In re Adolfo M.
Filed 9/19/13 In re Adolfo M. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re ADOLFO M., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
ALYSSA M.,
Defendant and Appellant.
D063789
(Super. Ct.
No. SJ12887)
APPEAL from
a judgment of the Superior Court
of
County, Garry G. Haehnle, Judge. Reversed and remanded with directions.
Monica
Vogelmann, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
This case
involves the applicability of the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA) (Fam. Code, § 3400 et seq.).
minor son, Adolfo M., a dependent of the juvenile court and removing him from
parental custody, contending the court erred by asserting subject matter
jurisdiction under section 3421, subdivision (a)(2). We conclude the UCCJEA controls the
jurisdictional analysis the court must undertake before it can properly make
its dependency findings and orders. We
reverse the judgment and remand the matter to the juvenile court to conduct a
hearing on subject matter jurisdiction in accordance with the UCCJEA.
FACTUAL AND
PROCEDURAL BACKGROUND
In March
2013, Alyssa crossed the border from Mexico to San Diego, California, with her
six-year-old son Adolfo. She turned
herself in to law enforcement authorities on an outstanding arrest warrant for
a drug-related crime. Alyssa, who was
born and raised in the state of Washington, said she had been living in Mexico,
was currently homeless, and had been using methamphetamine for the past
year. She also said her current
relationship with Cesar C. involved domestic violence. Alyssa initially reported she had no
relatives in the United States or Mexico who could care for Adolfo. She was taken to Las Colinas Detention
Facility and Adolfo was taken to Polinsky Children's Center.
Adolfo told
the social worker that Alyssa worked "where they sell beer to men and then
she takes them somewhere." He said
Alyssa and Cesar smoked light bulbs with dust or sand in them. He also said Alyssa and Cesar fight, which
made him sad and caused him to cry.
The San
Diego County Health and Human Services Agency (Agency) filed a petition in the
juvenile court under Welfare and Institutions Code section 300, subdivision
(b),
alleging Adolfo was at substantial risk of harm because Alyssa had been using
and selling methamphetamine for the past year, and had been hiding with Adolfo
in an abandoned home to avoid being arrested.
The petition listed Cesar and another man, Antonio S., as Adolfo's
alleged fathers, both of whom lived in Mexico.
At a
argued that under the UCCJEA, Mexico was Adolfo's home state and, thus, the
court lacked subject matter jurisdiction unless it had temporary emergency
jurisdiction. Counsel further argued
there was no emergency because Adolfo was not in immediate danger when he was
taken from Alyssa. The court disagreed,
finding Adolfo was at risk because Alyssa and Cesar used drugs, and, thus, the court
had jurisdiction. The court then asked
Alyssa whether there were any custody or visitation orders, or any family court
proceedings, involving Adolfo in Mexico.
Alyssa answered, "No, nothing." The court proceeded to make its findings and
detained Adolfo in out-of-home care.
When Alyssa's counsel asked for clarification about whether the court
was taking temporary emergency jurisdiction, the court said it was finding the
UCCJEA did not apply.
According
to a jurisdiction report, Adolfo was living in a foster home and doing
well. Adolfo told the social worker that
Cesar had physically abused him, and Alyssa corroborated this statement. Alyssa, who was no longer incarcerated, said
she would like Adolfo placed with a relative in San Diego. The maternal grandmother in Washington also
expressed interest in having Adolfo placed with her. Alyssa was regularly visiting Adolfo and
began participating in services, including a residential substance abuse
treatment program.
At a
jurisdiction and disposition hearing, the court again addressed the
applicability of the UCCJEA, and expressly declined to take temporary emergency
jurisdiction under section 3424, subdivision (b). Because no court in any other state or country
had asserted jurisdiction over Adolfo, the court found it had subject matter
jurisdiction under section 3421, subdivision (a)(2). The court sustained the allegations of the
petition under Welfare and Institutions Code section 300, subdivision (b), declared
Adolfo a dependent, removed him from Alyssa's custody, placed him in foster
care and ordered Alyssa to comply with the provisions of her case plan.
DISCUSSION
Alyssa
contends the court erred by asserting subject matter jurisdiction under section
3421, subdivision (a)(2), because Mexico, not California, was Adolfo's home
state. County counsel concedes the
error, but asserts it was harmless because the court could have properly
exercised temporary emergency jurisdiction under section 3424.
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.)
"Under the UCCJEA, a California court must 'treat a foreign country
as if it were a state of the United States for the purpose of' determining
jurisdiction. (§ 3405, subd.
(a).)" (In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 490.) A dependency action is a " '[c]hild
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 the child and his or her family have the closest
connections, avoiding relitigation of another state's custody decisions and
promoting the exchange of information and other mutual assistance between
courts of other states. (In re C.T.,
at p. 106.)
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 court's findings regarding subject matter jurisdiction,
but rather 'independently reweigh the jurisdictional facts.' " (Ibid.)
