In Re Stephanie M.
MOSK, J. —
I. Introduction
The Court of Appeal reversed the order of the juvenile court denying a motion for change of placement of a minor from foster care to her grandmother‘s care. The Court of Appeal concluded that the lower court‘s error in ruling on the motion for change of placement also required reversal of its ensuing order terminating parental rights. The minor and the San Diego County Department of Social Services (Department) petitioned for review, arguing that the Court of Appeal erred in substituting its judgment for that of the juvenile court, in failing to accept the proffer on appeal of new evidence regarding the child‘s best interests and in ordering her immediate transfer to her Mexican guardian without further hearing in the juvenile court. In
We conclude that the juvenile court properly exercised jurisdiction under the Uniform Child Custody Jurisdiction Act. (
II. Facts
Stephanie M. was born on January 26, 1989, in Guadalajara, Mexico. She lived in her maternal grandmother‘s home with her mother until she was nine months old. She moved with her mother in October 1989 to Oceanside in San Diego County, to join her father. All three were Mexican citizens who had entered the United States illegally.
On February 15, 1990, the Department filed a petition to establish the jurisdiction of the juvenile court over Stephanie under
The parents denied any abuse and explained that Stephanie had suffered an accident in which her arm was broken and that they had sought treatment from a masseuse, according to purported Mexican custom.
At the detention hearing on February 15, 1990, the juvenile court found a prima facie showing had been made that Stephanie was a person described in
The jurisdictional hearing was held on April 10, 1990. Before the court was the Department‘s report containing psychological evaluations describing the parents’ inadequate functioning and denial of abuse. The Department recommended that Stephanie be placed with her grandmother, as the two were attached to each other, the Mexican social service report was positive and the Mexican agency was willing to assume supervision of the case. The Department‘s counterpart in Guadalajara, the Sistema Para El Desarrollo Integrale de la Familia Jalisco, had evaluated the grandmother‘s home favorably, finding it large and the family in possession of sufficient income to care for Stephanie. This agency also recommended placing Stephanie with her grandmother.
Also before the court at the jurisdictional hearing were medical reports describing the seriousness of the injuries inflicted on the child, and reports from the receiving hospital that the parents denied inflicting the injuries, which were clearly nonaccidental. The foster parents proffered evidence that their pediatrician thought it likely Stephanie had been undernourished before her arrival in the United States. They also stated that Stephanie was afraid of her father, and indeed, exhibited extreme fear of most men. They expressed concern that to release the child to her grandmother in Mexico would invite contact with the parents that would be dangerous for the child.
The court found the allegations of the petition true and continued Stephanie in foster care, ordering further reports on the grandmother‘s suitability and on the question of Stephanie‘s malnutrition.
At the disposition hearing on May 2, 1990, the court received the social worker‘s report, which noted that two pediatricians agreed that Stephanie had been malnourished in the past. The social worker stated that she had requested a second evaluation of the grandmother‘s home, as the grandmother herself had been absent when the Mexican social service agency had evaluated it before. The social worker recommended continued foster care. Also before the court was the report of an investigator employed by Stephanie‘s counsel, declaring that the grandmother had told the investigator that she did not believe the parents had abused Stephanie, and that the girl had
The court declared Stephanie a dependent of the court and continued her placement in foster care pursuant to
On July 20, 1990, Voices for Children was appointed as special advocate/guardian ad litem for Stephanie.
At the six-month review hearing held on October 31, 1990, pursuant to
The social worker and special advocate recommended continued foster placement but increased visitation with the parents. The special advocate evaluated the grandmother, noting her visits but questioning her ability to protect Stephanie from the parents. She reported that the parents wished to return to Mexico once they regained custody of the child, but did not wish to live with the grandmother. The special advocate noted conflicting evidence regarding Stephanie‘s malnutrition in Mexico, and the grandmother‘s insistence that Stephanie‘s parents could not have abused her. The psychologist working with the parents also noted their continued denial of abuse and recommended continued foster care.
