Summary
explaining that after California exercised emergency jurisdiction over child and there were no pending proceedings in other states "the UCCJEA did not restrict the court's power to proceed"
Summary of this case from In re M.P.Opinion
D052373
7-30-2008
In re T.F., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MICHELLE F., Defendant and Appellant.
Not to be Published
Michelle F., a resident of New Mexico, appeals a judgment declaring her minor son, T.F., a dependent of the juvenile court and removing T.F. from her custody. Michelle contends: (1) the court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.); (2) the court should have declined to exercise jurisdiction as an inconvenient forum under section 3427 because New Mexico was a more convenient forum; (3) the evidence was insufficient to support the courts dispositional order removing T.F. from Michelles custody; and (4) the courts placement and visitation orders were not sufficiently tailored to address the issues that gave rise to the dependency.
Statutory references are the Family Code unless otherwise specified.
We conclude the court properly exercised its emergency and continuing jurisdiction under the UCCJEA and properly declined to transfer jurisdiction to New Mexico; substantial evidence supports the courts dispositional order; Michelle forfeited her right to challenge the courts placement and visitation orders; and in any event, those orders were proper under the circumstances. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 2, 2007, two-year-old T.F. was brought to Childrens Hospital by his father, Johnny G., and paternal grandmother. A physical examination showed T.F. had multiple injuries in various stages of healing, including scars, bruises and cuts which appeared to be the result of a burn or beatings with a looped cord. T.F. also had an abscess on his thigh, two broken ribs and a fractured bone in his foot, all associated with inflicted injury. T.F. appeared fearful, traumatized and extremely sad. The doctors noted T.F.s injuries likely caused him a significant amount of pain and were consistent with abuse.
T.F. had surgery to drain the abscess, and he needed future surgeries for an abscess in his neck and to repair an umbilical hernia. Additionally, T.F. had delayed speech and language, could not dress himself or perform simple hygiene tasks without help and had difficulty communicating his needs. He sometimes stumbled when walking because his feet turned inward.
Neither Johnny nor the paternal grandmother had been T.F.s caregiver. T.F. was born in New Mexico in November 2004 and lived there with Michelle until December 2006, when Michelle allowed the paternal aunt to take T.F. to her home in Nevada. According to the paternal aunt, Michelle asked her to take T.F. because he was difficult to control and she did not want him. Michelle did not provide for T.F.s support while he remained with the paternal aunt and her husband in Nevada for the next seven months. On July 2, 2007, the paternal aunt brought T.F. to the paternal grandmothers house in San Diego, where his injuries were discovered.
Johnny said he was present when T.F. was born. When T.F. was three months old, Michelle left with him. Johnny moved to San Diego and claimed he had no knowledge of T.F.s whereabouts. He is not a party to this appeal.
The social worker for the San Diego County Health and Human Services Agency (Agency) telephoned Michelle in New Mexico. Michelle initially did not believe T.F. had been abused because she trusted the paternal aunt, spoke to her often by telephone and was assured T.F. was fine. Michelle explained T.F. was born prematurely with health issues and remained hospitalized until he was five months old. She admitted asking the paternal aunt to take T.F. because she needed a break. Michelle insisted she did nothing wrong by allowing T.F. to remain with relatives. Michelle was uncooperative with the social worker and did not want to discuss the matter because she was on vacation in New Jersey with her boyfriend.
Agency filed a petition in the juvenile court under Welfare and Institutions Code section 300, subdivision (b), alleging Michelle abandoned T.F. to the care of another person without providing for his support, and T.F. was subjected to severe physical abuse while in that persons care. At a detention hearing, the court appointed counsel for Michelle and Johnny and detained T.F. in out-of-home care.
The court later dismissed the allegation of abandonment.
During the next several months, the court held special hearings regarding subject matter jurisdiction under the UCCJEA, noting the three states involved were California, Nevada and New Mexico. The court found it had temporary emergency jurisdiction and would initiate discussions with the other courts. Between September 21 and December 11, 2007, the court unsuccessfully attempted to contact the courts in Nevada and New Mexico. The court learned there was no previous child custody determination or pending child custody proceeding in either Nevada or New Mexico. By January 16, 2008, the Nevada court had declined to assume jurisdiction. The New Mexico court refused to communicate with the San Diego court because the judge in New Mexico believed it was inappropriate to participate in any further conversations with the San Diego court in the event the case ended up before her.
