Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. CK56211 Valerie Skeba, Referee.
John Cahill, under appointment by the Court of Appeal, for Defendant and Appellant.
Steve Cooley, District Attorney of Los Angeles County, Lael Rubin, Head Deputy District Attorney, and Natasha Cooper, Deputy District Attorney, as Amicus Curiae.
KITCHING, J.
INTRODUCTION
This case concerns the two children of appellant B.S. (father) and C.S. (mother): M.S., a boy born in 1991, and L.S., a girl born in 1994. Mother and the Los Angeles Department of Children and Family Services (Department) have accused father of sexually abusing the children. Father denies this charge. An Illinois family law court has determined that father shall have sole custody of the children. In February 2006, we held in an unpublished opinion that the courts of Illinois, and not the courts of California, have subject matter jurisdiction to determine the issue of custody. We remanded the case to the superior court for proceedings to immediately effectuate transport of the children to the State of Illinois.
Despite our order, the children have not been transported to Illinois. Since October 2006, the whereabouts of the children have been unknown to the Department, father and the superior court. Mother has declined to answer questions under oath about her knowledge, if any, of the children’s whereabouts, invoking her right against self-incrimination under the Fifth Amendment to the United States Constitution.
Father appeals from a court order (1) denying his petition under Welfare and Institutions Code section 388 and (2) dismissing the Department’s original juvenile dependency petition under section 300. In the section 388 petition, father sought, among other relief, an order requiring the Child Abduction Section of the Los Angeles County District Attorney’s Office (LADA) to either “assist” the Department in detaining the children or, in alternative, to “immediately commence good faith efforts to determine the whereabouts of the children.” We affirm the court’s order.
Except as otherwise indicated, all references to sections are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Procedural and Factual History Prior to the First Opinion
A detailed statement of the facts that led to the commencement of this action is set forth on pages 2-36 of our unpublished opinion dated August 8, 2006, in case No. B182578 (First Opinion). We state here a summary of the important events prior to the First Opinion that are relevant to this opinion.
a. The Illinois Proceedings
From 1996 to 2004, mother, father and the children were residents of the State of Illinois. In 1997, mother accused father of sexually molesting the children. The Illinois Department of Children and Family Services (Illinois DCFS), however, found that the charges were unsubstantiated.
In 2000, mother and father divorced. An Illinois family law court awarded sole custody of the children to father. Later that year, mother renewed her charges of sexual molestation against father. Again, the Illinois DCFS found the charges unsubstantiated.
In April 2003, mother asserted new charges of sexual molestation against father. Following an ex parte hearing, the Illinois family law court issued mother an emergency order of protection and granted her custody of the children. In May 2004, the Illinois family law court held a trial on mother’s petition for removal to re-locate the children to California. In June 2004, before the court issued its ruling on mother’s petition, Mother took the children to California.
In August 2004, father learned that mother had left Illinois for California. In November 2004, the Illinois family law court held mother in contempt for failing to appear in court and failing to permit father’s visitation with the children. The court issued an “Order for Body Attachment” commanding the arrest of mother.
On February 1, 2005, after a thorough investigation, the Illinois DCFS found that mother’s latest charges of sexual abuse were unfounded. On February 2, 2005, the Illinois family law court denied mother’s petition to re-locate the children to California, and ruled that father shall continue to have custody of the children.
b. The California Proceedings
On February 9, 2005, the Department filed a juvenile dependency petition in Los Angeles County Superior Court (superior court). In its petition the Department alleged that father was sexually abusing both M.S. and L.S. The Department prayed for the court to assert jurisdiction over the children under section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage), (d) (sexual abuse), (i) (cruelty) and (j) (abuse of sibling). On that day, the court found that the Department had made a prima facie showing that the children were persons described in section 300, and ordered that the children be detained and placed in temporary custody of the Department. The children were released to mother pending court order.
Later, when mother was arrested based upon an Illinois child abduction warrant, the children were placed with the maternal grandparents. Mother was prosecuted in Illinois on felony child abduction charges.
On the next day, February 10, 2005, father filed a motion requesting that the California courts decline jurisdiction over the matter. Father argued that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Family Code section 3400 et seq., and Parental Kidnapping Prevention Act (PKPA) (28 U.S.C. § 1738A), the Illinois Circuit Court for the Sixteenth Judicial Circuit, Kane County, had subject matter jurisdiction over all custody matters involving the children.