The court ordered continued foster placement and supervised visitation, along with therapy for the parents.
On May 1, 1991, the case was set for a contested 12-month review on July 8, 1991, and that hearing was continued to July 23, 1991.
On June 6, 1991, the juvenile court received a letter from the consul general of Mexico serving in San Diego, noting its duty to protect and aid Mexican nationals and asking the court to consider the grandmother‘s demonstrated interest in custody of the child, that the Mexican social service
Also on June 6, 1991, the foster parents applied for de facto parent standing, emphasizing their close connection with the child since her placement with them on March 22, 1990, and their desire to adopt the child. The court granted them de facto parent status.
At the 12-month review hearing held on July 23, 1990, the grandmother was present with counsel and 2 representatives of the Mexican consulate, who did not object to the jurisdiction of the juvenile court nor request the intervention of the Mexican consulate or government as a party.
At the hearing, the court had before it the report and recommendation of the Department, which observed that the parents continued to deny the abuse and treated the child inappropriately during visits. It also noted that the child displayed fear of the parents and emotional upset after her visits with them. The Department acknowledged a cautiously favorable psychological evaluation of the grandmother and her attachment to Stephanie. The psychologist noted the grandmother‘s passive personality, but recommended supervised placement with the grandmother, and opined that Stephanie would not be injured by severance of ties with her parents. An updated Mexican social service report continued to recommend placement with the grandmother. The Department recommended that reunification services be terminated and that a hearing pursuant to
The court found that return of Stephanie to her parents would create a substantial risk of harm to her physical or emotional well-being, that there was no substantial probability of her return to her parents by the 18-month review date, and that reasonable services had been provided to the parents.
The parties did not agree as to placement. The parents requested placement with the grandmother or an aunt in Long Beach. The social worker recommended foster care.
The court ordered increased visitation with the grandmother and set the matter for a contested hearing on September 23, 1991, subsequently continued to October 28, 1991, stipulated to be pursuant to
At the contested hearing pursuant to
The Department‘s social worker testified that she had been supervising visits between the child and her grandmother since August 1991. She described the child as extremely emotionally fragile and in need of stability. She did not recommend placement with the grandmother because the grandmother was passive and had not acknowledged the parents’ responsibility for the abuse. The grandmother testified that she had at first thought that the parents’ roommates had injured the child, but that she had acknowledged the parents’ responsibility since February 1990. She conceded that she had told the special advocate in April 1991 that she did not think the parents had hurt the child and that the injuries were the result of a fall. She also testified that if the child were placed with her, she would obey all court orders regarding parental visitation, would not allow the mother to reside with her, and would accept the foster parents into her home for visitation. A representative of the Mexican consulate testified that the Mexican social service agency had assured her they would supervise the child‘s placement with the grandmother, but would not return her to the United States if that placement were ineffective.
A psychologist expert in the field of child abuse testified that Stephanie exhibited signs of an extensive history of emotional trauma and had post-traumatic stress reaction to severe abuse suffered in her first year of life. He found the child fragile, with a great need for stability. He was of the opinion that if her attachment with the foster parents were disturbed she would suffer considerable psychological disruption. He believed that the child‘s primary bond was to the foster mother, and that to sever this bond would damage the child. He saw no primary or even secondary bond between the child and the grandmother. He acknowledged that if the child stayed in the foster home, she would have to confront cultural identity issues later in her development.
The foster mother testified that the grandmother did not visit or contact the child between March 1990 and March 1991. She testified that the child was reluctant to visit the grandmother and had adverse emotional reactions to the visits, including toileting accidents, biting, fantasy injuries and sleep disturbance.
The court denied the motion for change of placement on the ground that the child‘s special emotional needs and lack of primary emotional bond with the grandmother made a change not in her best interest.
