In re Muhamed E.

Filed 1/22/10 In re Muhamed E. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County,

Donna Levin, Referee. Affirmed.

Lisa A. Digrazia, under appointment by the Court of Appeal, for Defendant and Appellant.

James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Respondent.

The minor in this dependency case, Muhamed E.,[1] appeals from the juvenile courts dismissal of the dependency petition after the court found that Muhamed was not a child described under Welfare and Institutions Code[2] section 300. Muhamed contends the juvenile court erred by failing to exercise ongoing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA) because he had been abandoned by his parents and was abused by his father, who lived in Morocco. Because substantial evidence supports the juvenile courts finding, we affirm the judgment.

BACKGROUND

Muhamed came with his mother to the United States on a visitors visa on February 18, 2008, when he was 14 years old. Although the visa was a six-month visa, which would expire on August 17, 2008, Muhamed planned to stay with his sister in the United States indefinitely, and complete his education here.[3]

Muhamed is not the first member of his family to come to the United States on a visitors visa with the intention of staying indefinitely. In September 2003, Muhameds sister Mariam, who was 16 years old at the time, came to the United States to live with her older sister Malika, who lived in Los Angeles. In February 2004, shortly before her visitors visa was to expire, a referral was made by the police to the Los Angeles Department of Children and Family Services (the Department) that Mariam was a victim of caretaker absence. Mariam told the police that when she came home from school she discovered that the locks to the apartment she shared with Malika had been changed, and that Malika had told a neighbor that she was leaving the country.

The Department placed Mariam in foster care and filed a section 300 petition alleging that Mariam was at risk of physical and emotional harm. Mariam told the Department that she did not want to contact the Moroccan Embassy because she did not want to be encouraged to return to Morocco before she completed her educational goals (she wanted to finish high school and go to college to study law), and she did not want to inform her parents about the situation because she did not want anything to happen to her sick father. She made no allegation of abuse or neglect against her mother or father.

When the Department contacted her father in Morocco, he told the social workers that a conflict between the sisters led to Malika not wanting to take care of Mariam anymore. He said that Mariam seemed happy to be living with an American family, and he wanted her to stay in the United States to continue her education. When asked about his health, he said that he was doing well, with some liver problems. But when the social workers explained Mariams situation, with her visa due to expire in a few weeks, the father said that he was in the process of dying and wanted his child to continue to live in the United States. A month later, when contacted again, the father told the Department that he sent Mariam to the United States to study so shell have a good future. . . . Its good for her. I dont have enough money to pay for her. Perhaps the government of the United States will help her to get an education. I implore you to help her stay there and study.

Less than six weeks after Mariam was reportedly locked out of Malikas apartment, the juvenile court sustained the petition, ordered long term foster care as the permanent plan, and ordered the Department to assist Mariam with obtaining legal residence in the United States and applying for United States citizenship. Dependency jurisdiction was terminated at Mariams request shortly after she turned 18. Three years later, Muhamed arrived in the United States to live with Mariam (who was now married and lived in Bel Air) and go to school.

In May 2008, three months after Muhamed came to Los Angeles, the Department received a referral from school staff, stating that Muhamed had disclosed that he was staying alone in his sisters house while his sister and her husband were out of the country. The allegation of caretaker absence was deemed unfounded when the Department learned from Malika (who was living in Arizona at the time) that there was an adult staying on the premises in the guest house.

There was another referral the following month, when Mariam and her husband again were out of the country. The emergency response worker, Jilla Ourian, spoke to Muhamed. He told her that he did not want to return to Morocco because his parents were poor and he wanted to pursue his education here. He said that he would jump off the plane if anyone made him go back to Morocco. When Ourian asked him if he really was suicidal, Muhamed said he was not, and admitted that his sister had told him what to say in order to remain in the United States. He said that Mariam had come to the United States and told the police that she had no one to take care of her, and that is how she ended up in foster care; Muhamed said he wanted to go to a foster home as well.

Two weeks later, Muhamed claimed that Mariams husband, F.S., told him while Mariam was back in Morocco that he did not want Muhamed living with them anymore. Muhamed called the police after spending the night on the Santa Monica Pier and told them he had nowhere to live. The Department was called, and the responding social worker asked the father of a friend of Muhameds if he would be willing to let Muhamed stay with him until Mariam returned from Morocco. The friends father (Dr. K.) agreed, with the understanding that it would be for a couple of weeks. Before Mariam returned (more than a month later), however, Dr. K. and his family had to leave for a family vacation, so Muhamed went to stay with his aunt in San Diego.

Mariam finally returned from Morocco -- where she had been for several months -- on August 22, 2008. The next day, she told Muhamed to come to her and F.S.s house, where she would pick him up (she and F.S. apparently were getting divorced and living separately). While Muhamed was waiting in front of the house, F.S. came home and told Muhamed that he would call the police if Muhamed did not leave. Both F.S. and Muhamed called the police, and a police officer took Muhamed to the police station to wait for a social worker. The Department took Muhamed into protective custody and filed a section 300 petition alleging two identical counts, one under subdivision (b) and the other under subdivision (g), based upon Muhameds parents failing to make an appropriate plan for his ongoing care and supervision and failing to provide the necessities of life.

