Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INJ017899, Gregory J. Olson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Valerie N. Lankford, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, Judge
Sandra A. (mother) appeals from a judgment terminating her parental rights to two of four children, removed from her custody by the Department of Public Social Services (DPSS) within one week of their entry into California from Arizona. Mother claims the judgment is void because the juvenile court lacked jurisdiction over the family, because Arizona is their home state within the meaning of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). We agree.
1. Background
Mother traveled from Arizona to Riverside County on April 2, 2006, with the four youngest of her nine children: Daniel C., age 16; Ashley C., age 13; Savino C., age 11; and Richard D., Jr., age 10. When she arrived, she had only $5, after spending approximately $400 for bus and taxi fare to get to Palm Springs. DPSS was contacted because mother was trying to sell a Playstation in the parking lot of a Taco Bell restaurant to get cash. All four children were taken into custody when the DPSS worker responded due to information that mother had a mental disorder and refused to take medication. DPSS contacted the Arizona Child Abuse hotline and learned the family had an extensive history with that state’s Child Protective Services (CPS), and numerous referrals for neglect. The children had been removed by the Arizona court system in 1999-2000, and 2005.
A dependency petition was filed on April 10, 2006, alleging that mother failed to protect the children (Welf. & Inst. Code, § 300, subd. (b) ) due to her failure or inability to supervise or protect, failure to provide the children with adequate food or shelter, and by her inability to provide regular care for the children due to a mental illness. The petition specifically referred to the fact the mother and children were found homeless “outside a restaurant in California with $5.00 after leaving their home state of Arizona four days ago.” The petition also alleged the children had been left without any provision for their support based on the lack of information about the whereabouts of the fathers of the children, as well as mother’s recent incarceration for taking a vehicle without permission. At the detention hearing, DPSS was ordered to assess relatives, but no relative assessments are mentioned throughout the proceedings.
Except where indicated, statutory references are to the Welfare and Institutions Code.
After mother’s release from jail, she returned to Arizona, and left her adult son Samuel’s address and telephone number as a forwarding address. In the meantime, while in foster care, Daniel was caught smoking marijuana on more than one occasion, so he had to be removed from the foster home and placed in a group home, from which he ran away. Mother was not present at the jurisdiction hearing, held on May 2, 2006, when a true finding was made as to the allegations of the petition, nor was she present at the disposition hearing held on May 30, 2006. However, she was in contact with DPSS, as reflected in the social worker’s service logs. The service log attached to the disposition report indicates the social worker informed mother that her recommendation would be based on mother’s state of residence. The social worker also indicated she had called county counsel for advice on how to proceed if mother remained in Arizona.
On May 30, 2006, at the disposition hearing, the court found the children were residents of Riverside County, declared the children to be dependents of the court, removed the children from the mother’s custody, and ordered mother to participate in a reunification plan. The six-month status review report dated September 19, 2006, reflected mother was living in Arizona, although she had returned to Riverside County in August 2006, at which time she visited the children and underwent a court-ordered psychological evaluation.
By the time of the status review hearing, Daniel had run away from his group home twice, returning to Arizona where he lived with his adult brother and his mother. The dependency continued as to Ashley, Savino and Richard, but eventually the action was terminated as to Daniel. The court also suspended visits and set a hearing to select and implement a permanent plan. (§ 366.26.)
Prior to the permanency planning hearing, the father of Richard D., Jr., came forward. He filed a petition to modify the previous order (§ 388), seeking return of his son. His petition alleged that mother absconded with Richard, Jr., after Richard, Sr., obtained an order granting him custody, and that he had been searching for his son since that time. The petition reflected that all parties agreed to the requested modification. The court granted the requested modification, and the dependency as to Richard, Jr., was terminated. At the subsequent permanency planning hearing, the court terminated mother’s parental rights to Ashley and Savino. Mother appealed.
2. Discussion
Mother argues that the juvenile court orders are void because California was not the home state of the children within the meaning of the UCCJEA. Respondent concedes that California was not the family’s home state, but argues that Arizona was not their home state, either, and that California properly exercised jurisdiction in this matter. We agree with mother.
The UCCJEA (Fam. Code, §§ 3400 et seq.) is the exclusive method for determining subject matter jurisdiction for all custody proceedings in California, including juvenile dependency proceedings. (In re Claudia S. (2005) 131 Cal.App.4th 236, 245.) This is a question of subject matter jurisdiction, which either exists or does not exist at the time the action is commenced. (Adoption of Zachariah K. (1992) 6 Cal.App.4th 1025, 1035.) Subject matter jurisdiction cannot be conferred by stipulation, consent, waiver, or estoppel. (In re Janette H. (1987) 196 Cal.App.3d 1421, 1429 .)
An action is commenced when a petition is filed. (Fam. Code, § 3402, subd. (e); In re Janette H., supra, 196 Cal.App.3d at p. 1429.) Where a court lacks subject matter jurisdiction (“jurisdiction in the fundamental sense”), its judgments or orders are void. (Thompson Pacific Const., Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 538.) An objection to the adequacy of the court’s subject matter jurisdiction must be addressed whenever the issue comes to the court’s attention (Totten v. Hill (2007) 154 Cal.App.4th 40, 46), so the issue may be raised at any time. (Thompson Pacific Const., Inc. v. City of Sunnyvale, supra, at p. 538.) On review, we are not bound by the juvenile court’s findings; instead, we independently reweigh the jurisdictional facts. (In re A.C. (2005) 130 Cal.App.4th 854, 860.)
