Opinion
NOT TO BE PUBLISHED
Alameda County Plaintiff and Respondent, Super. Ct. Nos. OJ06004835/J06004836
Jones, P.J.
Hans R. appeals from a disposition entered after the juvenile court found true allegations that his children Rory and N. were dependent children within the meaning of Welfare and Institutions Code section 300. He contends the disposition must be reversed because (1) the juvenile court erred when it proceeded with the jurisdictional and dispositional hearings even though the children’s maternal grandmother would not return them from Russia, (2) the court abused its discretion when it placed the children with their grandmother at disposition, and (3) the court erroneously denied him visitation rights. We conclude the court did not commit any prejudicial errors and will affirm.
Unless otherwise indicated, all further section references will be to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 8, 2006, Oakland police officers investigating the disappearance of appellant’s former wife Nina brought Rory, then six, and N., then four, into protective custody. The police were suspicious because appellant had threatened Nina previously. Nina had sole legal custody of the children and the police believed the children should be placed in foster care until they could determine whether appellant was involved in her disappearance.
Upon further investigation, child welfare authorities discovered the problem was broader than the police had first suspected. Appellant had interfered with Rory’s medical needs by interfering with Nina’s attempt to obtain medical treatment for him. Appellant had a history of domestic violence, and he had been physically and verbally abusive of Nina in the children’s presence. In addition, appellant’s negative views about women and his uncensored violence had resulted in Rory acting out.
On September 12, 2006, a petition was filed alleging that Rory and N. came within the jurisdiction of the juvenile court under section 300. The children were removed from Nina’s home and were placed in the home of a close friend.
A jurisdictional hearing began on September 28, 2006.
On October 10, 2006, appellant was arrested and charged with murdering Nina.
Four days after the initial petition was filed, the children’s maternal grandmother, Irina S., arrived in the United States from her home in Russia. She moved into the home where the children were living and began to care for them on a day-to-day basis. In December 2006, Irina asked to be appointed a de facto parent of Rory and N. stating that she was particularly well suited to assume that role: “As the grandmother and a licensed physician, I am very familiar with the children’s medical, social, [and] educational history since birth. We’ve had extensive visitation [and] cohabitation periods in Russia and the USA.”
The family friend with whom Rory and N. had been living supported the request, “Irina was very involved in the children’s lives before September 2006. She visited with the children extensively both in Russia and the United States. [The] children appear to be well-bonded to her. Irina provides food, clothing, bathing, and medical attention for both children. She is also involved in their school, social and recreational activities. Irina is a physician and professional who is extremely attuned to child development, and children’s psychological needs. From my observations it appears that the children clearly relate to Irina as their mother figure and that Irina is now the primary parental figure for both children since their mother’s disappearance and their father’s incarceration. Both Rory and [N.] look to Irina to be nurtured and comforted during this challenging separation from their mother. I believe that her daily involvement in the children’s lives has permitted them to maintain relative stability and emotional well-being while they cope with their losses and the trauma they have faced over the last few months.”
The court granted the request and named Irina a de facto parent.
On December 5, 2006, while the jurisdictional hearing was ongoing, juvenile authorities asked the court to allow Irina to take the children to Russia for the holidays. The request stated the children would return on January 7, 2007. The court granted the request.
On January 24, 2007, during yet another jurisdictional hearing, a child welfare worker informed the court that Rory and N. were still in Russia and that they would not be returning to the United States as planned. According to the welfare worker, the grandmother had been following news reports of appellant’s trial when she learned that Rory was scheduled to testify. Rory had testified earlier and had been traumatized by the experience. The prospect of being required to testify again caused Rory great distress. The grandmother took Rory to a psychologist who believed it would be traumatic for him to testify again and who recommended that the children not return to the United States. The grandmother followed that advice and both children were being treated in Russia.
Appellant’s counsel argued that since the children were in Russia and would not be returning, the court had lost jurisdiction and the dependency proceedings had to be dismissed. The court declined to take that step characterizing counsel’s request as “premature.”
The jurisdictional hearing continued and ultimately the court found Rory and N. to be dependent children within the meaning of section 300, subdivisions (b), (c), and (g).
The report prepared for the dispositional hearing recommended that the children be placed with their grandmother Irina in Russia. Both children had been enrolled in a school that specialized in English. Rory said he was making friends and that “everything is good.” He wanted to stay with his grandmother and “would rather stay in Russia until his mother is found.” N. too said she was “doing good and that[] it’s good in Russia.” She was attending school and was making friends. N. said she “really misses her mom” and that she wanted to live with her grandmother.