At the hearing on January 15, 1992, held pursuant to
On March 17, 1992, the court of the State of Jalisco in Mexico asserted jurisdiction over Stephanie and appointed a guardian. On April 9, 1992, the Mexican government delivered to the juvenile court a letter advising the court of the Mexican court‘s assertion of jurisdiction and requesting the California court to take the letter under consideration.
Both parents appealed. The Court of Appeal concluded that the juvenile court had erred in denying the motion for change of placement and that therefore, the ensuing order terminating parental rights must also be reversed.
III. Jurisdiction
A. International Law
(1a) Mother argues that the juvenile court lacked jurisdiction over the matter under review because the failure of the juvenile court and the Department to give notice to the Mexican consulate of the pendency of this dependency action violated the Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes of April 24, 1963. (21 U.S.T. 77, T.I.A.S. No. 6820, hereafter Convention.)
As the Court of Appeal pointed out, the quoted language acknowledges the jurisdiction of the receiving state to apply its own laws to foreign nationals within its borders. Further, article 5 of the Convention requires that consular aid to citizens of the sending state, including minors, be conducted “within the limits imposed by the laws and regulations of the receiving State....” (Convention, art. 5, subd. (h), 21 U.S.T. at p. 83.) In case of consular aid in obtaining judicial relief in the receiving state, such aid is expressly “subject to the practices and procedures obtaining in the receiving State ....” (Convention, art. 5, subd. (i), 21 U.S.T. at p. 84.) The Convention thus concedes the jurisdiction of a court of the receiving state to apply its laws to a foreign national, and the Convention expressly provides that the operation of the receiving state‘s laws is in no way dependent upon the notice prescribed by the Convention. Thus there is no merit to the contention that any delay in notice to the Mexican consulate deprived the California court of jurisdiction.
B. Uniform Child Custody Jurisdiction Act
Mother argues generally that the juvenile court lacked jurisdiction to “make orders which operated to terminate [the minor‘s] citizenship in a foreign country and all her relationships to her family.” We are at a loss to understand the argument; the juvenile court orders, both with respect to placement of the child and with respect to termination of parental rights, did not purport to terminate the minor‘s citizenship in Mexico. Mother refers us to no treaty or other source of international law precluding the courts of this state from asserting jurisdiction in this dependency proceeding.
To the extent mother is claiming that the juvenile court lacked jurisdiction ab initio, we agree with the Court of Appeal that the juvenile court properly asserted jurisdiction in this matter under the Uniform Child Custody Jurisdiction Act. (
Family Code section 3403 defines the prerequisites of jurisdiction. It provides a court that is competent to decide child custody matters has jurisdiction to make a child custody determination if this state is the home state of the child, defined as the state in which the child has lived with a parent for the preceding six months, or if this state was the home state within six months of the commencement of the action, and the child is absent from the state because of a custody dispute and one parent continues to live in this state. (
A court also has jurisdiction if “[i]t is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and the child‘s parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child‘s present or future care, protection, training, and personal relationships.” (
(1b) The Court of Appeal properly found that the juvenile court had continuing jurisdiction over the minor pursuant to
(3a) Mexico, acting as amicus curiae, concedes initial jurisdiction, but argues that the juvenile court should have stayed proceedings under the act on the ground of forum non conveniens once the child had been removed from her parents’ custody. The Court of Appeal determined that the juvenile court was under no obligation to consider whether it was a proper forum because it had no notice that Mexico had formally asserted jurisdiction until after its own order was final.