An attorney representing the social services agency in New Mexico said the judge was concerned that conversations with the San Diego court could be construed as ex parte communications, which would impact the case if it was transferred to New Mexico.
Michelle testified by telephone at a contested jurisdiction and disposition hearing, stating she intended for T.F. to stay with the paternal aunt only a few weeks, but the paternal aunt wanted to keep him longer. Michelle admitted she did not see T.F. the entire time he was in Nevada, but she was not concerned about him because she talked to the paternal aunt every day. She did not send money because the paternal aunt never asked for any.
The court then addressed the UCCJEA. All parties agreed with the courts finding that T.F. had no home state because he had been out of New Mexico for more than six months before the petition was filed, he had not lived with a legal caregiver in Nevada, and in any event, Nevada had declined to assume jurisdiction. The court further found it had temporary emergency jurisdiction under section 3424, which remained in effect until an order was obtained from a court having jurisdiction under sections 3421 through 3423. Alternatively, the court found California had jurisdiction under section 3421, subdivision (a)(4) because no other court had jurisdiction under the criteria specified in section 3421, subdivision (a)(1), (2) or (3). The court denied Michelles request to find California was an inconvenient forum under section 3427. However, should a petition be filed in New Mexico, the court would revisit the matter.
The court sustained the allegations of the amended petition under section 300, subdivision (b), removed T.F. from parental custody and placed him in out-of-home care. The court ordered reunification services for Michelle in New Mexico. The court also ordered Agency to pay Michelles transportation costs from Albuquerque to San Diego for monthly visits with T.F. and to initiate a home study under the Interstate Compact on the Placement of Children (ICPC) (§ 7900 et seq.) for Michelles home and foster care placement in Albuquerque.
DISCUSSION
I
The Court Had Emergency and Continuing Jurisdiction Under the UCCJEA
Michelle challenges the jurisdictional findings and dispositional order on the ground the court did not have subject matter jurisdiction under the UCCJEA. She concedes the court initially had temporary emergency jurisdiction under section 3424, subdivision (a), but contends jurisdiction ended because there was no ongoing risk to T.F. Michelle asserts New Mexico had subject matter jurisdiction under section 3421, subdivision (a)(2) because no other state was T.F.s home state, Michelle and T.F. had significant connections to New Mexico and substantial evidence was available in New Mexico concerning T.F.s care, protection, training and personal relationships.
A
Overview of the UCCJEA
The UCCJEA is the exclusive method in California to determine the proper forum in child custody proceedings involving other jurisdictions. (In re C. T. (2002) 100 Cal.App.4th 101, 106.) A dependency action is a "child custody proceeding" subject to the UCCJEA. (§ 3402, subd. (d); In re Angel L. (2008) 159 Cal.App.4th 1127, 1136.) The purposes of the UCCJEA in the context of dependency proceedings include avoiding jurisdictional competition and conflict, promoting interstate cooperation, litigating custody where child and family have closest connections, avoiding relitigation of another states custody decisions and promoting exchange of information and other mutual assistance between courts of other states. (In re C. T., at p. 106.)
New Mexico also adopted the UCCJEA. (N.M. Stat. Ann. § 40-10A-101 et seq. (2001).)
Subject matter jurisdiction either exists or does not exist at the time the action is commenced and cannot be conferred by stipulation, consent, waiver or estoppel. (In re A. C. (2005) 130 Cal.App.4th 854, 860.) "We are not bound by the juvenile courts findings regarding subject matter jurisdiction, but rather `independently reweigh the jurisdictional facts. " (Ibid.)
B
Section 3421—Home State Jurisdiction
Under section 3421, California may assume jurisdiction to make an initial child custody determination only if any of the following apply: California is the childs "home state" (§ 3421, subd. (a)(1)); there is no home state but the child and at least one parent have a "significant connection" to California and "substantial evidence" is available in California as to the childs care, protection, training and personal relationships (§ 3421, subd. (a)(2)); another state having jurisdiction has declined to exercise jurisdiction on the ground California is the more appropriate forum (§ 3421, subd. (a)(3)); or no other state has jurisdiction under the foregoing tests. (§ 3421, subd. (a)(4).) " `Home state means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period." (§ 3402, subd. (g).)
Section 3421 provides: [¶] "(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 childs 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 childs 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. [¶] (c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination."
