San Diego County Health & Human Services Agency v. Mari M. , 192 Cal. Rptr. 3d 849 ( 2015 )

Filed 9/25/15
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re M.M., a Person Coming Under the
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND D067870
HUMAN SERVICES AGENCY,
Plaintiff and Respondent, (Super. Ct. No. SJ13093)
v.
MARI M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Mari M. (mother) appeals from the order of the juvenile court that her son M.M.,
born June 2013 (minor), was a child described by Welfare and Institutions Code section
300, subdivision (a). Mother contends the juvenile court erred when it (i) assumed
permanent jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement
Act (Fam. Code,1 § 3400 et seq.) (UCCJEA), after officials and a supreme court judge
from minor's "home state" of Japan unambiguously and repeatedly stated it was
inappropriate under their legal system for a Japanese court to communicate with the
juvenile court regarding this case; (ii) failed to advise her that she could commence a
separate custody action in Japan; and (iii) found minor a dependent under subdivision (a)
of Welfare and Institutions Code section 300, rather than under subdivision (b) of that
statute. Affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2014, the San Diego County Health and Human Services Agency
(agency) received a report of severe domestic violence between mother and Rogers M.,
minor's father (father),2 which had taken place on December 2, 2014 and which had been
witnessed by minor. The domestic violence included father choking mother while
holding minor; father throwing mother into a piano, a table and onto the floor while
minor was "at their feet"; father pinning mother on the floor at least two times; father
breaking mother's phone; and mother hitting and kicking father and shredding his shirt
1 All further statutory references are to the Family Code unless noted otherwise.
2 Father is not a party to this appeal.
2
among other allegations. The December 2 domestic violence incident came to light on
December 4, 2014 when Mother contacted father's naval command. Father's command
met with mother and father and summarily issued a military protective order (MPO)
requiring father to live outside the home pending its investigation.
The agency in its January 13, 2015 detention report noted that during an agency
interview shortly after the incident, mother admitted minor was "at their feet" during
most of the December 2 incident; that the incident involved "choking, hitting, grabbing,
throwing objects [and] pushing" and father pinning her down "several times"; that she hit
father at least two times with a piano stool; and that at one point while she was hitting
father, father was holding minor. Mother nonetheless maintained she wanted the MPO
rescinded because father had "learned his lesson."
The January 13 detention report also included an agency interview with father. He
admitted during the December 2 incident he pinned mother down on the floor; grabbed
and pushed her, causing her injury; broke her cell phone; and pushed her with a "long end
table." Father also reported mother hit him with her hands; kicked him with her feet; hit
him "several times" with a piano stool; tore off his shirt; and spat on him. Father
confirmed that minor witnessed the incident and that during a portion of the incident,
father was holding minor.
The detention report noted that despite the domestic violence, both mother and
father wanted the MPO terminated; that they claimed they would never engage in
violence again; but that neither had expressed any "empathy for [minor] and the danger
3
they put him in . . . ." That report further noted that neither mother nor father could
provide the agency with a "description of the skills that they have developed" since the
incident, and at least with respect to father, that since the incident he continued to make
statements indicating that he might become violent again, "such as speaking in an angry
tone while blaming mother for involving his command in the first place."
The agency in the January 13 report also noted that it was working with "Navy
Fleet & Family Services" (NFFS) and father's command to assist the parents with
services. The agency received reports from NFFS regarding the "lack of cooperation and
progress" of mother and father. The agency noted that mother and father had also
provided "conflicting and/or partial statements" to the agency and/or to NFFS, including
in connection with prior domestic violence between them.
During an agency interview, mother stated she and father had only one prior
incident of domestic violence, which occurred when father pushed her against a wall and
she fell to the floor. In this incident, mother stated she was then pregnant and was afraid
she was going to lose the baby. However, the agency noted mother told her therapist at
NFFS that there had been a "number" of prior domestic violence incidents between her
and father. The agency report also noted father initially did not disclose to his command
that he had choked mother during the December 2 incident.
The January 13 report noted both mother and father denied the December 2
incident had any "negative impact" on minor and both were "primarily focused on father
returning to the home and convincing the [a]gency and the Navy that the most
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appropriate plan [was] for . . . the MPO [to be] lifted." Because mother and father
minimized the violence stemming from the December 2 incident, stated they did not need
domestic violence services and refused to recognize that minor was a "victim" of the
violence as well, the agency recommended that the minor live in mother's care and father
live outside the home; that they be restrained from having contact with one another
pending progress in services; and that the juvenile court provide the oversight to
minimize the likelihood of future domestic violence incidents between them.