Because the courts of this state have received a request from the sovereign nation of Mexico that custody of a minor citizen of Mexico be turned over to a guardian appointed by a court of Mexico, we feel compelled to answer the jurisdictional claims of Mexico, although they have not been squarely raised by a party.6
It is undisputed that there was no motion made in this case to quash jurisdiction on the ground of forum non conveniens. However, the act provides that a court may make a determination on its own motion that California is not a convenient forum for resolution of a child custody matter. (
The act provides that a court, in determining if it is an inconvenient forum, should consider if it is in the interest of the child that another state assume jurisdiction. (
From the time that the juvenile court first exercised jurisdiction over the child‘s custody in this case, every indication was that California was the appropriate forum. California had continuing jurisdiction because of the emergency presented by the abuse of the child, and the impossibility of returning her immediately to her parents. All the evidence with respect to the abuse and the parents’ capacity, in light of this abuse, for reunification, was in this state. It also appears that this state, rather than Mexico, was in the better position to adjudicate the best interest of the child with respect to possible reunification with the parents. The parents, though they were Mexican nationals, resided in California. Both parents acceded to the jurisdiction of the court, and participated in the reunification services the court offered them in an effort to enable them to regain custody of the child. Further, the evidence regarding the child‘s present and future care and protection was not more readily available in the Mexican jurisdiction, again, because the child‘s parents resided in this country and all the evidence regarding their ability to resume custody of the child was in this country. The only evidence that was more readily available in Mexico, that is, the evidence of the suitability of the child‘s grandmother to assume custody pending reunification, was of lesser importance than the evidence available in California; namely, the evidence of the parents’ suitability for custody, progress towards reunification, and the progress of the child in foster care. We cannot say that the court abused its discretion in failing to decide, on its
(4) We must point out that the policy of the act is not to establish concurrent jurisdiction, but to narrow jurisdiction. (
(3b) It is inconsistent with this purpose for a reviewing court to reverse a juvenile court placement or custody order on forum non conveniens grounds, when the matter has not been raised by any party below and a competing jurisdiction seeks, after the judgment is final as to the trial court, to intervene for the purpose of relitigating custody. In the absence of a treaty providing otherwise, we will enforce California custody judgments made by a court with jurisdiction under the act despite the assertion of a foreign nation, after the entry of the custody order, of concurrent jurisdiction.
Mexico argues that relitigation is appropriate here because the California court failed to notify it of the pendency of this action. Although it is true that neither the court nor the Department notified the Mexican consulate of the pendency of this action at the outset, the consulate did appear on behalf of the grandmother in the California proceedings before it had been determined that reunification services would be terminated. The consulate had actual notice, then, of the proceedings, and at no time before the entry of the judgment under appeal did it assert any competing jurisdiction or seek to stay the proceedings on forum non conveniens grounds.
IV. Comity
(5a) There remains the question of what response the courts of this state should make to the letter advising the juvenile court of a guardianship decree in the Mexican court and purporting to authorize the named guardian to take immediate custody of the child and return her to Mexico. The Court of Appeal avoided the issue by pointing out that the matter had not been litigated below because the letter was received after the judgment was final
Father argues that we must affirm the decision of the Court of Appeal because we must extend comity to the judicial decree of the sovereign nation of Mexico. He claims that the courts of this state are obliged under this doctrine to enforce the judgment of the Mexican court.
(6) The courts of this state may, but are not required to, execute the judgment of a foreign nation as a matter of comity. The doctrine of comity prescribes that a court of this nation recognize the judgment of a court of a foreign nation when the foreign court had proper jurisdiction and enforcement does not prejudice the rights of United States citizens or violate domestic public policy. (Hilton v. Guyot (1895) 159 U.S. 113, 202-203 [40 L.Ed. 95, 121-122, 16 S.Ct. 139]; Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B. (2d Cir.1987) 825 F.2d 709, 713.) Extension or denial of comity is discretionary and is reviewed on an abuse of discretion standard. (Remington Rand v. Business Systems, Inc. (3d Cir.1987) 830 F.2d 1260, 1266.)
(5b) Thus, the courts of this state are not required to give effect to the Mexican decree. Indeed, we think that it would violate domestic public policy, as stated in the act, to enforce the Mexican court order, and we note that Mexico itself does not argue that the order should be enforced as a matter of comity.