In an interview with the social worker at the police station, Muhamed said that he wanted to live here, and his parents want him to stay here, to get an education. In a follow-up interview a few days later, he said, I want to stay in this country in foster care for education. The social worker called his father, who said, I want him [child Muhamed] in United States, I like United States, if you can help him. The social worker also spoke to Mariam and F.S., who confirmed that they would not take care of Muhamed. Mariam said that she was in the process of divorcing F.S., and could not take care of her brother because she was only 20 years old, with two small children. F.S. said he could not take care of Muhamed because he was concerned about the safety of his children due to Muhameds behavior (F.S. said that Muhamed hangs around gangs). The social worker also interviewed Dr. K., who said he had spoken with Muhameds father twice while Muhamed lived with him, and that the first time they spoke the father wanted Muhamed to come back to Morocco, but the second time he said he wanted Muhamed to stay in the United States and get an education.

At the detention hearing, Muhameds attorney asked the juvenile court to make emergency jurisdictional findings. The attorney noted that, although it was not mentioned in the detention report, Muhamed told her that his father was abusive and broke his arm. The court made emergency detention findings and ordered the Department to investigate the abuse allegations. The court also ordered the Department to contact Immigration, since Muhameds visa had expired. It noted that unless there was some pretty serious reason why Muhamed could not return to Morocco, the court did not believe it could take jurisdiction over him.

The dependency investigator interviewed Muhamed a couple of weeks later.[4] Muhamed told her, for the first time, that his father was abusive and broke his hand just before he came to the United States.[5] He also reported that his father did not have any money.

The dependency investigator also interviewed Mariam. She asked Mariam why she came to the United States. Mariam said her sister who was living here came home for a visit, and Mariam came back with her. When asked why she did not return home, Mariam said, My dad was a disaster. I didnt want to live with him. . . . He wouldnt spend money on us. He was cheap. He would beat us up. I got married so I wouldnt have to go back. The investigator asked what she meant by beat us up, and she replied, He would beat me up for stupid reasons. It was just difficult to live with him. In general, he would even beat up my own mother when we were young. But when asked to describe specifically what he did, she said, He beat me up. He takes his hand and he. . . . Maam, I cant describe this. He slaps you in the face. Sometimes he pulls my hair. When I was a kid, thats what I lived with. He changed. He doesnt do it so much anymore. Mostly, he is not spending money on his kids. He wouldnt spend money on food or give the food to his kids. . . . He wouldnt spend anything on Muhamed either. Muhamed would want chips but he couldnt eat chips because Dad wouldnt spend the money on them. . . . My dad used to bring home the good foods like yogurt and he would eat them in his room. He would eat the chocolates and he wouldnt share them with his kids. Isnt that mean? . . . When I got to Morocco [she went in early June, and stayed until late August], I have to go buy my own food for my children. I have to buy clothes from US because he wouldnt buy my children clothes in Morocco. She told the investigator that her father was a school principal, but was retired, and that he had money but would not spend it on them.

An Arabic-speaking Department social worker was able reach Muhameds mother by telephone the day before the initial pretrial resolution conference. The mother said that they were not doing well financially, and could not arrange for Muhameds return to Morocco. She also said that Muhameds father was very abusive towards her and the children, and has a long history of domestic violence. She said that the father broke Muhameds hand before Muhamed left Morocco when he swung at Muhamed with a chandelier and Muhamed put his hands up to protect his face.

At the initial pretrial resolution conference on September 24, 2008, the juvenile court noted that there was no concrete evidence of abuse, particularly in light of the conflicting evidence about how Muhameds hand was injured, and that it appears that his parents are able to take care of him but simply want him to get a free education and room and board in the United States. The court also observed that, based upon what happened with Mariam, it appeared as though the family was trying to manipulate the system. The court ordered the Department to conduct further investigation and to refer the case to Immigration and Customs.

After numerous attempts to contact the Moroccan Consulate, Immigration and Customs Enforcement (ICE), and the United States Citizenship and Immigration Service, the Department finally was able to obtain assistance from the Consulate in Morocco and ICE. A representative from ICE interviewed both parents on November 5, 2008, and reported that they did not want their son to return to Morocco: The way they saw it, he was living happily with a family, going to school, and being supported by the US government. The parents were told that they could either purchase a ticket for Muhamed by November 14, 2008, or he would be deported and the United States would start the process to have the parents designated as alien smugglers. The parents said that they had sufficient funds to buy a ticket.

The parents did not buy a ticket for Muhamed by November 14, or anytime thereafter. When the Arabic-speaking social worker called his mother on November 17, she told the social worker that Muhameds father was cheap and would not pay for a ticket, so she was trying to borrow money because she wanted Muhamed to come home. She still had not been able to purchase a ticket when the social worker spoke with her again on December 8. During that conversation, she was asked about Muhameds fathers alleged abuse. She told the social worker that the abuse had dwindled because father was getting older, had health problems, and was home for only two to four days a week, and that the last time he was physically abusive with her was in 2001.