The juvenile court at the January 13, 2015 detention hearing found that the agency
had made a prima facie showing minor was a person described by Welfare and
Institutions Code section 300, subdivision (a) and that the agency had presented sufficient
facts showing the reason initial removal was necessary. The court ordered that minor be
detained with mother; that services be provided to effectuate reunification; and that
visitation between minor and father be supervised by a third party. The court also issued
a restraining order against father, while noting the MPO was in effect and was
" 'indefinite,' " and set a jurisdictional and dispositional hearing.
In the January 28, 2015 jurisdiction/disposition report, the agency recommended
that a true finding be made on the Welfare and Institutions Code section 300, subdivision
(a) petition and that minor be declared a dependent of the juvenile court while remaining
in mother's care. In that report, the agency confirmed the Navy had substantiated
"Domestic Violence against the father and the mother as well as substantiated Child
Abuse and Neglect to both parents" arising from the December 2 incident.
5
Mother reported during a January 23, 2015 agency interview that father "has
aggressive/anger" problems; that father claims it's " 'in [his] blood' "; that although the
December 2 incident was "very violent," she did not believe minor had been traumatized
by witnessing the incident because minor believed mother and father were merely
"playing"; and that she and father needed help before he returned home to prevent
additional incidents of domestic violence.
The January 28 report also included a follow-up interview with father. He stated
that the December 2 incident began when mother insisted he call his parents regarding
money father had lent them; that things escalated between them when his parents said
they did not have the money; that mother made several comments about father's parents
and father in response pushed mother; and that mother was the aggressor during the fight
and refused to stop, despite his repeated requests. Like mother, father reported during the
interview that minor was not " 'upset at all' " over the violence and that minor seemed to
think they were playing. Father nonetheless reported it was wrong to have fought in front
of minor.
The agency in its January 28 report noted a "slight change" in the demeanor of
mother and father, as they both appeared to understand they needed help to ensure there
were no other incidents of domestic violence. Father admitted to having an "anger
problem that needs to be addressed" and both mother and father took "full responsibility
for their actions." Despite what appeared to be a slight change in attitude, however, the
agency noted that both mother and father "seem to have trouble understanding how their
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son was affected by their actions through the trauma he endured being subjected to such
violence in close proximity to him"; and that neither mother nor father "truly grasp[ed]
the enormous risk they placed their child in during this fight" or the "cycle of domestic
violence and effects and trauma it has on children."
In addition, the agency noted despite the slight change in the attitude of mother
and father, they were still missing effective communication skills, domestic violence
skills and safely plans to prevent any future violence. The agency thus recommended in
its January 28 report that the agency continue to monitor the family as the "danger
remain[ed] high that if the parents break the restraining order and continue to have any
contact without progressing in services, they will likely have another violent altercation
in which [minor] could be severely injured or even killed"; that mother and father follow
a case plan, which included a domestic violence program, counseling and parenting
education; that mother continue to care for minor while the MPO/restraining order
remained in place; and that minor be made a dependent of the juvenile court.
At the January 28 jurisdiction/disposition hearing, mother and father both asked
the court to set the matter for a contested hearing and to convert the petition to allege
subdivision (b) instead of subdivision (a) of Welfare and Institutions Code section 300.
Also during the hearing, the issue of UCCJEA arose. The record shows the court in
response asked mother and father a series of questions, given they previously resided in
Japan and minor had dual citizenship with the United States and Japan.
7
The record shows at the request of the agency, the juvenile court found it had
emergency jurisdiction under the UCCJEA and made its finding "nunc pro tunc" to the
time minor was detained. The court set a contested hearing for March 10, 2015.
At the March 10 hearing, the juvenile court addressed the UCCJEA issue, noting
UCCJEA applied and noting it had "exhausted" its efforts in attempting to discuss
jurisdiction with the family court in Japan. The juvenile court noted that it contacted the
family court in "Zama City," the "Yokohama Family Court . . . Sagamihara Branch," and
that its efforts to do so were assisted by court interpreter Kenneth Levin. The juvenile
court summarized its efforts to contact the Japanese family court, as also reflected in a
written summary prepared by Mr. Levin dated March 9, 2015.3
The juvenile court noted that with the help of Mr. Levin, it began on or about
March 2 "calling the Zama court and contacted one knowledgeable representative of the
court"; that the juvenile court's approach in these situations was to call a court's general
number, "find out the name of the judge who would be the proper judge to handle
something like this and then find out the name of the judge's clerk and then have [its]
telephone call transferred to that clerk, explain to that judge's clerk that [it] needed to talk
to the judge" and obtain the judge's and clerk's email addresses; and that it then would
3 This court on August 25, 2015 granted the agency's request to augment the record
to include the March 9 Levin summary; hearing transcripts from May 26 and August 13,
2015; and a written response by Hironori Wanami, judge of the Supreme Court of Japan,
to a March 11, 2015 letter prepared by the juvenile court, which response was received
by the juvenile court after the jurisdiction/disposition hearing (discussed post).