C
Section 3424—Temporary Emergency Jurisdiction
Section 3424 provides an exception to the exclusive jurisdictional bases for making a child custody determination in California. (§ 3421, subds. (a) & (b).) A court may exercise "temporary emergency jurisdiction" when a "child is present in this state and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to, or threatened with, mistreatment or abuse." (§ 3424, subd. (a).) An "emergency" exists when there is an immediate risk of danger to the child if he or she is returned to a parent. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1174-1175.) Although emergency jurisdiction is generally intended to be short term and limited, the juvenile court may continue to exercise its authority as long as the reasons underlying the dependency exist. (Id. at p. 1175; In re Angel L., supra, 159 Cal.App.4th at p. 1139; see also In re Stephanie M. (1994) 7 Cal.4th 295, 312 [court had continuing jurisdiction because of emergency presented and impossibility of returning minor immediately to parents].) The Legislature has expressly declared its intent to expand the grounds on which a court may exercise temporary emergency jurisdiction. (§ 3424, subd. (e).)
Section 3424, subdivision (b) provides that when "there is no previous child custody determination that is entitled to be enforced under the UCCJEA and a child custody proceeding has not been commenced in a court of a state having jurisdiction under the UCCJEA, a child custody determination made under [section 3424] remains in effect until an order is obtained from a court of a state having jurisdiction under the UCCJEA. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under the UCCJEA, a child custody determination made under section 3424, subdivision (b) " `becomes a final determination, if it so provides and this state becomes the home state of the child. " (In re Angel L., supra, 159 Cal.App.4th at p. 1138, quoting section 3424, subd. (b).)
D
The Court Properly Exercised Emergency and Ongoing Jurisdiction
The record shows T.F. was born in New Mexico and lived there with Michelle for the first two years of his life. He then lived with the paternal aunt in Nevada for seven months and was in California for two days before being taken into protective custody. As the juvenile court found, and the parties concede, T.F. had no home state under the UCCJEA because he did not live with a parent or a person acting as a parent in any of the three states involved—New Mexico, Nevada and California—for at least six consecutive months immediately before the dependency petition was filed. (§§ 3402, subd. (g), 3421, subd. (a)(1).)
The paternal aunt was not a " `[p]erson acting as a parent " within the meaning of the UCCJEA because she did not have or claim to have legal custody of T.F. (§ 3402, subd. (m).)
Michelle also concedes, and we agree, the juvenile court properly exercised its emergency jurisdiction under section 3424 because T.F. was present in California when his injuries were discovered, and the courts action was necessary to protect T.F. from immediate harm. (See In re Nada R., supra, 89 Cal.App.4th at p. 1174 [other than "the necessity of protecting a child from immediate harm, presence of the child in the state is the only prerequisite" for assuming emergency jurisdiction].) However, we disagree with Michelles argument the courts emergency jurisdiction expired shortly after the detention hearing when T.F. was no longer in the paternal aunts care and had received treatment for his injuries.
The court here properly continued its emergency jurisdiction beyond the detention hearing because the risk of harm creating the emergency was ongoing. The undisputed evidence showed Michelle took no responsibility for the injuries T.F. suffered while in the care of the paternal aunt. Instead, Michelle defended her decision to allow him to stay in Nevada for seven months without checking on his welfare. Even after learning T.F.s injuries were serious and required multiple surgeries, Michelle did not understand the severity of the abuse and emotional trauma T.F. suffered, and she made no effort to come to San Diego out of concern for her child. From this, a reasonable inference could be drawn that T.F. was at risk of future harm in Michelles care. Because the risk of harm creating the emergency was ongoing and T.F. could not immediately be returned to Michelle, the court had subject matter jurisdiction under section 3424 to conduct the dependency proceeding and issue its jurisdictional and dispositional orders. (In re Nada R., supra, 89 Cal.App.4th at p. 1175; In re Angel L., supra, 159 Cal.App.4th at p. 1139; In re Stephanie M., supra, 7 Cal.4th at p. 312.)
Moreover, because there was no jurisdictional conflict with another states court, the UCCJEA did not restrict the courts power to proceed. (§ 3424, subds. (c) & (d); cf. In re C. T., supra, 100 Cal.App.4th at pp. 112-114 [because court in sister state having jurisdiction was willing to address custody issue, California courts exercise of temporary emergency jurisdiction was limited to a specified duration].) As the juvenile court acknowledged, there was no previous child custody determination from another state that would be enforceable under the UCCJEA as to T.F. (§ 3424, subd. (b).) Although the court in New Mexico and the attorney for the social services agency in Albuquerque were aware of the pending proceeding in California and the potential for New Mexico to assume jurisdiction, no child custody proceeding was commenced in that state. (Ibid.) Absent an action in New Mexico for the protection of T.F., the California juvenile court properly had jurisdiction to act. (In re Angel L., supra, 159 Cal.App.4th at pp. 1139-1140.) Once the court detained T.F., declared him a dependent and removed him from parental custody, "its temporary emergency jurisdiction ripened into permanent jurisdiction and California became [his] home state." (Id. at p. 1140.)
