Opinion
B163913.
10-31-2003
In re SAMANTHA B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MONA B., Defendant and Respondent; FAITH H., Objector and Appellant.
Kimberly A. Knill, under appointment by the Court of Appeal, for Objector and Appellant. Lloyd W. Pellman, County Counsel, Sterling Honea, Principal Deputy County Counsel, for Plaintiff and Respondent. Barbara S. Cohen for Defendant and Respondent. Sharon S. Rollo, under appointment by the Court of Appeal, for Samantha B.
Faith H., the maternal grandmother and former guardian of Samantha B. (born in June 1991), appeals from an October 30, 2002 order denying Faiths petition to terminate dependency jurisdiction, granting the petition of Samanthas mother, Mona B., to terminate the guardianship, and placing Samantha with Mona B. (Mother). We reverse that part of the order terminating the guardianship and placing Samantha with Mother because the juvenile court abused its discretion in concluding that Samanthas best interests required that the guardianship order be set aside.
FACTUAL AND PROCEDURAL BACKGROUND
In October 1993, when Samantha was two years old, she was detained after the home in which she was living with Mother burned down. The home was filthy and had no water or electrical service. Investigators found drug paraphernalia in the home and Mother admitted to the Department of Children and Family Services (DCFS) that she snorted cocaine and was a drug addict and alcoholic. Samantha was placed in foster care and Mother was arrested for traffic and drunk driving warrants. After Mother was released from jail in November 1993, she attended monitored weekly visits with Samantha regularly, but by late 1994 she was homeless and had not enrolled in any treatment program.
The identity and whereabouts of Samanthas father remained unknown to DCFS until July 1999, when a DCFS report stated that Samanthas father, Lyn H., is deceased.
In December 1993, the court declared Samantha a dependent child based on Mothers substance abuse and inability to arrange for Samanthas care. (Welf. & Inst. Code, § 300, subds. (b) and (g); further undesignated statutory references are to the Welf. & Inst. Code.) In late 1994, an Interstate Compact Placement Request was made to place Samantha with Faith, her maternal grandmother (Grandmother) in Idaho, and in February 1995, the court ordered Samantha placed with Grandmother. In February 1995, the court also ordered that Mother was not to have any visitation with Samantha until Mother tested clean. Mothers dirty tests prevented Mother from having any visitation with Samantha before May 30, 1995, when Grandmother and Samanthas great aunt came to California to take Samantha to live with them in Idaho. In July 1995, the juvenile court found that reasonable efforts to reunite Samantha and Mother had been made.
After arriving in Idaho, Samantha displayed emotional and behavioral problems and was diagnosed with attention deficit hyperactivity disorder, developmental delays, posttraumatic stress disorder, and possible fetal alcohol syndrome. Samantha received psychotropic medication and attended counseling. In March 1996, Grandmother and the great aunt expressed an interest in becoming Samanthas legal guardians. In March 1996, the court ordered Samantha placed with Grandmother in long-term foster care. In September 1996, Samanthas doctor in Idaho reported to DCFS that Samantha was receiving excellent care in Grandmothers home, Samanthas behavior was under control, and Samantha was making developmental progress. Grandmother also completed child care and psychology classes to improve her parenting skills. DCFS reported in September 1996 that Mother had not made any attempts to rehabilitate herself or to visit or contact Samantha.
In March 1997, upon the recommendation of DCFS, the court granted permission for Grandmother and the great aunt to seek joint legal guardianship of Samantha. The social worker in Idaho also recommended legal guardianship. Grandmother had diabetes and arthritis, and the social worker had "some concerns regarding [Grandmothers and the great aunts] health as many times the excuse for canceling [appointments with the social workers] was due to sickness." Nevertheless, the social worker in Idaho recommended legal guardianship because Samantha had bonded to both Grandmother and the great aunt and had responded well to placement with them. After an attorney for Grandmother in Idaho became ill and failed to forward to the juvenile court in California any information or guardianship order from the Idaho court, Grandmothers attorney in California filed a petition requesting that Grandmother and the great aunt be appointed guardians for Samantha, and an order appointing them as guardians was filed on July 31, 1997.
In July 1997, Mother gave birth to a daughter, Hope B., who was detained at birth because of a positive toxicology screen for methamphetamines. In December 1997, Grandmother brought Samantha to California to visit with Mother, who had been released from a drug treatment center and was then residing in a sober living center. In January 1999, DCFS reported that Samantha was doing well in school and was comfortable living with Grandmother, who still continued to take Samantha to therapy for anger and aggressive behavior. Grandmother continued to struggle with consistent parenting, limit-setting and managing Samanthas tantrums. Mother was still living in the sober living center and Hope was in foster care. Samantha did not want to talk on the telephone with Mother. DCFS recommended that Grandmother apply for legal guardianship in Idaho, which was then the state of Samanthas residence, so that Idaho would have jurisdiction over the case.