8
send both of them " 'an email that describes the case, the details and what [it was] looking
for.' "
The juvenile court noted this was its preferred approach because the out-of-state
court then had all the details about the case "in writing" instead of having to describe
what sometimes can be "complicated factual scenarios over the phone and having snap
judgments made on -- meaning the judge [in the other jurisdiction] can actually study the
email that has all the information . . . and make wise and knowledgeable comments."
The juvenile court noted that despite three or four different telephone
communications with officials in Japan, which "finally included the personnel from Zama
City to contacting their supreme court to determine whether or not it would be
appropriate for one of their judges to field an email like this or to talk on the telephone
with another judge from someplace like San Diego, California, we were told that the
edicts came down, strong and firm and decisive, that that's not appropriate and that 'we
can't talk to you through email; we can't talk to you on the phone and we're not going to
do that.' "
The March 9 Levin summary established Mr. Levin spoke to various Japanese
officials, all of whom confirmed it was inappropriate for a Japanese court to have contact
with another court regarding a specific case. After several phone calls, Mr. Levin was
also told the Supreme Court of Japan "had determined that there is no provision in the
legal system allowing local Family Courts to discuss specific cases with foreign
counterparts through informal channels," which Mr. Levin himself confirmed when he
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called the "Second Section of the Family Bureau of the General Secretariat of the
Supreme Court."
The record shows the juvenile court thus initially concluded at the March 10
hearing that a Japanese court was not interested in taking over this case; that it "[did] not
see how other forms of communication would serve us any better"; and that the juvenile
court in good faith had "tried [its] hardest to explain the nature and purpose of this,
including that this was simply a brief discussion as to which jurisdiction would be most
appropriate to handle this case," which the juvenile court noted was met with "polite but
solid resistance."
The record shows mother objected at the March 10 hearing to the juvenile court's
decision to take permanent jurisdiction of the case. Mother claimed the March 9 Levin
summary only showed the "secretary of the supreme court" of Japan as a matter of policy
would not agree to use email or a telephone to discuss jurisdiction. Mother thus claimed
that a Japanese court had yet to make a decision on jurisdiction. Mother requested the
juvenile court use a "certified letter" to contact Japan authorities regarding jurisdiction.
After additional argument, the juvenile court out of an abundance of caution
agreed to prepare a certified letter to send to Japanese authorities regarding jurisdiction.
In agreeing to do so, the juvenile court noted that jurisdiction was appropriate in San
Diego because of the living situation of all the parties; that it was a "matter of great
impracticality and a failure of logic to send [the case] back to Japan under the
circumstances"; that the juvenile court was willing to say that directly to a Japanese judge
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if and when the court had a chance to talk to him or her; and that the juvenile court would
be a "strong advocate for the benefit of this child, for the benefit of the parents, that the
case remain here" in San Diego. As a result, the juvenile court continued the contested
hearing to April 9, 2015 "in order to make further efforts under the UCCJEA."
The record shows the juvenile court on March 11, 2015 sent a four-page certified
letter by express mail to the Yokohama Family Court-Sagamihara Branch. In its letter,
the juvenile court explained it was contacting the Japanese family court to discuss
jurisdiction because minor had lived in California for less than six months when
dependency proceedings commenced. The juvenile court noted it desired to discuss the
issue of jurisdiction as soon as possible so that the courts could make a proper decision as
to which court should take the case.
In particular, the juvenile court in its March 11 letter explained the nature of the
case; the parties involved, including the fact mother had been born in Japan and father
had been stationed in Japan when minor was born; and the statements made "in open
court" by mother and father of their intention to make San Diego their permanent
residence and not return to Japan. The letter reiterated the juvenile court needed to
discuss jurisdiction with the Japanese court "upon receipt of this correspondence," as
required under California law, and asked the Japanese court for "help" in doing so. The
juvenile court recommended, however, that the case stay in San Diego in light of the
circumstances and the parties' intentions to remain in San Diego. The letter concluded by
again asking the Japanese court to respond at its "earliest convenience either by e-mail
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(as above) or by telephone (as above), or by correspondence so that we may discuss the
issue of jurisdiction."