The report noted that it was not Irina’s intent to violate the court’s travel order and that she was only looking out for the best interests of the children. Irina also said she was in the process of obtaining legal guardianship of the children in Russia.
At disposition, the court accepted the report’s recommendation and ordered that Rory and N. be placed with their grandmother in Russia. The court also denied appellant’s request for in-person visitation, limiting his contact to letters to be screened by the child welfare worker and then forwarded to Irina.
While this case was being briefed, appellant filed a motion that asked this court to take judicial notice of facts and events that occurred after the dispositional order that is at issue. We deferred ruling on the motion until considering the merits of the appeal. Having now considered appellant’s motion, we deny it. Our Supreme Court recently reaffirmed the rule that an appellate court should normally base its decision on the record as it existed at the time of the ruling being challenged. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) We will apply the general rule in this case.
A. Whether the Juvenile Court Should have Suspended the Proceedings
Appellant contends the juvenile court erred when it proceeded with the jurisdictional and dispositional hearings after it learned that Irina would not be returning Rory and N. from Russia as was planned originally. Appellant concedes the court’s ruling must be evaluated under an abuse of discretion standard. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We find no abuse here.
The court here was faced with a difficult choice. On one hand, it appeared that Rory and N. had been living in a dysfunctional family environment. Their parents were divorced and appellant was treating the children in ways that jeopardized their mental and physical health. Then, the children’s dysfunctional living environment became even more problematic when their mother disappeared and their father was named a suspect in her disappearance. The children’s grandmother Irina, with whom the children had a positive relationship, was able to provide a nurturing and emotionally supportive role. She came from Russia and moved in with the children. Having spent considerable time with them previously, she was intimately familiar with the children’s medical, social, and educational history. Irina provided the children food, clothing, and medical attention. She became involved in the children’s school, social and recreational activities. As a physician, Irina was attuned to the children’s physical development and their psychological needs. She became the children’s mother figure and was the primary parental figure for both children since their mother’s disappearance. Irina’s involvement allowed the children to maintain some semblance of stability and emotional well-being while they coped with the trauma they had experienced. Once the children were in Russia, Irina continued to provide them with the care they needed. Rory and N. were enrolled in a school that specialized in English, and they were making friends. Both were being seen by a psychologist twice a week. The children described their situation as “good” and both said they wanted to stay with their grandmother in Russia.
On the other had, the record does indicate that Irina had not done what she told the court she would do. The court approved the children’s travel to Russia with the understanding that they would return on January 7, 2007. The children did not return on that date, and Irina told a child welfare worker that they would not be returning. But even then, it appears that Irina’s actions were motivated not by a desire to flout the rulings of the court, but by her concern for the children’s well-being. Specifically, Rory, who had testified at his father’s trial earlier, showed signs of sleep disturbance and distress from testifying. Irina took Rory to a psychologist who told her it would be traumatic for him to testify and who recommended that the children not return to the United States.
The juvenile court, weighing these competing considerations, could reasonably conclude that the benefits that would flow to Rory and N. by allowing the dependency proceedings to continue outweighed any detriment that may have been caused by the fact that Irina may have violated a court order. We conclude the court did not abuse its discretion.
In arguing the court erred, appellant relies primarily on two cases: In re Baby Boy M. (2006) 141 Cal.App.4th 588, and In re Claudia S. (2005) 131 Cal.App.4th 236.
In Baby Boy M., the lower court allowed jurisdictional and dispositional hearings to continue even though the infant who was the subject of the dependency had been taken by his father and had disappeared. (In re Baby Boy M., supra, 141 Cal.App.4th at pp. 593-596.) The Baby Boy M. court ruled that under those circumstances, the lower court should have deferred ruling until the infant could be located: “‘The goal of the dependency system is to ensure the safety and well-being of children while, if possible, preserving and strengthening the family. [Citations.] The court ‘must control all proceedings with a view to the expeditious and effective ascertainment of the jurisdictional facts and of all information relevant to the present condition and welfare of the child.’ [Citation.]” The benefit of waiting until the child is present (or at least his location is known and his living situation assessed) is that it avoids decision making by the court that may ultimately prove not in the child’s best interests.” (Id. at p. 601.)
Here, by contrast, the court knew precisely where Rory and N. were living and a child welfare worker had spoken with Irina who appeared to be caring for the children in an appropriate way. The worker also spoke with the children, both of whom described their situation as “good.” Baby Boy M. is not controlling under these very different facts.