The act provides for the enforcement of international custody orders to the same extent as orders of other states. (
The act attempts to regulate competing claims to jurisdiction over child custody matters. It provides that a court of one state shall not exercise jurisdiction if at the time of filing of the action, a proceeding concerning custody of the child was pending in a court of another jurisdiction “exercising jurisdiction substantially in conformity with this part unless the proceeding is stayed” by the other jurisdiction. (
If after the filing of the action the court of one state is informed that a proceeding concerning the custody of the child was pending in another
Most significantly, once a decree is entered by a court that has jurisdiction under the act, the decree is not to be modified by the courts of another state unless “it appears ... that the court which rendered the decree does not now have jurisdiction under the jurisdictional prerequisites substantially in accordance with this part or has declined to assume jurisdiction to modify the decree” and the modifying court has jurisdiction. (
One of the primary purposes of the act is to avoid the disruption to the life of a child involved in relitigation of custody matters. (Kumar v. Superior Court (1982) 32 Cal.3d 689, 695-696 [186 Cal. Rptr. 772, 652 P.2d 1003].) (7) We have interpreted former Civil Code section 5163, now
(5c) It is true, as father claims, that the act does not award jurisdiction on the basis of which party gets to court first. “Priority in time is but one factor to be considered, lest the Act be construed as promoting ‘races to the courtroom.‘” (Plas v. Superior Court, supra, 155 Cal. App.3d at p. 1021.) This case does not represent a race to the courtroom, however. The record before us indicates that no Mexican action was filed during the entire time the dependency proceeding was progressing through the California court. Once a decree is entered, the jurisdiction of the decreeing court is exclusive as long as it continues. Under the circumstances, the California courts are justified in exercising exclusive jurisdiction over the child and refusing to enforce the subsequent foreign order.
We note also that a foreign custody order is enforceable under the act only if “reasonable notice and opportunity to be heard were given to all affected persons.” (
V. Due Process
(8) Mexico argues that the failure to give early notice of these proceedings to the Mexican consulate violated the due process rights of the parents, the minor and the extended family as represented by the grandmother. We reject the claim. It is clear that the parents and the minor had notice of the proceedings from the time the dependency petition was filed. The parents and the minor were accorded every procedural protection, including notice, an opportunity to be heard, and the appointment of counsel. Without deciding, as Mexico urges, that the grandmother had any due process right to notice, we observe that the grandmother had actual notice and an opportunity to be heard and to appear with counsel.
We are aware of no due process right to notice belonging not to an individual, but to a foreign consulate for the purpose of enlisting its aid, nor has Mexico referred us to any such authority. References to the Indian Child Welfare Act (
VI. Abuse of Discretion
(9a) The Court of Appeal held that the trial court abused its discretion in denying the motion for change of placement brought under
We have outlined the procedures applicable in child dependency matters too recently to require restatement here. (See, e.g., Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247-250 [19 Cal. Rptr.2d 698, 851 P.2d 1307].) Suffice it to say that the orders under our review in this case came late in the proceedings, after the court had found jurisdiction (
(11) In any custody determination, a primary consideration in determining the child‘s best interests is the goal of assuring stability and continuity. (Burchard v. Garay (1986) 42 Cal.3d 531, 538, and fn. 6 [229 Cal. Rptr. 800, 724 P.2d 486, 62 A.L.R.4th 237].) “When custody continues over a significant period, the child‘s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.” (Ibid., fn. omitted; see also In re Marriage of McGinniss (1992) 7 Cal. App.4th 473, 478 [9 Cal. Rptr.2d 182].)
(12) At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. (
After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point “the focus shifts to the needs of the child for permanency and stability” (In re Marilyn H., supra, 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id., at p. 302.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.
(9b) In the case before us, the juvenile court determined that there was not sufficient evidence produced at the hearing to establish that a change of placement was in the best interests of the child. The court acknowledged
Nonetheless, the court found that it would not be in the best interests of the child to transfer her custody to the grandmother, based on the following substantial evidence that the child needed continuity and stability.