The superior court never adjudicated the merits of the Department’s section 300 petition. Instead, for almost a year, mother, father, the Department, and the children litigated the issue of whether the courts of California or the courts of Illinois had subject matter jurisdiction over the issue of custody. Finally, on January 20, 2006, the superior court (Referee I. Garfinkel) ruled that it did not have subject matter jurisdiction, that there was no legal or factual basis for the court’s continued emergency jurisdiction, and that the original petition filed by the Department on February 9, 2005, was dismissed.
Under the UCCJEA, the superior court has “temporary emergency jurisdiction if the child is present in this state and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to, or threatened with, mistreatment or abuse.” (Fam. Code, § 3424, subd. (a).)
2. The First Opinion
Mother filed a petition for writ relief from the superior court’s January 20, 2006, order and an earlier order whereby the superior court declined to exercise jurisdiction. On August 8, 2006, in the First Opinion, we denied the petition and affirmed the superior court’s January 20, 2006 order. We further stated: “The case is remanded to the California juvenile court for proceedings to immediately effectuate transport of [M.S.] and [L.S.] to the State of Illinois. Once the children are returned to Illinois, the California juvenile court shall dismiss the case.” (In re Mac S. et al. (Aug. 8, 2006, B182578 at p. 52, fn. omitted.)
3. The Superior Court Orders the Children Transported to Illinois
On August 16, 2006, the superior court issued an order requiring the Department to immediately detain M.S. and L.S. and transport them to Illinois. On August 23, 2006, we issued an order stating that the court’s August 16, 2006 order was premature and void because we had not yet issued a remittitur. On September 7, 2006, the superior court read our August 23, 2006 order into the record. The court also continued the matter to October 25, 2006, for further proceedings, and ordered mother and the children to be present on that date.
The remittitur was issued on September 25, 2006.
On October 25, 2006, mother and the children did not appear in superior court as ordered. The court found that mother was “intentionally secreting the children” from the Department and the court. The court ordered the Department to immediately detain M.S. and L.S. and to purchase two one-way, non-stop airline tickets to immediately transport the children to the State of Illinois. The court further ordered that mother and the children’s maternal grandparents not interfere with the children’s immediate transport to Illinois.
4. The Children Allegedly Run Away and Cannot Be Found by the Department
On October 27, 2006, mother’s counsel informed the superior court that the children had “fled the home” and left a note that they were running away from the Department. Counsel further stated that mother reported the matter to the Los Angeles Sheriff’s Department and filed a missing persons report. The court found that the children had “AWOLED,” i.e., were absent without leave, and issued protective custody warrants for them. The Department conducted an extensive search for the children but could not find them.
5. Mother Asserts Her Privilege Against Self-Incrimination
On November 17, 2006, at a hearing before the superior court, mother declined to answer questions about the location of the children, when they ran away, and whether she or the maternal grandparents provided them with any financial assistance. Instead, on advice of counsel, she invoked her privilege against self-incrimination under the Fifth Amendment to the United States Constitution. The court ordered that protective custody warrants for both children be served in any dwelling or other place where the children are likely to be found.
6. The November 16, 2007 Order
The Department continued to search for the children without success. On November 16, 2007, at a hearing on a progress report by the Department, father’s counsel orally requested that the court refer the matter to the LADA’s Office “to locate and bring those children before the court.” The court ordered father’s counsel to apply for assistance to the LADA Child Abduction Section. It also ordered the LADA Child Abduction Section “to make attempts” to find the children.
The order referred to the “Child Abduction Unit.” It appears that the correct name of this office within the LADA is the “Child Abduction Section.”
On November 17, 2007, father requested that the LADA Child Abduction Section assist in locating the children. The LADA Child Abduction Section, however, advised father that an application for assistance must come from the Child Abduction Unit of the Office of the County Counsel (County Counsel). But when father’s counsel contacted County Counsel, County Counsel stated that it would not seek assistance from the LADA Child Abduction Section in a juvenile dependency action unless the case reached disposition. And since this case had not reached disposition, County Counsel would not make an application to the LADA Child Abduction Section.
Father’s counsel then went back to the LADA Child Abduction Section, again requesting its assistance. Father was advised that based on the LADA Child Abduction Section’s criteria for initiating searches for children and its agreement with the Department, it would not provide any assistance in this matter.
