In re SABRINA H.

Filed 4/20/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments and orders of the Superior Court of San Diego County, Harry Elias, Judge. Affirmed in part, reversed and remanded in part with directions and dismissed in part.

Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Gary Seiser, Deputy County Counsel, for Plaintiff and Respondent.

Amanda Benedict, under appointment by the Court of Appeal, for Minors.

Amber G., the mother of Sabrina H., Dakota H., Ashley L., Christina L. and Christopher G., appeals the juvenile court orders that detained and placed some of her children in Mexico after they were taken into protective custody.

Amber contends that detention and placement of dependent children in a foreign country is inimical to juvenile court law and the court lacked jurisdiction to place the children in a Mexican residence without adequate background checks of the caregiver. Amber also contends the detention of her children in Mexico violated the statutory requirements of prior notice to the parent and a showing of good cause for a placement outside of San Diego. Additionally, Amber contends the court abused its discretion in placing the children in the Mexican home of the caregiver.

FACTS

On March 28, 2006, Dakota, then 11 years old, was admitted to a hospital psychiatric ward for children after he threatened to kill Amber, his half-siblings and Christopher's father. The hospital was ready to release Dakota on April 5, but Amber refused to pick him up and bring him home because she was afraid for her other children. On April 10 Agency filed a dependency petition on behalf of Dakota, alleging he had a mental disorder requiring mental health treatment and did not have a parent capable of providing appropriate care. (Welf. & Inst. Code,^[1] 300, subd. (c).)

On May 2, at the jurisdictional hearing, Amber submitted to Dakota's petition on the basis of the social worker's reports. The court continued the jurisdictional hearing and the dispositional hearing pending the results of a psychological evaluation of Dakota.

On May 30 police responded to a call reporting a family disturbance at the home of Amber and Christopher's father. Christopher's father was lying in the front yard, and Amber was sitting on the patio. Amber smelled of alcohol and her speech was slurred when she talked to police. Amber said she and Christopher's father had been together for several years and had been involved in approximately 200 domestic violence incidents. Amber said they had been fighting on and off for the last four days, and he had hit her and the children. According to Amber, Christopher's father pushed Christopher, then two years old, to the floor on one occasion, and Ashley, then nine years old, to the floor on another occasion.

On June 1 Agency took Sabrina, Ashley, Christina and Christopher into protective custody. They were detained in two foster homes. On June 5 Agency filed dependency petitions on behalf of these four children, alleging they were at substantial risk of harm because they were periodically exposed to domestic violence in the home and their parents used alcoholic beverages to excess. ( 300, subd. (b).) In Ashley's petition, the section 300, subdivision (b) allegation also included a separate count alleging that her stepfather had subjected her to physical abuse. Christopher's petition also contained an allegation that he had suffered or was at substantial risk of suffering serious physical harm inflicted nonaccidentally by his father. ( 300, subd. (a).) Sabrina's, Ashley's and Christina's petitions contained an allegation that each of them was at substantial risk of being abused based on the physical abuse of Christopher. ( 300, subd. (j).)

On June 8 Alfredo G., Christopher's paternal grandfather, told the social worker that he was willing to care for all five children. Alfredo said he had a house in Ensenada, Mexico, which could accommodate the children, and sufficient income to provide for them. Alfredo said all of the children except Dakota had spent 10 days in his home during Easter vacation. According to the social worker, the children indicated they were willing to go to Alfredo's home. Agency requested Desarrollo Integral de la Familia (DIF), a Mexican social services agency, to conduct an evaluation of Alfredo's home.

On June 15 Agency received the DIF evaluation of Alfredo's home. The evaluation was very favorable, and DIF agreed to supervise the case on a monthly basis while the children were in Mexico. According to the DIF report, Alfredo was 64 years old and retired. Since 1999 Alfredo lived with Beth C., whom he had known for 20 years. Beth was 56 years old and had completed two years of college. Alfredo and Beth denied having any criminal history.

The DIF report stated that Alfredo and Beth's home had three bedrooms and three bathrooms, a dining room, a receiving room, a kitchen, a laundry room and a carpentry workshop. The neighborhood was peaceful and the house was close to a primary school and a medical center. The DIF report indicated Alfredo and Beth had sufficient means to pay for the medical care of the children.

