Department), that we dismiss the petition as facially insufficient. The petition is, at best, meager. (See Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1508 [45 Cal.Rptr.2d 805] .) It avers conclusionally that the court erred by failing to provide reunification services to the mother. The facts are sparingly summarized and there are no points and authorities (see rule 39.1B(j) [“Petitioner shall attach applicable points and authorities’’]). The Department urges that such a skeletal petition should be interred without further obsequies.

In recent months several appellate decisions have questioned whether appellate courts should review the merits of appeals and writ applications lacking developed arguments. (In re Sade C. (1996) 13 Cal.4th 952 [55 Cal.Rptr.2d 771, 920 P.2d 716]; Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947 [58 Cal.Rptr.2d 56]; Cheryl S. v. Superior Court (1996) 51 Cal.App.4th 1000 [59 Cal.Rptr.2d 520].) In re Sade C. held a dependency appeal is subject to dismissal as abandoned where counsel files a brief with a statement of the facts but no argument, and requests the appellate court independently to review the record for error pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] and People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071]. Citing Sade C., the court in Cresse S. stated, in dicta, that a rule 39.1B petition lacking an adequate record, argument and points and authorities should be dismissed. (Cresse S. v. Superior Court, supra, 50 Cal.App.4th at p. 955.) Taking its cue from Cresse S., the Court of Appeal in Cheryl S. announced it will dismiss any rule 39.IB petition which fails to include a factual summary, record references, and points and authorities relating any claimed error to the facts. (Cheryl S. v. Superior Court, supra, 51 Cal.App.4th at p. 1005.)

Attorneys representing parents or minors in dependency proceedings generally are paid less than the market rate established for legal services in other practice areas. (Cresse S. v. Superior Court, supra, 50 Cal.App.4th at p. 956.) As a result many, if not most, attorneys, no doubt guided by an invisible hand, allocate a larger amount of their resources to more remunerative endeavors and less to those that are relatively unrewarding financially. Added to this economic pressure are institutional pressures for expedition (see rule 39.1B(k) [petition to be served and filed within 1Ó days after filing of record]) and for brevity, the latter encouraged by the Judicial Council form dependency petition (rule 39.1B(i)), which emphasizes blank-filling and box-checking over detailed factual exposition and argument. Although Wende review is not constitutionally required in dependency cases (In re Sade C., supra, 13 Cal.4th at p. 994), use of the truncated Judicial Council form petition, without more, is the functional equivalent of a request for Wende review. Because of the importance of the rights at stake (id., at pp. 987-990), reviewing courts are nevertheless inclined to respond by meticulously combing the record in search of error. Quite apart from the burden this practice gratuitously places on the court, the default of petitioner’s counsel also tends subtly to alter the institutional role of the court as neutral arbiter.

Rule 39.1B(j) instructs counsel on the contents of the petition: “The petition for extraordinary writ shall summarize the factual basis for the petition. Petitioner need not repeat facts as they appear in any attached or submitted record, provided, however, that references to specific portions of the record, their significance to the grounds alleged, and disputed aspects of the record will assist the reviewing court and shall be noted. Petitioner shall attach applicable points and authorities. . . .” (Italics added.) Thus counsel are enjoined to function as professionals, not as mere scriveners.

Nevertheless, we shall not exercise our discretion summarily to dismiss the petition (see Cheryl S. v. Superior Court, supra, 51 Cal.App.4th at p. 1005). Insofar as the record shows, mother has never by act or conduct brought herself within the proscriptions of section 300. As will be shown, she is before the court precisely because she subordinated her maternal interests to the safety of her children. Given these unusual facts, a refusal to entertain this petition on the merits would risk grave injustice.

Mother was bom in Iran 38 years ago. Her father is a successful businessman in Iran and provides financial support to mother as needed. The minors were bom in Iran following mother’s first marriage in the early 1980’s. Nadieh, presently age 14, was bom in May 1982, and Azadeh, presently age 13, was bom in January 1984.

The minors had scarcely emerged from infancy when tragedy threatened the children of Iran. Iran was at war with Iraq. The war decimated the Iranian population. Children from age 13 were subject to involuntary service in the armed forces. The regime of the Ayatollah Khomeini pursued the war with a holy fervor. Children of all ages were bombarded with propaganda and forced indoctrination with the ideology of the Iranian revolutionary government.

Thousands of Iranians fled their homeland to escape the fundamentalist, anti-Western, Islamic regime headed by Khomeini. Mother, her husband, and the minors were among these refugees. They fled to Iraq, settling in Baghdad amidst a colony of Iranian refugees. Mother, who was trained as a schoolteacher, taught in a school with about 800 Iranian students. Conditions in the colony’s compound were spartan, but the compound was secure, for the Iraqi government was content to harbor those who sided with its cause.