In June 1999, Mother married William Fletcher C. (Fletcher), one of the residents of the sober living home. Mother had been working steadily and had been testing clean. Samantha had regular telephone contact with Mother. In November 1999, the great aunt had a mild heart attack but had recovered by December 1999. By June 2000, Hope had been placed with Mother. Also in June 2000, Mother planned a trip to Idaho to visit Samantha, but the visit did not occur as Mother canceled the trip. Mother cashed in the bus ticket which DCFS had purchased for her and instead bought a ticket to visit friends in Las Vegas.
In December 2000, the juvenile court ordered that Mother may visit with Samantha in Idaho in January and that Samantha was to have a summer visit with Mother in California. Due to lack of funds, Mother did not visit with Samantha in January 2001. According to a June 2001 DCFS report, the relationship between Grandmother and Mother had deteriorated so that they were arguing with each other and speaking ill of each other in Samanthas presence. The social worker was concerned that Samantha was afraid of Mother and that Samantha had heard Grandmother say that Mother was using drugs again and was mentally disturbed. After counseling and three-way telephone conversations among Samantha, a therapist, and Mother, Samantha was no longer afraid of Mother, who planned to come to Idaho in early June and bring Samantha back for a summer visit in California. According to DCFS, "[B]oth [Grandmother and the great aunt] are in poor health. Often [Grandmother] is in need of Oxygen to aid her breathing as she gets tired easily. At best, it must be difficult to care for a 9 year old child." A social worker in Idaho also reported in June 2001 that "Sammie is torn between not hurting her grandmothers feelings and fear of what the future will be like with her mother. These stresses [a]ffect her school and social behaviors."
In June 2001, Mother and Hope went to Idaho and stayed with Grandmother and Samantha for about a month before taking Samantha back to California. Mother and Grandmother agreed that Samantha would return to Idaho to live with Grandmother and attend school in Idaho in the fall; the following summer, Samantha again would go to California to live with Mother, and if all went well, Samantha would stay in California and begin school in California in the fall of 2002.
On July 19, 2001, Samantha told DCFS that she was homesick and missed Grandmother, but she wanted to stay with Mother and Hope in California. At the end of Samanthas visit with Mother, Samantha became sick with diarrhea and lost about 12 pounds; Mother acknowledged the illness and asked Grandmother to take Samantha to the doctor upon her return to Idaho on August 17, which Grandmother did. It took Samantha several months to recover. In September 2001, Samantha told a social worker in Idaho that she did not have much fun during her summer visit in California because she did not do anything and just stayed in Mothers apartment. Grandmother told the social worker that Mother was mean to Samantha during the visit and that Mother had placed a cockroach in Samanthas hand and told her it was her medication. In November 2001, Samantha told her counselor that a male California social worker had telephoned her and upset and scared her; he had made fun of her and teased her.
In December 2001, Samantha told the social worker and her psychiatrist in Idaho that she did not want to go to California to visit Mother for the Christmas holiday, that she did not feel close to her mother, and that the previous summer visit was not a positive one. Samantha reported that Fletcher and Mother became angry and said negative, hurtful things about Grandmother. On December 5, 2001, Samantha wrote a letter to her attorney in California that her summer visit "wasnt everything I thought it would be," because Mother made promises that she broke, such as cursing about Samantha living with Grandmother.
Notwithstanding the recommendation by DCFS that Samantha "be ordered to have a visit with her mother from December 24, 2001 to January 3, 2002," the court denied Mothers December 17, 2001 request for a Christmas holiday visit because "I dont believe its fair to Samantha and to the grandmother to disrupt their holiday plans at this late date." The court also stated that it was concerned that Samantha was getting pressure from Grandmother and that "Im not sure that I accept everything in the legal guardians paperwork or everything in the Departments paperwork." Because Mother reported that Grandmother was preventing her from telephoning Samantha and that Mother had only spoken to Samantha twice after the summer visit, the court also ordered that Grandmother arrange for Mother to have an unmonitored telephone call with Samantha each week for a minimum of 10 minutes.
On December 27, 2001, the court ordered that until the court could hear from Samantha herself at a June 27, 2002 hearing, the courts "tentative decision" was that Mother was to have a summer visit with Samantha beginning on June 25, 2002. A June 2002 DCFS report stated that Mother had been attending AA and NA meetings, held a full-time job, and had moved to a new home with more room for Hope and Samantha. Mother maintained frequent telephone contact with Samantha, but Mother and Grandmother still battled over Samantha. According to the social worker, Grandmother "will do whatever she can to keep the reunification process [with Mother] from ever going forward" and was a "barrier to [Mother] reuniting with her daughter."
