NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 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 "embarked on a conscious and conscientious attempt to interfere with the children's relationship with their father."9 Dr. Shapiro also concluded that the children had not been sexually abused, writing: "If anything, the children are being abused by their mother in her attempt to alienate them from their father."
Dr. Shapiro concluded that it was mother who informed Mac that father had put a sharp object into Mac's rectum. Mac had no recollection of the incident happening. Dr. Shapiro also concluded that there was no evidence of sexual abuse. Dr. Shapiro recommended that father receive sole custody.10
8. Illinois DCFS Conducts Investigation
On May 24, 1998, the Illinois DCFS conducted an investigation into body paint found on the children. The children painted each other while naked and in the custody of father. The doctor who examined the children contacted the DCFS, who called the police. The Illinois DCFS concluded that allegations were unsubstantiated.
9. Illinois Family Law Court Appoints Guardian Ad Litem for Children
On June 19, 1998, the children's guardian ad litem in Illinois, Kevin T. Busch, reported concerns with respect to mother. His written report is contained in the record on appeal. Busch met with the children a number of times with each parent. The meetings occurred at his office, the children's homes, and neutral settings such as parks. Busch also reviewed a number of documents and medical reports, and spoke with DCFS investigators and school officials.
Busch summarized the proceedings and explained that the Illinois family law court appointed him as guardian ad litem in April 1997 to investigate the allegations against father. Busch also summarized the allegations against each parent. Busch concluded: "During my investigation, I was able to confirm through the children that, [m]other in fact has attempted to indoctrinate the children into reporting sexual abuse. These false reports were associated with the alleged anal penetration to Mac [S.] and the body painting incident. In both cases, the children admitted to me that any statements made by them were at [m]other's request and direction."
He stated that "mother is engaging in a specific and intentional course of conduct geared to alienate if not destroy the relationship between [f]ather and his children. I believe that the effect of [m]other's conduct is harmful to the children, and not in their best interest. I believe [m]other's motivations include her desire to return with the children to the state of California." He also concluded: "Throughout this investigation however, I have found [m]other to be untruthful and misleading."11
10. Illinois DCFS Finds No Credible Evidence of Abuse or Neglect
On June 26, 1998, mother reported to the Illinois DCFS that father was abusing Lynn. On August 10, 1998, in Case No. SRC#-0722935-D, the Illinois DCFS concluded that after an initial investigation, there was no reason to continue the inquiry.
On August 12, 1998, in Case No. SRC#-0722935-C, the Illinois DCFS concluded that after a thorough evaluation the report of abuse or neglect by father was "unfounded," which meant there was no credible evidence of abuse or neglect.
1. 1998-1999 Evaluations of and Statements Concerning the Family in Illinois
In response to mother's allegations regarding father's alleged misconduct with respect to the body painting incident and the allegation that father has inappropriately touched Lynn's vagina, the Illinois family law court ordered an updated report from Dr. Shapiro, who evaluated the children from July to November 1998. As noted above, Dr. Shapiro prepared a second report dated December 7, 1998.
In his supplemental report, Dr. Shaprio outlined that since his last report, he had conducted separate interviews of mother and father, as well as interviews of the children without the parents present. Dr. Shapiro reported that father acknowledged the body painting, but denied any involvement, stating that he was in the basement on the phone. Father also denied the alleged touching incident. Dr. Shapiro reported that father was concerned about the lengthy court process, but acknowledged that a full investigation had to be completed.
According to Dr. Shapiro, Mac and Lynn confirmed that father was not present during the body painting. They giggled remembering the incident. Both children reported that mother was worried when they returned with some body paint still on.
Mac informed Dr. Shapiro that he liked seeing both of his parents. He denied any inappropriate touching. Lynn reported that father touched her bottom when she was asleep. When asked how she knew, she responded that her grandma and mother tell her so.
Dr. Shapiro concluded: "After reading the various investigators' reports and conducting my own interviews, I have come to the conclusion that there is no evidence of sexual abuse either as reported by Lynn when she suggested that she may have been hurt by her father or as reported by both children in the body painting incident."12
Dr. Shapiro concluded that both children were doing well, but that the parents were incapable of managing a joint custody relationship. He also anticipated that if father was awarded custody, the allegations would continue. He was also concerned about mother "going underground with her children." He reported to the court that father should have sole custody of the children.
12. Illinois Family Court Appoints Evaluator
At the request of mother's attorney's, in 1998, the Illinois Family law court appointed Thomas B. Owley, M.D.,13 to conduct psychiatric evaluations of father, mother, Mac and Lynn. Dr. Owley's written report is part of the record on appeal.
As noted in the foregoing discussion and footnotes, Dr. Owley reviewed an extensive amount of materials, including Dr. Shapiro's reports. He also met with father, mother, Mac and Lynn. He observed the children interact with their parents. Reportedly, both children enjoyed their time with both parents.
Dr. Owley noted that with regard to the body painting incident, that mother took the children to the hospital. Dr. Owley quoted the hospital report: " `The children absolutely deny any sexual involvement. In fact, the father was not even involved in the body painting, it was the child and his sister who is four years old. There are no complaints at all.' "
Dr. Owley concluded that he did not believe that father abused the children, but that mother genuinely believed that the abuse had occurred. Dr. Owley recommended sole legal and physical custody to father.14 Dr. Owley also recommended that mother start individual psychotherapy, stating: "She needs to understand that there is no evidence whatsoever that [father] has molested the children, and that her rigid insistence on maintaining these beliefs is indicative of rather severe psychopathology, which if not treated may limit her capacity to participate in the upbringing of the children."
13. The Children's School Officials Ask Father Not to Enter School
In 1999, Patricia Helbig of the children's Illinois elementary school, Sleepy Hollow, sent a letter to father. There, she stated that a number of parents had reported that father engaged in " `inappropriate interaction with students in the playground.' " She requested that father not enter the school grounds and that he was to have no contact with students "before, after or during school hours."
14. Illinois DCFS Finds No Credible Evidence of Abuse or Neglect
On December 3, 1999, in Case No. SRC#-722835 E, the Illinois DCFS concluded that the allegations of sexual abuse against father were unfounded.
15. Illinois Family Law Court Conducts Custody Trial
In 2000, in the dissolution action (No. DKA 97 442), the Illinois family law court (Judge F. Keith Brown) conducted a contested 29-day trial on the issue of custody of the children. Mother and father were represented by counsel. Both testified.
On April 28, 2000, in a written statement of decision, the Illinois family law court granted dissolution and awarded father sole legal and physical custody of Mac and Lynn. The court explained in the order that the children were too young for the court to consider their preferences for custody.
The court explained in the order: "[T]he interrelationship between each parent and each child is a positive one. It is [an] important factor to consider in awarding custody that [each] parent strengthen and nurture in every way possible the relationship between the children and their non-custodial parent; this requires, at a minimum, that the custodial parent refrain from speaking ill of the non-custodial parent to the children, and keep others from doing so as well. [Citation.] Pursuant to Dr. Owley's report and the testimony of Dr. Shapiro . . . there are question[s] as to [mother's] mental condition. The court finds that all of [mother's] allegations as to abuse are unfounded. Unfounded allegations of sexual abuse made by one parent can be grounds for granting custody to the other parent. [Citation.] The court finds that [father] provides a greater willingnesss and ability to facilitate and encourage a close and continuing relationship between the non- custodial parent. Further[,] based upon the reports of Dr. Shapiro and Dr. Owley, [mother's] conduct is a form of parental alienation towards [father]. The court finds that because the parties have no ability to reach joint decisions and the level of distrust that joint custody would not be in the best interest of the children at this time. The court finds that it is in the best interest of the two minor children that sole custody of them be granted to the father[.]" (Bold in original omitted.)
The court granted mother visitation on the ground that she seek counseling. The order expressly retained jurisdiction over the parties and the action.
16. Mother Initiates Dependency Proceedings in Illinois
In October 2000, mother alleged that father sexually abused Lynn by touching her vaginal area over her clothing while father and children were staying overnight in a hotel. The State of Illinois filed a Petition for Adjudication in the Illinois juvenile court. The Illinois court (Judge Wotecki) found there was no probable cause to support the petition and dismissed the case.
On December 13, 2000, the Illinois DCFS, in Case No. SRC# - 0722935-F, found that the allegations of sexual abuse were unfounded.
17. The Children Are Evaluated in Illinois
With the knowledge and assistance of the Illinois DCFS, mother, father, Mac and Lynn were evaluated by Carol Fetzner, M.S., NCC, LCPC, of the Northwest Treatment Associates. The written report is part of the record on appeal.
On March 21, 2001, Fetzner issued a report, which was submitted to the Illinois family law court. Fetzner met with Mac and Lynn individually for a total of five hours each over a six-week period. She also met with mother and father individually. She reviewed a number of documents, including DCFS investigations, medical reports, letters from the children's school personnel; and spoke with a number of other individuals, including the therapist, Bonkowski, and Frank Butera from the children's school.
Fetzner concluded: "[I]t is my impression that Mac and Lynn are not currently at risk for sexual or physical abuse at the hands of their father. The sexual and physical abuse allegations do not seem credible. In addition, it seems unlikely that the children have a true sexual behavior problem."15 Fetzner explained that the "seemingly false allegations of [sexual abuse were] the product of the children's exposure to an environment of hysteria around sexual abuse[,] rather than as a result of coaching by the children's mother"
Fetzner further concluded: "Mac currently invents the allegations against his father on his own initiative and shares them with Lynn and encourages her to tell them to professionals."16 After both parents completed a children's sexual behavior checklist, Fetzner concluded that father's responses showed he was "not attempting to hide anything."