At the April 9, 2015 hearing, the juvenile court noted it had not received a
response to its March 11 letter, despite the fact almost a month had passed since the
juvenile court had sent it by express mail. The juvenile court thus found it had exhausted
its efforts to discuss the jurisdiction issue with a Japanese court. Regarding mother's
contention the secretary of the supreme court of Japan had still not made a decision on
jurisdiction, the juvenile court noted it was present when the interpreter attempted to talk
to a Japanese judge and "in context," the issue there was not whether the Japanese court
was considering jurisdiction, as mother contended, but rather "the fine procedural issue
[of] whether or not that sort of communication [i.e., email or telephone] was
permissible." The juvenile court noted the Japanese supreme court said, " 'No, that's not
permissible,' so that -- without being able to talk by telephone or without being able to
communicate by email, that left [it] with the option . . . to write a letter. [¶] [The court]
did seal the letter with a court stamp just to make it as official as [it] could not knowing
what culturally would influence another judge or court personnel, and [the court] sent the
interpretive letter on the front. [¶] So at this point [the court] really ha[s] no faith that the
authorities in Japan are in any way interested in helping with this for one reason or
another and that's the basis of [its] conclusion."
The juvenile court next turned to the petition. In connection with that petition, the
agency submitted addenda reports dated March 2, March 10 and April 9, 2015. The
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addenda noted mother was attending domestic violence and parenting classes and
counseling sessions through NFFS. Nonetheless, the April 9 addendum noted mother
during one of her counseling sessions denied any past domestic violence, which came as
a surprise to her counselor after an agency social worker disclosed mother's history of
previous domestic violence with father and with a former boyfriend. The April 9
addendum further noted mother seemed concerned about keeping the family intact and
worried father was missing various "milestones" with minor.
The juvenile court received into evidence the various agency reports. Agency
social worker Debbie Hernandez testified that minor should be made a dependent of the
court because the December 2 incident had been "violent" and had taken place in front of
minor; that mother was participating in services, albeit "slowly"; that mother continued to
direct her efforts toward reuniting the family without fully appreciating the reason(s) why
father was not living in the home; and that the MPO/restraining order should remain in
place in order to allow mother and father time to progress in services while keeping
minor safe.
Mother at the hearing testified that before the December 2 incident, there had been
no other domestic violence between her and father; that while they were living in Japan,
on one occasion mother blocked the front door in a attempt to prevent father from leaving
while they were arguing and father merely "moved [her] out of the way" and she ended
up falling on a bed; and that father had not pushed her during this incident.
13
After hearing the testimony, including from father, and the argument of counsel,
the juvenile court declared minor a dependent under section 300, subdivision (a) of the
Welfare and Institutions Code. The court noted from the various reports, including from
the January 13 detention report, that the December 2 incident did in fact occur; and that,
although mother denied any previous incidents of domestic violence with father, she in
fact told her NFFS therapist that " 'violence between [her] and father has been present
throughout their relationship, that it ha[d] often been mutual, and that they ha[d] both hit
each other before,' " which admission, the court noted, was consistent with the agency
reports of other incidents of domestic violence between them. The court thus found that
the domestic violence between mother and father was "serious" and not isolated; that they
needed "help"; and that, because this had been an ongoing issue between them, for
minor's safety it was necessary to declare him a dependent of the court to allow the
parents time to reunify.
With regard to subdivision (a) of section 300 of the Welfare and Institutions Code,
the juvenile court found (by clear and convincing evidence) there was substantial
domestic violence between mother and father while minor was in close proximity and as
such, it put the child at "serious risk based on nonaccidental behavior even though that
nonaccidental behavior [was] directed at someone else and not the child, and I do think it
applies. [¶] That is, the conduct is purposeful, it's willful, it's intentional, and if the child
ends up being the victim of that conduct, . . . it fits under [section] 300(a) of the Welfare
and Institutions Code."
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Finally, the juvenile court noted that, although the goal was for the family to
reunite as soon as possible, both mother and father had work to do as they were "at the
beginning of the case still." Thus, the juvenile court adopted the recommendations of the
agency, placed minor with mother and kept the restraining order intact. The court also
found (by clear and convincing evidence) under section 361, subdivision (c)(1) of the
Welfare and Institutions Code that minor be removed from father and ordered
enhancement services for father.
