APPEAL from an order of the Superior Court of San Diego County, Gerald C. Jessop, Judge. Affirmed and remanded for a determination of attorney fees on appeal. (Super. Ct. No. D489932).
The opinion of the court was delivered by: McCONNELL, P. J.
CERTIFIED FOR PUBLICATION
In this case we must decide whether a trial court had the power to dismiss a petition seeking return of children under the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670 (Convention) because of the petitioner's delay in prosecuting it and then proceed to decide child custody and related matters under state law. We conclude the trial court had such power. We affirm the trial court's order and remand the matter for the trial court's determination of attorney fees on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Hector Bardales and Emilia Duarte are the parents of four children born in San Diego: three daughters born in 1990, 1991 and 1998, and a son born in 1996. In 2000, Duarte took the children to live in Mexico. In 2002, the two older children visited Bardales in California and never returned to Mexico.
In 2003, Bardales met Duarte and the two younger children in Tijuana. Bardales returned to California with the children and immediately initiated state court proceedings to prevent Duarte from taking the children back to Mexico.
As part of the state court proceedings, in April 2005, Bardales filed a petition to establish a parental relationship with the children and for sole physical and legal custody of the children. In his petition, Bardales alleged Duarte's boyfriend had sexually abused the two older children. In addition, he alleged Duarte knew of the abuse yet continued to have a relationship with him. Hector further alleged he brought the two younger children to California because he feared for their safety.
In June 2005, Duarte filed a petition for return of the children under the Convention. Duarte alleged Bardales wrongfully retained the two older children and wrongfully removed the two younger children to the United States in violation of the Convention. She denied the children were abused or mistreated in her care and requested the court order them "returned to Mexico forthwith." She also requested the court not make any custody or visitation orders pending the outcome of her Convention petition.*fn1
The court scheduled a hearing on both parties' petitions and, in the interim, ordered Bardales not to remove the children from San Diego without prior court approval and to keep the court informed of the children's current address and telephone number. In addition, the court appointed counsel for the children and requested counsel investigate facts related to three key Convention issues: (1) the location of the children's habitual residence to Mexico if Mexico is their habitual residence; (2) the existence of exceptions to requiring return of the children; and (3) the children's preferences regarding where and with whom they reside.
The children's counsel submitted a report recommending the court find the United States is the children's habitual residence because Duarte initially consented to the children living with Bardales and then changed her mind. Alternatively, counsel recommended the court find by clear and convincing evidence that returning the children to their mother in Mexico would subject them to a grave risk of physical and emotional abuse because the children reported that Duarte, her boyfriend, and Duarte's mother regularly beat them. They also reported that while in Mexico, they did not eat regularly, they were always hungry, and they had to fend for themselves by trying to get food from the adults and children in their neighborhood. Counsel further informed the court that none of the children wanted to return with Duarte to Mexico; however, the two older children, who suffered the most abuse and whose return Duarte no longer sought, would voluntarily return to protect the younger children if the court ordered the younger children returned.
The court continued the hearing on the petitions several times due to Duarte's and her counsel's inability to appear. However, when Duarte and her counsel were unable to appear for a hearing on December 2, 2005, the court declined to continue the matter again.*fn2 Instead, the court took Duarte's petition off calendar for lack of prosecution and indicated she would need to refile it for it to be heard again.*fn3 The court also took Duarte's companion matters off calendar, including her request to partition real property she and Bardales owned in joint tenancy. In addition, the court expunged a lis pendens Duarte filed against the property as she no longer had a pending matter to which the lis pendens related.
With no Convention matter pending, the court proceeded to address Bardales's petition and found he was the children's legal father, a fact which the parties do not dispute. The court then awarded him joint legal and sole physical custody of the children, with Duarte being permitted reasonable visitation. After imputing to Duarte a minimum wage income, the court ordered her to pay Bardales monthly child support of $586 and, after finding she had $52,000 equity in the real property she owned with Bardales, the court ordered her to pay sanctions of $17,500.
In January 2006, Duarte filed a complaint in federal district court for the return of her children under the Convention (federal Convention petition).*fn4 In March 2006, she filed this appeal.*fn5 One day after receiving the notice of appeal, we expedited the appeal on our own motion. We then learned of the federal Convention petition and requested the parties submit briefing on the issue of whether we should stay the appeal pending the ...