Fetzner also reported, however, that mother genuinely believed there were reasons to be concerned for the children's safety. Fetzner also found that while in father's care, the minors were unsanitary, unkempt and inappropriately clothed on cold days.17 She found no such problems with the children when in mother's care.
Finally, Fetzner noted the escalating nature of the allegations against father. Fetzner concluded that this was intended to alter the custody order in favor of father.
Fetzner finished the report by explaining: "Clearly, this is a volatile situation. The repeated and escalating nature of these allegations made against [father] is cause for alarm. The reports against [father] are likely to continue unless the current circumstances are modified. It is my impression that the children have learned how to operate within the adversarial system of the courts with damaging effects. Resolution of this matter is unlikely to occur unless an open communication is established between these parents together with their children." Fetzner recommended the family treat with one therapist with advanced training in treatment of children of divorce.
18. Illinois DCFS Concludes Investigation
On April 12, 2001, the Illinois DCFS concluded that the allegations of sexual abuse were unfounded, and that there was no credible evidence of abuse or neglect.
19. Mother Files Petition for Temporary Custody
In May 2001, mother filed a petition for temporary custody of the children pending a final decision on permanent custody. On May 8, 2001, the Illinois family law court conducted a contested hearing on mother's petition. The court (per Judge Edwards) denied mother's petition.
20. Illinois DCFS Finds Allegations of Abuse Unfounded
On August 6, 2001, in Case No. SCR# - 0722935-H, the Illinois DCFS concluded that the recent allegations of sexual abuse against father were unfounded, and there was no credible evidence of abuse or neglect.
21. Illinois Family Law Court Denies Petition for Modification of Custody
On May 15, 2002, the Illinois family law court (Judge James Edwards) in Case No. 97 DKA 442 denied mother's petition for modification of custody following a hearing. The court explained: "[T]he petitioner has failed to prove by clear and convincing evidence that there has been a change of substantial circumstances or that a modification of custody was necessary to serve the best interests of the children."
22. Mother Files Petition for Temporary Retraining Order
In November 2002, mother filed a petition for a temporary retraining order and modification of custody in the Illinois family law court. Mother was apparently concerned that father was seeking leave of court to remove the children to Canada, where father was a citizen.
The court adjudicated this petition in May 2004.
23. Mother Obtains Emergency Protective Order
In April 2003, mother alleged that father sexually abused the children. On April 14, 2003, following an ex parte hearing, the Illinois family law court issued mother an emergency order of protection and granted her custody of Mac and Lynn.
The Illinois court (per Judge Robert B. Spence) then conducted a contested evidentiary hearing. The court heard testimony from father, mother, Mac (11 years old at the time) and Mac's teacher, Ms. Powell.18 The court vacated the emergency order of protection. The court found Mac's testimony was not credible. The court also found that mother's testimony was not credible.19 The court ordered Mac and Lynn returned to father's custody. Mother filed a notice of appeal from the order.
24. Mother Alleges Sexual Abuse
In November 2003, mother alleged that father sexually abused the children. The Illinois DCFS conducted an investigation. On December 12, 2003, the Illinois DCFS sent a letter to an Officer Antonacci in West Dundee, Illinois. The letter stated that after a thorough investigation the report of child abuse or neglect by father was "indicated."
25. No-Contact Order
In February 2004, mother made additional allegations that father sexually abused the children. That month, father and the Illinois DCFS entered into a voluntary no-contract agreement barring father from any contact with Mac or Lynn, pending completion of the investigation. The agreement permitted the children to reside with mother while the Illinois DCFS investigated the sexual abuse allegations.
The Kane County Office of the Illinois DCFS concluded that the November 2003 and the February 2004 allegations of sexual abuse by father were unfounded.
26. Mother's February 2004 Petition for Removal
In February 2004, in the Illinois family law court, mother filed a petition for removal to re-locate with the children to California.
27. Mother Renews Allegations of Sexual Abuse
In April 2004, mother made additional allegations of sexual abuse against father. The Kane County Child Advocacy Center refused to re- interview Mac and Lynn. The case was transferred to the Wills County office of the Illinois DCFS.
28. The Wills County DCFS Office Makes "Indicated" Finding of Sexual Abuse by Father
On April 20, 2004, the Illinois social worker, Suzanne Cattaneo, issued a report in which she made the "indicated" finding that father had sexually abused the children. Father appealed this finding. In his April 28, 2006 declaration filed with this court, father states that the appeal is still pending.
1. Illinois Family Law Court Conducts Trial on Mother's Petition for Removal
In May 2004, the Illinois Family Law court held a contested trial on mother's petition for removal and custody. As detailed below, the court issued its written opinion in February 2, 2005, denying mother's petition.
30. Mother Takes Children to California
In June 2004, mother took Mac and Lynn to California.
31. Illinois DCFS Vacates No-Contact Agreement
In August 2004, the Illinois DCFS vacated the voluntary agreement of no-contact between father and the children.
32. Illinois DCFS Sends Notice to Mother
On September 16, 2004, in Case No. SCR #722935-M, the Illinois DCFS sent mother a written notice in California that "[a]fter a thorough evaluation, we have determined the report to be `indicated.' This means that credible evidence of child abuse or neglect has been found."
33. Father Learns Mother Has Left Illinois
In August 2004, father learned that mother had left Illinois for California. In November 2004, the Illinois family law court (Judge Joseph M. Grady) held mother in contempt for failing to appear in court and failing to permit visitation with the children. The court issued an "Order for Body Attachment" commanding the arrest of mother.
34. Illinois DCFS Finds Allegations of Abuse Unfounded
On February 1, 2005, after a thorough investigation, the Illinois DCFS, in cases numbered SCR # - 722935-K and SCR# - 722935-L, found after a thorough investigation that the allegations of abuse or neglect were unfounded.
35. Illinois Family Law Court Denies Mother's Petition for Custody and Removal
On February 2, 2005, the Illinois family law court (Judge Joseph M. Grady) ruled on mother's petition for custody and removal of the children to California. The court heard testimony and argument over six days in May 2004, for which mother was present. The children did not testify.
As to removal, the court explained that mother presented no evidence of any efforts to find employment in Illinois. The court also noted that mother presented no evidence that she would allow visitation. The court found mother's petition to be a ruse intended to defeat visitation by father.
The court explained that it was in the best interests of the children to have a healthy and close relationship with both parents. The court concluded that this would be best achieved if the children remained in Illinois. The court denied mother's petition for removal.
The court also ruled on mother's motion for modification of custody. The court explained that in the Judgment of Dissolution, the court ordered mother to seek counseling as a condition of her visitation schedule. The court noted that mother had failed to do so. As to the sexual abuse allegations against father, the court ruled that the children's environment did not endanger their physical, mental, moral or emotional health.
The court reviewed the work of the children's therapist, Dr. Sara Bonkowski, who had been treating the children since 1997. The court noted that Dr. Bonkowski had seen the children three times per week. According to the court, Dr. Bonkowski reported the children to appear "`unkempt.'" Mac displayed symptoms of chronic major depression. The conditions of the children's life contributed to their appearance and symptoms. Father did not prepare food. He feed the children fast or restaurant food. The home was in disorder, with a lot of clutter and lack of cleanliness. There was also a reported lack of association with peers while in father's custody.
Dr. Bonkowski also noted a major change in Lynn since the divorce. She was adversely affected by the food provided by father, as well as the clutter and uncleanliness of father's home and vehicle. She displayed signs of obsessive compulsive disorder, wringing her hands excessively.
The court admitted into evidence a picture that mother stated she found in Lynn's room. According to mother, Lynn drew the picture. Dr. Bonkowski testified about the picture. It showed a person designated as Lynn next to a person designated as Dad, with the penis of the Dad person extending towards and into mouth of the Lynn person.20
The court also admitted into evidence a second picture drawn by Lynn at Dr. Bonkowski's office. According to the doctor, this picture showed the messy house and the father in Lynn's bedroom. According to Bonkowski, Lynn stated that the house was messy, Mac and father argued frequently, and father entered the child's room at night. The court then explained: "According to Dr. Bonkowski, when she asked [Lynn] `What happens?' when [father] come[s] into her room, the child, `just stared at' Dr. Bonkowski with a disassociative look and eventually said `He puts his penis in my mouth.' "
In addition, according to Dr. Bonkowski, father conducted "check ups" of the children at various times after showers and when they were undressed. Dr. Bonkowski testified that it did not appear that the children had been coached by mother.
The court then explained: "Dr. Bonkowski and her testimony strongly support a change of custody in this case and that, supported by the observations and concerns expressed in their testimony by the West Dundee Police Officers, and the personnel [records] of the schools the children have attended and the neighbor of [father], would appear to support the Court finding that a substantial change has occurred in the parties or the children since a determination of custody was last made and that such a change would be in the best interest of the children."
The court further explained, however, that it would also consider other facts and circumstances appearing in the record. The court noted: "When the parties were awarded their Judgment of Dissolution of Marriage, there had been significant investigation into allegations of misconduct, abuse of the children and criminal conduct by [father] against the children. Police and D.C.F.S. investigations were unable to substantiate or corroborate any of those allegations. [¶] Since the entry of their Judgment of Dissolution of Marriage, more allegations of sexual abuse of the children, sexual misconduct and other inappropriate conduct toward the children have been made against [father]. [Father], who appears to have cooperated in every investigation into such conduct by him, has never been found to have abused or neglected the children. [¶] [Mother] appears to rely significantly in support of her petition to Modify Custody on the previous numerous allegations of misconduct by [father] against the children. Allegations of misconduct against a person, no matter how numerous, frequent or serious, do not become proof of any misconduct by that person [against] proof of the alleged misconduct."