The colony was organized under the auspices of the National Committee of Resistance (NCR). The NCR was an organized group of anti-Khomeini Iranians with headquarters in France. The People’s Mujahedin Organization of Iran (PMOI) was a constituent part of the NCR. This group was also known as the Mujahedin, which means “Holy Warriors.” The Mujahedin existed as a government in exile on French soil and maintained an army. Many Iranians living in Baghdad supported the Mujahedin’s efforts to oust the Khomeini government.

Iranian supporters of the Mujahedin were at grave risk if they were found within Iran’s borders. Convincing proof of this was shown by the circumstances of the father’s death in 1988. At that time, the mother, father, and minors had been living in the Baghdad refugee colony for some five years. The minors’ father received word from Iran that his father was seriously ill. He attempted surreptitiously to return to Iran to visit his father for perhaps the last time. He was identified at the border by revolutionary guards and summarily executed. The minors were three and five years old at the time of their father’s death.

Approximately six months after her husband’s death, the mother remarried. It was reported that the minors’ stepfather was their natural father’s brother. The stepfather worked at a newspaper office in Baghdad.

The mother and the minors continued to reside at the Baghdad colony until the Gulf War erupted in early 1991. Iraq attacked Kuwait and the United States joined with Kuwait to resist Iraqi aggression. As part of its assistance, the United States bombed military targets in Iraq, many of which were in Baghdad. Bombs rained down on the capital city, and some landed within meters of the school where mother taught.

Iranians in the Baghdad colony sought assistance from the Iraqi government. Some fled to Turkey and sought assistance from officials of the United Nations. Others asked the Mujahedin leaders for assistance. Escape was particularly difficult for undocumented Iranians such as mother and the minors. Mother contacted her father in Iran and asked if he would come to Iraq and take the minors to a neutral country. Her father offered to shelter the minors in Iran, but he could not take them to a third country because of business commitments.

Mother refused to allow her children to return to Iran, so she searched for alternatives. Several days after the bombing started, mother heard of a plan to send Iranian children by an escape route into Jordan. Once in Jordan, the children would be retrieved by, or transported to, relatives or friends in different parts of the world.

Mother, having escaped to Iran’s enemy Iraq during the war between those two countries, now sought to send her children to the United States during its war with Iraq. She contacted a childhood friend, Ahmed, who had fled to the United States from Iran more than 10 years earlier. Ahmed lived in El Cerrito with his wife and two teenage boys. Tradition discouraged placing the two young girls in a home with teenage boys, so she asked Ahmed if he knew of any other Iranian family where the minors could safely be placed. Ahmed told mother of his friend Parvin, who lived in Sacramento with her husband Javad. Mother telephoned Parvin and explained her predicament. Parvin assured mother that the minors would be safe with her, and that they would remain sheltered from the decadent American lifestyle.

Satisfied with Parvin’s assurances, and having no other alternative, mother arranged passage of the minors along the escape route to Jordan. From Jordan, the minors were transported to an orphanage in Paris, France, where they were provided with false passports. Parvin flew to Paris, took custody of the minors, and returned with them to the United States.

Mother was able to maintain intermittent contact with Parvin from Iraq. She wrote letters every few months. She also received periodic reports on the minors’ progress from an Iranian woman she had known in Baghdad. The woman, who had a Dutch passport, was able to flee Iraq with her family and move to Northern California in the wake of the Gulf War in early 1991. During the next few years, the woman and her daughter (who was Nadieh’s age) visited with the minors in Sacramento. The minors always asked about their mother.

Parvin enrolled the children in school. Unknown to her, her husband, Javad, took a perverted interest in the elder girl, Nadieh, who was then eight years old. The accounts of what transpired differ. Two years later, Nadieh told her teacher that Javad had raped her several times during the preceding two years. In accounts to others, Nadieh explained that on several occasions Javad had fondled her breasts through clothing and had rubbed his penis against her underpants.

After Nadieh complained to her teacher, the Department was contacted and dependency proceedings were commenced. The petition relating to Nadieh alleged that Javad had performed lewd and lascivious acts upon her during the preceding two years, including but not limited to fondling and sexual intercourse, with the last act occurring on November 29, 1992. This allegation was the predicate for jurisdiction under section 300, subdivision (b) (failure to protect) and subdivision (d) (sexual abuse). Jurisdiction under subdivision (g) (no provision for support) was based on the following allegations: “Said minor’s natural parents, Nahid and Bahroos M[.], reside in Iran and have been deprived of lawful custody of said minor. Further, their exact whereabouts, willingness, and/or ability to provide for the care or supervision of said minor are unknown.” These same allegations were repeated in the dependency petition filed as to Azadeh. An additional basis of jurisdiction alleged as to Azadeh was section 300, subdivision (j) (abuse of sibling).