7. Father’s Section 388 Petition
On December 31, 2007, father filed a section petition pursuant to section 388 to modify the court’s November 16, 2007 order. Specifically, father requested the court to order: “(1) the Office of County Counsel, Child Abduction Unit to make application and provide all documentation from the juvenile court action to the Child Abduction Section of the Office of the District Attorney for that agency’s assistance in locating [M.S.] and [L.S.]; and, (2) Order the Office of the District Attorney, Child Abduction Section to accept the application from the Child Abduction Unit of the Office of the County Counsel and immediately commence good faith efforts to determine the whereabouts of the children [M.S.] and [L.S.]; (3) the Child Abduction Section of the District Attorney’s office upon locating said children, assist the Los Angeles County Department of Children and Family Services (DCFS) to detain those children so that DCFS can immediately transport said children to the State of Illinois pursuant to the juvenile court order of October 25, 2006; or, (4) in the alternative, to order the Office of the District Attorney, Child Abduction Section to accept an application from father or father’s counsel and to immediately commence good faith efforts to determine the whereabouts of the children [M.S.] and [L.S.]; and, (5) Child Abduction Section of the District Attorney’s office upon locating said children, assist DCFS to detain those children so that DCFS can immediately transport said children to the State of Illinois pursuant to the juvenile court order of October 25, 2006.” On January 18, 2008, the court issued an order to show cause (OSC) as to why the LADA Child Abduction Section cannot assist in locating the children.
Section 388, subdivision (a) provides: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” (Italics added.) Here, the children were not declared dependents of the court. We do not, however, need to decide whether father had standing to bring a section 388 petition, because we affirm the court’s order denying the petition on other grounds.
On April 9, 2008, the court (Referee V. Skeba) held a hearing on the OSC and father’s section 388 petition. LADA opposed father’s section 388 petition. The court dismissed father’s section 388 petition, and ruled that it did not have legal authority to order the LADA to assist in locating the children. The court also ordered that the protective custody warrants issued for the children remain in full force and effect.
In reaching its decision, the court stated: “Now, the problem is . . . that I don’t have subject matter jurisdiction. If the children were before me, I would order them returned to Illinois. . . . [¶] I don’t think that I have the authority—given the lack of subject matter jurisdiction and the decision that there is no emergency jurisdiction in this case, I don’t believe I have authority to order the District Attorney to take this case and to look for these children.
“There is another court of competent jurisdiction that has clearly indicated they are concerned about the children. They want their orders enforced. And they are capable of doing so. [¶] . . . [¶] Illinois is in a position to do the same thing this court can do, which is issue warrants. I believe they already have. They can ask their district attorney’s office to investigate and take action. They can contact law enforcement in whatever jurisdiction they think the children are in.”
On April 15, 2008, the court (Referee V. Skeba) issued an order, correcting nunc pro tunc a clerical error in its April 9, 2008 order, by deleting “the court dismisses the 388 petition” and adding “the court dismisses the section 300 petition filed on February 9, 2005.” Father filed a timely notice of appeal of the April 9, 2008 order denying his section 388 petition and dismissing the juvenile dependency action.
CONTENTIONS
Father argues that the juvenile court’s denial of his section 388 petition and dismissal of the Department’s section 300 petition violated the First Opinion, the UCCJEA and the PKPA.
DISCUSSION
1. Although the Superior Court Does Not Have Jurisdiction to Adjudicate the Custody of the Children, It Does Have Jurisdiction to Enforce to the Custody Orders of Illinois
Chapter 2 of Part 1 of Division 2 of the Welfare and Institutions Code is known as the “Arnold-Kennick Juvenile Court Law.” (§ 200.) For convenience, we will refer to this chapter as the “juvenile law.” Section 245 provides: “Each superior court shall exercise the jurisdiction conferred by this chapter, and while sitting in the exercise of such jurisdiction, shall be known and referred to as the juvenile court.”
The juvenile law confers jurisdiction to a juvenile court in a variety of matters, including dependency proceedings. “The purpose of dependency proceedings is to protect the safety and well-being of a child whose parents or guardians either cannot or will not do so, or who themselves pose a threat to the child.” (10 Witkin, Cal. Sum. (10th ed. 2005) Parent and Child, § 519 (Witkin).) Among the issues decided by a juvenile court in a dependency proceeding is the custody of children whose health and safety are at risk. (See e.g. § 361, subd. (c).)