The court further explained: "The parties and their relationship with each other and their children is probably the most investigated and litigated matter to have come before this Court. Neither of the parties appear to have confidence in the D.C.F.S. and the children appear to distrust that agency. It is inconceivable that the D.C.F.S. and its investigators and various police agencies and officers who have investigated allegations made against [father] would have failed or been unable to substantiate any of those allegations if any had occurred[.]"
The court then articulated its understanding of prior expert testimony: "The opinions of at least three psychologists, including Dr. Bonkowski, were considered by the Court in the Judgment of Dissolution of Marriage. The Court found that the two psychologists other than Dr. Bonkowski support the Court finding that [mother's] conduct was a form of parental alienation of the children against [father]. [Mother] was also ordered to seek counseling as a condition of visitation with the children."
The court then summarized: "Considering the numerous previous allegations of misconduct by [father] against the minor children, several if not many of which were made by [mother], and the fact that no criminal charges have been filed against [father] as a result of investigations into those allegations, and no action has been brought that might affect [father's] parental rights or adversely reflect on his ability to parent his children as a result of any investigation, and the concern of the Court which awarded the Judgment of Dissolution of Marriage of the parties about the lack of credibility of [mother], it appears to the Court that the evidence presented by [mother] in support of her Petition for Modification of Custody of the minor children is undermined by her lack of credibility."21
The court concluded that mother did not present clear and convincing evidence to show that custody of the children should be changed and that a change in custody was in the best interests of the children. The court ruled that father shall continue to have custody of the children. The court expressly retained jurisdiction of the case.
36. Father Travels to California
On February 4, 2005, father arrived at Lynn's school with the February 2, 2005 order from the Illinois family law court. The police informed father that he needed a California order.
Father obtained a California order and returned to the school. Lynn appeared to be upset and anxious. She refused the go with father. The police contacted mother, who arrived with Mac. A DCFS social worker, Ann Hailey, also responded to the school, where she began to interview the parties.
Mac and Lynn reported to social worker Hailey that father had sexually abused them while they lived with him in Illinois. Mac explained that father had sodomized him numerous times since he was five years old. Mac also reported that father forced him to perform oral copulation. Mac stated he witnessed father going into Lynn's room in the middle of the night. Lynn reported that father had digitally penetrated her vagina and anus and forced her to perform oral copulation. She also reported that father massaged her genitals under her clothing as a way for her to fall asleep. Both children showed fear of having to return to father's custody.
Social worker Hailey also interviewed the children's Illinois therapist, Dr. Bonkowski, as well as the Illinois DCFS worker, Suzanne E. Cataneo. Hailey reported that both were convinced of ongoing sexual and emotional abuse and neglect by father while the children were in his custody.
The DCFS detained the children. The police obtained a protective order barring father from any contact with the children. Social worker Hailey reported that both children were fearful and anxious about returning to father's custody. However, both children felt safe and protected in mother's home. In addition, both children were healthy and performing at grade level in school.
37. California Juvenile Dependency Petition
On February 9, 2005, the LA DCFS filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage), (d) (sexual abuse), (i) (cruelty), and (j) (abuse of sibling). The petition alleged that father sexually abused the children. The petition also alleged that father forced the children to engage in appropriate sexual activities with each other. The petition explained that the DCFS had detained the children and placed them with mother.
38. Father Contests California Jurisdiction
On February 10, 2005, father filed a motion for California to decline jurisdiction and to find that Illinois had jurisdiction. Mother filed an opposition. The children filed a separate opposition.
On February 10, 2005, the California juvenile court ordered the children detained and set a hearing date of father's jurisdictional motion. The court also ordered father to have no contact with the children.
39. Therapist Bonkowski Send Letter to LA DCFS
On February 10, 2005, therapist Bonkowski sent a letter to social worker Ann Hailey at the LA DCFS, summarizing her work with Mac and Lynn. Bonkowski wrote: "My stance at the beginning was to get to know the children, as whole children, not just explore possible sexual abuse or divorce issues. The reality was I was unsure if there was sexual abuse . . . . As time went on I became convinced that in fact there was sexual abuse going on. . . . [¶] . . . [¶] During the years following the children going to live with [father] the children deteriorated. The living conditions, as reported by the children, and later by the Dundee police, were very bad."
Bonkowski also reported that Mac informed her that father had put something in his bottom, and massaged Lynn's private parts. She reported that in 2003-2004, Mac was depressed and felt like killing himself or running away. As for Lynn, Bonkowski reported that as she became older, she was noticeably disturbed. She obsessively washed her hands. Lynn also revealed that father came into her room at night and placed his penis in her mouth.
Bonkowski concluded that in her opinion, any contact with father would be "extremely harmful" to the children.
40. Illinois Family Law Court Affirms Its Prior Order
On February 28, 2005, the Illinois family law court (Judge Joseph M. Grady) issued an order stating that the February 2, 2005 custody order was in full force and effect. The court ordered mother to return the children to Illinois.
41. Illinois Family Law Court Enters Order for Body Attachment
On March 14, 2005, the Illinois family law court (Judge Grady) found mother in contempt for failing to appear with the children. The court ordered mother's arrest to appear before the court.
42. Criminal Complaint Filed Against Mother in Illinois
On March 22, 2005, the State of Illinois filed a "Complaint for Preliminary Hearing." The complaint alleged that from August 17, 2004 to March 22, 2005, mother committed the offense of child abduction, a felony.
43. The March 28, 2005 Order from the Illinois Family Court
On March 28, 2005, the Illinois Family Court (Judge Grady) overruled the "Indicated" finding of sexual abuse. The court explained that it had jurisdiction of the matter and that "[t]here is no credible evidence that the minor children have ever been abused by [father]." The Illinois family court further ordered that father was entitled to physical possession of the children. The court also found that mother was in ill contempt for failure to comply with the February 2, 2005 custody order.
44. Letter from Illinois State Attorney Office
On April 19, 2005, Clint Hull, the First Assistant State's Attorney in Kane County, Illinois, sent a letter to counsel for all parties in the California action. There, he advised that "it is our office[']s intent to file an abuse and neglect petition against both [parents] immediately upon the children returning to Illinois. We do not want the children to be returned to either [parent] until after a full investigation of all complaints against both of them has been completed."
45. Mother Is Arrested
On April 20, 2005, California police arrested mother based upon the child abduction warrant from Illinois. The children were placed with the maternal grandparents.
46. California Juvenile Court Orders Children Returned to Illinois
On April 22, 2005, the California juvenile court granted father's motion to decline jurisdiction and ordered the children returned to Illinois. The court concluded that there was no longer a need for any emergency jurisdiction to protect the children. The court understood that once the children were returned to Illinois, the children would not summarily be placed in the home of father. The court understood that the children would come under the protection of the Illinois DCFS. The court ordered the LA DCFS to provide funds and personnel to transport the children back to Illinois.
47. Mother Files Petition for Extraordinary Writ in California Court of Appeal
On April 22, 2005, mother filed a petition for extraordinary writ. Mother explained that the juvenile court had terminated its jurisdiction, but had not contacted the appropriate Illinois officials to determine to whom the children would be returned in Illinois. Mother asserted that because Illinois had not filed a dependency proceeding, the children would necessarily be returned to father.
48. Juvenile Court Stays Order Returning Children to Illinois
On April 26, 2005, counsel for the children filed a Welfare and Institutions Code section 388 petition. In the petition, the children advised the juvenile court of changed circumstances with respect to the proceedings in Illinois. Summarizing, the children explained that because of recent events, if they were returned to Illinois, they would be placed with father, not under the protection of the Illinois DCFS.
The children advised the juvenile court that earlier in the week the Illinois State Attorney's Office changed its position regarding a dependency case in Illinois. On April 22, 2005, the State of Illinois DCFS Administrative Hearings Unit dismissed the pending DCFS case in Illinois (Case No. SCR: 0722935-M).22 Apparently, father had filed an appeal challenging the Kane County Illinois DCFS finding that the sexual abuse allegations were "indicated." The Illinois officials concluded that the administrative dismissal order would effectively preclude Kane County from re-filing the sexual abuse allegations against father.
In addition, the Illinois DCFS officials concluded that to file a petition alleging severe emotional abuse by father, the officials would need a recent report from a psychologist or psychiatrist that supported such a concern.
Based upon this change of circumstances, on April 26, 2005, the juvenile court stayed the order to return the children to Illinois.
49. Report from Dr. Karmon in California Action
On May 12, 2005, Daniel Karmon, Ph.D., submitted a report concerning the status of the children. There, he explained that the children refused to speak to him, stating: "Due to neither minor being willing to participate in the evaluation, no definitive conclusions can be made in this case."
Dr. Karmon, however, reviewed a number of reports and court documents. Based upon this review of documentary evidence, he concluded that Mac was at an extraordinary risk of severe emotional distress, and was at risk of suicide. He also noted a claim by mother in 1997 that father was sleeping naked with Lynn (who was two years old at the time): "If this is true, there is serious cause for concern that the minors' father may have engaged in inappropriate behavior."
Dr. Karmon also reported: "Although extensive evaluations conclude that [father] did not abuse his children, the professional who has spent the most time with the minors, Sara Bonkowski, Ph.D., concludes that the abuse did occur. It is unknown as to how much time the children's school counselor, Mr. Butera,[ 23 ] spent with them, but . . . he has also spent an extensive amount of time with the minors and has serious concerns for their well-being with their father[.]"