Grandmother allegedly canceled a doctors and a therapists appointment for Samantha because Grandmothers medication for tendonitis precluded her from driving. Samanthas counselor also reported that Grandmother disregarded her advice and did not follow through with recommendations regarding Samantha. In January 2002, when Grandmother was disciplining Samantha, Samantha had a fit; they got into a shoving match and the great aunt was pushed into the stove, causing her arm to be burned. In April, Samantha and Grandmother had another physical confrontation during which Samantha used nasty words and grabbed Grandmothers arm. Grandmother grabbed Samantha by the back of the neck to try to get her to settle down. Grandmother was so upset by the incident that she gave up and went to her room to cool off. Samanthas counselor reported that Samantha was pushing every boundary and limit with Grandmother and was totally out of control. The Idaho social worker at first recommended that Grandmothers foster license not be renewed, but then changed her mind and believed that Samanthas placement with Grandmother was in Samanthas best interest. In April 2002, Grandmother told the California social worker that she was not sure anymore if she was doing the right thing by trying to keep Samantha and that she was "tired." In May 2002, Grandmother stopped taking Samantha to her counselor and enrolled Samantha in a group class which taught girls how to deal with anger and behavior issues. Samantha was also matched up with a "lunch buddy," a young adult woman named Kelly. The Idaho social worker told Grandmother that Samantha needed to be in individual counseling, and in June Grandmother changed her mind and decided to take Samantha back for individual counseling.
The California social worker recommended that Samantha be returned to Mothers home. Grandmother did not agree with Californias case plan. According to Grandmother, no one had done anything to prepare Samantha for reunification with Mother and Samantha did not want to live with Mother. In May 2002, Samantha refused to talk to Mother on the telephone; according to Grandmother, Mother had moved and it was difficult to contact her because Mother did not have a telephone in the home and Fletcher took the cell phone with him.
On June 27, 2002, the court ordered that Samanthas summer visit with Mother would be from June 27 to August 15, 2002; Grandmother was allowed to telephone Samantha twice a week. On August 8, 2002, Mother filed a section 388 petition for modification of the July 1997 guardianship order, seeking to have Samantha placed in her home. Mother alleged that she had overcome her drug dependency and was living a clean and sober lifestyle and providing a stable home environment for Hope; she had regained custody of Hope, with the juvenile court terminating jurisdiction as to Hope in March 2000; Samantha had visited her last summer and was currently visiting her; and Samantha told Mother that she would like to stay with her after the summer vacation and enroll in school in California.
On August 12, 2002, Mother made a "walk-on request" seeking a court order to extend Samanthas California visit to September 9, the date set for hearing on Mothers section 388 petition for modification. The juvenile court denied the request as untimely. On August 13, 2002, Grandmother filed opposition to Mothers walk-on request, claiming that Mother did not provide a stable home environment for Hope in that she had three residences in the past year, that Mother moved shortly before the start of the June visit, and that DCFS had not inspected the home until the week of August 5, 2002. Grandmother also alleged that during the summer visit, Samantha was not taking her medication regularly, that no one had mailed her letters to Grandmother, and that Samantha missed Grandmother and the great aunt.
Samantha, by her counsel, also filed opposition to Mothers section 388 petition. The assistant to Samanthas counsel declared that she was unable to reach Samantha by telephone or mail, so she arranged to speak to Samantha in person privately at Mothers home on August 14, 2002. Samantha told her that she wanted to live with her grandmother and to visit with Mother for vacation only. When the assistant returned to the office, Mother had left her a voicemail message stating that Samantha had changed her mind and wanted to stay in California. Although Mother had Samantha come to the telephone to speak, the assistant heard Mother coaching Samantha about what to say.
In mid-August, Samantha returned to Idaho to live with Grandmother. According to the social worker who accompanied Samantha on the airplane to Idaho, Samantha cried and told the social worker that she wanted to stay and live with her Mother. On September 16, 2002, the court set a hearing on the section 388 petition for October 1, 2002, and a social worker was ordered to transport Samantha from Idaho to California for the October 1 hearing.