Agency adopted the DIF recommendation that the children be detained with Alfredo in Mexico.

On June 27, at the jurisdictional/dispositional hearing for the children, Amber, who opposed placement of the children in Mexico, requested a trial. After Amber's counsel questioned whether the court had the authority to place the children in a foreign country before it took jurisdiction over the children, the court acknowledged counsel had presented a legal issue. Nonetheless, the court granted Agency discretion to detain the children with Alfredo in Mexico. The court suggested that Amber could challenge its ruling by filing a writ petition.^[2]

On July 20, at the contested jurisdictional/dispositional hearing for Sabrina, Ashley, Christina and Christopher, the court sustained the dependency petitions and found the allegations of each child's petition to be true by clear and convincing evidence. The court continued the dispositional hearing until the home evaluation of the maternal grandmother was completed.^[3]

By early August, Sabrina and Ashley, who were having emotional problems, were in foster homes in San Diego County. Christina and Christopher remained in Mexico under the care of Alfredo.

Amber did not attend the contested dispositional hearing on August 3, and the matter was submitted. The court declared Sabrina, Ashley, Christina and Christopher dependent children, removed them from Amber's custody and ordered Amber to comply with her case plan.^[4] The court placed Sabrina and Ashley in a licensed foster home and ordered psychological evaluations of the girls. The court placed Christina and Christopher with Alfredo in Mexico.^[5]

On August 7 Timothy L., the father of Ashley and Christina, telephoned the juvenile court and requested counsel be appointed to represent him. The court granted the request.

On August 18 Timothy, who lived in North Carolina, appeared in juvenile court and requested presumed father status and an expedited evaluation of his home under the Interstate Compact on the Placement of Children (ICPC). The court granted Timothy presumed father status in Ashley's and Christina's cases, and ordered an expedited ICPC evaluation of his home.

The social worker contacted Alfredo about bringing Christina to San Diego County for a visit with Timothy. Alfredo responded that he was unable to do so before Timothy returned to North Carolina. Alfredo said if he brought Christina to the United States he would have to leave her in this country to be placed in a new home. Christina told the social worker that she did not want to leave her placement with Alfredo for a visit with Timothy until he was evaluated and approved. Christina said she did not want to be moved back and forth from homes where she did not know the caregiver.

DISCUSSION

I. Placement of Dependent Children in Mexico Is Not Contrary to the Interests of Dependency Law

Amber contends the juvenile court lacked the authority to detain or place the children in Mexico because the juvenile law, by not expressly providing for the detention and placement of dependent children outside the United States, implicitly prohibits such placements. Amber also contends placement of dependent children in foreign countries is inimical to the primary purpose of the juvenile law namely, preservation of the family. These contentions lack merit.

We reject Amber's statutory construction argument based on the maxim expressio unius est exclusio alterius, which means " 'the expression of certain things in a statute necessarily involves exclusion of other things not expressed.' " (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13.) First, the application of this statutory construction tool to an entire code is questionable. The maxim expressio unius est exclusio alterius is generally applied to a specific statute, which contains a listing of items to which the statute applies. " 'Under the familiar rule of construction, expressio unius est exclusio alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.' " (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402; see also People v. Johnson (1988) 47 Cal.3d 576, 593, [" 'under the doctrine of expressio unius est exclusio alterius we must infer that the listing of terms and conditions is complete, and that there are no additional requirements which bind petitioner' "].) Our Supreme Court has characterized the maxim of expressio unius est exclusio alterius as a "mere guide" to be utilized when a statute is ambiguous. (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1391.)

There are other limitations to this maxim of statutory construction. " '[T]he maxim expressio unius est exclusio alterius is inapplicable . . . "where no reason exists why persons and things other than those enumerated should not be included, and manifest injustice would follow by not including them. . . ." ' " (People v. Reed (1996) 13 Cal.4th 217, 227.)Further, in Estate of Banerjee (1978) 21 Cal.3d 527, 539, the Supreme Court noted: "It is true that the canon of construction upon which respondent rests its case should be applied 'where appropriate and necessary to the just enforcement of the provisions of a statute.' [Citation.] Nevertheless, expressio unius est exclusio alterius is no magical incantation, nor does it refer to an immutable rule. Like all such guidelines, it has many exceptions . . . ." The high court listed some of the exceptions as follows:

"The rule is inapplicable: where no manifest reason exists why other persons or things than those enumerated should not be included and thus exclusion would result in injustice [citation]; to a statute the language of which may fairly comprehend many different objects, some of which are mentioned merely by way of example, without excluding others of similar nature [citation]; to a matter which is only incidentally dealt with in a statute [citation]; where its application would run counter to a well established principle of law." (Id. at p. 539, fn. 10.)