The court pointed to evidence that although the grandmother was very caring during her visits with the child, the child was anxious in her company and looked to her foster parents as her primary bond. The court noted that the child had no contact with the grandmother for a year, and that the medical evidence was that the child was still very troubled and fragile. The court pointed to the unanimous opinions of the Department, the doctors, and the child‘s special advocate that the child had a strong, primary bond with her foster mother and no bond with her grandmother. The court concluded: “She has special needs. Her physical trauma has led to her having some actual physically-observable reactions. She maintains, unfortunately, those problems. The people that can best deal with this right now are her foster parents. [¶] I cannot find that it is in this child‘s best interests to be transferred to grandmother.”
(13) This determination was committed to the sound discretion of the juvenile court, and the trial court‘s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Michael B. (1992) 8 Cal. App.4th 1698 [11 Cal. Rptr.2d 290]; In re Corey (1964) 230 Cal. App.2d 813, 832 [41 Cal. Rptr. 379].) As one court has stated, when a court has made a custody determination in a dependency proceeding, “‘a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].‘” (In re Geoffrey G. (1979) 98 Cal. App.3d 412, 421 [159 Cal. Rptr. 460]; see In re Mark V. (1986) 177 Cal. App.3d 754, 759 [225 Cal. Rptr. 460] [accord]; see also Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal. App.3d 813, 831 [284 Cal. Rptr. 839].) And we have recently warned: “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of
(9c) In our view, the juvenile court properly evaluated the evidence, and placing special weight on the child‘s need for stability, as was appropriate at that stage of the proceedings, determined that the parents had not carried their burden of proof. If we focus on the evidence of the possible effects on the child of placement with the grandmother, it is clear that the juvenile court was well within its discretion in deciding that a change of placement was not in the child‘s best interests. The evidence at the hearing showed that the grandmother had limited contact with the child during her stay in foster care, and that she had not visited, written, or called the child for over a year.8 Regardless of the cause of these omissions, it was undisputed that the child lacked any significant bond to her grandmother, and indeed, could barely communicate with her due to language differences. There was evidence that the child was unusually emotionally unstable, suffered from post-traumatic stress, had a strong primary bond with the foster parents, and was uneasy with the grandmother when she did visit.
The Court of Appeal was of a different view, holding that the juvenile court abused its discretion in the following respects: (1) by failing to accord sufficient weight to the statutory preference for placement with relatives set out in
A. The Relative Placement Preference
(14) The Court of Appeal held that the juvenile court failed to give sufficient weight to the relative placement preference set out in
Assuming without deciding that the statutory preference applied at the late stage of the proceedings that we review here, the juvenile court did not abuse its discretion in failing to give sufficient weight to the grandmother‘s request for placement. The statute applicable at the time of the hearing did not operate as an evidentiary presumption in favor of placement with the grandmother that would overcome the juvenile court‘s duty to determine the best interests of the child. Rather, as we shall explain, the statute expressed a command that relatives be assessed and considered favorably, subject to the juvenile court‘s consideration of the suitability of the relative‘s home and the best interests of the child. In the context of a motion pursuant to
The provision also directed the court to consider, “[i]n determining whether placement with a relative is appropriate” (italics added), the ability
The statute acknowledges, then, that the court is not to presume that a child should be placed with a relative, but is to determine whether such a placement is appropriate, taking into account the suitability of the relative‘s home and the best interest of the child. (See, In re Andrea G. (1990) 221 Cal. App.3d 547, 556 [270 Cal. Rptr. 534] [court did not presume relative placement appropriate, but properly considered the factors set out in § 361.3].)
