In re Nada R.

• Decision Date: 10 May 2001
• Docket Number: No. G027548.,No. G027698.,G027548.,G027698.
• Citation: 108 Cal.Rptr.2d 493,89 Cal.App.4th 1166
• Court: California Court of Appeals Court of Appeals
• Parties: In re NADA R. et al. Persons Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent, v. Abdulaziz R, Defendant and Appellant; Maria G, Defendant and Respondent. Abdulaziz R, Petitioner, v. The Superior Court Of Orange County, Respondent; Orange County Social Services Agency et al. Real Parties in Interest.

108 Cal.Rptr.2d 493

89 Cal.App.4th 1166

In re NADA R. et al. Persons Coming Under the Juvenile Court Law.

Orange County Social Services Agency, Plaintiff and Respondent, v. Abdulaziz R, Defendant and Appellant;

Maria G, Defendant and Respondent.

Abdulaziz R, Petitioner, v. The Superior Court Of Orange County, Respondent;

Orange County Social Services Agency et al. Real Parties in Interest.

No. G027548.

No. G027698.

Court of Appeal, Fourth District, Division 3.

May 10, 2001.

As Modified June 8, 2001.

Sheryl Edgar, Orange, and John L. Dodd, Tustin, for Defendant, Appellant and Petitioner Abdulaziz R.

Laurence M. Watson, County Counsel, and Mark R. Howe, Deputy County Counsel, for Plaintiff, Respondent and Real Party in Interest Orange County Social Services Agency.

Cynthia Loo Haffner, for Defendant, Respondent and Real Party in Interest Maria G.

Michael D. Randall, Los Angeles, under appointment by the appointment by the Court of Appeal, for the Minors.

OPINION

BEDSWORTH, J.

On May 24, 2000, the Orange County Juvenile Court declared Nada R. and Reema R. dependents and placed them in the physical custody of their mother, Maria G. Father Abdulaziz R. petitioned for a writ of habeas corpus and also appeals the judgment. Both have been consolidated for review.¹ He argues (1) the juvenile court lacked subject matter jurisdiction, (2) certain evidentiary rulings deprived him of due process, (3) there was insufficient evidence to sustain allegations he failed to protect Nada from sexual abuse, (4) he was improperly denied reunification services, and finally (5) he is entitled to attorney fees. We find merit in none of these contentions as presented, but our record on one is inadequate and requires that we reverse and remand as to that contention.

* * *

Abdulaziz, a Saudi Arabian citizen, and Maria, a permanent United States resident, were married in Washington on April 24, 1984. Their daughter Nada was born in early 1989, in California. Meanwhile, Abdulaziz returned to Saudi Arabia to work after completing his college degree. Maria and Nada moved to Saudi Arabia to join him in late 1992. In late 1993, a second daughter, Reema, was born.

In August of 1995, Maria moved to Orange County alone. Abdulaziz unilaterally obtained a divorce and was awarded custody of both children from the Al Khobar Supreme Court, Kingdom of Saudi Arabia. Maria was not sent notice of either decree until after Abdulaziz obtained them. In 1996, Maria remarried in Orange County. Thereafter, she had limited contact with Nada and Reema; occasional phone calls and each year, one 2week visit to Dubai, United Arab Emirates.

On March 9, 2000, Abdulaziz took Nada and Reema to Orlando, Florida for a vacation and Maria joined them. On March 19, Abdulaziz and Maria argued. After Nada sided with her mother, Abdulaziz got extremely angry and began to punch Nada. As Nada attempted to get away from him, he grabbed and clawed her back. Then, he grabbed her and forcibly threw her on the bed. Maria ran into the adjoining room to call the police, and they arrived shortly thereafter. The police officers observed fresh injuries on Nada and arrested Abdulaziz. Maria returned to Orange County with Nada and Reema on March 20, and filed for a restraining order against Abdulaziz based on the Orlando incident.

The allegations in the petition for the restraining order alerted the Orange County Social Services Agency (SSA). On April 7, Nada and Reema were taken into protective custody by SSA and were later released into Maria's care. SSA filed a dependency case on both children pursuant to Welfare and Institutions Code section 300.²

In preparation for the initial hearing on April 12, SSA interviewed Nada. She claimed to be afraid of her father and wanted to stay with her mom. She also said her father drank daily and would drive with her and Reema in the car while intoxicated. She said she remembered that when she was five years old, her father gave her a loaded handgun to hold to her sleeping mother's head. Nada described the Orlando incident as Maria had reported it and added that when her father threw her on the bed, he choked her. She also told the social worker she would kill herself if returned to her father's care.

Reema confirmed her father drank a lot and would drive them around. She also stated that when she was a baby, her father gave her a gun to hold. In addition, Reema reported she saw her father choke Nada in Orlando and said she was afraid of her father.