In In re Michael G. (1988) 44 Cal.3d 283, 291, the Supreme Court observed: " 'This rule, of course, is inapplicable where its operation would contradict a discernible and contrary legislative intent.' "

Amber does not point to any specific statute that lists a series of permissible placements and omits placements in foreign countries. Applying the maxim expressio unius est exclusio alterius to the Welfare and Institutions Code to prohibit foreign placement of dependent children would be at odds with the legislative intent and with basic goals of juvenile court law namely, to protect and serve the best interest of dependent children. (See  202.) Amber has not pointed to the existence of any manifest reason supporting a ban on child placements in a foreign country. If a foreign placement is in the best interest of a child, such a ban would result in an injustice. For all these reasons, we decline to apply the maxim expressio unius est exclusio alterius to the Welfare and Institutions Code and thereby read an implicit ban on placing dependent children in foreign countries. Adding language into a statute "violate[s] the cardinal rule of statutory construction that courts must not add provisions to statutes." (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998.) " 'It is . . . against all settled rules of statutory construction that courts should write into a statute by implication express requirements which the Legislature itself has not seen fit to place in the statute.' " (In re Rudy L. (1994) 29 Cal.App.4th 1007, 1011.) In other words, had the Legislature intended a ban on placement of dependent children in a foreign country, it could have explicitly enacted one.

Furthermore, although there is no explicit statute in the Welfare and Institutions Code (which contains much of juvenile dependency law) providing for placement of dependent children in foreign countries, there are statutory provisions regarding such placements in the Uniform Child Custody Jurisdiction and Enforcement Act (the Act). (Fam. Code,  3400 et seq.) The Act applies to juvenile dependency proceedings and international custody disputes. (In re Stephanie M. (1994) 7 Cal.4th 295, 310.) Foreign countries are treated as states for jurisdictional purposes. (Fam. Code,  3405, subd. (a).) California courts have subject matter jurisdiction under the Act when California is the "home state" of the children (Fam. Code,  3421, subd. (a)).^[6]

Amber's statutory arguments also ignore published case law that recognizes foreign placement of dependent children. For example, in In re Angelica V. (1995) 39 Cal.App.4th 1007, 1010, this court affirmed the adoption of the dependent children by the grandmother, who moved with the children to Mexico. Also, in In re Stephanie M., supra, 7 Cal.4th at pages 314 to 316, the Supreme Court implicitly recognized placement of dependent children in Mexico as an option available to the juvenile court.

Contrary to Amber's argument, the placement of a dependent child in a foreign country is not necessarily inimical to the juvenile dependency law's goal of reunification and does not necessarily stifle frequent visitation for parents. We realize visitation is an important component of reunification. However, in communities that are located along the border, such as San Diego County, placement of the child in the neighboring country may result in shorter distances for the parent to travel than placement in another county or a different state. Further, placement of children with relatives or non-relative extended family members is preferred over foster care. (See  361.3.)^[7] In some cases, the child has no relatives other than those living in the foreign country. Prohibiting all placements of dependent children in a foreign country would deprive those children of being placed with relatives and non-relative extended family members, which is contrary to the legislative goal of promoting placement of dependent children with relatives by giving such placements preferential consideration. (See fn. 7, ante.)

Amber has not shown that foreign placements of dependent children is contrary to the interests of juvenile dependency law.

II. Criminal and Child Abuse Background Checks Should Have Been Conducted Before Placing Children With Alfredo in Mexico

Amber contends the juvenile court erred by (1) detaining Sabrina, Ashley, Christina and Christopher in Alfredo's home before required criminal and child abuse background checks of him and Beth had been completed, and (2) placing Christina and Christopher in Alfredo's home before the required background checks were completed. Agency counters that the issues are moot.

