In re Mac S. and Lynn S.

Filed 8/8/06 In re Mac S. and Lynn S. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ORIGINAL PROCEEDINGS in mandate. David Doi, Judge, and Irwin H. Garfinkel, Referee. Petition dismissed and matter remanded with direction.

Molly L. Walker for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jerry Custis, Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services.

John Cahill, under appointment by the Court of Appeal, for Real Party in Interest Brian S.

Children's Law Center of Los Angeles--CLC 3, Cameryn Schmidt and Jennifer Winslow for Minor Lynn S.

Children's Law Center of Los Angeles--CLC 1, Jenny Cheung and David Estep for Minor Mac S.

__________________________

INTRODUCTION

In this original writ proceeding arising from a dependency case, petitioner Crystel S. (mother) asserts the juvenile court erred by ruling that (1) California did not have subject matter jurisdiction to modify the Illinois custody order, and (2) Illinois was the State with subject matter jurisdiction. We conclude that pursuant to the federal Parental Kidnapping Prevention Act (PKPA) (28 U.S.C. § 1738A) and the California Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.), the juvenile court did not err by finding that California lacked subject matter jurisdiction to modify the Illinois custody order and that Illinois had continuing subject matter jurisdiction.

Accordingly, we dismiss mother's petition for a writ of extraordinary relief. We remand the case to the juvenile court with direction to conduct proceedings to effectuate transporting the children to the State of Illinois.

FACTUAL AND PROCEDURAL BACKGROUND

In this writ proceeding, mother is represented by counsel. In addition, this court appointed separate counsel for the two children, Mac S. (born 1991) and Lynn S. (born 1994). Counsel for each child have submitted briefing. This court also appointed counsel for Brian S., the children's father, who has submitted briefing. Father has also submitted a number of records from the Illinois proceedings. This court granted father's request for judicial notice to consider the Illinois records in this proceeding. Finally, the Los Angeles Department of Children and Family Services (LA DCFS) has appeared and provided briefing to this court on the jurisdictional issues presented.

From 1996 to 2004, the parties were residents of the State of Illinois. The alleged abuse and neglect occurred in Illinois, where officials conducted a number of proceedings in relation to the allegations. Many of the proceedings in Illinois were conducted by the Circuit Court of the Sixteenth Judicial Circuit, located in Kane County. For ease of reference, we refer to this court as the Illinois family law court.

In California, the proceedings have focused primarily upon the issue of whether the California juvenile court has subject matter jurisdiction to hear the action. Thus, the record in this writ proceeding consists of the limited filings before the juvenile court on the issue of subject matter jurisdiction, as well as the documents submitted by father from the Illinois proceedings.

1. Mother and Father Participate in Marriage Counseling

Mother and father were married in June 1990. They had two children, Mac (now 14) and Lynn (now 12). From 1996 to 2004, the family lived in Illinois.

In 1996, the couple attempted marriage counseling with Muriel Greyer, a licensed clinical social worker. Mother and father participated in the counseling from October 1996 to January 1997.^[1] Mother alleged the purpose of therapy was because father was sleeping naked with the children.^[2] Father claimed the parties were having marital problems because of his work schedule.

2. Mother Initiates Dependency Proceeding in California

In February 1997, while living in Illinois, Mac experienced rectal bleeding.^[3] A Dr. Johnson examined the child. According to mother's testimony at an Illinois custody trial in 2000 before the Illinois family law court, Dr. Johnson showed mother Mac's bloody rectum with five visible tears. (The Illinois family law court concluded that mother's testimony was not substantiated by competent evidence.)

In addition, according to mother's testimony at the custody trial, Dr. Johnson inquired as to whether Mac had been sexually molested. Mother concluded that father was the perpetrator of the alleged sexual abuse of Mac.^[4]

A expert appointed by the Illinois family law court, Dr. Thomas B. Owley, interviewed father about this incident. Father noticed that Mac had a severe rash on his anus, which was large, and circular. Dr. Owley noted that there was no evidence of sexual abuse.

The next day, according to Dr. Owley's report, a Dr. Narula examined Mac. He diagnosed dermatitis with the possibility of pinworms. Mac was given a topical antibiotic.^[5]

On February 24, 1997, after father went to work, mother took the children to California to live with her parents. According to Dr. Owley's report, mother made a police report of sexual abuse in California. Mac denied any sexual abuse to the police officer. In addition, as to whether father touched Mac's genitals, Mac explained that sometimes father woke him up at night to put cream on his bottom to stop the itching.

Mother initiated a dependency proceeding in California. On March 26, 1997, the LA DCFS found the allegations of sexual abuse to be unsubstantiated or unfounded.

3. Abuse Investigation in Illinois

The LA DCFS notified the Illinois Department of Children and Family Services (Illinois DCFS) of the sexual abuse allegations. In February 1997, the Illinois DCFS conducted an investigation regarding Mac bleeding into the toilet. Relying upon the findings of the LA DCFS, the Illinois DCFS did not find evidence of abuse.

4. Mother Files Family Law Action in California

In February 1997, the couple separated. On March 10, 1997, in California, mother filed a petition for dissolution of marriage and for custody of the children. The California family law court found that Illinois had subject matter jurisdiction and dismissed mother's petition. Upon return to Illinois, mother filed a petition for dissolution of marriage.

5. Mother Initiates Dependency Proceeding in Illinois

In June 1997, mother concluded that father had sexually molested Lynn. Mother alleged that she discovered blood in Lynn's underwear. The Illinois DCFS conducted an investigation. The emergency room doctor who examined Lynn filed a report.^[6] According to Dr. Owley's report and the Illinois DCFS report, Kane County Child Advocacy workers, David Berg and Kathy Byrne, concluded that allegations of sexual abuse were unsubstantiated.^[7] Dr. Owley noted that according to the Illinois DCFS report, father stated that Lynn took a corner too sharply during a day at the swimming pool, causing the injury. In addition, father's mother was present the entire time. Lynn denied her father touched her.

6. Children Begin Counseling

In July 1997, Sara Bonkowski, Ph.D., an expert in the field of parent alienation, began counseling the children on a regular basis. In its April 28, 2000 custody order, the Illinois family court explained that Bonkowski found no evidence of parental alienation. In addition she noted that there was a close bond between father and the children.

7. Illinois Family Law Court Appoints Custody Evaluator

In 1997, the Illinois family Law court appointed Robert Shapiro, Ph.D., as a custody evaluator. Dr. Shapiro prepared two reports dated November 26, 1997 and December 7, 1998.^[8]

Dr. Shapiro individually interviewed mother and father and the children from June 1997 to August 1997. He also interviewed the children with mother and without father and vice versa. Dr. Shapiro conducted psychological testing of each parent. He reviewed a number of documents and court filings in preparation of his report.

Dr. Shapiro noted that father was complimentary of mother's parenting, but that mother negatively influenced the children regarding father. She acknowledged, however, that the children enjoyed spending time with father.

From his sessions with the children, Dr. Shapiro concluded that mother had â€