On September 30, 2002, Grandmother filed a section 388 petition for modification, seeking to terminate jurisdiction in California because she had obtained a custody order from the Idaho court on September 20, 2002. Grandmothers petition was supported by, among other things, a declaration of the assistant to Samanthas attorney. The assistant declared that on September 23 she spoke with Samantha, who was at her counselors office; Samantha told her that she did not want to live with Mother and go to school in California because her step-father said mean things and called Grandmother bad names. Samantha also said that on August 14 when she said she wanted to live with Grandmother and was packing her things to return to Idaho, Mother started crying and Samantha got so upset that she contacted her attorneys office and told them that she had changed her mind. Samanthas therapist also submitted a letter stating that Samantha told her on September 16 that she (Samantha) felt like a yo-yo, that she believed that Mother may have been lying about Grandmother "because Fletcher calls her bad names"; that Samantha feared that Mother might hurt her lunch buddy, Kelly, "because [Mother] threatened to come up here and because she has hurt her feelings in the past." The therapist stated that "Sammie is torn between [Mother] and [Grandmother] and struggles with having to decide who is being truthful and who isnt. She expresses fear for her safety and for the safety of people she cares about, specifically Kelly. States being tired of the whole thing," and "[s]tates she does not want to move to [Mothers] and wishes she didnt have to go back to visit so soon. When asked what I can do to help, she replied, `call the judge and tell them to let me stay with my grandma." Samantha also told her therapist that Grandmother was trying to protect her but she was not sure about Mother.
Shortly before October 1, 2002, a social worker went to Idaho to bring Samantha back to California for the hearing, but Samantha could not be found. The social worker telephoned Samanthas school and was told that an Idaho court order prevented the school from informing DCFS whether Samantha was in school. At the court hearing on October 1, Grandmothers attorney informed the court that Grandmother began driving down to California with Samantha the previous week, but when Grandmother was in Utah, an Idaho attorney told her that Idaho had jurisdiction and she should not bring Samantha to California. The juvenile court issued a protective custody warrant for Samantha, but stayed it until the next court hearing, when the juvenile court would contact the judicial officer in Idaho to discuss the issue of jurisdiction. The section 388 petitions were continued pending the determination of jurisdiction. In an October 1, 2002 report to the court (titled "Information for Court Officer"), DCFS recommended that Samantha be returned to Mothers home based on "Mothers rehabilitation, Samanthas express need for a family, and Grandmothers apparent emotional inability to accept [Mothers] successful rehabilitation and capability to care for her daughter."
On October 7, the juvenile court held a telephone conference call with the judge in Idaho. Both judges agreed that the Idaho custody order, obtained from a family law court in Idaho, was not intended to "fly in the face of any orders that [the California juvenile court] entered." The court ordered that Grandmother was to transport Samantha to California for an October 30, 2002 hearing on the petitions, but that Mother was to have an unmonitored visit with Samantha the day before the hearing.
At the hearing on October 30, Samantha testified that Mother had taken good care of her during her 2002 summer visit. Samantha felt comfortable with Mother and with Hope, but not with Fletcher. Fletcher would get mean when he lost his temper; he would cuss at Samantha and say "really rotten things" about Grandmother, which made her feel bad and "real upset." Fletcher scared her when he lost his temper, and she and Hope would try to make him happy; when he lost his temper, the girls would go to their bedroom. On one occasion, a neighbor girl who baby-sat for Samantha and Hope heard Fletcher yelling at Samantha and came over to Mothers home where Samantha asked her to stay. Samantha called Fletcher "Dad" because she would like to have a dad. She testified that it was hard not having a dad and that part of the reason she liked the summer visit was that she had a family with a mom, dad, and sister.
Although nothing troubled her when she was living with Grandmother in Idaho, Samantha told Mother during her summer visit that she wanted to stay in California. During the summer, Samantha had made friends in California and after she returned to Idaho, she missed them "a little bit still." Samantha could not remember what she said to the social worker who had flown her back to Idaho in August 2002 but testified that she was glad to get back and see Grandmother, although she also missed Mother.
When Samantha was asked if she then felt she would like to live in California, she responded, "A little bit still." Yet when Grandmothers counsel asked if Samantha would like to finish the current school year in Idaho, Samantha answered "yes" but said that she also would like to spend some time to know what it would be like living with Mother. Samantha admitted that she was torn between living with Grandmother or with Mother. When asked if it would be all right with her if the judge decided that she should live in California with Mother, Hope and Fletcher, Samantha responded, "Well, all I want to know is how long." Samantha said that she would be willing to try living with Mother for six months.
Samantha testified that during her summer visit she received a letter from Kelly, her adult "buddy," and Mother was upset and told Samantha that she was not going to let her write to Kelly anymore, which upset Samantha. Fletcher also got upset about Kellys letter, and Samantha felt that she should not let Mother and Fletcher know that she liked other people. Samantha also wrote some letters to Grandmother during the summer, but Mother never took the letters to the post office to mail. For several weeks in the summer, Mothers friend, Laura, came to live with them because Laura was having some problems with her husband. When Mother and Fletcher were at work, a 13- or 14-year-old neighbor would come over and watch Hope and Samantha.