The record shows after the April 9 jurisdiction/disposition hearing and after
mother filed her notice of appeal on April 13, 2015, the juvenile court received a
response to its March 11 certified letter.4 The juvenile court held a special hearing on
May 26, 20155 to discuss the response. The court noted that although the response was
dated March 31, 2015, it did not receive the letter until May 11, 2015. The juvenile court
also noted the letter was from Hironori Wanami of the Supreme Court of Japan. The
juvenile court made the response part of the record but also read the response into the
record.
Judge Wanami stated in part as follows:
"First of all, I would like to point out that communications between judges of
different states concerning judicial matters should be carried out through diplomatic
4 See footnote 3, ante.
5 The transcript incorrectly states the hearing took place on May 26, 2014, rather
than in 2015.
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channels in principle. Therefore it would be advised to use diplomatic channels if you
need to make inquires as to judicial matters.
"However I think it [is] necessary to add that under the Japanese legal system a
Japanese judge is not allowed to discuss issues concerning jurisdiction over an individual
case with a judge of another state. Accordingly I would like to inform you that it will be
quite difficult to respond to your request mentioned in the letter above even if you use
diplomatic channels in this case.
"Thank you for your understanding in advance."
In light of Judge Wanami's response, the juvenile court noted at the May 26
hearing that it was "satisfied with the ruling it made on the UCCJEA issue previously,"
and that "this letter seems to confirm that no matter what means that we use, their rules
prohibit them from communicating with us and we've done the best we could under the
circumstances."
DISCUSSION
A. Jurisdiction
Mother contends the juvenile court erred when it converted its temporary
emergency jurisdiction under section 3424, subdivision (a) to permanent jurisdiction
under section 3421, subdivision (a), after the juvenile court concluded at the April 9
hearing that a Japanese court had declined to exercise jurisdiction because on multiple
occasions Japanese officials stated it was improper for a Japanese court to communicate
by telephone, email or written correspondence with the juvenile court. According to
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mother, once the juvenile court found it was communicating in a manner deemed
unacceptable by Japanese authorities, the juvenile court nonetheless had an obligation to
determine whether Japan would assume jurisdiction. Mother further contends the
juvenile court did not allow sufficient time for a Japanese court to submit a response to
the juvenile court's March 11 letter and the juvenile court's letter in any event was flawed
because it failed to apprise Japanese officials that a lack of a response would be treated
by the juvenile court as a declination of jurisdiction.
1. Guiding Principles
The UCCJEA is the exclusive method in California for determining subject matter
jurisdiction in child custody proceedings involving other jurisdictions. (§ 3421, subd.
(b); In re Marriage of Nurie (2009) 176 Cal. App. 4th 478, 490.) The term "child custody
proceeding" is defined as "a proceeding in which legal custody, physical custody, or
visitation with respect to a child is an issue." (§ 3402, subd. (d).) "A dependency action
is a ' "[c]hild custody proceeding" ' subject to the UCCJEA." (In re A.M. (2014) 224
Cal. App. 4th 593, 597.)
The purposes of the UCCJEA in the context of dependency proceedings include
avoiding jurisdictional competition and conflict, promoting interstate cooperation,
litigating custody or visitation where the child and family have the closest connections,
avoiding relitigation of another state's custody or visitation decisions, and promoting
exchange of information and other mutual assistance between courts of sister states. (In
re C.T. (2002) 100 Cal. App. 4th 101, 106.) "Under the UCCJEA, a California court must
17
'treat a foreign country as if it were a state of the United States for the purpose of'
determining jurisdiction." (In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 490,
quoting § 3405, subd. (a).)
Here, there is no dispute that Japan, and not California, was minor's "home state"
as defined under the UCCJEA. (See § 3402, subd. (g).) There also is no dispute that the
juvenile court properly exercised temporary emergency jurisdiction in this case (see
§ 3424, subd. (a)) and that there were no prior custody proceedings in Japan involving
minor.
Statutory interpretation is a question of law. (Barner v. Leeds (2000) 24 Cal. 4th
676, 683.) " 'In construing a statute, our fundamental task is to ascertain the Legislature's
intent so as to effectuate the purpose of the statute. [Citation.] We begin with the
language of the statute, giving the words their usual and ordinary meaning. [Citation.]