Dr. Karmon also noted the reports that the children in father's care were unkempt and inappropriately clothed by father, while no such incidents occurred while the children were in mother's care. Specifically, Karmon observed that in one report Lynn went to school on cold winter day, wearing only a T-shirt and sleeveless vest. He explained: "Having a child clothed in such a condition appears to be part of a pattern of, at best, irresponsible child caretaking and, at worst, neglect."
Dr. Karmon concluded that there was a specific risk of harm (either emotional or physical) of placing the children in father's home. Karmon explained: "Based on reviewing the background in this case, it is concluded that the possibility of these minors being at risk for abuse and/or neglect with their father cannot be ruled out. This statement is made with the awareness that at least three evaluations have concluded that they are not at significant risk with their father. It may be that there are some fabrications in terms of the extent of the abuse, if it did exist, and it may be that these minors have been inconsistent and, at times, not credible. The minors' previous Guardian Ad Lit[e]m has concluded that the mother has sought to sabotage the relationship between the minors and their father and the evaluators have concluded that [mother], although perhaps well-intentioned, may have negatively influenced these minors against their father. Even if these issues are valid, they do not rule out the possibility that these minors have been mistreated and/or abused in some manner by their father. The minors have consistently reported having been sexually abused by him over a period of years. There is evidence to indicate that his residence was, at best, in poor physical condition and, at worst, in shambles. There are reports that he was inappropriately playing with and/or touching children on the school ground at recess, after stating he wanted to spend time with his own children. The report indicates that he primarily focused on having contact with other children and not his own children and continued such contact after his children were no longer on the playground. A school counselor observed him in his van with Lynn in a possible inappropriate physical interaction. It is also noteworthy that reports indicate that when [mother] first attended conjoint therapy with [father] in 1996, her purpose in participating in therapy was to discuss the issue of [father] sleeping nude with Lynn, who at the time was approximately two years of age. It may be that if only one of the above issues was valid, the concerns regarding the minor's safety with their father would be reduced, however, there appears to be a pattern of reported, inappropriate behavior on the part of father and when such a pattern emerges, it is of great concern."
Dr. Karmon finished his report, stating: "Even if it is concluded by others that none of the above statements attests to inappropriate behavior on the part of the father, it is clear that there is currently a dysfunction within the relationship between father and these minors to the point where having them live or visit with him against their will could be emotionally destructive for them. Mac is thirteen years old and his wish as to where he resides needs to be taken into serious consideration. Although it may be to a slightly lesser extent with Lynn, due to her age, it is also concluded that her wishes need to be taken into consideration as well. [¶] It does appear that these minors have recited statements that may have been rehearsed regarding the issues of abuse and neglect and it may be that an atmosphere of hysteria has been created around this topic. As indicated above, this does not rule out the possibility of abuse and/or neglect occurring in their environment. [¶] Based on the above, it is concluded that there is a `specific risk of harm (either emotional or physical) of placing the children in the home of their father.'"24
On May 16, 2005, Dr. Karmon provided a supplemental report. There, he concluded that "Lynn, as well as Mac, is in an emotionally precarious situation." He further advised that Lynn was at risk of suicide. He reiterated that she displayed obsessive-compulsive tendencies.
Dr. Karmon also observed that background material indicated that Lynn may be susceptible to being influenced by her brother, Mac. The same material questioned her credibility regarding the allegations of abuse by father. However, Dr. Karmon explained: "Whether or not this alleged sexual abuse from her father occurred, it is concluded that, as with Mac, if the allegations have been fabricated, she is at risk for emotional dysfunction and if the abuse did indeed occur, she is also at risk for emotional dysfunction."
50. Report from Kaiser Permanente
On May 16, 2005, Peg Slezinger, MFT, issued a report concerning the children. She advised that she had seen the children since February 23, 2005. She concluded: "After several meetings with the children, it is my professional opinion that it would be detrimental for each child to be returned to their father." Slezinger explained that the children appeared to be afraid to live with father. She also noted that Mac was particularly at risk, stating that he would "run away" if sent to Illinois.
51. California Juvenile Court Conducts Telephonic Conference with Illinois Family Court
On May 17, 2005, the California juvenile court conducted a telephonic conference with the Illinois family law court. The California court summarized the proceedings and advised the Illinois court that because it (the California court) understood that the Illinois DCFS would be filing a dependency petition, it ordered the children returned to Illinois. The California court explained, however, that the Illinois DCFS would not be filing a dependency petition, which appeared to be a surprise to the Illinois family court. On that basis, the California court explained that it was asserting emergency jurisdiction. The court also noted that, in any event, the California Court of Appeal had issued a stay. The California court further noted that a psychological evaluation of each child showed risk to the children if returned to Illinois. The California court agreed to fax Dr. Karmon's report to the Illinois court for its review.
The California court also expressed its understanding that the Illinois court intended to maintain jurisdiction. The Illinois court explained that it was the court's position that Illinois had jurisdiction.
The courts concluded the discussion by agreeing to allow the attorneys in California to have three weeks to try to convince the Illinois DCFS that it needed to file a dependency petition to protect the children in the event that the California court ruled that it did not have jurisdiction. The Illinois court agreed that this case needed to be continually monitored to ensure the best interests of the children.
52. Illinois Court Finds No Credible Evidence of Sexual Abuse
On June 6, 2005, the Illinois family court entered an order striking certain paragraphs from the March 28, 2005 order. Specifically, the court struck the sentence reading: "[T]his court reiterates that there is no credible evidence to support in particular[,] but not limited to[,] the sexual abuse allegations contained in No. SCR #722935-M . . . ."25 The court then added the following sentence: "The Department shall prepare a copy of the disciplinary record of the two investigators to be tendered to the court for an in camera inspection. [Father] will narrow the scope of his subpoena . . . so that DCFS can reopen it."
53. Status Update in California Juvenile Court
On June 13, 2005, the juvenile court conducted a hearing in this case. The attorney for the children advised the court of the June 6, 2005 ruling from the Illinois family court striking and adding paragraphs to the March 28, 2005 order.
The attorneys for father advised the California juvenile court that because of the actions of the Illinois family court on June 6, 2005, the Illinois DCFS was no longer barred from filing a dependency petition. The California court set a hearing date of July 15, 2005 to allow enough time to ascertain what had occurred in Illinois.
54. California Juvenile Court Finds It Does Not Have Subject Matter Jurisdiction
On September 21, 2005, the California juvenile court (per Judge David Doi), entered an order explaining that it conducted a telephonic conference with the Illinois family law court (Judge Grady). During the reported conference, Judge Doi tentatively indicated that the California juvenile court did not have subject matter jurisdiction. Judge Doi inquired as to whether Illinois would file a juvenile dependency petition on behalf of the children. Judge Grady responded that he would try to speak with the person with whom counsel for the father, Mr. Cahill, had spoken to attempt to determine whether Illinois would file a juvenile dependency petition. Judge Doe indicated that if Illinois filed such a petition, there would be no basis for the California juvenile court to exercise emergency jurisdiction. Judge Grady also reiterated that this case was a highly investigated case, and there was no evidence to corroborate the allegations against father.26
The California juvenile court then held a hearing on the issue of jurisdiction.27 The California juvenile ruled that it did not have subject matter jurisdiction or emergency jurisdiction of the case.
In addition, the California juvenile court entered an "attorney order." The order provided that the California dependency investigator was to contact Illinois DCFS attorney Jean Flynn and Illinois State's Attorney Lori Sikorsky to determine the intentions of the Illinois DCFS as to whether it intended to file a juvenile court petition in Illinois. The order also required the California dependency investigator to obtain the identity of the person at the Illinois DCFS who would take custody of the children, if they are returned to Illinois.
55. Illinois Family Law Court Orders Mother to Appear
On September 23, 2005, the Illinois family law court (Judge Grady) in Case No. DKA 97 0442 ordered mother to appear for the next court date.
56. LA DCFS Advises California Juvenile Court of Conversations with Illinois Officials
On October 5, 2005, the LA DCFS advised the juvenile court that the dependency investigator had spoken with Illinois State's Attorney Lori Sikorsky. Sikorsky advised that when the children are returned to Illinois, a decision will be made at that time as to whether to file a juvenile dependency petition. Sikorsky also explained that Judge Grady had the authority to detain the children once they were returned to Illinois. Sikorsky acknowledged that Illinois had received the psychological evaluation from Dr. Karmon. She also stated that Jean Flynn at the Illinois DCFS would be the contact person if the children are returned to Illinois.
The dependency investigator also summarized a telephonic conference with Jean Flynn, who was an administrator responsible for several DCFS offices, including the one that made the "indicated" finding against father. Flynn stated: " `[W]e have an indicated report of sexual abuse against the father. If the children come to Illinois without their mother, they will be detained and will not be released to their father. If the children come to Illinois with their mother, this is a gray area.' " Flynn asked to be contacted if the children were returned to Illinois. Flynn further requested that LA DCFS contact the Illinois DCFS attorney, Mike Riuzika, to further discuss the Illinois DCFS position as to the status of the children. Finally, Flynn requested that the LA DCFS ask the California juvenile court to issue an order that father is not to interfere with the children when they arrive at an Illinois airport. Flynn provided LA DCFS with her cell phone number in case of an emergency.
The LA DCFS dependency investigator reported the conversation with Mike Riuzika, who stated that the Illinois DCFS would not make a decision about filing a petition until the children were in Illinois. He further stated: " `My thought is that we won't take the kids from their mom[,] but if they come alone we would detain them.' "
57. California Court of Appeal Requests Update
On November 2, 2005, this court entered an order requesting an update as to whether Illinois officials intended to file a juvenile dependency petition if the children were returned to Illinois.