A superior court, sitting as a juvenile court, does not have jurisdiction under the juvenile law over a child in a dependency case unless the child comes within one or more of the descriptive categories set forth in section 300. Thus, a juvenile dependency case begins with a social worker or department for whom he or she works filing a section 300 petition. (§§ 325, 328; Witkin, supra, § 564.) At a jurisdictional hearing, the juvenile court determines whether to grant or deny the section 300 petition. (§ 355.)
A juvenile court may also exercise jurisdiction of children in non-dependency cases in circumstances not relevant here. (See Witkin, supra, §§ 449-452.)
Here, the Department filed a section 300, requesting the superior court, sitting as a juvenile court, to assert jurisdiction over M.S. and L.S. under the juvenile law. The superior court, however, never asserted jurisdiction over the children under the juvenile law. Instead, it ruled that under the UCCJEA and the PKPA, the courts of Illinois had jurisdiction over the custody of the children.
In the First Opinion, we affirmed the superior court’s order dated January 26, 2006, holding that the superior court did not have jurisdiction to determine the custody of the children under the juvenile law. We did not, however, rule that the superior court did not have jurisdiction to take any action whatsoever with respect to the children. Rather, we remanded the case for proceedings to immediately effectuate transport of the children to Illinois.
Under the UCCJEA, the superior court clearly had jurisdiction to comply with the directives of our First Opinion. Family Code section 3453 provides: “A court of this state shall accord full faith and credit to an order issued by another state, and consistent with this part, enforce a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so . . . .” Family Code section 3443, subdivision (b), in turn provides: “A court of this state may utilize any remedy available under other laws of this state to enforce a child custody determination made by a court of another state.”
The superior court thus had jurisdiction to issue its October 25, 2006 order, wherein it directed the Department to take specific actions to transport the children to Illinois. This order enforced the Illinois family law court’s determination that father has custody over the children. Likewise, the superior court had jurisdiction to issue protective warrants for both children. The warrants also enforced a sister state court custody determination.
In sum, the superior court does not have jurisdiction over the custody of the children under the juvenile law. The court, however, does have jurisdiction under the UCCJEA to enforce the custody orders of the Illinois family law court.
2. The Superior Court Could Not Compel the District Attorney to Take Action
Under Family Code section 3130 et seq., the district attorney is granted authority and responsibility to locate children taken or detained by a person in violation of a custody or visitation order. Family Code section 3131 provides: “If a custody or visitation order has been entered by a court of competent jurisdiction and the child is taken or detained by another person in violation of the order, the district attorney shall take all actions necessary to [1] locate and return the child and the person who violated the order and to [2] assist in the enforcement of the custody or visitation order or other order of the court by use of an appropriate civil or criminal proceeding.” (Italics added.)
Family Code section 3130 et seq. is not part of the UCCJEA. Under the UCCJEA, however, the district attorney is authorized to proceed under section 3130 et seq. (Fam. Code, § 3455, subd. (a).) When the district attorney so proceeds, the district attorney is acting on behalf of the court. (Fam. Code, §§ 3132, 3455, subd. (b).) In addition to as serving as a public prosecutor (Gov. Code, § 26500), the district attorney may provide assistance through its investigators, who serve as peace officers (Pen. Code, § 830.1, subd. (a)), or request assistance of other law enforcement officers to take reasonably necessary actions to locate a child taken or detained in violation of a custody or visitation order (Fam. Code, § 3456).
The UCCJEA commences at Family Code section 3400, which is Part 3 of Division 8 of the Family Code. Family Code section 3130 et seq. is Chapter 8 of Part 2 of Division 8 of the Family Code.
Here, father did not request the superior court to order the district attorney to prosecute an appropriate civil or criminal proceeding. Rather, he asked the superior court to order the district attorney to “commence good faith efforts to determine the whereabouts of the children” and to assist the Department to detain the children. Father argues that under the UCCJEA, the district court had a mandatory obligation to provide such assistance. In other words, father contends that the LADA did not have any discretion whether or not it would use its investigators or work with outside law enforcement to find and detain the children. We disagree.