Samantha further testified that she felt responsible for Grandmother because she loved her so much and was worried that she might fall and injure herself, as the great aunt had done. Samantha admitted that she took care of Grandmother when she was ill, but that did not happen very often, as Grandmothers health had gotten better during the past year. In Idaho, Samantha would fix herself oatmeal or cereal for breakfast, and she and Grandmother would usually go out for dinner. Samantha denied that Grandmother told her that Mother still does things that are not good, but Grandmother told Samantha that she did not think Mother was ready to take care of her yet.
Before argument of counsel, the juvenile court addressed the issue of jurisdiction. The court stated that after discussion with the Idaho judge about the jurisdictional issue, "[W]e were not successful in reaching a conclusion over which state should handle the case." Nevertheless, the juvenile court believed that California should have exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.). The court also determined that, as a juvenile dependency proceeding, the California proceeding would have priority over any custody and visitation orders from other departments of the court and Idaho was obligated to give full faith and credit to the orders of the juvenile dependency court.
The only argument made by counsel for DCFS was that it "submits on its report and the testimony of the child. I dont think were really capable of making an argument as to where this child should be placed." Counsel for Samantha expressed concern that Samantha was exposed to Fletchers anger in Mothers home and stated that "[m]aybe the court, if [it was] inclined to return Samantha to the mother, could fashion orders dealing with that." Counsel for Grandmother argued that the evidence was insufficient to establish that it would be in Samanthas best interest to live with Mother and Fletcher, and that until the end of the summer visit, DCFS had not gone out to inspect Mothers home to determine who was living there and whether the home was stable.
The juvenile court granted Mothers petition and denied Grandmothers petition. The court terminated Grandmothers legal guardianship and placed Samantha in Mothers home under the conditions that Fletcher attend anger management counseling and that the entire family attend counseling. Samantha was permitted to telephone Grandmother a minimum of once per week and to write to and receive letters from Grandmother and Kelly. Grandmother was also entitled to visitation with Samantha for the Christmas holidays or for the summer.
The court stated that "[w]ith respect to [Mothers section 388 petition], clearly the mother has made a substantial change in her circumstances. . . . I oversaw her reunification with Hope. I was the one who returned Hope to her. I terminated the case. So Im very, very familiar with everything the mother has accomplished. And it is very clear to me that she has changed her circumstances in a very substantial manner. [¶] The real issue in my mind is what is best for Sammie. Is it in her best interest to stay in the legal guardianship, or is it in her best interest to be with her mother? I think that Sammie is torn. I think shes getting pressure from both sides. . . . I dont know that shes being coached. But I think shes legitimately torn between two people she loves who cannot love or get along with each other."
In explaining its decision, the juvenile court stated that it was concerned with Samanthas testimony that she and Grandmother go out to dinner all the time and that Samantha makes breakfast for herself: "You know, I think its great that an 11 year old can cook, but the sense Im getting is that Samantha is the caretaker here. And maybe not in every physical sense, but I really think that for an 11 year old, their first obligation is to be a child. And that concerns me."
With respect to the issue of Fletchers anger, the court concluded that Fletcher "really lost it because of the same reasons that were here today, is that the grandmother and the mother arent getting along, and theres a lot of tension over the issue of placement. And thats the reason were here is were going to decide the placement issue once and for all. [¶] . . . So I suspect that once the issue of placement is decided, then some of these problems that she has with him will be addressed. But, in any event, while I dont think [Fletchers conduct is] a good thing, I think it was a one-time thing. She said she wanted to have a father, and she does enjoy calling him `Dad."
The juvenile court also noted that the counselor in Idaho had "a lot of problems with what was going on in Idaho with the grandmother. . . . [¶] But in any event, what Im primarily basing my finding on is Samanthas testimony. And I believe, based on her testimony, it would be in her best interest to be with her mother. . . . [W]ell, I also have concerns about the grandmothers judgment, particularly going around behind this courts back to Idaho. I think she did that deliberately. I think she did that to try to prevent this court from making further visitation orders. I think she did it knowingly; that she was deliberately trying to circumvent my orders. And based on the conversation we had with the judge and her attorney in Idaho, I think she deliberately ignored my orders to have Samantha transported here. And I think she hid Samantha from the department and the [social] worker. So that is not the type of judgment I will permit a legal guardian to exercise."
