In Re Nada R.
BEDSWORTH, J.
On May 24, 2000, the Orange County Juvenile Court declared Nada R. and Reema R. dependents and placed them in the physical custody of their mother, Maria G. Father Abdulaziz R. petitioned for a writ of habeas corpus and also appeals the judgment. Both have been consolidated for review.1 He argues (1) the juvenile court lacked subject matter jurisdiction, (2) certain evidentiary rulings deprived him of due process, (3) there was insufficient evidеnce to sustain allegations he failed to protect Nada from sexual abuse, (4) he was improperly denied reunification services, and finally (5) he is entitled to attorney fees. We find merit in none of these contentions as presented, but our record on one is inadequate and requires that we reverse and remand as to that contention.
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Abdulaziz, a Saudi Arabian citizen, and Maria, a permanent United States resident, were married in Washington on April 24, 1984. Their daughter Nada was born in early 1989, in California. Meanwhile, Abdulaziz returned to Saudi Arabia to work after completing his college degree. Maria and Nada moved to Saudi Arabia to join him in late 1992. In late 1993, a second daughter, Reema, was born.
In August of 1995, Maria moved to Orange County alone. Abdulaziz unilaterally obtained a divorce and was awarded custody of both children from the Al Khobar Supreme Court, Kingdom of Saudi Arabia. Maria was not sent notice of either decree until after Abdulaziz obtained them. In 1996, Maria remarried in Orange County. Thereafter, she had limited contact with Nada and Reema; occasional phone calls and each year, one 2week visit to Dubai, United Arab Emirates.
On March 9, 2000, Abdulaziz tоok Nada and Reema to Orlando, Florida for a vacation and Maria joined them. On March 19, Abdulaziz and Maria argued. After Nada sided with her mother, Abdulaziz got extremely angry and began to punch Nada. As Nada attempted to get away from him, he grabbed and clawed her back. Then, he grabbed her and forcibly threw her on the bed. Maria ran into the adjoining room to call the police, and they arrived shortly thereafter. The police officers observed fresh injuries on Nada and arrested Abdulaziz. Maria returned to Orange County with Nada and Reema on March 20, and filed for a rеstraining order against Abdulaziz based on the Orlando incident.
The allegations in the petition for the restraining order alerted the Orange County Social Services Agency (SSA). On April 7, Nada and Reema were taken into protective custody by SSA and were later released into Maria‘s care. SSA filed a dependency case on both children pursuant to
Reema confirmed her father drank a lot and would drive them around. She also stated that when she was a baby, her father gave her a gun to hold. In addition, Reema reported she saw her father choke Nada in Orlando and said she was afraid of her father.
Sometime in late April, Nada revealed to her mother that “her driver in Saudi Arabia” sexually abused her. Maria contacted SSA and Nada was later interviewed by the Child Abuse Services Team (CAST). During the interview, Nada revealed that not only did the family driver abuse her, but her uncle‘s driver and her 15-year-old cousin Aziz also abused her.
At the hearing on May 3, the court denied Abdulaziz‘s motion challenging its jurisdiction over this case. The court also denied Abdulaziz‘s request to have witnesses from Saudi Arabia testify telephonically, but agreed to continue the case to аllow him to conduct discovery on the added sexual abuse allegations.
At a hearing on May 17, the social worker testified he believed Abdulaziz had an alcohol problem due to his arrest history, Maria‘s description of their relationship, and statements made by both children. As for the Orlando incident, he believed Abdulaziz became angry with Nada, grabbed her by the back and scratched her. The social worker did not believe there was sufficient evidence to support the sexual abuse allegations as Nada described them and because the physical examination оf Nada could neither confirm nor negate the sexual abuse. However, he did indicate he believed Nada had been inappropriately touched by her uncle‘s driver when she was five years old. The CAST interview tape of Nada was played for the court. Maria testified she left her children in Saudi Arabia because she believed she could not obtain an exit visa for them. She had never seen Abdulaziz physically hurt either child, but claimed that he hit her on many occasions. In fact, Abdulaziz had previously been arrested following physical altercations involving alcohol with her in Palm Springs, California and Fort Lauderdale, Florida. While living in Saudi Arabia, she remembered waking up to find five-year-old Nada holding a gun to her head. She also saw a drunk Abdulaziz hand a loaded gun to Reema to play with when she was only 18 months old and remembered an incident when Abdulaziz fell down some stairs while carrying Reema when he was intoxicated. She feared she would never see the children again if Abdulaziz resumed physical custody.