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 child's "home
state," meaning 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
child custody proceeding was commenced (§§ 3421, subd. (a)(1) & 3402,
subd. (g)); a court of another state does not have jurisdiction because it is
not the child's home state (§ 3421, subd. (a)(2)); a court of the child's
home state has declined to exercise jurisdiction on the ground California is
the more appropriate forum (ibid.);
all courts having jurisdiction have 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)). "Physical presence of, or
personal jurisdiction over, a party or a child is not necessary or sufficient
to make a child custody determination."
(§ 3421, subd. (c).)
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).)
Nevertheless,
even an appropriate "[a]ssumption of emergency jurisdiction does not
confer upon the state exercising emergency jurisdiction the authority to make a
permanent custody disposition." (
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
Cal.App.4th at p. 1138, quoting § 3424, subd. (b).) Thus, the statutory language makes clear that
emergency jurisdiction can be exercised to protect a child only on a temporary
basis until the court with appropriate jurisdiction issues a permanent order
or, alternatively, until the court exercising emergency jurisdiction finds a
basis to "properly assume jurisdiction under section [3421 or] 3423 apart
from its emergency jurisdiction under section 3424." (In re
C.T., supra, 100 Cal.App.4th at
pp. 113, 112.)
D
Jurisdiction
Here, the
court expressly declined to assert temporary emergency jurisdiction under
section 3424. Instead, the court
asserted subject matter jurisdiction under section 3421, subdivision (a)(2),
which provides that the California court has jurisdiction to make an initial
child custody determination if the court of another state (or foreign country)
does not have "home state" jurisdiction or has declined to exercise
jurisdiction on the ground California is the more appropriate forum based on
certain criteria.
title="">[3] However, the undisputed evidence here showed
Mexico had home state jurisdiction because Adolfo had lived there with Alyssa
for at least six consecutive months immediately before the dependency
proceedings began. (§ 3402, subd.
(g).) Further, the court in Mexico did
not decline to exercise jurisdiction as Adolfo's home state because it was
never given notice or the opportunity to do so.
(§ 3421, subd. (a)(2).)
In
asserting subject matter jurisdiction under section 3421, subdivision (a)(2),
the court presumably believed it could proceed based on Alyssa's unsworn
testimony that there were no custody or visitation orders or family court
proceedings in Mexico involving Adolfo.
has commenced in another jurisdiction, the child's home state must be given the
opportunity to either assume or decline jurisdiction. In this regard, the court purporting to
assert subject matter jurisdiction is authorized to communicate with the court
in the home state. (§ 3410, subd.
(a).) The juvenile court here made no attempt
to contact the court in Mexico or otherwise verify Alyssa's statement as to the
existence of any custody orders or
proceedings in Mexico. It also failed to
hold a hearing at which the parties could present evidence and cross-examine
witnesses to enable the court to determine whether California or Mexico had
subject matter jurisdiction under the UCCJEA.
Under these circumstances, the juvenile court erred by exercising
subject matter jurisdiction, and the error cannot be deemed harmless. (See In
re Marriage of Jackson (2006) 136 Cal.App.4th 980, 997 [if jurisdictional
error has occurred, the resulting judgment or order is voidable and reversible
on appeal even where it is clear from the record that no prejudice resulted].)
E
Agency
concedes the court erroneously asserted subject matter jurisdiction under
section 3421, subdivision (a)(2), but nevertheless contends the court had
temporary emergency jurisdiction under section 3424. We agree the facts here showed that at the
time the dependency petition was filed, Adolfo would have been at immediate
risk of harm if returned to parental custody because Alyssa used and sold methamphetamine
for the past year, exposed Adolfo to domestic violence and allowed Adolfo's
only other caregiver, Cesar, to physically abuse him. (§ 3424, subd. (a); see In re Nada R.,
supra, 89 Cal.App.4th at pp.
1174-1175.) However, Agency's argument
that the court had the power to proceed under section 3424 is based on the
faulty premise that there was no competing custody order entered in Mexico and
no jurisdictional conflict with the Mexican court. As we previously discussed, the record
contains no admissible evidence as to whether there was a previous child
custody determination or pending custody proceeding in Mexico, and no proper
inquiry was made. In the absence of that
information, we cannot conclude the juvenile court was entitled to assert temporary
emergency jurisdiction.
name="_ftnref5" title="">[5]
DISPOSITION
The
judgment is reversed. The case is
remanded to the juvenile court with directions to hold a hearing at which the
parties may present evidence and cross-examine witnesses regarding whether
California or Mexico has subject matter jurisdiction under the UCCJEA, or
whether California has temporary emergency jurisdiction.
McDONALD,
J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] All further statutory references are to the Family Code
unless otherwise specified.
name="_ftn2" title="">[2] Agency also filed a petition under Welfare and Institutions
Code section 300, subdivision (g), but that allegation was later dismissed.