The Court of Appeal relied on In re Jessica Z., supra, 225 Cal. App.3d 1089, for the proposition that the relative placement preference may be applicable at any stage of the dependency proceeding. However, it failed to analyze the holding of the case, which was that the juvenile court acted within its discretion in denying a request made at the 12-month review hearing for a change of placement from a foster home to a grandparent, on the ground that the change would disrupt the child‘s bond with the foster parent and thus be detrimental to the child. (Id., at p. 1100.) The case actually stands for the proposition that regardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.
The question before the juvenile court at the hearing on change of placement was, at bottom, to determine whether a change of placement was in the best interests of the child. The grandmother‘s home had been evaluated. She testified at the hearing. The court carefully considered the question of placing the child in her custody, and essentially found her home to be a suitable one. Nonetheless, it was the considered judgment of the juvenile court that a change of placement was not in the child‘s best interest, in view of her fragile emotional state and her successful and enduring bond with the foster parents. We see no abuse of discretion or misapplication of the statute in this conclusion.
Accordingly, Court of Appeal erred in concluding that the juvenile court abused its discretion when it failed to give sufficient weight to the relative placement preference of
B. Suitability of Grandmother‘s Home
The Court of Appeal determined that there was substantial evidence that the grandmother‘s home would be a suitable placement for the child. It criticized the juvenile court for failing to give sufficient weight to the positive evaluation of grandmother‘s home prepared by the Mexican social service agency.10 It also criticized the lower court for continuing to give weight to evidence that suggested some deficiencies in her home. Mother argues that we should hold the Mexican social services report conclusive on the issue of suitability, as a matter of comity.
(15) Our review of the record persuades us that the criticisms levied by the Court of Appeal are misplaced, and that the weight to be given to the foreign social services report is not a question that is at issue here. The juvenile court scrupulously reviewed the evidence presented to it at the change of placement hearing, including the report of the Mexican social services agency, and essentially agreed that the grandmother‘s home was suitable. Nonetheless it found, based on substantial evidence, that a change of placement was not in the child‘s best interests. Thus the efforts of the
The Court of Appeal charged the juvenile court with having misinterpreted and disregarded some of the evidence. In a perplexing paragraph, the Court of Appeal declared that the juvenile court incorrectly referred to evidence that the child had been malnourished when she lived in Mexico, but then, in the same paragraph, the Court of Appeal acknowledged that the juvenile court had found this question of malnutrition a “non-issue” in the case. Our review of the record indicates that the latter assertion is correct.
With respect to the suitability of the grandmother as a caretaker, the Court of Appeal also found the juvenile court erred in supposing there was no evidence to explain why the grandmother had not come forward earlier in the proceedings. A review of the record establishes the juvenile court understood the grandmother‘s testimony was that she should not come forward in the juvenile court proceeding while her daughter was still trying to be reunified with her child. “Now, she may have been under the impression that mother and father were going to get the child back. This is not grandmother‘s fault. There was little she could do to really encourage that.” The juvenile court accurately characterized the evidence.
The Court of Appeal appeared most disturbed with the juvenile court‘s comment that the grandmother‘s intervention came “late in the game.” The Court of Appeal asserted that the grandmother should not be penalized for the timing of the motion because the court itself had failed to properly consider her as a placement alternative earlier in the proceedings. The Court of Appeal objected that “Grandmother had shown consistent interest in the child from the beginning of the dependency proceedings, and the court had earlier questioned whether the Department‘s failure to follow up on the DIF investigations should properly be held against Grandmother.”