The UCCJEA merely states that the district attorney is “authorized” to proceed under Family Code section 3130 et seq. (Fam. Code, § 3455, subd. (a).) There is no mandatory language in the UCCJEA requiring the district attorney to take action with respect to children taken or detained in violation of a custody order. Moreover, as we explain below, Family Code section 3131 itself does not impose a mandatory duty on the part of the district attorney to take action.
Whether a statute is intended to create a mandatory duty is a question of law. (Fox v. County of Fresno (1985) 170 Cal.App.3d 1238, 1242 (Fox).) There is no simple, mechanical test for determining whether a provision of a statute should be given mandatory effect. (Ibid.) We construe the statute as a whole and consider the legislative intent in enacting the statute. (Ibid.; Morris v. County of Marin (1977) 18 Cal.3d 901, 909-910.)
“In the area of law enforcement, statutes containing ‘shall’ language are sometimes interpreted as directory or permissive because discretion is inherent in the activity concerned.” (Fox, supra, 70 Cal.App.3d at p. 1242.) Pursuant to the separation of powers principles of our state constitute (Cal. Const., art. III, § 3), the district attorney
“ ‘ . . . ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.’ ” (People v. Covarrubias (1993) 18 Cal.App.4th 639, 643.)
For example, in Taliaferro v. Locke (1960) 182 Cal.App.2d 752 (Taliaferro), the court held that the district attorney did not have a mandatory duty to institute proceedings under Government Code section 26501 even through the statute stated that the district attorney “shall” institute proceedings under certain circumstances. The court stated: “As concerns the enforcement of the criminal law the office of district attorney is charged with grave responsibilities to the public. These responsibilities demand integrity, zeal and conscientious effort in the administration of justice under the criminal law. However, both as to investigation and prosecution that effort is subject to budgetary controls of boards of supervisors or other legislative bodies controlling the number of deputies, investigators and other employees.” (Taliaterro, at pp. 755-756.)
Whether Government Code section 26501 imposed a mandatory duty on district attorneys was also considered in Ascherman v. Bales (1969) 273 Cal.App.2d 707 (Ascherman). The court held: “Although this statute uses the word ‘shall,’ the ensuing clause implies that the duty entailed by the statute is discretionary.” (Id. at p. 708; see also Boyne v. Ryan (1893) 100 Cal. 265, 266-267 [holding that despite language of statute (now Gov. Code, § 26525) stating “the district attorney shall institute suit,” duty was discretionary].)
Government Code section 26501 provides: “The district attorney shall institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses when he has information that such offenses have been committed.”
We now apply these principles to the present case. Although Family Code section 3131 states that the district attorney “shall” do certain things, the ensuing clause implies that the duty is discretionary. (See Ascherman, supra, 273 Cal.App.2d at p. 708.) The district attorney is only required to take “necessary” actions and to pursue “appropriate” civil or criminal proceedings. Keeping in mind the principle of separation of powers (Cal. Const., art. III, § 3) and the reality that the district attorney has limited resources (Taliaferro, supra, 182 Cal.App.2d at p. 756), we hold that Family Code section 3131 imposes a discretionary, not mandatory, duty on the district attorney.
Father argues that the PKPA requires the superior court to enforce the Illinois family court custody determination. We agree. (See Thompson v. Thompson (1988) 484 U.S. 174, 183 [“ . . . the PKPA is a mandate directed to state courts to respect the custody decree of sister States”].) Father, however, cites no authority and we found none for the proposition that the PKPA requires the district attorney to locate and detain run-away children from out of state.
3. The Superior Court’s Purported Dismissal of the Department’s Section 300 Was a Nullity
In our First Opinion we affirmed the superior court’s January 20, 2006 order, whereby the superior court dismissed the Department’s February 9, 2005 section 300 petition. The superior court’s order in April 2007 again dismissing the Department’s section 300 petition was a nullity because the petition had already been dismissed.
DISPOSITION
The superior court’s order denying father’s section 388 petition is affirmed. The superior court does not have jurisdiction to determine the custody of M.S. and L.S. under the juvenile law. The Illinois family law court continues to have jurisdiction over that matter. If the children are still in California, however, the superior court continues to have jurisdiction over them to effectuate their transport to the State of Illinois and to assist in the enforcement of custody orders of the Illinois courts.
We concur: KLEIN, P. J., ALDRICH, J.