In Re Christopher B.
OPINION
I. INTRODUCTION
Jacqueline C., who is the maternal aunt of Christopher B. and Zion B. and lives in Tennessee, appeals from a juvenile court‘s supplemental order made pursuant to Welfare and Institutions Code1 section 387: denying her reunification services; removing the minors from her custody; and ordering the Los Angeles County Department of Children and Family Services (the department) to provide permanent placement services for the minors. The aunt contends the May 31, 1995, dispositional order should be reversed because under the Uniform Child Custody Jurisdiction Act (
II. FACTUAL AND PROCEDURAL BACKGROUND
Christopher B. was born on January 31, 1987, in California. Zion B. was born on January 10, 1988, in California with drugs in his system. The minors were declared dependents of the court pursuant to section 300, subdivision (a), because of neglect and the mother‘s substance abuse problem which limited her ability to care for the two children. On March 16, 1988, the court ordered the minors suitably placed. Under the terms of the Interstate Compact on Placement of Children (
A June 24, 1994, the department case plan update judicial review report showed, in pertinent part: the minors had made significant positive developmental and social gains during the past several months; the aunt was exceptional in her commitment to the minors; and adoption continued to be the appropriate permanent plan.
On September 13, 1994, the Tennessee child protective services agency in Memphis, Tennessee, removed the minors from the aunt and took them into custody. It was alleged that the aunt had inappropriately physically disciplined the minors causing them unreasonable pain and suffering. The Tennessee child protective services agency in Memphis could not find an appropriate relative and, thus, asked that the minors be returned to California and that the interstate compact agreement be discontinued. The aunt stated she was “willing to participate in any counseling program the court and [the department] orders her to participate in.”
On September 15, 1994, the department filed a section 387 supplemental petition requesting that the minors be returned to California because the Tennessee child protective services agency in Memphis wanted to send the minors back to California for ongoing supervision. An attorney was appointed to represent the aunt in abstentia at the detention hearing on September 16, 1994. Through counsel, the aunt entered a denial of the allegations. On September 23, 1994, after returning to California, the minors were placed in foster care in this state. The foster mother disciplined the minors with a belt and the minors were removed from her care and placed in a group home. On October 7, 1994, the trial court ordered the department to determine if the paternal uncle and his family in Tennessee were suitable for placement. In a report filed October 27, 1994, the department concluded, in pertinent part, after speaking with the minors and seeing pictures taken of them in Tennessee, the aunt‘s discipline was “excessive and abusive.”
On December 20, 1994, the court sustained the amended allegations of the petition that on or about unspecified dates prior to September 13, 1994, the minors were “subjected to inappropriate physical discipline by [the aunt] causing them unreasonable pain [and] suffering.” The minors had been hit with switches and belts as well as a long paddle. Christopher B. was hit on the head with a walking stick. Zion B. was struck on the head with a phone. Christopher B. had a one-inch cut on his thigh after being hit with a metal spatula. The minors were subjected to ritualistic discipline, i.e., having to lie on their backs with their arms raised and being required to say: “`Thank you
On February 9, 1995, the aunt‘s attorney filed a points and authorities in support of her request for reunification services. The aunt also filed with the court an October 23, 1994, letter describing her care of and love for the minors. She advised the court she would do anything to get the children back and was taking parenting classes. In a November 16, 1994, letter denying the allegations, the aunt stated she was willing to rectify any problems and had completed parenting classes. The aunt indicated: she was seeing a counselor; praying the court to decide to return the minors to her; and “throwing [herself] on the mercy of [your] court.” Also before the court was a certificate from parenting classes and the minors’ progress reports. On February 17, 1995, the court read and considered the request of the aunt for reunification services and heard argument of her counsel. The court denied the aunt‘s request finding it was not in the best interest of the children. The court also noted it “[did not] think whether reunification services [were] ordered would have any restraining effect on [the aunt].”
At the disposition hearing which was concluded on May 31, 1995, the department submitted a May 24, 1995, progress report. The matter was continued for a feasibility report on whether the minors could be placed with their paternal uncle in Tennessee. The department reported that the Tennessee Department of Human Services found the maternal uncle and his wife were not recommended as adoptive placement resources. The report stated: “The attached letter recommends that these children not be placed with [the maternal uncle and his family]. The facts that support this recommendation are: 1) that although [the maternal uncle] has been married to his wife for 17 years, he has fathered four children by other women during their marriage; 2) [the maternal uncle] reports an addiction to drugs from which he has been rehabilitated for two years; and 3) his arrest records includes drug related charges, driving with a suspended license, and disturbing the peace. In addition, to the unstable marriage, Tennessee also questions [the aunt]‘s ability to parent.” The court ordered long-term suitable placement and long-term foster care for the minors in California. The court ordered monitored visitation for the aunt.
The aunt filed a notice of appeal from the dispositional order on July 17, 1995.
III. DISCUSSION2
(1a) The aunt argues that California should not have exercised jurisdiction because of the forum non conveniens doctrine. (2) Our Supreme Court has described the forum non conveniens doctrine as follows: “Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere. [Citation.] The doctrine was first applied in California in Price v. Atchison, T. & S.F. Ry. Co. (1954) 42 Cal.2d 577. . . . We described the basis of the doctrine as follows: `“[T]here are manifest reasons for preferring residents in access to often overcrowded Courts, both in convenience and in the fact that broadly speaking it is they who pay for maintaining the Courts concerned.” . . . [T]he injustices and the burdens on local courts and taxpayers, as well as on those leaving their work and business to serve as jurors, which can follow from an unchecked and unregulated importation of transitory causes of action for trial in this state . . . require that our courts, acting upon the equitable principles . . ., exercise their discretionary power to decline to proceed in those causes of action which they conclude, on satisfactory evidence, may be more appropriately and justly tried elsewhere.’ [Citation.] [¶] In determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternate forum is a `suitable’ place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. [Citations.]” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 [1 Cal.Rptr.2d 556, 819 P.2d 14].)
This rule of law is codified at
The doctrine of forum non conveniens is not jurisdictional. (Credit Lyonnais Bank Nederland, N.V. v. Manatt, Phelps, Rothenberg & Tunney (1988) 202 Cal.App.3d 1424, 1430-1431, fn. 8 [249 Cal.Rptr. 559]; Corrigan v. Bjork Shiley Corp. (1986) 182 Cal.App.3d 166, 173 [227 Cal.Rptr. 247] disapproved on another point in Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 760; Pham v. Wagner Litho Machinery Co. (1985) 172 Cal.App.3d 966, 972 [218 Cal.Rptr. 476].) The doctrine involves a trial judge declining to exercise jurisdiction which otherwise exists. (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 751; Price v. Atchison, T. & S.F. Ry. Co. (1954) 42 Cal.2d 577, 582-584 [268 P.2d 457, 43 A.L.R.2d 756]; Leet v. Union Pac. R.R. Co. (1944) 25 Cal.2d 605, 609 [155 P.2d 42, 158 A.L.R. 1008]; Judicial Council com., 14 West‘s Ann. Code Civ. Proc. (1973 ed.) §
Recognizing that no forum non conveniens objection was interposed in the trial court, the aunt argues nonetheless that the issue can be raised for the first time on appeal by reason of our Supreme Court‘s decision of In re Stephanie M. (1994) 7 Cal.4th 295, 311 [27 Cal.Rptr.2d 595, 867 P.2d 706].
IV. DISPOSITION
The order is affirmed.
Grignon, J., and Armstrong, J., concurred.