This comment demonstrates the Court of Appeal‘s view that grandmother‘s rights had been violated during the dependency proceeding. However, the issue being litigated at the hearing was whether a change of placement to the grandmother‘s home would be in the best interests of the child. The juvenile court, unlike the Court of Appeal, properly focussed on the child‘s interests, rather than the grandmother‘s interest. From the point of view of the child, the grandmother‘s intervention did come too late; the child was already bonded to foster parents. We do not read the juvenile court‘s
C. Bonding
The Court of Appeal acknowledged the evidence regarding the child‘s close bond with her foster mother, and lack of bond with her grandmother, but stated: “While we cannot minimize the importance of Stephanie‘s bonding to her loving foster parents, we are loathe to place this newly created relationship above the interests of loving grandparents, who have consistently shown an interest in the child, and whose supposed deficits have, upon examination, been found not to be substantial or determinative. While Grandmother did not cite the appropriate litany or incantation that the Department apparently wanted to hear, she did consistently present herself as a willing and loving relative caretaker who had the best interests of this child at heart.”
(16) The Court of Appeal erred in giving too great weight to the grandmother‘s interest in maintaining a family tie with the child and substituting its judgment for that of the juvenile court. Putting aside the question whether the grandmother had any cognizable interest at all, and treating her as a parent, her interests were not significant compared to the need of the child for stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.)
Not only did the Court of Appeal err in giving too great weight to the interest of the grandmother, at a point when the interest of the child in stability had become paramount, it also erred in introducing considerations of national sovereignty and complaints against the Department into a review of proceedings that had to do only with the best interests of the child. The Court of Appeal stated: “We place some weight upon the competition of nationalities involved here. For what reason did the Department evidently assume that its sister agency, DIF, was incapable of adequately protecting Stephanie, a Mexican national with Mexican parents, in her Mexican grandmother‘s home? The Department repeatedly expressed concern about the distance involved and the difficulties in supervising a Mexican placement. Why then did it not defer jurisdiction to Mexico? It seems the Department may have had problems in taking into account cultural differences between Mexican families and the conventional wisdom of child welfare services in California.”
The essence of the juvenile court‘s ruling was that the child was fragile, that she had a strong, healthy bond with the foster mother, and essentially no bond with the grandmother, despite the opportunities that had been available to the grandmother to create such a bond. The juvenile court correctly focussed on these factors in deciding the best interests of the child. The Court of Appeal‘s institutional concerns were misplaced.
Both parents argue that a child‘s bond with foster parents cannot be the sole basis for a custody determination, and that, in fact, social scientists no longer unanimously recognize the continuation of a child‘s primary bond with a “psychological parent” as essential to the child‘s ultimate psychological well-being.
The juvenile court did not reject the motion for change of placement solely because the child had a satisfactory bond with the foster parents. Rather, the court was careful to explain that the child was quite fragile and had special needs, and that in her particularly delicate condition, a change of placement to a relative whom she barely knew would not be in her best interests. Further, the parents’ reliance on authority holding that parental rights may not be terminated solely because the child has bonded to foster parents is misplaced. (See, e.g, In re Rodrigo S. (1990) 225 Cal. App.3d 1179, 1185 [276 Cal. Rptr. 183] [in termination of parental rights under Civil Code, former § 232, finding of detriment cannot depend solely on potential loss of attachment to foster parents]; In re Venita L. (1987) 191 Cal. App.3d 1229, 1240 [236 Cal. Rptr. 859] [same at permanency planning hearing].) Unlike the standard analyzed in those cases, the standard the juvenile court was to apply at the hearing on change of placement did not require that it place the child with the grandmother unless such a placement would be detrimental to the child. Rather, the court was to decide whether the parents had carried a burden of showing that the proposed change of placement was in the best interests of the child.
VII. Conclusion
The judgment of the Court of Appeal reversed the order of the juvenile court denying change of placement and, purely because of the effect the Court of Appeal found the change of placement order would have on the order terminating parental rights, the Court of Appeal judgment reversed the latter order as well. We reverse the judgment of the Court of Appeal, and remand the case to that court for further proceedings not inconsistent with this opinion.
Lucas, C.J., Kennard, J., Arabian, J., Baxter, J., George, J., and Panelli, J.,* concurred.
Notes
Mother provides no authority in support of the claim. The claim was not raised in the trial court nor in the Court of Appeal and we decline to address it here.