The language must be construed "in the context of the statute as a whole and the overall
statutory scheme, and we give 'significance to every word, phrase, sentence, and part of
an act in pursuance of the legislative purpose.' " [Citation.] In other words, " 'we do not
construe statutes in isolation, but rather read every statute "with reference to the entire
scheme of law of which it is part so that the whole may be harmonized and retain
effectiveness." [Citation.]' " [Citation.] If the statutory terms are ambiguous, we may
examine extrinsic sources, including the ostensible objects to be achieved and the
legislative history. [Citation.] In such circumstances, we choose the construction that
comports most closely with the Legislature's apparent intent, endeavoring to promote
18
rather than defeat the statute's general purpose, and avoiding a construction that would
lead to absurd consequences. [Citation.]' [Citation.]" (Estate of Garrett (2008) 159
Cal. App. 4th 831, 836.)
Subdivision (a) of section 3421 provides: "Except as otherwise provided in
Section 3424, a court of this state has jurisdiction to make an initial child custody
determination only if any of the following are true: [¶] (1) This state is the home state of
the child on the date of the commencement of the proceeding, or was the home state of
the child within six months before the commencement of the proceeding and the child is
absent from this state but a parent or person acting as a parent continues to live in this
state. [¶] (2) A court of another state does not have jurisdiction under paragraph (1), or a
court of the home state of the child has declined to exercise jurisdiction on the grounds
that this state is the more appropriate forum under Section 3427 or 3428, and both of the
following are true: [¶] (A) The child and the child's parents, or the child and at least one
parent or a person acting as a parent, have a significant connection with this state other
than mere physical presence. [¶] (B) Substantial evidence is available in this state
concerning the child's care, protection, training, and personal relationships."
2. Analysis
As noted by the agency, the statutory scheme is ambiguous regarding how a home
state and any other potential forum state may decline jurisdiction in order to confer
jurisdiction under section 3421, subdivision (a)(2). As the agency also notes, there
appear to be two "options": either the home state must decline jurisdiction by express
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order and make a finding that California is a more appropriate forum, as mother appears
to suggest (i.e., option one), or the home state can be deemed to have declined
jurisdiction when it refuses for whatever reason to commit one way or the other to protect
a child in a child custody proceeding or when, as in the instant case, it refuses to even
discuss the issue of jurisdiction with another state (i.e., option two).
We decline to adopt option one as urged by mother. In our view, doing so would
create a rule that has the real potential to leave a child in a child custody proceeding in a
state of limbo between two forums, aptly described by the agency in its brief as
"emergency jurisdiction limbo." The instant case is a prime example of such: if we
concluded here that an express order was required by the home state in order to constitute
a denial under subdivision (a)(2) of section 3421, then potentially such an order would
never be forthcoming in light of the repeated statements from Japanese officials,
including from Judge Wanami of the Supreme Court of Japan, that it is inappropriate
under the Japanese legal system for a Japanese court to even discuss jurisdiction (or it
appears, any issue relative to the case) with the juvenile court.
Thus, if option one was adopted in this case or in any case in which a home court
refused for whatever reason to commit one way or another to exercise jurisdiction over a
child in a child custody proceeding, that child—like minor here—would be deprived of
permanency. We agree with the agency that such a result would be antithetical to our
dependency scheme and the public policy underlying it, which favors the prompt
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resolution of dependency proceedings. (See In re Francisco W. (2006) 139 Cal. App. 4th
695, 706.)
We therefore conclude option two is the more reasonable approach when
determining whether a home state has declined jurisdiction under section 3421,
subdivision (a)(2). That is, we conclude that when a home state declines jurisdiction in
any manner that conveys its intent not to exercise jurisdiction over a child in connection
with a child custody proceeding, including inaction or, as in the instant case, by refusing
to even discuss the issue of jurisdiction despite myriad good faith attempts to do so by the
juvenile court, that such inaction or refusal is tantamount to a declination of jurisdiction
by the home state on the grounds California is the more appropriate forum under
subdivision (a)(2) of section 3421.
Applying this rule (i.e., option two) here, we conclude on this record that the
juvenile court properly found minor's home state of Japan declined jurisdiction on the
ground California is the more appropriate forum under subdivision (a)(2) of section
3421.6 We further conclude the juvenile court had subject matter jurisdiction over this
case under the UCCJEA because as noted (see ante, fn. 6) (i) minor and at least one of his
6 In any event, we note there is ample evidence in the record to support the finding
that California and not Japan is the more appropriate forum to exercise permanent
jurisdiction in this child custody proceeding, including that the December 2 domestic
violence incident took place in the San Diego area; that mother, father and minor all live
in the San Diego area and mother and father have stated they desire to remain in San
Diego and reunite; that father is currently stationed in San Diego and is to remain in San
Diego for at least a few more years; and that the Navy investigated the December 2
incident, after mother contacted father's command, issued an MPO (which at the time of
the jurisdiction/disposition hearing remained in effect) and through NFFS, is providing
services both to mother and father as they attempt to reunite.