58. LA DCFS Files Information for Court Officer with California Juvenile Court
On November 16, 2005, the LA DCFS filed an Information for Court Officer. There, the LA DCFS stated that on November 15, 2005, Illinois State's Attorney Lori Sikorsky explained the State of Illinois would not guarantee that Illinois would file a dependency petition if the children were returned to Illinois.
In addition, the LA DCFS explained that on November 14, 2005, father had filed a motion in Illinois family court to obtain protective custody warrants for the children. Judge Grady denied the request.
59. California Juvenile Court Authorizes Sending Dr. Karmon's Report to Illinois DCFS
On November 16, 2005, the juvenile court entered an order authorizing the children's counsel to send Dr. Kramon's evaluation to Jean Flynn with the Illinois DCFS, and to Clint Hall, in the Illinois State's Attorney Office. The children remained released to mother.
60. Father Files Motion to Dismiss California Petition for Lack of Subject Matter Jurisdiction
On January 5, 2006, father filed a motion to dismiss the LA DCFS juvenile dependency petition for lack of subject matter jurisdiction. Father explained that all of the allegations of alleged abuse were alleged to have occurred in Illinois. The children and both parents resided in Illinois at that time.
Father explained that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400), was the exclusive method for determining which state had jurisdiction, including dependency cases. Father asserted that pursuant to the UCCJEA, Illinois had subject matter jurisdiction. Likewise, father asserted that California could no longer exercise emergency jurisdiction.
Mother and the children filed separate oppositions. Mother asserted that because the Illinois DCFS had not filed a juvenile dependency petition, it was appropriate for the California juvenile court to continue to exercise emergency jurisdiction. Mother asserted that there was an imminent threat of harm to the children.
61. California Juvenile Court's Tentative Ruling
On January 13, 2006, after a hearing, the juvenile court made a tentative finding: (1) the juvenile court did not have subject matter jurisdiction, and (2) there was no legal or factual basis for the court to continue to exercise emergency jurisdiction. The court directed the clerk to send a copy of the tentative order to the California Court of Appeal.
62. California Juvenile Court Dismisses Petition
On January 20, 2006, the juvenile court (per Irwin H. Garfinkel, Referee) found: (1) the court did not have subject matter jurisdiction pursuant to the UUCCJEA; and (2) there was no legal or factual basis for the court to continue to exercise emergency jurisdiction.
The court dismissed the DCFS petition filed February 9, 2005. The juvenile court did not order the children returned to Illinois. The court stayed execution of this order until January 30, 2006, at which time it lifted the stay.
63. Father Files Petition for Enforcement of Child Custody Determination
On January 31, 2006, father filed a "Second Petition for Enforcement of the Child Custody Determination" in the Illinois Family court. The Illinois family law court scheduled a hearing to ascertain the status of the California case and to schedule a date to hear father's second petition.
64. California Court of Appeal Vacates Dismissal and Enters Stay
On February 8, 2006, this court ordered the California juvenile court to vacate the order dismissing the matter, and enter an order reinstating the case as a pending matter. This court then stayed all superior court proceedings pending resolution of this writ proceeding. The court also ordered that under no circumstances were the children to be transported to Illinois absent an order from this court.
65. Illinois Family Court Seeks Update and Enters Order
On February 22, 2006, the Illinois Family Law (Judge Grady) in Case No. DKA 97 442 entered an order seeking an update on the status of the case before the California Court of Appeal. The Illinois Family law court also issued an order stating that mother must abandon her California appeal and that she "is prohibited from initiating any other litigation in any jurisdiction other than Illinois which continues to have jurisdiction of the parties and issues in this case."
66. Orders Under Review by This Court
Mother filed the petition for writ relief from the juvenile court order dated April 22, 2005. As explained above, on January 20, 2006, the juvenile court entered an order finding that it did not have subject matter or emergency jurisdiction. The court dismissed the case. On the motion of this court, we deem this writ proceeding to contest both the April 22, 2005 and the January 20, 2006 orders.
67. This Court Requests Briefing
On March 2 and 20, 2006, this court requested additional briefing from the parties on a number of issues, including the constitutional rights of the children, the jurisdictional issues, and whether the California juvenile court should conduct an evidentiary hearing to determine if the children are mature enough for the court to consider their wishes as to the custody issues.
In this proceeding, we address three issues: (1) Whether California is precluded by the federal PKPA (28 U.S.C. § 1738A) from exercising subject matter jurisdiction to modify the Illinois custody order; (2) Whether California is precluded by the California UCCJEA (Cal. Fam. Code, § 3400 et seq.) from exercising subject matter jurisdiction to modify the Illinois custody order; and (3) Whether the constitutional rights of Mac and Lynn require the State of California to exercise subject matter jurisdiction in this case irrespective of any statutory requirements.
STANDARD OF REVIEW
This case primarily presents issues of law and interpretations of statutes, which we review de novo. (California Teachers Assn. v. Governing Bd. of Golden Valley Unified School Dist. (2002) 98 Cal.App.4th 369.) As for any factual determinations related to the child custody jurisdictional issues, we review for substantial evidence. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 954; In re Janette H. (1987) 196 Cal.App.3d 1421, 1427.)
1. The Federal Parental Kidnapping Prevention Act Precludes California from Exercising Subject Matter Jurisdiction to Modify the Illinois Custody Order
We conclude that the federal PKPA precludes California from exercising subject matter jurisdiction in this case. The PKPA requires the courts of California to enforce the custody determinations made by the Illinois family law court.
The federal PKPA was promulgated in 1980 to apply the Full Faith and Credit Clause of the federal Constitution to child custody decrees.28 (Thompson v. Thompson (1988) 484 U.S. 174, 180-181.) The PKPA was designed to eliminate any incentive for non-custodial parents to re- litigate or forum shop custody orders in other sister-state jurisdictions. (Ibid.)
According to the United States Supreme Court in Thomson: "Once a State exercises jurisdiction consistently with the provisions of the Act, no other State may exercise concurrent jurisdiction over the custody dispute, [28 U.S.C.] § 1738A(g), even if it would have been empowered to take jurisdiction in the first instance, and all States must accord full faith and credit to the first State's ensuing custody decree." (Thompson, supra, 484 U.S. at p. 177, fn. omitted.)29
b. Custody Determination Consistent with the PKPA
The PKPA is codified at 28 United States Code section 1738A (hereafter 28 U.S.C. § 1738A), which statutory section is entitled "Full faith and credit given to child custody determinations." Subsection (a) of section 1738A provides: "The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g), and (h) of this section, any custody determination or visitation determination made consistently with the provisions of this section by a court of another State." (Italics added.)
According to subsection (c) of 28 U.S.C. § 1738A, a custody determination is consistent with the provisions of the PKPA if: (1) the state making the initial custody determination (here, Illinois) had jurisdiction under its own laws, and (2) one of five conditions is met. The first condition, codified at 28 U.S.C. § 1738A(c)(2)(A), is met if Illinois was the children's "home state." Because we conclude that Illinois was the children's home state, and that the first of the five statutory conditions was therefore met in this case, we set forth the remaining four conditions in the footnote below.30
c. Illinois Had Jurisdiction Under Its Own Laws to Make the Custody Determination
The record shows that Illinois had jurisdiction under the laws of that State at the time that its court entered the custody order at issue in this case. In 1996, mother and father became residents of Illinois. For a brief period of four to five months in 1997, mother and the children lived in California. During this time period, mother filed a dissolution of marriage action and initiated dependency proceedings in California.
On April 17, 1997, the California family law court determined that it did not have jurisdiction to entertain or hear the dissolution action. In fact, the court expressly found that Illinois had subject matter jurisdiction of the family law dissolution action.
Upon her return to Illinois, mother filed a dissolution of marriage action. After a 29-day trial, on April 28, 2000, the Illinois family law court entered a "Judgment of Dissolution of Marriage," awarding sole custody of the children to father. In the judgment, the Illinois family law court expressly found that it had "jurisdiction of the subject matter herein and the parties hereto." There is no indication that mother disputed this jurisdictional finding.
Since that time, the Illinois family law court has continued to assert subject matter jurisdiction. In Illinois, mother then filed a motion to modify the original custody order and to remove the children to California. The Illinois family law court held a contested trial proceeding over six days in May 2004. On February 2, 2005, the Illinois family law court entered a written statement of decision denying mother's motion to modify the custody award and to remove the children to California. There is no indication in the record that mother disputed the jurisdiction of the Illinois family law court to decide the motion for modification of custody and removal of the children.
d. Illinois Was the Children's "Home State"
The term "home State" is defined in 28 U.S.C. § 1738A(b)(4) to mean "the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period[.]"
From 1996 to 2004, Mac and Lynn resided in Illinois. The record does not show when mother filed the Illinois dissolution action. The Illinois family court entered the custody order in favor of father on April 28, 2000. Under these circumstances, Illinois was the children's home state.
Mother and the children's absence from Illinois in 1997 when mother took Mac and Lynn to California without father's knowledge, was a temporary absence under 28 U.S.C. § 1738A(b)(4), which does not defeat the conclusion that Illinois qualifies as the children's home state.
e. Father, a Contestant, Still Resides In Illinois
Finally, for the first condition of 28 U.S.C. § 1738A(c)(2)(A) to apply, one of the contestants must continue to reside in Illinois. On this point, it is undisputed that father, a contestant, has at all times lived in Illinois and continues to live in Illinois.
