Friday, July 21, 2006
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Juvenile Court Judge Cannot Make Custody Order Regarding Missing Child—Court of Appeal
By KENNETH OFGANG, Staff Writer
A juvenile court judge hearing a dependency proceeding regarding a missing child may make orders designed to ensure the child’s return, but has no jurisdiction to decide custody issues, the Court of Appeal for this district has ruled.
Div. Seven Wednesday overturned Los Angeles Superior Court Commissioner Stanley Genser’s ruling that a child identified only as Baby Boy M. be placed in long-term foster care.
The infant, born in March of last year, is the fifth child of Tiffany M. Of the other four, one died under circumstances which social workers claim were partially the mother’s fault—although the child’s paternal grandmother and not the mother was charged with murder—and the other three are in foster care.
Baby Boy M. was born last March in Lancaster, and a dependency petition was filed a month later. The Department of Children and Family Services alleged that when a case worker for the older children noticed that Tiffany M. was no longer pregnant, she denied having given birth.
Subsequent investigation revealed that she had a baby at a Lancaster hospital. The juvenile court issued a protective custody warrant for the child and ordered Tiffany M. to appear for a hearing, which she failed to do.
Tiffany M. was picked up on a bench warrant and charged with contempt. She was eventually released after testifying that she had given the baby to his father, whom she identified as James Smith of Atlanta.
The mother claimed she met Smith in Long Beach, where she lived, and was involved with him for about three months. He ended the relationship after she became pregnant, but had stayed in touch.
She gave him the baby two days after giving birth, she told Judge S. Patricia Spear, because she did not want the baby to go into foster care. She claimed she did not know Smith’s address or telephone number in Atlanta.
The dependency petitions regarding all four of the surviving children were assigned to Genser, who denied reunification services based on the mother’s role in the death of the other child and the failure of prior reunification efforts. He made the order for long-term foster care for Baby Boy M. and ordered that the protective custody order remain in effect.
On appeal, the mother argued that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, while counsel for the DCFS and the appointed attorney for the child argued that the appeal should be dismissed under the disentitlement doctrine.
The doctrine is normally employed in criminal cases to dismiss an appeal by a defendant who has fled the court’s jurisdiction. But it has been applied to dependency appeals where the appellant has impeded enforcement of the orders being appealed.
Presiding Justice Dennis Perluss, however, in his opinion for the Court of Appeal, said the disentitlement doctrine did not apply because Tiffany M. did not violate any orders and her “obstructive conduct” prior to the filing of the petition did not breach any legal obligation.
The jurist went on to agree that under the UCCJEA, the court could not make non-emergency orders regarding the child absent an affirmative showing that California is the child’s home state, that “[s]ubstantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships,” or that no other state is able to exercise jurisdiction.
No such showing was made, Perluss said, adding that the burden was on DCFS to establish jurisdiction.
In any event, Perluss went on to say, the uncertainty regarding jurisdiction and the lack of “any meaningful information” about the child made it imprudent for the juvenile court to make permanent orders.
“Continuing the protective custody warrant for the child and, if justified, issuing an arrest warrant for Smith provide all the protection necessary and appropriate in this case,” the presiding justice said, adding that the court may continue to conduct periodic review hearings in the case.
The case is In re Baby Boy M., 06 S.O.S. 3791.
Copyright 2006, Metropolitan News Company