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parents have a significant connection to California other than mere physical presence (see
§ 3421, subd. (a)(2)(A)), and (ii) substantial evidence is available in California
concerning minor's care, protection, training and personal relationships (see id., subd.
(a)(2)(B)). We thus conclude on this record that the jurisdictional prerequisites set forth
in subdivision (a)(2)(A) and (B) of section 3421 are satisfied in this case.
Moreover, we reject mother's contention the juvenile court at the April 9 hearing
did not allow sufficient time for a Japanese court to submit a response to the juvenile
court's March 11 letter before the juvenile court exercised permanent jurisdiction. As
noted ante, since early March 2015 Japanese officials have unambiguously stated it was
improper under their legal system for a Japanese court to discuss jurisdiction with the
court of another state, a point made clear in the March 31, 2015 letter from Judge
Wanami of the Supreme Court of Japan.
Thus, even if we concluded the juvenile court at the April 9 hearing allegedly
should have given a Japanese court more time to respond before it exercised permanent
jurisdiction, we further conclude that any such alleged "error" was harmless. (See In re
Celine R. (2003) 31 Cal. 4th 45, 60 [applying the harmless error test set forth in People v.
Watson (1956) 46 Cal. 2d 818, 836 in a dependency matter].) For the same reason, we
reject mother's contention the juvenile court's March 11 letter was fatally flawed because
it failed to apprise Japanese officials that a lack of a response would be treated by the
juvenile court as a declination of jurisdiction.7
7 In any event, as noted ante the juvenile court in its March 11 letter repeatedly
emphasized the need to discuss the jurisdiction issue with a Japanese court as soon as
22
Finally, mother contends the juvenile court erred because it allegedly had a duty to
inform her that she could commence a custody proceeding in Japan, minor's "home
state," which mother contends it failed to do. We note that in making this argument,
mother ignores the fact that at all times relevant she was represented by her own legal
counsel. In any event, we reject this argument.
Not surprisingly, mother is unable to cite any statutory authority expressly
providing a court has an affirmative obligation, including under the UCCJEA, to advise a
party or a participant in a custody proceeding that he or she may commence such a
proceeding in the child's "home state."
Mother's reliance on In re Gino C. (2014) 224 Cal. App. 4th 959, 965 (and related
cases) is unavailing. In that case, this court concluded the juvenile court erred when it
exercised permanent jurisdiction over the children without ever attempting to contact the
children's home state, which was Mexico. In so concluding, this court noted that the
juvenile court "misinterpreted section 3424, subdivision (b), as allowing the court's
temporary emergency jurisdiction to automatically convert to permanent jurisdiction if
the parents did not initiate child custody proceedings in Mexico." (Id. at p. 966.) In
contrast to the facts of In re Gino C., here the record shows the juvenile court made
possible. Despite those repeated requests, almost a month later at the April 9 hearing the
juvenile court still had no formal response to its letter. Mother's argument also ignores
the fact that Japanese officials all along had in fact been responding to the juvenile court's
myriad good faith attempts to discuss jurisdiction by repeatedly stating that such
discussions were altogether improper.
23
several attempts to discuss the jurisdiction issue with a Japanese court before the juvenile
court properly exercised permanent jurisdiction.
In addition, we note the record also does not support mother's argument that if
advised, she would have commenced a custody action in Japan. We note that even after
the UCCJEA issue arose in late January 2015, mother had months to commence a
custody action in Japan, but did not do so. There also is no indication in the record
mother made any attempt to do so. Conversely, the record strongly suggests mother had
little or no intention of commencing, or incentive to commence, a custody action in
Japan, given mother, father and minor all live in San Diego, father is stationed in San
Diego, and mother and father wanted to reunite and continue to live in San Diego, as
noted ante (fn. 6).