Thus, we conclude that the custody determination made by the Illinois family law court was consistent with the provisions of 28 U.S.C. § 1738A. Therefore, pursuant to subdsection (g) of section 1738A (quoted in fn. 29, above), the California juvenile court was and is barred from exercising subject matter jurisdiction to modify the custody determination of the Illinois family law court.
f. Exceptions in the PKPA
As noted in subsection (a) of 28 U.S.C. § 1738A, there are exceptions, codified in subsections (f), (g), and (h), which might permit a second state to exercise subject matter jurisdiction over a custody dispute and modify a custody order from another state. Subsections (f) and (h) do not apply because Illinois still has jurisdiction and has not declined to exercise jurisdiction. In fact, in numerous orders from 2005 and 2006, the Illinois family law court has expressly asserted that it has jurisdiction of this case.
Subsection (g) does not apply because, as explained above, Illinois exercised jurisdiction consistently with the requirements of 28 U.S.C. § 1738A. In addition, the California action was commenced during the pendency of the Illinois family court proceeding.
g. Other Considerations
Mac asserts that the PKPA does not preclude California from exercising subject matter jurisdiction on the grounds that the PKPA applies only to family law matters and not dependency cases. We reject this assertion.
The PKPA expressly defines the term " `custody determination' " broadly to mean "a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications." (28 U.S.C. § 1738A(b)(3).) This broad definition includes custody orders emanating from family law court or dependency court.31
Lynn and Mac assert that the Illinois custody order should not be given full faith and credit because it is subject to modification by the Illinois family law court, so it is subject to modification in other jurisdictions. We reject this assertion. By its own terms the PKPA applies to custody orders which are temporary or initial orders. (28 U.S.C. § 1738A(b)(3).) In addition, in Thompson, the Supreme Court explained that the PKPA was enacted to eliminate the possibility that a subsequent state would conclude it was free to modify a sister-state's custody order on the ground that it was subject to modification in the sister-state. (Thompson v. Thompson, supra, 484 U.S. at pp. 180-181.)
Mac and Lynn suggest that California can exercise jurisdiction under the PKPA's emergency jurisdiction provision, 28 U.S.C. § 1738A(c)(2)(C)(ii). (See fn. 30, above.) We reject this argument. The emergency provision would only have allowed California to exercise jurisdiction in the first instance, absent proceedings in the State of Illinois. We reach this conclusion because the statutory framework of section 1738A shows that subsection (c)(2)(C)(ii) was intended to be a basis for allowing a state to exercise initial subject matter jurisdiction consistent with the provisions of section 1738A(a). In other words, the emergency provision contained in section 1738A(c)(2)(C)(ii), constitutes a basis for a state to exercise jurisdiction consistent with the provisions of section 1738A. Because Illinois exercised jurisdiction consistent with section 1738A(c)(2)(A)(i), pursuant to subsection (g) (quoted above in fn. 29), California was precluded from exercising subject matter jurisdiction pursuant to section 1738A(c)(2)(C)(ii).
In addition, to conclude that the emergency jurisdiction provision set forth in 28 U.S.C. § 1738A(c)(2)(C)(ii), would allow California to exercise subject matter jurisdiction in this case would create a loophole to the underlying full faith and credit policy of section 1738A. Every parent dissatisfied with a custody order would assert that an emergency allowed the parent to initiate new litigation in another state.
Because proceedings were pending in Illinois, the emergency provision did not authorize California to exercise subject matter jurisdiction and modify the custody order of the Illinois family court.
The parties note that there is a disagreement in the case law as to whether the PKPA preempts state laws such as the California UCCJEA. We have no occasion to address this preemption controversy, because, as we explain below, we conclude that even if the California statutes are not preempted by the PKPA, the UCCJEA did not, in any event, permit California to exercise subject matter jurisdiction in this case.
Based upon the foregoing, we conclude that the PKPA precluded California from exercising jurisdiction to modify the custody order entered by the Illinois family law court.
2. California Is Precluded From Exercising Subject Matter Jurisdiction Pursuant to the California UCCJEA
The California UCCJEA is set forth in Family Code sections 3400- 3465. Pertinent to the issues presented, Family Code section 3423 deprives a California court from exercising subject matter jurisdiction unless two conditions are met: (1) the California juvenile court had jurisdiction to make an initial custody determination pursuant to Family Code section 3421, subdivision (a); and (2) either: (a) the court of the other state (here, Illinois) determined that it no longer had exclusive jurisdiction or determined that California would be a more convenient forum, or (b) the court of either state determined that none of the children or parents lived in the other state.32
The conditions of section 3423 are not met in this case. The Illinois family law court has not determined that it no longer has exclusive jurisdiction. In fact, in 2005 and 2006, the Illinois family law court had continued to exercise and state that it was exercising continuing exclusive jurisdiction. In addition, the Illinois family law court has not determined that California would be a more convenient forum. Moreover, father has at all times resided and continues to reside in Illinois.
Given these conclusions, we have little occasion to address whether the California juvenile court had jurisdiction to make an initial custody determination pursuant to Family Code section 3421, subdivision (a).33 We note, however, that with regard to section 3421, subdivision (a), because mother took the children to California in violation of orders of the Illinois family court, California was not the "home state" of Mac and Lynn. (See, e.g., Fam. Code, § 3428, subd. (a) [no jurisdiction where parent has engaged in unjustifiable conduct]; In re Marriage of Hopson (1980) 110 Cal.App.3d 884, 899.)
In addition, pursuant to Family Code section 3426, we conclude that the California juvenile court did not have subject matter jurisdiction in this case.34 Because a custody proceeding was commenced in Illinois prior to the filing of the California dependency action, the California juvenile court was precluded by section 3426 from exercising subject matter jurisdiction. In addition, the Illinois proceeding was not terminated and it has not been stayed. Finally, the Illinois family law court has not determined that California would be a more convenient forum.
Family Code section 3426, however, contains an exception set forth in Family Code section 3424, which allows for temporary emergency jurisdiction. Section 3424 allows California courts to exercise temporary emergency jurisdiction over a child present in the state when the child is threatened with mistreatment or abuse. However, according to subdivision (c) of section 3424, when there is a pre-existing custody order from another state, temporary emergency jurisdiction may last only for the period of time necessary for the moving or petitioning party (here, mother) to obtain an order from the state having jurisdiction.35
Family Code section 3424, subdivision (c), imposes a duty upon the party seeking relief from the original custody order to attempt to obtain relief from the court or state which made the initial custody determination. During the time this case has been pending in California, from February 2005 to the present (Aug. 2006), mother has made no attempt to obtain an order from any Illinois court regarding the custody or alleged abuse issues presented.36 This is fatal to mother's assertion that the California juvenile court can continue to exercise temporary emergency jurisdiction. Emergency jurisdiction is temporary and does not confer upon the state exercising emergency jurisdiction any authority to make a permanent custody disposition. (See In re C. T. (2002) 100 Cal.App.4th 101, 112.)37
Mother, Mac and Lynn assert, however, that because the Illinois officials have declined to affirmatively state that they will file a dependency petition in Illinois to protect and detain the children, the children continue to be at risk of imminent harm, thus supporting emergency jurisdiction in the California juvenile court. They cite In re C. T., supra, 100 Cal.App.4th 101, and a Texas case of Saavedra v. Schmidt (2002) 96 S.W.3d 533 in support of this assertion.
We reject this argument for a number of reasons. As explained in footnote 36, ante, mother or a guardian ad litem for the children could have filed a dependency petition in the State of Illinois. (See 705 ILCS 405/2-13(a) & In re D.S., supra, 198 Ill.2d at p. 320 [763 N.E.2d at p. 257].) In addition, the In re C. T., supra, 100 Cal.App.4th 101, and the Texas case of Saavedra v. Schmidt, supra, 96 S.W.3d 533, are distinguishable.
In In re C. T., supra, 100 Cal.App.4th 101, an Arkansas court granted father custody of the child. Mother moved to California. During a visit with mother, the child reported sexual abuse by father. (Id. at p. 104.) The San Diego Health and Human Services Agency filed a juvenile dependency petition on behalf of the child. At the detention hearing, the California juvenile court stated that it was exercising emergency jurisdiction pursuant to Family Code section 3424, subdivision (a). (100 Cal.App.4th at p. 105.) The California court then contacted the Arkansas court. The Arkansas court declined to allow California to exercise jurisdiction, and requested the matter transferred to Arkansas. (Ibid.) The Arkansas court agreed to hold proceedings and that mother would retain custody of the child. (Ibid.)
The California Court of Appeal acknowledged that the Arkansas authorities had agreed to conduct dependency proceedings. (In re C. T., supra, 100 Cal.App.4th at p. 105.) The court concluded that this fact supported the finding that there was no longer a basis for the California juvenile court to exercise emergency jurisdiction. (Id. at p. 113.) The C. T. court, however, did not address the issue presented in this case, the consequences of a person failing to seek to obtain an order from the State having made the initial custody determination. Thus, the C. T. case does not support the conclusion that mother was excused from attempting to seek relief in Illinois.
In Saavedra, the mother took the children to Texas without notice to the California court or the father, who had monitored visitation rights. Because the mother violated the custody order, the California court awarded sole custody to the father, a convicted and registered sex offender. (Saavedra v. Schmidt, supra, 96 S.W.2d at p. 537.) The Texas trial court assumed emergency jurisdiction over the children, based, in part, upon the fact that the California court had not communicated with the Texas court, and that the California order awarding custody to the father was in response to the mother violating a court order, and not based upon the best interests of the children. The Texas trial court concluded that the California court failed to consider the best interests of the children.
The Texas Court of Appeal found that pursuant to its version of the UCCJEA, the California court had continuing subject matter jurisdiction, and the Texas court was without jurisdiction to modify a California custody order. (Saavedra v. Schmidt, supra, 96 S.W.2d at p. 541.) The Texas Court of Appeal also concluded that the Texas trial court was required to enforce the California custody order. (Id. at p. 544.) However, the Texas Court of Appeal held that the Texas trial court could assert temporary emergency jurisdiction. (Ibid.) The Texas Court of Appeal explained that the Texas trial court could continue to exercise the emergency jurisdiction until proper steps could be taken in California to obtain appropriate relief. (Id. at p. 545.)