Abdulaziz testified he never physically assaulted Maria or either of his daughters. He explained his arrest in Fort Lauderdale occurred after he attempted tо pull Maria into the water to go swimming because she had been drinking too much. As for the Orlando incident, Abdulaziz claimed he had been comforting Nada who was upset about her mother leaving the following day. Maria angrily left the room, called the police, and claimed he hurt Nada. Abdulaziz explained that the injuries on Nada‘s back were from swimming
Abdulaziz admitted he owned a gun, but said he had only fired it once or twice while out in the desert. He denied shooting the gun anywhere near the home or giving the gun to either of his daughters. He also denied hаving an alcohol problem and explained that alcohol was illegal in Saudi Arabia with harsh penalties. Abdulaziz denied driving while intoxicated. He proffered the testimony of an expert on Islamic matrimonial law to “enlighten the court as to what the rights of women are in abusive situations.” The court denied his request to have the expert testify.
After considering all the evidence, the court sustained the allegations of the petitions and declared the children dependents of the court. The court placed both Nada and Reema in their mother‘s care under the court‘s supervision. A six-month review hearing was set for November 16, 2000. Abdulaziz filed his notice of appeal on June 29, 2000, and his writ August 1, 2000.
I
Abdulaziz argues the Orange County Juvenile Court lacked jurisdiction to conduct a dependency proceeding pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). (
California adopted the UCCJEA, formerly UCCJA, in January of 2000. This uniform act is the exclusive method of determining the proper forum in custody disputes involving other jurisdictions. (
A court may exercise emergency jurisdiction when a “child is present in this state and ... it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.” (
Here, there certainly was enough evidence for the court to assert emergency jurisdiction. On March 19, Abdulaziz was arrested in Orlando for physically assaulting Nada. Upon investigation, SSA discovered he had been arrested on two prior occasions due to physical altercations involving alcohol with Maria. In her interviews with SSA, Nada remembered her father gave her a loaded gun to put to her sleeping mother‘s head when she was only five years old. She claimed he drank “all the time” and drove with her and Reema
Abdulaziz argues that even if the juvenile court initially had emergency jurisdiction, there was no continuing emergency justifying continuing jurisdiction. He cites In re Joseph D., supra, 19 Cal.App.4th 678, 23 Cal.Rptr.2d 574, to support this contention. In that case, the court recognized that without satisfying other UCCJA jurisdictional prerequisites, the act does not confer upon the state exercising emergency jurisdiction the powеr to make permanent custody determinations. (Id. at p. 689, 23 Cal.Rptr.2d 574.) Assumption of emergency jurisdiction is an assumption of temporary jurisdiction only. (Id. at p. 691, 23 Cal.Rptr.2d 574.) Therefore, while the court properly exercised jurisdiction when it conducted a plenary hearing to determine whether an emergency existed, an emergency is not necessarily coextensive with the dependency. (Id. at p. 692, 23 Cal.Rptr.2d 574.)
We agree that emergency jurisdiction is short-term and limited. However, we cannot agree that a court may not exercise emergency jurisdiction after the plenary hearing. In In re Stephanie M., supra, 7 Cal.4th 295, 27 Cal.Rptr.2d 595, 867 P.2d 706, our Supreme Court found that the juvenilе court had continuing jurisdiction over the minor pursuant to the Family Code section providing for emergency jurisdiction. While the court did not squarely overrule In re Joseph D., supra, 19 Cal.App.4th 678, it did uphold “continuing jurisdiction because of the emergency presented by the abuse of the child, and the impossibility of returning her immediately to her parents.” (In re Stephanie M., supra, 7 Cal.4th at p. 312, 27 Cal.Rptr.2d 595, 867 P.2d 706.) This ruling suggests that an emergency can exist so long as the reasons underlying the dependency exist.
In this case, the court found by clear and convincing evidence that returning the children to Abdulaziz would place them at substantial risk of harm. No subsequent facts suggest that risk is no longer present. If thе risk of harm creating the emergency is ongoing, then the court should be afforded jurisdiction to prevent such harm. That appears to be the case here.
Abdulaziz next argues the trial court improperly entered a disposition order because it failed to communicate with Saudi Arabian court.