Similarly, in Claudia S., the court conducted jurisdictional, dispositional, and review hearings even though the children and their parents had disappeared. Then, when the family was located, the conditions that had led to the dependency no longer existed. (In re Claudia S., supra, 131 Cal.App.4th at p. 241.) The Claudia S. court ruled that under those circumstances, the lower court had erred: “In the absence of the children and the parents, all proceedings after the detention hearing constituted a continuing charade played out for the benefit of no one. [¶] . . . Had the court waited to conduct the jurisdiction hearing until after the children and their parents appeared and the parents had counsel to advocate on their behalf, it could have avoided this untenable position. Waiting to conduct the jurisdiction hearing would have allowed it to access the facts relevant to the children’s current situation, rather than relying on outdated information gathered before the detention hearing.” (Id. at p. 250.)
Here, unlike Claudia S., Rory, N., and Irina had not disappeared. The court knew where they were and how they were doing. Furthermore, the juvenile authorities were in contact with all of them. Claudia S. is not controlling.
None of the other arguments appellant makes convince us the juvenile court erred. Appellant contends that when the court learned Irina was keeping the children in Russia it should have immediately ordered her arrest under sections 338 and 339, and issued protective custody warrants for Rory and N. under section 340. However, each of the powers appellant has identified is discretionary. (See § 338 [“the juvenile court may issue its citation”], § 339 [“a warrant of arrest may issue”], § 340 [“a protective custody warrant may be issued”].) Given the significant benefit that Rory and N. were experiencing because of their grandmother’s efforts, we cannot conclude the court abused its discretion when it declined to order Irina’s arrest or to issue a protective custody warrant.
Section 338 states that a juvenile court “may issue its citation” to a parent or guardian ordering him or her to appear at a hearing. Section 339 states, “In case such citation cannot be served, or the person served fails to obey it, or in any case in which it appears to the court that the citation will probably be ineffective, a warrant of arrest may issue on the order of the court either against the parent, or guardian, or the person having the custody of the minor, or with whom the minor is living.”
Section 340 states, “Whenever a petition has been filed in the juvenile court alleging that a minor comes within Section 300 and praying for a hearing thereon, or whenever any subsequent petition has been filed praying for a hearing in the matter of the minor and it appears to the court that the circumstances of his or her home environment may endanger the health, person, or welfare of the minor, or whenever a dependent minor has run away from his or her court ordered placement, a protective custody warrant may be issued immediately for the minor.”
Next, appellant suggests the court should have stayed the proceedings because Irina had not only failed to comply with a court order when she refused to return with the children from Russia, she was committing crimes under Penal Code section 278.5, subdivision (a) and under 18 United States Code section 1204. As far as we can tell, Irina was never charged with any crime, and it is far from clear whether she violated the criminal statutes appellant has identified. Penal Code section 278.5, subdivision (a) makes it a crime to “maliciously deprive” a lawful custodian of the right to custody or a person of a right to visitation. The record here does not indicate Irina was acting maliciously. Indeed, it appears she was keeping the children in Russia in an attempt to protect them. Similarly, a violation of 18 United States Code section 1204 makes it illegal to remove a child from the United States with the intent to obstruct the lawful exercise of “parental rights.” Nina was missing and appellant was in prison. Appellant has not explained how Irina’s act obstructed the exercise of either’s parental rights.
Penal Code section 278.5, subdivision (a), that makes criminal “Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation . . . .” Appellant also relies on 18 United States Code section 1204, subdivision (a) that makes it a crime to remove a child from the United States with the intent to obstruct the lawful exercise of “parental rights.”
Finally, appellant argues that because Rory and N. were in Russia, he was precluded from presenting any meaningful evidence about their current circumstances thus resulting in a violation of his due process rights. Appellant has not cited to any point in the record where he raised this issue in the court below so the issue is waived. (See In re Levi U. (2000) 78 Cal.App.4th 191, 201.) It is also not persuasive. We are not aware of any restriction that would have prevented persons acting on appellant’s behalf from contacting Irina, the children, or any other person in Russia in order to gather whatever information appellant would need. Appellant’s due process rights were not materially compromised.
We conclude the court did not abuse its discretion when it allowed the jurisdictional and dispositional hearing to proceed.
B. Whether the Court Erred by Placing the Children with their Grandmother
Appellant contends the juvenile court erred when, at disposition, it placed Rory and N. with Irina in Russia.
Again, appellant concedes the standard of review is highly deferential. A juvenile court is granted broad discretion when determining where children should be placed, and its ruling will be reversed on appeal only where the court abused its discretion. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) We find no abuse here.