Sometime in late April, Nada revealed to her mother that "her driver in Saudi Arabia" sexually abused her. Maria contacted SSA and Nada was later interviewed by the Child Abuse Services Team (CAST). During the interview, Nada revealed that not only did the family driver abuse her, but her uncle's driver and her 15-year-old cousin Aziz also abused her.

At the hearing on May 3, the court denied Abdulaziz's motion challenging its jurisdiction over this case. The court also denied Abdulaziz's request to have witnesses from Saudi Arabia testify telephonically, but agreed to continue the case to allow him to conduct discovery on the added sexual abuse allegations.

At a hearing on May 17, the social worker testified he believed Abdulaziz had an alcohol problem due to his arrest history, Maria's description of their relationship, and statements made by both children. As for the Orlando incident, he believed Abdulaziz became angry with Nada, grabbed her by the back and scratched her. The social worker did not believe there was sufficient evidence to support the sexual abuse allegations as Nada described them and because the physical examination of Nada could neither confirm nor negate the sexual abuse. However, he did indicate he believed Nada had been inappropriately touched by her uncle's driver when she was five years old. The CAST interview tape of Nada was played for the court. Maria testified she left her children in Saudi Arabia because she believed she could not obtain an exit visa for them. She had never seen Abdulaziz physically hurt either child, but claimed that he hit her on many occasions. In fact, Abdulaziz had previously been arrested following physical altercations involving alcohol with her in Palm Springs, California and Fort Lauderdale, Florida. While living in Saudi Arabia, she remembered waking up to find five-year-old Nada holding a gun to her head. She also saw a drunk Abdulaziz hand a loaded gun to Reema to play with when she was only 18 months old and remembered an incident when Abdulaziz fell down some stairs while carrying Reema when he was intoxicated. She feared she would never see the children again if Abdulaziz resumed physical custody.

Abdulaziz testified he never physically assaulted Maria or either of his daughters. He explained his arrest in Fort Lauderdale occurred after he attempted to pull Maria into the water to go swimming because she had been drinking too much. As for the Orlando incident, Abdulaziz claimed he had been comforting Nada who was upset about her mother leaving the following day. Maria angrily left the room, called the police, and claimed he hurt Nada. Abdulaziz explained that the injuries on Nada's back were from swimming pool slides and the Disney World and Universal Studios rides.

Abdulaziz admitted he owned a gun, but said he had only fired it once or twice while out in the desert. He denied shooting the gun anywhere near the home or giving the gun to either of his daughters. He also denied having an alcohol problem and explained that alcohol was illegal in Saudi Arabia with harsh penalties. Abdulaziz denied driving while intoxicated. He proffered the testimony of an expert on Islamic matrimonial law to "enlighten the court as to what the rights of women are in abusive situations." The court denied his request to have the expert testify.

After considering all the evidence, the court sustained the allegations of the petitions and declared the children dependents of the court. The court placed both Nada and Reema in their mother's care under the court's supervision. A six-month review hearing was set for November 16, 2000. Abdulaziz filed his notice of appeal on June 29, 2000, and his writ August 1, 2000.

I

Abdulaziz argues the Orange County Juvenile Court lacked jurisdiction to conduct a dependency proceeding pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). (Fam.Code, § 3400 et seq.) We disagree.

California adopted the UCCJEA, formerly UCCJA, in January of 2000. This uniform act is the exclusive method of determining the proper forum in custody disputes involving other jurisdictions. (Fam.Code, §§ 3421, 3424, subd. (a); In re Stephanie M. (1994) 7 Cal.4th 295, 310, 27 Cal.Rptr.2d 595, 867 P.2d 706.) The UCJEA also governs juvenile dependency proceedings as well as actions to terminate parental rights. (Fam.Code, § 3402, subd (c).) There are different circumstances under which our courts are vested with jurisdiction to make a custody determination under Family Code section 3421. Abdulaziz contends, and we agree, these prerequisites are not satisfied. However, Orange County has jurisdiction pursuant to other grounds codified in Family Code section 3424.

A court may exercise emergency jurisdiction when a "child is present in this state and ... 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." (Fam.Code, § 3424, subd. (a).) The courts have interpreted "emergency" as a situation in which a child is in immediate risk of danger if returned to a parent's care. (See In re Stephanie M., supra, 7 Cal.4th 295, 27 Cal.Rptr.2d 595, 867 P.2d 706 [court asserted emergency jurisdiction over an abused child diagnosed as suffering from battered child syndrome]; In re Joseph D. (1993) 19 Cal. App.4th 678, 23 Cal.Rptr.2d 574 [emergency jurisdiction was proper based on reported incidents involving sexual...