Michelle relies on In re Joseph D. (1993) 19 Cal.App.4th 678 and In re C. T., supra, 100 Cal.App.4th 101, to argue courts cannot treat emergency jurisdiction under section 3424 as something more than a short-term, limited jurisdiction. However, in those cases, the juvenile courts knowingly continued jurisdiction to determine custody issues while custody orders of another state were still in effect. (In re Joseph D., at p. 691; In re C. T., at pp. 107-109.) Here, in contrast, the court did not assert jurisdiction in the face of a competing custody order or proceeding. (See In re Stephanie M., supra, 7 Cal.4th at p. 313.)
After invoking temporary emergency jurisdiction to make its detention order, the San Diego court contacted the court in New Mexico in an effort to sort out issues as to subject matter jurisdiction. The New Mexico court refused to communicate with the San Diego court because it believed any contact could be construed as ex parte communications. However, both Californias and New Mexicos versions of the UCCJEA permitted communication between the courts. (§ 3410; N.M. Stat. Ann. § 40-10A-110(a) (2001); Nelson v. Nelson (N.M.Ct.App. 1995) 910 P.2d 319, 323 [courts should exchange information about custody cases]; State of N.M., ex rel. CYFD v. Donna J. (N.M.Ct.App. 2006) 129 P.3d 167, 172 [UCCJEA promotes cooperation and encourages communication between courts of different states to ensure custody decisions are rendered in the state better able to determine best interests of child].)
E
The Court Did Not Have Jurisdiction Under Section 3421, Subdivision (a)(4)
Although we conclude the court properly exercised temporary emergency jurisdiction, we do not agree with the courts alternative finding it had subject matter jurisdiction under section 3421, subdivision (a)(4) because no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3) of section 3421, subdivision (a). (§ 3421, subd. (a)(4).) Under the criteria in paragraph (2) of section 3421, subdivision (a), it was at least possible New Mexico could exercise "significant connection" jurisdiction.
Although T.F. had no home state, he and Michelle had a "significant connection" with New Mexico where there was available "substantial evidence" regarding T.F.s care, protection, training and personal relationships. (§ 3421, subd. (a)(2)(A) & (B).) The record shows T.F. spent the first two years of his life in New Mexico with Michelle and several of T.F.s siblings. Evidence concerning T.F.s care, daily activities and relationships with others was in New Mexico. His medical records, including those from his hospitalization as a premature newborn, were available in New Mexico. Additionally, Michelle had arranged for T.F. to attend daycare at a school for children with learning disabilities where T.F. would receive speech therapy. At the time the petition was filed, T.F.s significant contacts were in New Mexico. Because New Mexico could have asserted jurisdiction under the "significant connection" and "substantial evidence" provision of the UCCJEA, the juvenile court could not find it had jurisdiction under section 3421, subdivision (a)(4) because no other court had jurisdiction. (See In re Baby Boy M. (2006) 141 Cal.App.4th 588, 600 [because Georgia could possibly have "significant connection" jurisdiction under the UCCJEA, California did not have jurisdiction under the "default" provision of section 3421, subdivision (a)(4)].) The courts erroneous finding, however, is harmless in light of its proper assumption of emergency jurisdiction under section 3424, subdivisions (a) and (b).
New Mexicos version of this provision appears in New Mexico Statutes Annotated, section 40-10A-201(a)(2).
II
The Court Properly Found California Was Not an Inconvenient Forum
Michelle contends the court should have declined to exercise jurisdiction as an inconvenient forum under section 3427. She asserts the relevant statutory factors weighed in favor of transferring the case to New Mexico. We review the courts finding on this issue for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 312; Pieri v. Superior Court (1991) 1 Cal.App.4th 114, 122.)
