IN RE KARLA C. (07/21/2010, No. A126685, 1st Dist.) __ Cal.App.4th __

May a juvenile court enter a temporary custody order placing the minor outside the boundaries of the United States? The Court of Appeal for the First District confronted this issue in In re Karla C. (07/21/2010, No. A126685) __ Cal.App.4th __ and concluded that such an order was proper only after the court had conducted a hearing to determine the enforceability of its jurisdiction in the foreign country, and after it had then taken appropriate measures to ensure it could maintain jurisdiction.

Five-year-old Karla C. was detained on a petition filed under subdivision (d) of section 300 of the Welfare & Institutions Code, which alleged that her stepfather had sexually abused her while she was in her mother's home, and that Mother had failed to protect her from the abuse. At the conclusion of a contested dispositional hearing, the trial court entered an order placing Karla, at least temporarily, in the custody of her father, a Peruvian national who (after being deported from the United States some years previously) now lives in Peru. Mother appealed, arguing among other things that the out-of-country placement was improper because such a placement would render reunification impossible, and because the Court had not obtained legal assurance from the Peruvian government that the court could effect the return of Karla to California if needed or that it could preserve its effective jurisdiction over Karla while she was in Peru.

The Court of Appeal, citing In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1412, noted that California law does not prohibit placing a child outside of the United States. However, the Court noted that several family law cases supported an argument that considerations of effective jurisdiction should be evaluated by a court contemplating an out-of-country placement for a dependent minor. Furthermore, the Court noted, Mother had failed to present any authority to the juvenile court or on appeal questioning whether Peruvian courts would accept and enforce the juvenile court's orders. Mother's counsel, the Court said, "only asserted a vague 'practical concern' that it would be 'difficult to effectuate any order from here once the child is [in Peru]'". "Mother", the Court declared, "simply asks us to presume that Peruvian courts will disregard the California juvenile court‘s jurisdiction."

However, despite the apparent forfeiture of this issue on appeal, the Court of Appeal nonetheless noted its concern "that the trial court has ordered a minor subject to its dependency jurisdiction placed abroad without any apparent consideration of its ability to make or enforce any further orders that may be necessary or appropriate." The Court therefore exercised its discretion to excuse forfeiture, and considered the issue on its merits.

The Court held that, while there is no basis to conclude without evidence that the Peruvian courts would (or would not) honor the juvenile court's orders, there is also cause to simply "[rely] on Father‘s word that he will honor the juvenile court‘s jurisdiction if the court orders Karla‘s return." Furthermore, the Court stated, "[n]or are we persuaded that either the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or the Hague Convention ensure the juvenile court‘s jurisdiction over Karla once placed in Peru." Specifically, the Court noted, the UCCJEA "provides no assurance that the sovereign Peruvian courts would agree and recognize California‘s continuing exclusive jurisdiction either as a matter of comity or under treaty" and the parties and the Court found no authority answering the question of whether the Hague Convention would protect the juvenile court's jurisdiction over the minor while she is in Peru.

"Thus," the Court of Appeal concluded, "the interests of justice require remand to the juvenile court for its consideration of (1) evidence regarding recognition and enforcement of the juvenile court‘s continuing jurisdiction under the laws of Peru and (2) imposition of any measures necessary or appropriate to ensure enforceability of the juvenile court‘s continuing jurisdiction and its orders while Karla is outside the United States."

The matter was thus remanded to the juvenile court for further consideration of these issues. Additionally, the juvenile court was directed to clarify, in its revised disposition orders, that Father was awarded temporary physical custody rather than sole legal and physical custody. In all other respects, the juvenile court's orders were affirmed.

The Court's opinion can be downloaded from http://courtinfo.ca.gov/opinions/documents/A126685.PDF.