However, Maria points out that the juvenile court was not required to communicate with the Saudi Arabian court in the absence of proof that the Saudi Arabian custody determination is enforceable under
The record is unclear whether the juvenile court attempted to communicate with the Saudi Arabian court at any time before or after the jurisdictional hearing. Nor can we assess from the facts provided whether the Saudi Arabian custody decree is enforceable pursuant to
II
Abdulaziz contends that certain evidentiary rulings by the trial court denied him due process. Specifically, he complains of two rulings: (1) the trial court‘s refusal to allow witnesses to testify telephonically from Saudi Arabia, and (2) the trial court‘s refusal to allow an expert on Islamic matrimonial law to testify as to the rights of women in abusive situations.” We reject both contentions.
We agree with Abdulaziz‘s assertion that the United States Constitution guarantees “a meaningful opportunity to present a complete defense.” (California v. Trombetta (1984) 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413.) However, in dependency proceedings, a parent‘s right to due process is limited by the need to balance the “interest in regaining custody of the minors against the state‘s desire to conclude dependency matters expeditiously and ... exercise broad control over the proceedings. ...” (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 759-760, 89 Cal.Rptr.2d 407.) Trial courts are afforded discretion to work within existing guidelines to determine the admissibility of evidence. (See Wagner v. Benson (1980) 101 Cal.App.3d 27, 36, 161 Cal.Rptr. 516.) The reviewing court will not disturb their findings absent an “`“`arbitrary, capricious, or patently absurd determination.....‘” (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456, 250 Cal.Rptr. 812.)
The trial record reflects that Abdulaziz‘s counsel misinterрreted the court‘s ruling as excluding the testimony of the witnesses residing in Saudi Arabia altogether. Actually, the juvenile court expressed concerns about the reliability of telephonic testimony and refused to permit the presentation of the evidence in this format. Following the court‘s ruling and its subsequent clarification, there were no efforts to present these witnesses. There was no request for a continuance or any other remedy which would have provided live testimony. Since Abdulaziz was not prevented from offering the testimony, but only restricted in the manner of its presentation, we find the court did not abuse its discretion.
Regarding the proffered testimony of the expert on Saudi Arabian matrimonial law, such testimony was properly excluded. Abdulaziz argues the expert‘s testimony was “extremely relevant” to the “determination of the ultimate placement of the children ... as to what steps the mother has taken historically to protect the children.”
III
Abdulaziz argues there is insufficient evidence to sustain any allegation he failed to protect Nada from sexual abuse. First, he asserts there is insufficient evidence to prove Nada suffered sexual abuse. Further, he argues even if Nada was sexually abused while in his care, there is insufficient evidence to prove that he either knew or reasonably should have known of the sexual abuse, or that he failed to provide appropriate supervision for Nada and placed her at risk of future sexual abuse. We cannot agree.
Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses (In re Shelley J. (1998) 68 Cal. App.4th 322, 329, 79 Cal.Rptr.2d 922), and we review the record in the light most favorable to the findings of the juvenile court (In re Heather A. (1996) 52 Cal. App.4th 183, 193, 60 Cal.Rptr.2d 315), drawing all inferences from the evidence which support the court‘s determination. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214, 272 Cal.Rptr. 316.) By this process we endeavor to determine whether evidence of reasonable, credible and solid value exists such that a reasonable trier of fact could find as the trial court did. (In re Laura F. (1983) 33 Cal.3d 826, 833, 191 Cal.Rptr. 464, 662 P.2d 922.)
The court believed Nada‘s statements made during the CAST interview.3 In reviewing the tape, we find there is sufficient evidence to persuade a rational trier of fact. Nada described the sexual acts with three different men in detail and was able to tell thе interviewer her age when each incident occurred. She told the interviewer her cousin “puts his penis on my front” and demonstrated a rubbing motion with her hands. She also said her cousin put his penis inside her and that it “hurt” her. Nada said the family driver “licks her front” and “puts in fingers inside [her]” and that it hurts her. She also said her uncle‘s driver had done similar acts to her when she was five years old.
Nada—convincingly—demonstrated her experiences with both pictures and role playing with toys. The trial court was entitled to believe that testimony, and—if believed—it provides sufficient evidence to support the conсlusion Nada suffered sexual abuse while in her father‘s custody.
Similarly, there is sufficient evidence that Abdulaziz failed to protect Nada from sexual abuse. During the CAST interview, Nada said both her cousin and family driver “always” did these acts to her. At times, the abuse occurred on a weekly basis. She also told the interviewer that many of these acts occurred in the family compound during the middle of the day. Abdulaziz did not believe any of the sexual abuse allegations, and claimed he had not heard anything about them. However, Nada said she told her father about her
IV
Abdulaziz also argues the juvenile court erred in denying him reunification services. He claims the court‘s order was not supported by substantial evidence and the court failed to make the requisite findings necessary to deny services. Abdulaziz also argues the orders denying him reunification services violated substantivе due process of law. Again, we must disagree.