Grandmother filed a timely notice of appeal from the October 30, 2002 orders. Grandmother contends that the juvenile court erred in granting Mothers section 388 petition and in denying Grandmothers section 388 petition. Samanthas appellate counsel has filed a brief joining in the appellate arguments of Grandmother. Without having filed a notice of appeal or cross-appeal, DCFS has filed a "respondents brief," seeking to reverse the October 30, 2002 orders on the ground that there was insufficient evidence to support jurisdiction under Family Code section 3422 and that the juvenile court should have declined jurisdiction as an inconvenient forum under Family Code section 3427. DCFS maintains that Samanthas home state under the UCCJEA was Idaho and the juvenile court should have deferred the issue of Samanthas custody to Idaho.
Samanthas appellate counsel also filed a request for judicial notice of a section 388 petition filed by Samanthas trial counsel in the juvenile court on July 10, 2003, requesting that the court place Samantha in foster care. The petition alleged that Samantha had done well in school in California the previous year, but when she went to Idaho to visit Grandmother from June 15 to July 5, 2003, she had an emotional breakdown on June 18 and was taken to the emergency room. On June 20, Samantha saw her psychiatrist. Samantha told her psychiatrist, Cory Alexander, that she had been unhappy living with Mother, that Fletcher verbally abused her, and she got very little attention from Mother. Samantha said that she wanted to live with Grandmother.
The juvenile court set a hearing on Samanthas petition for August 18, 2003, but we learned from an August 19 letter from Samanthas appellate counsel that the petition was withdrawn on August 18. Although we granted the request for judicial notice on August 14, we now deny the request because the petition has been withdrawn. (See also In re Zeth S. (2003) 31 Cal.4th 396, 413 [in an appeal from order terminating parental rights, general rule is that Court of Appeal cannot consider postjudgment evidence of changed circumstances to reverse juvenile court judgments and remand cases for new hearings].)
DISCUSSION
A. Jurisdiction and Inconvenient Forum Issues
DCFS is the only party seeking to reverse the October 30, 2002 orders on grounds of lack of subject matter jurisdiction and inconvenient forum. Because DCFS has not filed a notice of appeal or cross-appeal, we question whether we have jurisdiction to entertain the issues raised in DCFSs brief because they are tantamount to an attempt by DCFS to appeal from the orders without having filed any notice of appeal or cross-appeal. (See, e.g., In re Ricky H. (1992) 10 Cal.App.4th 552, 560 [constructive filing doctrine does not apply to untimely appeals of orders terminating parental rights].) Even had DCFS filed a timely notice of appeal or cross-appeal, DCFS has not established standing or that it is aggrieved by the jurisdictional findings. (See Code Civ. Proc. §§ 902, 906; see also In re Carissa G. (1999) 76 Cal.App.4th 731, 734, 735 [parent must be aggrieved to obtain review of a ruling on the merits and only aggrieved party has standing to appeal].) Notwithstanding our concerns that the issues raised by DCFS may not be properly before us, we will address them because Mother has addressed the merits of the issue of subject matter jurisdiction in her respondents brief.
The UCCJEA, which applies to juvenile dependency proceedings, is the exclusive method for determining subject matter jurisdiction for custody proceedings brought in California. (Fam. Code, §§ 3421, subd. (b), 3402, subd. (d); In re Nada R. (2001) 89 Cal.App.4th 1166, 1173.)
DCFS does not argue that the juvenile court lacked subject matter jurisdiction pursuant to Family Code section 3421 to make its initial child custody determination placing Samantha in foster care in 1993, when Samanthas home state was California. We conclude that California had jurisdiction to make an initial child custody determination because "[t]his state is the home state of the child on the date of the commencement of the proceeding . . . ." (Fam. Code, § 3421, subd. (a)(1).)
Family Code section 3421 provides in pertinent part: "(a) Except as otherwise provided in Section 3424 [pertaining to temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial child custody determination only if any of the following are true: [¶] (1) This state is the home state of the child on the date of the commencement of the proceeding . . . ."
Thus, having jurisdiction to make the initial child custody determination, the juvenile court has "exclusive, continuing jurisdiction over the determination until either of the following occurs: [¶] (1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the childs care, protection, training, and personal relationships. [¶] (2) A court of this state or a court of another state determines that the child, the childs parents, and any person acting as a parent do not presently reside in this state." (Fam. Code, § 3422, subd. (a).)
Substantial evidence supports the juvenile courts implied findings that neither of the circumstances set out in Family Code section 3422, subdivision (a) had occurred and that California was not divested of jurisdiction. Samanthas sister and Mother lived in California. Samantha had lived with Mother for two summers and had established friendships in California. These factors indicate that Samantha had a significant connection with California and that there was substantial evidence in California concerning her care, protection, training and personal relationships. We conclude that California had jurisdiction under Family Code section 3422.