When mother’s El Cerrito friend, Ahmed, received word of the dependency proceedings, he wrote to mother and explained the situation. Mother contacted a female acquaintance, Ensieh, who lived in Richmond, and related that she was unable to leave Iraq without a passport or visa. Ensieh contacted the social worker before the jurisdictional hearing and told him that mother was attempting to travel to the United States to retrieve her children, but that it was extremely difficult to obtain a visa due to the wartime conditions. Ensieh requested that the children be placed in her custody or with an Iranian family she knew in San Jose. Ensieh had visited the minors recently and they had expressed a desire to be with their parents, or at least with a non-American family.

This exchange was detailed in the social worker’s report for the January 1993 jurisdictional hearing. The report also stated that mother had sent the minors to live with Parvin and Javad two years earlier to escape the war. Mother had informed the minors that she did not want them to live with an American family.

At the jurisdictional hearing held in January 1993, the court declared the minors dependents and ordered them to participate in a program of professional counseling focusing on issues of sexual abuse, victimization, and abandonment. Reunification with the parents was conditioned on ascertaining their whereabouts.

The minors were initially placed with the teacher to whom Nadieh had reported the molestation. Thereafter the Department acceded to the minors’ wishes and placed them in a foster home where the foster mother was of Iranian and Turkish descent. The foster mother spoke Farsi, which facilitated communication with the minors.

A few months later, in late May 1993, the minors received a telephone call at their foster home from a woman who claimed to be their mother. The caller stated that a man would meet with the social worker and request that the minors be placed with an Iranian family in San Jose. The caller informed the minors they should agree to the placement. The caller also told Nadieh that she was of an age where she could return to Iraq. The minors reported the call to the social worker, and stated they did not believe the caller was their mother. Nevertheless, the call was upsetting, particularly to Nadieh. A few months earlier, Nadieh had received a letter from her mother stating that a girl two years older than Nadieh had recently joined the Mujahedin, and it was the mother’s hope that Nadieh would consider joining the organization. Nadieh also was upset because mother had promised that she would join the minors a month after they arrived in Paris, but now two years had passed. Nadieh had given up hope of ever seeing her mother again.

Dependency jurisdiction was continued at the six-month review hearing in July 1993 based on the stipulation of the Department, the guardians, and the minors. The social worker’s report disclosed no progress in locating the minors’ parents. Search efforts had included contacting the Red Cross as well as Iranian officials in Washington, D.C. The minors did not appear to have any relatives living in the United States. Javad, whose molestations had provoked the dependencies, could not be reached and it was believed he had fled the country.

During the same month, Ahmed approached the social worker on mother’s behalf. Ahmed testified he informed the social worker that he did not have direct contact with mother, but that he could relay messages to her. The social worker replied that mother would have to come to California in order to regain custody of the minors. Ahmed explained this would be impossible because the mother was marooned in Iraq. During another visit, Ahmed presented the social worker with a document, written in Arabic and English, which purported to delegate to Ahmed mother’s power of attorney with respect to the minors. The social worker told Ahmed the document did not give her power to transfer custody of the minors to him. Ahmed reiterated that mother could not leave Iraq without papers. He told the social worker mother would come to California if the Department could secure a visa for her. According to Ahmed, the social worker said she would look into it.

The social worker recounted her meetings with Ahmed in the report prepared for the October 1993 review hearing. The social worker related that the minors were fearful of Ahmed. They said he attended political meetings in Iraq and he frequently marched on the state capítol with other Iranians. The social worker wrote that she had offered to assist Ahmed in any way possible to hasten mother’s journey to the United States, but Ahmed had seemed to imply mother was unwilling to come here.

The court continued dependency jurisdiction in November 1993 and set a 12-month review hearing for January 1994. The January hearing went forward as scheduled and dependency jurisdiction was continued, based on the stipulation of the Department and the minors, who agreed to be bound by the recommendations in the social worker’s report. One of those recommendations which the court adopted was that reunification services to the parents be terminated. Long-term foster care remained as the preferred permanent plan based on the minors’ unstable legal status and the parents’ unknown whereabouts.

The report for the January 1994 hearing related that the minors appeared to be well adjusted in their foster home where they resided together. Nadieh, a sixth-grader, was very sociable, and had enjoyed recent trips to Los Angeles, Lake Tahoe and other places. She had gone to a Christmas party and received many presents. She also spent a good portion of the Christmas vacation with the foster mother’s daughter, who was home for the holidays from college. Azadeh, who had entered the fourth grade, also enjoyed travels and Christmas holidays.

Mother escaped from Iraq in early 1994, about a year after the minors had been declared dependents, and three years after they had fled to the United States. According to mother, she had hoped to leave Iraq shortly after the Gulf War ended, but her hopes were dashed by the constant state of emergency there. No one was permitted to leave the country without proper papers. With the help of relatives, though, mother crossed the Turkish border illegally. The relatives arranged for mother to get a false Iranian passport and visa while in Turkey, and then to travel to Germany.