It bears repeating that since February 2005 when the California juvenile dependency action was filed, mother has sought no relief from the Illinois officials. Mother has had more than an adequate amount of time to attempt to obtain such relief or file a juvenile dependency petition. Pursuant to subdivision (c) of Family Code section 3424, on this record, this precludes the California juvenile court from continuing to assert temporary emergency jurisdiction.
In any event, the communications with the Illinois officials, including Judge Grady, show that they are concerned about this family and about the alleged abuse. The officials have not taken the position that the children will be returned to father's custody. In fact, the most recent pronouncement on this subject from Mike Riuzika, an attorney with the Illinois DCFS, was the children would not be taken from mother's custody upon return to Illinois. The November 15, 2005 statements of State's Attorney Lori Sikorsky that the State of Illinois would not guarantee that Illinois would file a dependency petition if the children were returned to Illinois, does not conflict with the custody statement by Riuzika.
Mother, Mac and Lynn also rely upon the case of In re Nada R. (2001) 89 Cal.App.4th 1166 in support of the proposition that the California juvenile court may continue to exercise emergency jurisdiction. We reject this assertion. In re Nada R. involved a custody order from Saudi Arabia. The Court of Appeal concluded that the juvenile court could exercise continuing emergency jurisdiction pursuant to Family Code section 3424, for a period of time as long as the emergency existed. (In re Nada R., at p. 1175.) There, the father, a citizen of Saudi Arabia, apparently obtained the custody order ex parte from a Saudi Arabian court, without notice to the mother. The Court of Appeal also noted that it was not possible on the record before it to determine whether the Saudi Arabian custody order was enforceable pursuant to Family Code section 3424, subdivision (d). (89 Cal.App.4th at p. 1176.)
In contrast, in the present case, none of these factors exist to justify continuing emergency jurisdiction. Mother was provided notice and participated in two lengthy custody trials in Illinois. In addition, the Illinois custody order appears to be enforceable pursuant to Family Code section 3424, subdivision (d).38
In any event, we repeat that because mother has made no attempt to obtain relief from the Illinois court or dependency officials since the commencement of the California juvenile dependency proceedings, the juvenile court correctly ruled that it could not continue to exercise temporary emergency jurisdiction.
3. Constitutional Rights of Mac and Lynn
In our requests for briefing sent to the parties, we asked the parties to brief the constitutional rights of the children, Mac and Lynn. The issue presented which must be resolved is whether Mac and Lynn have constitutional rights requiring the State of California to assert subject matter jurisdiction. In other words, the issue is whether the children have constitutional rights which would trump application of the Full Faith and Credit Clause of the United States Constitution, and require the State of California to assert subject matter jurisdiction.
We conclude that the children do not have a constitutional due process right emanating from the United States Constitution, which would trump the Full Faith and Credit Clause.
In DeShaney v. Winnebago Cty. Soc. Servs. Dept. (1989) 489 U.S. 189 (DeShaney), a father beat and permanently injured his son. The social services department had received complaints about the abuse and had reason to believe it to be true, but did not remove the child from the father's custody. (Id. at p. 191.) The boy sued the social services department claiming the failure to protect him deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Supreme Court concluded that the boy could not state a cause of action for violation of constitutional due process rights. (Ibid.)
The DeShaney court explained: "[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without `due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government `from abusing [its] power, or employing it as an instrument of oppression,' [citations.] Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes." (DeShaney, supra, 489 U.S. at pp. 195-196.)
The court continued: "Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. . . . If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." (DeShaney, supra, 489 U.S. at pp. 196-197.)
The DeShaney court distinguished those cases in which the State has taken a person into its custody. In such cases, the Constitution imposed a duty upon the State "to assume some responsibility for his safety and general well-being." (DeShaney, supra, 489 U.S. at p. 200.) It is undisputed that Mac and Lynn are in the care and custody of mother, not the LA DCFS. Thus, this limited duty is inapplicable.
Mac and Lynn do not have a constitutional right under the Due Process Clause of the United States Constitution which would impose liability upon the LA DCFS for failing to detain them. Thus, there is no basis upon which to conclude that the children have a constitutional due process right which could trump the Full Faith and Credit Clause of the United States Constitution.39 Moreover, on this record, we conclude that the State of Illinois can provide this family with the appropriate procedures and substantive law to protect the constitutional and statutory rights of Mac and Lynn.
We deny mother's petition for writ relief. The juvenile court's April 22, 2005 and January 20, 2006 orders are affirmed. The case is remanded to the California juvenile court for proceedings to immediately effectuate transport of Mac and Lynn to the State of Illinois.40 Once the children are returned to Illinois, the California juvenile court shall dismiss the case.
Mother and the paternal grandparents are ordered not to interfere with the California juvenile court's jurisdiction over the children. Mother and the paternal grandparents are ordered not to interfere with the immediate return of the children to the State of Illinois.
All stays entered by this court are vacated.
We concur: KLEIN, P. J., ALDRICH, J.
1. Greyer's report or notes are not part of the record on appeal.
2. An evaluator, Dr. Robert Shapiro, appointed by the Illinois family law court reviewed the notes from Greyer. He wrote: "There is no notation of [father] sleeping naked with Lynn, or any concern about [father] sexually abusing the children or physically abusing anyone."
3. In his declaration filed in the writ proceeding, father declares that Mac also sustained rectal bleeding in March 1997, while in mother's care in California. Dr. Shapiro confirmed this in his report to the Illinois family law court. Dr. Shapiro also wrote: "[T]here is no indication in the February 17th, 1997 pediatric report that Mac was sodomized." Likewise, another expert appointed by the Illinois family law court, Dr. Owley, reported that Mac had anal bleeding on March 26, 1997, and visited a California hospital. Mac had had no contact with father since February 24, 1997.
4. Another expert appointed by the Illinois family law court, Carol Fetzner, M.S., N.C.C., L.C.P.C., reviewed the notes of Dr. Johnson. She stated in her written report to the Illinois family law court that his report stated: " `Can't confirm sexual abuse.'"
5. The court appointed evaluator, Carol Fetzner, M.S., N.C.C., L.C.P.C., also reviewed the notes of Dr. Narula. She stated in her written report to the Illinois family law court: "Mac was then referred to a pediatrician, Dr. Narula who concluded that the scratch marks were consistent with itching and that sexual abuse couldn't be substantiated."
6. According to Dr. Owley, the medical report stated there was a " `small abrasion in the right side of the vulva and labia minora and also [a] very superficial abrasion in the labia majora area. There was no active bleeding noted. The hymen appears intact at this time. The rest of the physical findings are unremarkable.' "
7. In his report to the Illinois family law court, Dr. Shapiro wrote about this investigation: "Both children revealed that it was their mother who told them that daddy was mentally ill and their mother . . . told Mac that his father stuck sharp objects up his rectum. Mac did not have any direct recollection of such events happening."
8. Both reports are included in the record on appeal.
9. Dr. Shapiro reported: "From telling the children to call their father Brian; to disparaging comments about their father, like he is mentally ill; to more minor subtleties, like telling the children they should not make friends where [father] lives, [mother] has systematically and methodically tried to sever[e] the strong and intimate relationship the children have with their father."
10. Dr. Shapiro explained: "[Father] continues, despite all the adversity, to support the children's relationship with their mother and, somehow, impart to the children that he still likes their mother. [Mother], unfortunately, has done nothing to support the children's relationship with their father."
11. Busch noted: "The first time I was made aware of [m]other's misrepresentations was during the initial pendency of this action. The allegations of [f]ather penetrating Mac's anus were being investigated and [m]other was claiming that the examining physicians confirmed sexual abuse. Fortunately for Mac . . . was the fact that no such medical opinion existed. Further, all abuse allegations were unfounded by both Illinois and California investigative agencies."
12. Dr. Shapiro also stated: "In fact, the body painting incident in which the children purchased body paint with their father at an arts and crafts store and then painted each other in the bathroom appears to be a spontaneous, playful and innocent exchange between a young brother and sister. It is a shame that his young childhood memory has now been tainted."
13. Dr. Owley's report letterhead states: "Child and Adolescent Psychiatry[,] University of Chicago."
14. Dr. Owley also reviewed the medical reports from February 1997 regarding Mac's bleeding: "Dr. Johnson's records describe an excoriated anal area with a minimal amount of bloody mucus; there is no mention of anal tears or suspicions of child abuse. No treatment was undertaken." According to Dr. Owley's review, there was no evidence of sexual abuse. Dr. Owley also reviewed the reports from Mac's second examination and again found no evidence of sexual abuse.
15. Fetzner explained that father did not present the "pattern elements" of a sex offender "making the sexual abuse described seem very implausible." In addition, she noted that Mac and Lynn presented no details regarding the alleged sexual abuse: "The absence [of] any observed ambivalence and of affect in the children when they describe the sexual abuse lacks realism." Fetzner also observed material "discrepancies between Lynn's report and Mac's report" as to what occurred.