A
Inconvenient Forum—Section 3427
Under section 3427, subdivision (a), a court having jurisdiction under the UCCJEA "may decline to exercise its jurisdiction at any time if it determines it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." (Italics added.) In considering whether it is appropriate for a court of another state to exercise jurisdiction, a court of this state must consider all relevant factors, including:
"(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
"(2) The length of time the child has resided outside this state.
"(3) The distance between the court in this state and the court in the state that would assume jurisdiction.
"(4) The degree of financial hardship to the parties in litigating in one forum over the other.
"(5) Any agreement of the parties as to which state should assume jurisdiction.
"(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
"(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
"(8) The familiarity of the court of each state with the facts and issues in the pending litigation."
B
The Court Did Not Abuse Its Discretion by Retaining Jurisdiction
Here, the only factor favoring jurisdiction in New Mexico is the length of time T.F. has resided outside California because at the time the petition was filed, T.F. had never lived in California. The other factors relevant to the courts analysis, however, weighed in favor of California retaining jurisdiction. Michelle has appointed counsel representing her in California and thus cannot claim it was a financial hardship for her to litigate the case here. The evidence required to resolve the pending litigation—medical records concerning T.F.s injuries from physical and emotional abuse, social worker reports, and information relevant to T.F.s best interests—was located in California. Consequently, the California court was familiar with the facts and issues in the proceeding and able to decide the issues expeditiously. The court did not abuse its discretion when it declined to relinquish jurisdiction to New Mexico based on Michelles inconvenient forum arguments.
III
Substantial Evidence Supports the Courts Dispositional Order
Michelle challenges the sufficiency of the evidence to support the courts dispositional order. She asserts she was entitled to immediate custody of T.F. because she was a nonoffending, noncustodial parent under Welfare and Institutions Code section 361.2, subdivision (a). She further asserts there was no evidence T.F. would be at risk of harm in her care.
A
Standard of Review
Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (Welf. & Inst. Code, § 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence the child cannot safely remain in the home. (Welf. & Inst. Code, § 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) In determining whether removal is warranted, the court may consider the parents past conduct as well as present circumstances. (In re S. O. (2002) 103 Cal.App.4th 453, 461.)
We review the courts dispositional findings for substantial evidence. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.) In so doing, we consider the entire record and do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile courts order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
B
Michelle Forfeited Her Claim as to Nonoffending, Noncustodial Parent Status
As a general rule, a parents failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal. (In re S. B. (2004) 32 Cal.4th 1287, 1293.) Application of the forfeiture rule, although not automatic, is designed to keep litigants from acquiescing and later seeking relief for error that could have been prevented or cured. (Ibid.; In re Riva M. (1991) 235 Cal.App.3d 403, 412.) Although we have discretion to excuse forfeiture, we exercise that discretion rarely and only in cases presenting an important legal issue. (In re S. B., at p. 1293.) This is especially true in dependency proceedings where "considerations such as permanency and stability are of paramount importance." (Ibid.)
Here, Michelle did not ask the juvenile court to find she was a noncustodial, nonoffending parent entitled to custody of T.F. When the court removed T.F. from Michelles custody under Welfare and Institutions Code section 361, subdivision (c)(1), which specifically addresses custodial parents, she did not object. By her silence and acquiescence, Michelle has forfeited her right to claim error on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
C
T.F. Remained at Risk in Michelles Care
Michelle asserts it was not unreasonable to leave T.F. with relatives for seven months, especially in the context of African-American culture allowing for such arrangements, because she did not know T.F. was being subjected to physical abuse. However, the evidence showed Michelle admittedly knew little or nothing about the paternal aunt, her husband or son. Although Michelle claimed she intended to have T.F. stay in Nevada for only a short visit, there was other evidence that Michelle was unable to handle T.F. and wanted a "break" from him. During the time T.F. was in Nevada, Michelle did not provide for his needs and was unavailable to give consent for a necessary hospitalization. She insisted she did nothing wrong by allowing him to stay in Nevada for seven months without checking on his welfare. This case is not about cultural choices, but rather about failing to protect a minor from serious physical abuse.
Further, after learning T.F. had been severely abused, Michelle refused to take any responsibility, and she waited two months before contacting Agency. At the time of the disposition hearing, Michelle had not attempted to visit or telephone T.F. for 11 months and consequently, had no bond with him. Michelles omissions were severe and serious. Even if she did not personally pose a direct threat of physical abuse to T.F., her denial of the risk to which she subjected him was sufficient for the court to remove him from her custody. Substantial evidence supports the courts dispositional order.