A. Detention Orders Unlike Placement Orders Were Proper

The record on appeal supports Agency's mootness argument with respect to the detention of the children in Alfredo's home. This is an appeal of the judgment following a dispositional hearing of the children; hence, the dispositional hearing has taken place. (See In re Richard D. (1972) 23 Cal.App.3d 592, 595 [erroneous failure to follow detention hearing procedural requirements rendered moot by subsequent jurisdiction and disposition proceedings].) Furthermore, by the time of the dispositional hearing, Sabrina and Ashley were no longer living in Alfredo's home; they were in foster care.^[8]

Ordinarily, we do not address moot issues; however, in this case we reach the issue because it is important to distinguish the standards applicable to detaining dependent children in a relative's home before the dispositional hearing and the standards applicable to placing dependent children in a relative's home at the dispositional hearing.

The propriety of an order detaining a dependent child in a relative's home is subject to the provisions of section 309, subdivision (d). (In re Miguel E. (2004) 120 Cal.App.4th 521, 541-542.)^[9] "Section 309, subdivision (d) concerns the Agency's assessment and approval of a relative's home for 'temporary placement of the child pending the detention hearing.' " (In re Miguel E., supra, at p. 542, citing  309, subd. (d)(1); see also  319, subd. (f)(3).)

Section 309, subdivision (d)(1) provides in pertinent part:

"If an able and willing relative, as defined in Section 319, or an able and willing nonrelative extended family member, as defined in Section 362.7, is available and requests temporary placement of the child pending the detention hearing, the county welfare department shall initiate an assessment of the relative's or nonrelative extended family member's suitability, which shall include an in-home inspection to assess the safety of the home and the ability of the relative or nonrelative extended family member to care for the child's needs, and a consideration of the results of a criminal records check conducted pursuant to subdivision (a) of Section 16504.5 and a check of allegations of prior child abuse or neglect concerning the relative or nonrelative extended family member and other adults in the home."

Section 309, subdivision (d)(3) provides:

"If a relative or nonrelative extended family member meets all conditions for approval, except for the receipt of the Federal Bureau of Investigation's criminal history information for the relative or nonrelative extended family member, and other adults in the home, as indicated, the county welfare department may approve the home and document that approval, if the relative or nonrelative extended family member, and each adult in the home, has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after the approval has been granted, the department determines that the relative or nonrelative extended family member or other adult in the home has a criminal record, the approval may be terminated."

Story continued as Part II ..

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Amber's counsel did not file a writ petition challenging the detention order. Counsel did file a notice of appeal with the superior court challenging the detention orders, but Amber later abandoned the appeal.

^[3] In Dakota's contested dispositional hearing, the court found the allegation under section 300, subdivision (c) to be true by clear and convincing evidence. The court declared Dakota a dependent child, removed him from Amber's custody and placed him in a group home.

^[4] In Christopher's case, the court ordered custody removed from Amber and his father. The court also ordered Christopher's father to comply with his case plan.

^[5] In Christina's case, it was placement with a nonrelative extended family member. In Christopher's case, it was placement with a relative.

^[6] " 'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. . . ." (Fam. Code,  3402, subd. (g).)

^[7] Welfare and Institutions Code section 361.3, subdivisions (a) and (c)(1) provide that when a child is removed from the physical custody of a parent, a relative's request for placement shall be given preferential consideration, i.e., shall be the first placement considered and investigated. In determining whether a relative placement is appropriate, the court shall consider the best interest of the child, the wishes of the parent and relative, the provisions of Family Code section 7950, the placement of siblings or half-siblings in the home, the good moral character of the relative, the nature and duration of the relationship between the child and the relative, and the ability of the relative to inter alia provide a safe, secure and stable environment for the child, provide a home and the necessities of life, protect the child from the parents, facilitate visitation with other relatives and provide legal permanence. (Welf. & Inst. Code, 361.3, subd. (a)(1-7).) Placements shall, if possible, be made in the home of a relative, unless such placement would not be in the child's best interest. (Fam. Code,  7950, subd. (a)(1).) If a juvenile court does not place a child with a relative who has been considered, it is required to state reasons why the placement was denied. (Welf. & Inst. Code, 361.3, subd. (e).)

^[8] Dakota was placed in a group home on July 20, 2007.

^[9] Placements of dependent children with respect to criminal background checks are governed by a different statute section 361.4. (See part II C, post.)