Appellant’s argument on this point is a variation on the argument that we addressed in section A of this opinion. Appellant argues that since Irina had violated a court order and was willfully withholding the children in Russia in violation of her promise and the court’s order, it was “patently absurd” for the court to place the children with her in Russia. However, as we have explained, the situation facing the court was complex. Weighing the competing factors that we have set forth above, the court could reasonably conclude that placing the children with Irina, who had stepped into the role of mother for both children, who was highly qualified, and who had provided and was providing the children with the care and stability they needed, was in the children’s best interests even though Irina might have violated a term of the court order by keeping the children in Russia. After all, the purpose of dependency proceedings is to protect the child, not punish the caregiver. (In re Mary S. (1986) 186 Cal.App.3d 414, 418.)
None of the specific arguments appellant makes convince us the court abused its discretion. First, appellant argues the court should not have placed the children with Irina because she was committing “ongoing felonies” by intentionally withholding the children in Russia. However, as we have said, Irina was never charged with any crime and it is far from clear whether she in fact committed any of the crimes appellant has identified. Indeed, it appears that Irina was not motivated by any criminal intent, but by a desire to protect the children and particularly Rory from further harm.
Next, appellant argues that Irina’s demonstrated failure to comply with the court’s travel order made it unlikely she would comply with any future orders of the court. Irina’s failure to comply with the court’s travel order was a cause for concern. However, that failure, when viewed in context, was not egregious. The juvenile court was in a far better position to predict Irina’s future conduct. The record, viewed in the most favorable light, supports the court’s decision. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
Appellant argues that because the children were in Russia, the court and child welfare officials were entirely dependent on Irina and Russian officials for information. Appellant contends that “none of these sources could reasonably be considered reliable or trustworthy . . . .” Appellant has not pointed to anything in the record that indicates either Irina or Russian officials had provided information about the children or their living situation that proved to be inaccurate. Appellant’s speculative argument is not a basis for overturning the court’s ruling. (Webster v. Superior Court (1988) 46 Cal.3d 338, 353.)
Next, appellant argues that by placing the children in Russia, the court undermined its ability to supervise the children. As examples, appellant notes that the court did not take all the procedural steps that normally are taken prior to placing a child with a relative such as Irina. While supervising the children in Russia may prove challenging, it was a challenge the court was willing to undertake in order to place the children with a relative who had demonstrated an ability to care for the children and to provide them stability. We cannot say the court abused its discretion when it made that difficult choice.
Appellant contends that by placing the children with Irina in Russia, the court made visitation “impossible” and reunification services “meaningless.” However, the court declined to order visitation not because the children were in Russia, but because appellant was in a maximum security jail pending his trial for murdering Nina. As for reunification services, we will not speculate that the reunification services provided to appellant will be meaningless. (In re Christopher L., supra, 143 Cal.App.4th at p. 1333.)
Finally, on this point, appellant argues that by placing the children with Irina in Russia, the court “uprooted [them] from the only life they had ever known” and “placed the children at risk.” We simply disagree with that characterization. It is true that the children were at risk; however, the primary reason for this was that their mother had disappeared and their father was in jail and being tried for her murder. The juvenile court could reasonably conclude that placing the children with their grandmother in Russia would not be detrimental, but would instead be a source of care and stability in their lives.
We conclude the court did not abuse its discretion.
C. Whether the Court Erred When it Declined to Order Visitation
At disposition, the juvenile court ordered that appellant receive reunification services, but ruled that he was not entitled to personal visits from the children while he was in jail pending trial. Appellant now contends the trial court erred when it declined to order personal visits.
Although reasonable reunification services must be provided to an incarcerated parent unless the juvenile court determines that those services would be detrimental to the child (§ 361.5, subd. (e)(1)), visitation services need be ordered only in cases where they are “appropriate.” (§ 361.5, subd. (e)(1)(C).)
Here, the child welfare worker supervising the children’s case said that it would be difficult for the children to visit appellant because he was housed in the maximum security portion of the jail. The children would have to get in line and wait their turn on a first-come-first-served basis, and the visit itself would occur through a glass wall. County counsel argued that given these circumstances, it was appropriate to prohibit visitation. The children’s attorney agreed, arguing that personal visits in the maximum security portion of the jail would be inappropriate for children who were grieving the loss of their mother and whose lives had been turned “upside down.” The trial court agreed with both of these assessments: “I think that face-to-face visitation is inappropriate at this time until we get further information on how these children are doing in therapy. And, certainly, in his current condition that there should not be any face-to-face visits, that that would be detrimental to these children for all the reasons that have been set forth by counsel for the agency and counsel for the children.”
The court’s conclusion that it would be inappropriate to order visitation given the circumstances of appellant’s incarceration is supported by substantial evidence. The court did not abuse its discretion when it declined to order visitation in this case. (See In re Daniel C.H. (1990) 220 Cal.App.3d 814, 839.)
III. DISPOSITION
The disposition is affirmed.
We concur: Simons, J., Needham, J.