First, we find Abdulaziz did not waive his right to appeal the court order denying him reunification services simply because he did not object at the disposition hearing. Since the juvenile court in this case did not set a section 366.26 hearing when it denied services for Abdulaziz, he is not barred from making this argument. (See Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395, 49 Cal. Rptr.2d 175 [if the court does not set a section 366.26 hearing when denying reunification services, those orders may be appealed immediately].)
Notwithstanding, we find the court did not improperly deny Abdulaziz reunification services. He argues the juvenile court‘s ordеrs were not supported by substantial evidence and he was not afforded notice that reunification services would not be offered as required by section 361.5. However, the denial of reunification services need not be supported by substantial evidence. The juvenile court denied reunification services for Abdulaziz pursuant to
The juvenile court has broad discretion in crafting a disposition pursuant to a child‘s best interest. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006, 57 Cal.Rptr.2d 861.) A reviewing court will not disturb a juvenile court‘s custody determination unless it “`exceeded the limits of legal discretion.‘” (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421, 159 Cal. Rptr. 460.) Here, there was no such abuse. (Ibid.) On the contrary, the court clearly had before it evidence the children would be exposed to the “risk of serious physical, emotional harm if released” to Abdulaziz4 and found that vesting custody with Maria would be in the children‘s best interest.
Abdulaziz asserts he is constitutionally entitled to reunification services because the court‘s order denied him due process. Specificаlly, he argues he has a fundamental
Substantive due process prohibits governmental interference with a person‘s fundamental right to life, liberty or property by unreasonable government action. (In re Joshua M. (1998) 66 Cal. App.4th 458, 472-473, 78 Cal.Rptr.2d 110.) A deprivation is permitted only if the government action has a reasonable and substantial relation to the objective sought. (Ibid.) The goal of the dependency scheme is to protect abused or neglected children. (In re Marilyn H. (1993) 5 Cal.4th 295, 307, 19 Cal.Rptr.2d 544, 851 P.2d 826.) We agree a parent has a liberty interest that may not be abrogated absent a compelling state interest. But the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. (Ibid.) The state‘s interest requires the court to focus on the child‘s placement and well-being, rather than on a parent‘s custody challenge.
Here, the court determined that Abdulaziz‘s inability to face his own alcohоl problem placed the children at substantial risk of harm. Further, the failure to order reunification services arises from Abdulaziz‘s own failure to request them, and he has not yet been precluded from requesting them in the future. (See In re Terry H. (1994) 27 Cal.App.4th 1847, 34 Cal. Rptr.2d 271 [no due process violation when trial court did not order reunification plan for noncustodial father who failed to request custody of his own children].)
Abdulaziz also complains his trial counsel was constitutionally ineffective when he failed to object to the court orders denying reunification services. The test for ineffective counsel is twofold: (1) counsel‘s representation falls below an objective standard of reasonableness and (2) the deficiency subjects defendant to demonstrable prejudice. (People v. Cain (1995) 10 Cal.4th 1, 28, 40 Cal.Rptr.2d 481, 892 P.2d 1224, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.) A court need not evaluate whether counsel‘s performance was deficient before examining prejudice suffered by defendant. (Strickland v. Washington, supra, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674.) Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel‘s failings, the result would have been more favorable to the defendant. (Id. at p. 694.)
Here, the court clearly expressed its intent to have custody vest with Maria in the best interests of the children.5 Thе court acted well within its discretion in denying services. Abdulaziz fails to demonstrate the court would have granted him reunification services had his counsel objected at the disposition hearing, and also fails to provide any record upon which we can conclude that at the time of the hearing he wanted reunification services. Accordingly, we reject the argument.
Abdulaziz argues he is entitled to attorney fees pursuant to
Similarly, Maria‘s request for attorney fees is also denied. Maria requests recovery of costs in the “interests of justice.” She argues this court is able to award fees or an apportionment of costs we deem proper pursuant to California Rules of Court, rule 56.4, subdivision (a). However, rule 56.4, subdivision (a) is carefully crafted to exclude both criminal and juvenile cases. She is not entitled to fees under this section.
Maria also asserts this court has discretion to award her fees pursuant to
The judgment is affirmed in all respects except the determination of jurisdiction. In that regard, it is remanded for a hearing concerning the compliance, vel non, with
SILLS, P.J., and O‘LEARY, J., concur.