DCFS also contends that California was an inconvenient forum and that the juvenile court should have deferred Samanthas custody determination to Idaho. This argument necessarily assumes that the juvenile court could exercise subject matter jurisdiction. (Fam. Code, § 3427.)
Family Code section 3427 provides in pertinent part: "(a) A court of this state that has jurisdiction under this part to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the courts own motion, or request of another court."
Had it been raised below, the inconvenient forum issue would have been whether the juvenile court, in its discretion, should decline to exercise its concurrent jurisdiction based on a determination that California was an inconvenient forum and that Idaho was a more appropriate forum. (Fam. Code, § 3427, subds. (a), (b); In re Stephanie M. (1994) 7 Cal.4th 295, 312 (Stephanie M.) [inconvenient forum determinations are reviewed for abuse of discretion].)
We conclude that by failing to raise the matter of inconvenient forum in the juvenile court, DCFS has waived the issue. The issue of inconvenient forum as set out in Family Code section 3427 is similar to the common law doctrine of inconvenient forum applicable in civil cases and codified in Code of Civil Procedure section 410.30, subdivision (a).
Code of Civil Procedure section 410.30, subdivision (a) provides: "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just."
Under Code of Civil Procedure section 418.10, subdivision (e)(3), the failure of a defendant or cross-defendant to make a timely motion to stay or dismiss the action on the ground of inconvenient forum constitutes a waiver of the issue of inconvenient forum. Thus, the issue of inconvenient forum does not go to the issue of the courts subject matter jurisdiction and is a claim that can be waived. We conclude that the issue of inconvenient forum in Family Code section 3427 is also subject to the waiver doctrine. DCFS waived the issue of inconvenient forum by failing to raise it below.
Code of Civil Procedure section 418.10, subdivision (a) provides in pertinent part: "A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [& para;] . . . [¶] (2) To stay or dismiss the action on the ground of inconvenient forum."
Section 418.10, subdivision (e) provides in pertinent part: "A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint. [¶] . . . [¶] (3) Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution."
Even if DCFS had not waived the issue, we cannot conclude that the juvenile court abused its discretion in failing to decline jurisdiction, on its own motion, and in the absence of any controversy on the point. No party to these proceedings even attempted to submit information on, or argue, the factors relevant to the issue of inconvenient forum. Under these circumstances, we conclude that DCFS has failed to establish that the juvenile court abused its discretion in declining jurisdiction in favor of Idaho.
Family Code section 3427, subdivision (b) provides that before the court determines whether it is an inconvenient forum, it "shall allow the parties to submit information and shall consider all relevant factors, including: [¶] (1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child. [¶] (2) The length of time the child has resided outside the state. [¶] (3) The distance between the court in this state and the court in the state that would assume jurisdiction. [¶] (4) The degree of financial hardship to the parties in litigating in one forum over the other. [& para;] (5) Any agreement of the parties as to which state should assume jurisdiction. [¶] (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child. [¶] (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence. [¶] (8) The familiarity of the court of each state with the facts and issues in the pending litigation."
B. Termination of Guardianship and Placement of Samantha with Mother
Under section 388, a party may petition the court to change, modify, or set aside any previously made order, including orders for guardianship. (In re Carrie W. (2003) 110 Cal.App.4th 746, 757 [section 388 petition for modification may be used to terminate a legal guardianship].) "In order to grant a petition pursuant to section 388, there must be a substantial change in circumstances regarding the childs welfare and the requested modification of the prior order must be in the childs best interests. [Citation.] The juvenile courts determination in a hearing under section 388 will not be disturbed by a reviewing court in the absence of an abuse of discretion." (In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) Although we review the courts decision on a section 388 petition for abuse of discretion, "[t]he practical differences between the two standards of review [abuse of discretion and substantial evidence] are not significant. `[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; see also People v. Cluff (2001) 87 Cal.App.4th 991, 998 [trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence].)
"In any custody determination, a primary consideration in determining the childs best interests is the goal of assuring stability and continuity. [Citation.] `When custody continues over a significant period, the childs 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." (Stephanie M., supra, 7 Cal.4th at p. 317.) "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 [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] 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. (Ibid.)