Ahmed and his cousin Simin visited the social worker in May 1994 and asked that the minors be placed in Simin’s custody at her Orange County residence. They informed the social worker that mother had escaped from Iraq and would travel to the United States if she were able to secure the needed papers, but that prospects were bleak.

The social worker wrote of her meeting with Ahmed and Simin in the report prepared for the 18-month review hearing in July 1994. The prospect of potential reunification of the minors with their mother was a cause of some concern to the social worker and her supervisor. The minors had informed the social worker that they missed their mother but did not wish to reunify. According to the minors, their mother was one of the leaders of the Mujahedin military, and would surely return them to Iraq for Mujahedin indoctrination to prepare them for service in the military. The foster mother confirmed that the minors were at the age where the Mujahedin organization begins to brainwash children to serve the movement.

At the July 1994 review hearing, the court ordered long-term foster care as the permanent plan for the minors.

Mother’s first direct contact with the social worker occurred in October 1994, when mother telephoned from Germany and left a voice mail message for the social worker. Mother introduced herself in English and asked to speak with the minors. The social worker tried to return mother’s call several times without success. She finally spoke directly with mother in early December 1994. The initial conversation with mother concerned the well-being of the minors. Mother wanted to know the details of the molestation of Nadieh as well as the consequences for the perpetrator. Mother indicated she wanted the minors with her in Germany. The social worker asked about mother’s involvement in the Mujahedin, and mother stated it was minimal. Mother stated that she intended to come to the United States, but she wasn’t sure how many months it would take, as she was a political refugee in Germany and did not have the papers required for passage to the United States.

The social worker explained what would be required in order to reunify with the minors. First, the minors would have to identify her. If they could not, blood tests could be ordered. Once it was established that she was the mother, there would be further discussions regarding what steps would be taken to reunify.

As to the first condition, mother gave identifying information about the minors, and asked to speak with them so they could verify she was their mother. The social worker contacted the minors and asked them if they wanted to talk to their mother. When they declined, the social worker dropped the matter.

An administrative review (§ 366.3, subd. (e)) of the minors’ placements was conducted in January 1995, with no change recommended. In a report prepared for the review hearing, the social worker detailed Azadeh’s emotional reaction to placement with her sister in a new foster home. The former foster home was inappropriate due to licensing violations. Azadeh threatened to kill herself if moved, since she had been the favored child. However, she was able to bond with the new foster mother during visits with her sister. The new foster mother was Caucasian and the foster father Hispanic. The foster parents respected the minors’ cultural differences. The social worker indicated that placement with a non-Iranian family was deemed the safest option since it would be nearly impossible to ascertain whether an Iranian family was aligned with the Mujahedin. The minors had not had any contact with their mother, and did not want to read any of her letters that mentioned the Mujahedin, since they were fearful of being impressed against their will into service with that organization. The minors also were angry at their mother for sending them to America to live with a man they described as sick-minded and nasty.

The report spoke of the social worker’s conversations with mother: “The woman stated that she was residing in Germany and planned to come to the United States to get her children. The woman claimed the minors’ father was executed by Khomeini for his participation in the [PMOI]. She indicated that she and the girls escaped Iran with nothing but the clothes on their backs. Therefore, legal documents such as birth certificates were unavailable. The woman asked if she could have telephone contact with the girls. The undersigned told the woman that the girls did not wish to have telephone or face-to-face contact with her. However, the woman was told she could send letters.”

Without credible foundation, the report then delivered a grim assessment of the conflict between the Mujahedin and the Iranian government: “Mother’s participation in the People’s Mojahedin [sic] Organization of Iran presents a very real danger to the girls. Mojahedin [sic] supporters are raped, tortured and executed on a regular basis. The Iranian government believes that children nine years and older are eligible for arrest, imprisonment, rape, torture and execution if it is believed they are associated with the PMOI. Therefore, the girls’ very lives are in danger because of the mother’s political participation in the PMOI. The Iranian government considers the girls supporters of the PMOI because of their mother’s active participation in the organization. Should the mother arrive in the United States to take the girls with her, they will be forced to dedicate their lives to this organization. Azadeh and Nadieh do not wish to have any part of this, nor do they wish to be associated with the PMOI. Therefore, it is not in the minors’ best interest to facilitate reunification with the mother.”

The social worker testified that mother’s letters contained references to the Mujahedin. An excerpt of one of mother’s letters received in mid-1994 was translated as follows: “Dear Nadieh: I don’t know if you’re going to the organization’s meeting or not, but if you don’t, make sure you do it and help your uncles and aunts with the organization work. [<]□ Tel is now in Paris and working with the organization. [