IV
The Reunification Plan Was Adequately Tailored to Michelles Circumstances
Michelle contends the courts reunification plan was not sufficiently tailored to address the issues that gave rise to T.F.s dependency. She asserts the court abused its discretion by: (1) placing T.F. in foster care far from her home, effectively thwarting her ability to reunify with him; and (2) ordering visitation only once a month.
A
Michelle Forfeited the Right to Challenge the Courts Placement and Visitation Orders
As we previously discussed, a reviewing court ordinarily will not consider a challenge to a ruling or order if an objection could have been but was not made in the juvenile court. (In re S.B., supra, 32 Cal.4th at p. 1293.) Further, a parent who consents to the terms of a reunification plan forfeits the right to complain on appeal. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1476.)
Here, Michelle did not object to the courts order placing T.F. in foster care in California on the ground he would be too far away from her or visits were too infrequent to accomplish meaningful reunification. Indeed, Michelle requested T.F. be placed with the maternal grandmother in Los Angeles. (See In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [by seeking placement of minor with herself, mother forfeited right to argue minor should be placed with grandmother]; In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642 [mother failed to preserve issue of sibling visitation by not objecting in juvenile court].) Michelles focus was to ensure services were available for her in Albuquerque, to have Agency arrange to pay for her transportation from Albuquerque to San Diego once a month for visits with T.F. and to continue paying $25 a month for collect telephone calls. By acquiescing in the requirements for reunification, Michelle cannot now challenge the placement location or the frequency of visits.
B
The Placement Order Was Proper
Even had Michelle not forfeited her challenge to the courts placement and visitation orders, reversal is not required. At disposition, the court continued T.F.s placement with foster parents in San Diego with whom T.F. had lived for six months. At that time, the court had no other placement options, including relatives or extended family members. Because the court could not immediately return T.F. to Michelles custody in New Mexico, T.F.s placement was in his best interests and was not intended to thwart reunification efforts. In any event, the court ordered Agency to initiate an ICPC evaluation for Michelles home and other placement options in Albuquerque. Pending the outcome of that evaluation, T.F.s placement in California was necessary and proper.
ICPC procedures must be completed before a member state can order a child sent into another state for placement. (In re Luke L. (1996) 44 Cal.App.4th 670, 681-682.)
C
The Visitation Order Was Reasonable
When the court places a dependent child in foster care and orders reunification services, it must provide visitation for a parent "as frequent as possible, consistent with the well-being of the child." (Welf. & Inst. Code, § 362.1, subd. (a)(1)(A).) The right to visitation "necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child. In balancing these interests, the court in the exercise of its judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of visitation. The court may, of course, impose any other conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it." (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) We review this decision for abuse of discretion. (See In re Stephanie M., supra, 7 Cal. 4th at p. 318.)
Here, the court ordered visitation and granted Michelles request to have Agency arrange to pay her airfare between Albuquerque and San Diego once a month for visits with T.F. Although Michelle now says she is entitled to visit T.F. more frequently, she is not foreclosed from doing so or from maintaining contact with him by telephone. The courts visitation order did not deny Michelle a "reasonable opportunity to pursue reunification." (In re Luke L., supra, 44 Cal.App.4th at p. 681.)
V
Conclusion
The juvenile court properly exercised its emergency and continuing jurisdiction and correctly found California was the appropriate forum under the UCCJEA at the time it declared T.F. a dependent and removed him from parental custody. Further, the evidence amply supported the courts order removing T.F. from Michelles custody, and the court fashioned a reunification plan appropriate to the circumstances. Nevertheless, we are mindful that reunification efforts are ongoing between Michelle in Albuquerque and T.F. in San Diego, and that an evaluation under the ICPC has been initiated for placements in Albuquerque. Thus, as a practical matter, the New Mexico court may now be in a better position to monitor Michelles progress with services and her ability to safely resume custody of T.F. Because the New Mexico court mistakenly believed it could not communicate with the California court, it is unclear in the record before us whether New Mexico is willing and able to exercise jurisdiction. In this regard, we note the San Diego juvenile court has discretion, at any time, to determine California is an inconvenient forum and New Mexico is a more appropriate forum. (§ 3427, subd. (a).) If the court makes that determination, it "shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in [New Mexico] and may impose any other condition the court considers just and proper." (§ 3427, subd. (c).)
DISPOSITION
The judgment is affirmed.
WE CONCUR:
HALLER, J.
McINTYRE, J.