16. Fetzner also wrote: "It is my impression that Mac views the time with this writer as a forum for making abuse allegations with his father as the perpetrator with the hopes of reversing the custody decision. He seems very concerted and focused in this effort." Fetzner also wrote: "It is my belief that [mother] is not directly involved in coaching the continued allegations. Rather, it seems more likely that Mac is currently inventing these allegations in a desperate attempt to reverse the custody decision of Spring, 2000. [¶] It is my impression that Mac has developed his own strategy for altering the custody arrangement. Mac has presented himself as suicidal and despondent to the point of wanting to run away[.]" (Underlining in original.) About Lynn, Fetzner wrote: "It has been my experience that children who are molested have strong feelings about the desire for punishment for their perpetrator thinking the perpetrator deserves to be punished; or in contrast, have equally strong feelings about the wish to spare their perpetrator of punishment, feeling guilty and partially responsible for the sexual abuse itself and for the consequences of the abuse to the perpetrator and the family. These feelings seems absent in Lynn based on my observations."
17. On this point, Fetzner explained: "In response to the allegations that he doesn't bathe the children adequately[,] [father] states that he is hesitant to interfere with the children's self- care and hygiene given the sexual abuse allegations."
18. The court found Ms. Powell's testimony credible, but that she only knew of events based upon conversations with Mac.
19. As to mother's testimony, the court explained: "The testimony of [mother] was not credible, for reasons stated of record, including, but not limited to the fact that [mother] testified that she has never, in the past 10 days, discussed the event with [Mac], in light of the litigant's history in this case, and the past 4 or 5 orders of protection that have been litigated, as well as the voluminous motions and petitions, the court finds it absolutely incredible that [mother] would not have discussed this with [Mac]."
20. Counsel for mother filed a number of documents with this court on January 19, 2006. A copy of this picture is included.
21. About the mother, the court explained: "[Mother] has shown little regard for any order of any Court in the history of this case. [Mother] has remained unemployed and failed to pay child support to [father], although from the testimony her residence is in a good neighborhood[,] is well furnished and well appointed, she has an adequate food supply and is able to afford activities for the children."
22. The Illinois DCFS Administrative Hearings Unit explained in the order: "Valid existing circuit court order #97D KA 442 (Kane County) makes findings and orders dispositive of this matter. This administrative tribunal has no authority to reverse these findings, of no abuse based on the allegations contained in SCR #0722935- M."
23. On January 19, 2006, counsel for mother submitted a number of documents to this Court. The documents include an undated Interoffice Memorandum prepared by Frank Butera, a counselor at the Meadowdale Elementary School. In the memorandum, Butera stated: "Both [S.] children, Mac and Lynn, are in very acute danger. Mac has seriously expressed a desire, on more than one occasion, to die. [¶] Lynn has expressed her personal discomfort in terms of her father being naked, touching her inappropriately, `rubbing his wiener on my butt[.]' [¶] I have repeatedly contacted DCFS, only to be resolved as `unfounded,' because the children are afraid to express themselves to a stranger. [¶] . . . [¶] I feel they are both in a very precarious place. They are both at risk."
24. In addition, Dr. Karmon opined: "It is stated above that I have serious concerns with regard to Mac's emotional well- being; less is known about Lynn's mental status. To underscore the issue with regard to Mac, if he has indeed been abused by his father, the emotional consequences of this abuse are likely to be extreme. If he was not abused by his father and has fabricated the accounts over the years, it is equally likely that he is at high risk for extreme emotional disturbance. His mother reported that he has barely spoken for the last two weeks and while at home, spends most of his time in bed. This is likely a significant indication of depression."
25. Apparently, the Illinois family law court did not strike that portion of paragraph 2 of the March 28, 2005 order which stated: "There is no credible evidence that the minor children have ever been abused by [father]."
26. As to what recent evidence against father that he was able to review, Judge Grady explained: "I did not look at any of the investigations that have been done because I don't have access to those records. They were done by the police department and DCFS, so I don't believe they are part of our file because nothing has ever been filed in abuse and neglect, and that is where it would go in every - or in a criminal case against the father."
27. At the September 21, 2005 hearing, Mac stated to the juvenile court: "I'm not going to go back to Illinois. And also if I - I'm not going to Illinois, and I don't see any way out of going back to Illinois besides killing myself, and I will kill anyone who tries to get me back to Illinois."
28. The United States Constitution, article VI, section 1, provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
29. As referenced in the Thompson case, 28 U.S.C. § 1738A(g) provides: "A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination." (Italics added.)
30. The full text of 28 U.S.C. § 1738A(c), which sets forth the five conditions, provides: "A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if - [¶] (1) such court has jurisdiction under the law of such State; and [¶] (2) one the following conditions is met: [¶] (A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State; [¶] (B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; [¶] (C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse; [¶] (D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or [¶] (E) the court has continuing jurisdiction pursuant to subsection (d) of this section." As referenced in subsection (c)(2)(E) of 28 U.S.C. § 1738A, quoted directly above, subsection (d) provides: "The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant."
31. Notably, California Family Code section 3402, subdivision (c), defines the term "[c]hild custody determination" to mean "a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual." In addition, California Family Code section 3402, subdivision (d), defines the term "[c]hild custody proceeding" to mean "a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for dissolution of marriage, legal separation of the parties, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear."
32. Family Code section 3423 provides: "Except as otherwise provided in Section 3424, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under paragraph (1) or (2) of subdivision (a) of Section 3421 and either of the following determinations is made: [¶] (a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 or that a court of this state would be a more convenient forum under Section 3427. [¶] (b) A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state."
33. Family Code section 3421 provides in pertinent part: "(a) Except as otherwise provided in Section 3424, a court of this state has jurisdiction to make an initial child custody determination only if any of the following are true: [¶] (1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. [¶] (2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true: [¶] (A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence. [¶] (B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships. [¶] (3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 3427 or 3428. [¶] (4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3). [¶] (b) Subdivision (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state."
34. Family Code section 3426, subdivision (a), provides: "Except as otherwise provided in Section 3424, a court of this state may not exercise its jurisdiction under this chapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 3427."
35. Family Code section 3424 provides in pertinent part: "(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse. [¶] . . . [¶] (c) If there is a previous child custody determination that is entitled to be enforced under this part, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 3421 to 3423, inclusive, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 3421 to 3423, inclusive. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires."
36. The record supports the conclusion that mother (or a guardian ad litem for the children) could file a juvenile dependency petition in the State of Illinois. Illinois statute, 705 ILCS 405/2- 13, subsection (1), provides in pertinent part: " `Any adult person . . . may file . . . a petition in respect of a minor under this Act.' " (In re D.S. (2001) 198 Ill.2d 309, 320 [763 N.E.2d 251, 257].) In addition, the State's Attorney must prosecute any such action. (Id. at p. 322 [763 N.E.2d at p. 258].) Moreover, should the State's Attorney seek to dismiss an action, the Illinois trial courts are required to conduct a hearing on the merits to determine if dismissal of the petition is in the best interests of the child. (In re J.J. (1991) 142 Ill.2d 1, 9 [566 N.E.2d 1345, 1349] ["Under the Juvenile Court Act, the circuit court has not only the authority but the duty to determine whether the best interests of the minor will be served by dismissing a petition alleging abuse of a minor."]) Finally, in making a custody award, the Illinosi trial courts are statutorily required to consider the wishes of the child. (750 ILCS 5/602(a)(2).)
37. See also In re Joseph D. (1993) 19 Cal.App.4th 678, superseded by statute on another point as stated in In re C. T., supra, 100 Cal.App.4th at page 111, footnote 9. The In re Joseph court explained: "As characterized by the drafters of the Uniform Act, emergency jurisdiction is an `extraordinary jurisdiction . . . reserved for extraordinary circumstances.' (9 West's U. Laws Ann. [(1988 ed.)], Child Custody Jurisdiction Act, § 3, Comrs. note, p. 145.) It was not contemplated to be a vehicle for a state to attain modification jurisdiction on an ongoing basis or for an indefinite period of time. That, however, is what in effect appears to have happened here- - notwithstanding the juvenile court referee's repeated comments that he was not modifying the Pennsylvania custody order. By the time the briefing on this appeal had been completed, nearly 11 months had passed since the juvenile court first found an emergency; now, the emergency has stretched well beyond a year. Such a situation is not in keeping with the temporal nature of emergency jurisdiction as envisioned by the drafters of the Uniform Act, and we can find nothing in California law to justify treating emergency jurisdiction as something more than a short- term, limited jurisdiction." (19 Cal.App.4th at p. 691, fn. omitted.)
38. Mother also cites the case of Van De Sande v. Van De Sande (7th Cir. 2005) 431 F.3d 567. This case is distinguishable because it involved the International Child Abduction Remedies Act (42 U.S.C. § 11601), not the Full Faith and Credit Clause of the United States Constitution.
39. At our request, the parties also briefed the constitutional rights of the children as discussed in California cases. (See, e.g., In re Jasmon O. (1994) 8 Cal.4th 398 [Court noted that children have fundamental right to be protected from neglect and to have a stable placement. Issue presented was whether children's rights trumped father's fundamental right to maintain the parent- child bond.]; and In re Bridget R. (1996) 41 Cal.App.4th 1483 [Issue presented was whether application of a federal statute, the Indian Child Welfare Act (25 U.S.C. § 1901, et seq.) could trump the constitutional rights of children to have a stable family relationship.].) Neither of these cases supports the conclusion that the constitutional rights of the children can trump the Full Faith and Credit Clause of the United States Constitution.
40. We note that Illinois DCFS administrator Jean Flynn represented to the LA DCFS that if the children are returned to Illinois without mother, they will be detained by the Illinois DCFS. In addition, Ms. Flynn asked to be contacted when the children are returned to Illinois. We also note that Illinois DCFS attorney Mike Riuzika represented to the LA DCFS that if the children return to Illinois with mother, the children will remain in mother's custody. In addition, Mr. Riuzika indicated that if the children return to Illinois without mother, they will be detained by the Illinois DCFS.