By the time the contested jurisdictional hearing was held, the juvenile court had received various reports concerning the Departments investigation and the progress of the ICE investigation. In addition to the information detailed above, the Department reported that Muhameds foster mother informed the Department that Muhamed was spending nearly every weekend with Mariam, and when school was out he barely spent any time at the foster home, coming and going without asking permission and ignoring house rules. The foster mother also said that, although Muhamed had said his parents were abusive, he also spoke fondly of them, which made her question the validity of his abuse claims. The Department also reported that it had learned that there were no government agencies in Morocco comparable to Child Protection Services that assist with child abuse or child neglect matters, and that deportation proceedings typically take from six months to two years, although in Muhameds case it might be expedited due to his age.

The contested jurisdictional hearing was held over several days, during which the dependency investigator, the Arabic-speaking social worker, the emergency response worker who interviewed Muhamed in June 2008, and Muhamed testified. After hearing arguments (during which Muhameds counsel asked the court to continue to exercise its emergency jurisdiction under the UCCJEA in light of the abuse allegations) the court observed that the evidence made it very clear that Muhamed wants to stay in the United States, knows how to manipulate the system, and will do anything it takes to make sure he gets to stay here. The court also observed that Muhameds mother was willing to care for him, and that the evidence of abuse was so contradictory that the court could not find that Muhamed had been abused. Therefore, the court continued the matter for two weeks and directed the Department to make arrangements for Muhamed to return to Morocco.

Two weeks later, on January 26, 2009, the court concluded that Muhameds parents and the whole family are playing games with the Department. It dismissed the petition without prejudice, over Muhameds objection, and ordered Muhamed released to his parents in Morocco or his adult sisters in the United States. Muhamed appeals from the January 26, 2009 order.

DISCUSSION

On appeal, Muhamed contends the juvenile court erred by not exercising jurisdiction under the UCCJEA because Muhameds parents abandoned him and subjected him to physical abuse. In essence, Muhamed argues that the juvenile court must exercise emergency jurisdiction because, by leaving him in the United States and failing to make an appropriate plan for his care or his return to Morocco, his parents necessarily placed him at risk of physical and emotional harm. He also argues that jurisdiction must be exercised because there was overwhelming evidence that his parents subjected him to physical abuse and domestic violence, and [i]n cases where the validity of the allegations are uncertain, the very possibility that the allegations of immediate harm might be true is sufficient for the court to assume emergency jurisdiction. (Quoting In re Nada R. (2001) 89 Cal.App.4th 1166, 1174.) He contends that we are not bound by the juvenile courts jurisdictional findings, and that we may independently reweigh the jurisdictional facts. (Citing In re Jorge G. (2008) 164 Cal.App.4th 125, 131-132.) He is mistaken.

Although Muhamed is correct that an appellate court is not bound by a juvenile courts finding that it may exercise jurisdiction under the UCCJEA (In re Jorge G., supra, 164 Cal.App.4th at pp. 131-132), UCCJEA jurisdiction is not the real issue in this case. The UCCJEA applies to determine whether a court has jurisdiction over a child custody or dependency case when more than one state (or country) arguably could assert jurisdiction. (In re A.C. (2005) 130 Cal.App.4th 854, 860.) In other words, the UCCJEA merely determines whether a California court may exercise dependency jurisdiction over a minor. But in this case, the juvenile court determined there was no basis for dependency jurisdiction because it concluded that Muhamed was not abandoned by his family, and it disbelieved his allegation that he had been subjected to abuse or domestic violence. And that is an issue subject to the substantial evidence standard of review. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199 [dismissal of dependency petition governed by substantial evidence standard of review].)

It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citations.] It is not an appellate courts function, in short, to redetermine the facts. [Citation.] Absent indisputable evidence of abuse -- evidence no reasonable trier of fact could have rejected -- we must therefore affirm the juvenile courts determination. (In re Sheila B., supra, 19 Cal.App.4th at pp. 199-200.)

Here, there was no indisputable evidence of abandonment or abuse. Instead, there was substantial evidence that Muhamed and his family simply wanted Muhamed to be educated in the United States, and formulated a plan (that previously had been successful for his sister Mariam) to bring him into the dependency system in order to ensure that he could remain in this country. Given the complete absence of allegations of abuse in Mariams case or in Muhameds case until it appeared that his abandonment by Mariam might not be sufficient to keep him in the dependency system, and the conflicting evidence of abuse once the allegations were made, we cannot say that no reasonable trier of fact could have rejected those allegations. Therefore, we must affirm the juvenile courts dismissal of the dependency petition.

DISPOSITION

The order dismissing the dependency petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] Muhameds name is spelled various ways in the record. We use the spelling he provided when testifying before the juvenile court.

[2] Further undesignated statutory references are to the Welfare and Institutions Code.

[3] Muhameds mother stayed in the United States for a month, then returned to Morocco.

[4] A few days before the interview, Muhamed told staff at the group home where he was placed that he could kill himself and tied a scarf tightly around his neck. The staff was able to remove the scarf within seconds.

[5] Dr. K. told the investigator that Muhamed told him that he injured his hand in the airport when he came here and slammed it against something.