In our view, the juvenile court improperly evaluated the evidence and failed to consider Samanthas need for stability and security in determining that her best interests would be served by terminating Grandmothers legal guardianship at that time. There is insufficient evidence in the record to support the trial courts findings that Fletchers anger was a "one-time thing" caused by the tension over the issue of placement and that the matter would be resolved when the issue of placement was decided "once and for all." The record is replete with uncontradicted evidence that Fletchers anger was an issue during Samanthas summer 2001 visit as well as the summer 2002 visit; Fletcher became angry about Samanthas relationship with Grandmother as well as with Kelly; Samantha and Hope tried to make him happy, but when he got angry they had to hide in the bedroom. And there is no evidence in this record that Fletcher obtained any counseling or therapy for anger management and no reasonable inference can be drawn that the matter would resolve itself by simply placing Samantha with Mother. Samantha, who loved her grandmother and was very attached to her, would still be visiting Grandmother even if placed with Mother and Fletcher, so the tense relationship between Mother and Grandmother would not be resolved simply by changing Samanthas placement.
There is also insufficient evidence in the record to support the juvenile courts finding that Grandmothers health issues forced Samantha to be her grandmothers caretaker. Samantha told her therapist in September 2002 that she believed Grandmother was acting to protect her, but she was not sure about Mother. Samantha felt safe and secure with Grandmother, whom she trusted and loved. Grandmother also was actively engaged in Samanthas counseling, therapy, and medical care, and sought out programs and people to provide emotional support for Samantha. On the other hand, Mother seemed to begrudge Samanthas relationships with other adults who provided guidance and support for her, such as Kelly. Grandmother clearly occupied a parental role in Samanthas life. That 10-year-old Samantha may have been independent enough to get her own breakfast does not establish that Grandmother had imposed on Samantha the burden of caring for her. The record contains insufficient evidence to support a finding that there was a role reversal here.
Nor is there any evidence to support the trial courts finding that Grandmother was depriving Samantha of her childhood because of Grandmothers health problems and because Samantha made her own breakfast and they went out to dinner instead of eating at home. Admittedly, Grandmother had diabetes and related health problems, and Samantha was sometimes concerned about the health of her grandmother and great aunt. But there is no evidence that Grandmothers health issues prevented her from adequately caring for Samantha or that Samantha had ever expressed this concern as a reason for not wanting to live with Grandmother. Nor is there any evidence that Samantha felt imposed upon because she made her own breakfast or that she suffered any health consequences by eating dinner outside the home. On the other hand, there is evidence in the record that Samantha was afraid of Fletcher and that she and Hope would hide in their bedroom when Fletcher was angry, demonstrating that Samantha was taking on a protective role with Hope. That Samantha may have expressed care and compassion for those around her does not indicate that Grandmother lacked the ability properly to care for Samantha.
With respect to Grandmothers purportedly "going around behind this courts back to Idaho" to obtain an Idaho custody order, this was precisely what a social worker had recommended earlier in the case before Mother had become clean and sober. While Grandmother may have intended to hide Samantha from the California social worker before the October 1, 2002 hearing, there is no evidence that Grandmother hid Samantha from any of the Idaho social workers supervising the case or that she intended to prevent Samantha from visiting with Mother. In any event, Grandmothers attempts to try to vest jurisdiction of the matter in Idaho hardly bears on Grandmothers ability to parent Samantha or on the issue of whether terminating Grandmothers guardianship would be in Samanthas best interests. While the California court faulted Grandmother for trying to place this matter before the Idaho court, DCFS has now adopted precisely this stance on appeal.
The juvenile court also referred to Samanthas testimony as supporting the finding that it would be in her best interests to terminate the guardianship after living with Grandmother for seven years and place her with Mother. Yet Samanthas testimony was at best equivocal on the issue of whether she wanted to be placed with Mother instead of Grandmother. Samantha testified that she was willing to try living with Mother for six months. In other words, Samantha still did not completely trust Mother to look after her well-being as she trusted Grandmother. Samantha desperately may have wanted to be part of an intact family with a mother and father, but she was not yet entirely comfortable with leaving the care of Grandmother and being placed with Mother on an indefinite basis. Accordingly, Samanthas testimony does not support the conclusion that placement with Mother would satisfy Samanthas need for stability and continuity.
For the foregoing reasons, we conclude that the findings made by the juvenile court are not supported by the evidence and therefore do not sustain the conclusion that termination of Grandmothers guardianship would be in Samanthas best interests. Thus, the trial court abused its discretion in granting Mothers petition and in terminating Grandmothers guardianship.
Grandmother contends that the court erred in denying her petition to terminate dependency jurisdiction because Grandmother had obtained an Idaho guardianship order and all of Samanthas support professionals, doctors, teachers, and friends are in Idaho. Grandmother fails to cite persuasive authority to establish that, under the circumstances of this case, the retention of jurisdiction by the California dependency court constituted error or abuse of discretion.
DISPOSITION
That part of the October 30, 2002 order granting Mona B.s petition is reversed; that part of the order denying Faith H.s petition is affirmed.
We concur: SPENCER, P. J. and ORTEGA, J.