B. The True Finding under Subdivision (a) of Welfare and Institutions Code
Section 300
Mother next contends the court erred when it found the petition true under
subdivision (a) of Welfare and Institutions Code section 3008 because the domestic
8 Welfare and Institutions Code section 300 provides in part: "Any child who comes
within any of the following descriptions is within the jurisdiction of the juvenile court
which may adjudge that person to be a dependent child of the court: [¶] (a) The child has
suffered, or there is a substantial risk that the child will suffer, serious physical harm
inflicted nonaccidentally upon the child by the child's parent or guardian. For the
purposes of this subdivision, a court may find there is a substantial risk of serious future
injury based on the manner in which a less serious injury was inflicted, a history of
repeated inflictions of injuries on the child or the child's siblings, or a combination of
these and other actions by the parent or guardian which indicate the child is at risk of
serious physical harm. For purposes of this subdivision, 'serious physical harm' does not
include reasonable and age-appropriate spanking to the buttocks where there is no
evidence of serious physical injury." (Italics added.)
24
violence between her and father was not directed at minor, and thus there was no conduct
intentionally or "nonaccidently" directed "upon the child by the . . . parent" for purposes
of this subdivision.
" 'The basic question under section 300 is whether circumstances at the time of the
hearing subject the minor to the defined risk of harm.' [Citation.] 'Proof by a
preponderance of evidence must be adduced to support a finding that the minor is a
person described by Section 300' at the jurisdiction hearing. [Citation.] 'On appeal, the
"substantial evidence" test is the appropriate standard of review for both the jurisdictional
and dispositional findings. [Citations.]' [Citation.]" (In re J.N. (2010) 181 Cal. App. 4th
1010, 1022.) " 'Substantial evidence is evidence that is reasonable, credible, and of solid
value. [Citation.]' [Citation.]" (In re Christopher C. (2010) 182 Cal. App. 4th 73, 84.)
"The purpose of section 300 [of the Welfare and Institutions Code] 'is to provide
maximum safety and protection for children who are currently being physically, sexually,
or emotionally abused, being neglected, or being exploited, and to ensure the safety,
protection, and physical and emotional well-being of children who are at risk of that
harm.' [Citation.] Although many cases based on exposure to domestic violence are filed
under section 300, subdivision (b) [of that statute] (e.g., In re Basilio T. (1992) 4
Cal. App. 4th 155, 168–169, superseded by statute on another point as noted in In re
Lucero L. (2000) 22 Cal. 4th 1227, 1239–1242; In re Heather A. (1996) 52 Cal. App. 4th
183, 193–194), section 300, subdivision (a) may also apply." (In re Giovanni F. (2010)
184 Cal. App. 4th 594, 599.)
25
Here, viewing the evidence in the light most favorable to the juvenile court's
findings, we conclude there is ample evidence in the record to support the juvenile court's
finding there was a substantial risk minor will suffer serious physical harm "inflicted
nonaccidently" by mother and/or father. Indeed, the record shows that minor not only
was present during the December 2 domestic violence incident between mother and
father, but that he was "at their feet" during most of the incident and that during some of
the incident, father was actually holding minor while mother was hitting father and while
father was choking mother.
What's more, the record also shows the December 2 incident involved severe
domestic violence by both mother and father, which included "choking, hitting, grabbing,
throwing objects [and] pushing." During the incident, the record shows that father pinned
mother down "several times"; that mother hit father at least two times with a piano stool;
and that mother hit father while he was holding minor and also kicked father.
Although mother and father each denied any other incidents of domestic violence,
there is sufficient evidence in the record to support the finding of the juvenile court that
domestic violence was an ongoing problem for mother and father. The record includes
mother's statement to her NFFS therapist that violence had been " 'present throughout
their relationship,' " which statement was consistent with agency reports of other
incidents of domestic violence, including when mother was pregnant. In that instance,
mother reported father pushed her, causing her to fall to the floor. Mother confided she
was afraid of losing her baby as a result of this incident.
26
Although mother testified father did not push her while she was pregnant, as a
court of review " '[w]e do not reweigh the evidence, evaluate the credibility of witnesses
or resolve evidentiary conflicts.' " (See In re Lana S. (2012) 207 Cal. App. 4th 94, 103.)
In any event, we note the juvenile court's finding that domestic violence was an ongoing
problem for mother and father is buttressed by the additional finding of the court that
mother was candid about domestic violence and the "number" of such instances during
interviews shortly after the December 2 incident, in contrast to subsequent interviews,
when she attempted to minimize the violence, and to her April 9 testimony.
We thus conclude the evidence in the record supports the finding that the ongoing
risk of domestic violence between mother and father placed minor at substantial risk of
serious harm under subdivision (a) of Welfare and Institutions Code section 300.
DISPOSITION
The order of the juvenile court declaring minor a dependent child pursuant to
Welfare and Institutions Code section 300, subdivision (a) is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
27