Under the UCCJEA, the court must determine the child’s “home state” prior to making custody orders, and a California court may exercise jurisdiction if, on the date of the commencement of the proceeding, it was the “home state” of the child. (Fam. Code, § 3421, subd. (a)(1).) The “home state” is the state in which the child lived with the child’s parents, a parent, or a person acting as a parent, for at least six consecutive months immediately preceding the time involved in the action. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 954-955; see also, In re Aaron D. (2008) 165 Cal.App.4th 1546, 1559.) A period of temporary absence of any of the mentioned persons is part of the period. (Fam. Code, § 3402, subd. (g).) If a court of another state has exercised jurisdiction, a California court may not exercise jurisdiction, unless or until the foreign court has determined that California is a more appropriate forum. (Fam. Code, § 3421, subd. (3).)
The UCCJEA gives preference to “home state” jurisdiction. (Zenide v. Superior Court (1994) 22 Cal.App.4th 1287, 1294.) Where this state is not the home state of the child on the date of the commencement of the proceeding, and where (1) a court of another state has jurisdiction as the home state, or (2) a court of the home state has not declined to exercise jurisdiction on the ground that this state is more appropriate, or (3) where the home state court has not declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum (Fam. Code, § 3421, subd. (a)), the California court must immediately communicate with the court of the home state, to determine if the home state will exercise, or decline, jurisdiction. (Fam. Code, § 3424, subd. (d).)
California was not the home state of the mother or the children when the action was commenced, as respondent concedes. The juvenile court was aware that Arizona was the home state of this family as that fact is alleged in the petition. All parties and the court were reminded of this fact at the contested status review hearing, where mother testified she had been continuously living in the State of Arizona for 43 years, and that she had only lived in California for a few months after her children had been picked up for being homeless. The social worker was aware of the jurisdictional problem at the time of detention, when she sought advice from county counsel on the issue, but no further action was taken. Yet the juvenile court did not communicate with the Arizona court as required by the UCCJEA.
Respondent argues that neither state qualifies as the home state of the family members, referring to statements in a psychological report attributed to mother indicating she had worked in Indio for three months in the latter part of 2005. Respondent relies on In re S.W. (2007) 148 Cal.App.4th 1501 as support for this position. Unfortunately, aside from the psychologist’s report with the statement alluded to, there was no evidence she was actually in California in 2005, and the statement is contradicted by information obtained from the social worker regarding dependency proceedings relating to the family pending in Arizona in that same year. Besides, under the UCCJEA, a period of temporary absence of any of the mentioned persons is considered part of the period for determining the child’s home state (Fam. Code, § 3402, subd. (g)), and there is no evidence that the children were in California during the period in question.
In In re S.W., supra, 148 Cal.App.4th 1501, the mother and the children were living in California, as opposed to visiting, at the time of the commencement of the proceedings. The mother and children had been in California for several months, living out of a van, and the mother had applied for welfare in California. (Id. at p. 1510.) The facts of this case are grossly different. The family had been in California for four days when contacted by authorities, they had left all their belongings in Arizona, and mother received social security income in Arizona, suggesting a reason to return there.
Even if we assume mother had worked in Indio for three months in 2005 (a fact not independently corroborated anywhere in the record), this is insufficient to establish home state jurisdiction. A three-month period does not satisfy the UCCJEA in the absence of evidence she resided here for six months or more and intended to live here permanently. She apparently did not, since she moved back to Arizona before establishing domicile here, and, at the time the dependency was commenced, she only had Arizona forms of identification, indicating mother had not attempted to formalize any change of residence. More importantly, there is no evidence the children were ever in California in 2005.
Additionally, in the S.W. case, the mother and children had a significant connection to California other than mere physical presence, and there was substantial evidence in California concerning the children’s care, protection, training, and personal relationships. (In re S.W., supra, 148 Cal.App.4th at pp. 1510-1511.) Not so here. Virtually all of the CPS history about the children came from the Arizona social services agency.
Respondent also argues there was no jurisdictional defect because the children were “effectively” abandoned when, after the children had been detained, mother was temporarily jailed. Respondent thus asserts, for the first time on appeal, that California was authorized to exercise temporary emergency jurisdiction under Family Code section 3424. A California court is authorized to take temporary emergency jurisdiction over a child who is present in the state and the child has been abandoned, or it is necessary in an emergency order to protect the child because the child, or a sibling or a parent of the child, is subjected to, or threatened with, mistreatment or abuse. (Fam. Code, § 3424, subd. (a); In re Aaron D., supra, 165 Cal.App.4th at pp. 1561-1562.) In Aaron D., jurisdiction was based on physical abuse, which brought Aaron to the attention of DPSS. Respondent cites no authority to support the position that emergency jurisdiction may be exercised before the emergency (abandonment) even occurs. Further, DPSS did not allege abandonment as a ground for jurisdiction in the petition, so we cannot consider it as a basis for establishing emergency jurisdiction.
Emergencies under the UCCJEA are limited in duration and usually involve sexual or physical abuse and a finding of an emergency is only made after an evidentiary hearing. (In re A.C., supra, 130 Cal.App.4th at p. 864.) The emergency concept is a narrow exception to the general rule of home state jurisdiction, applying only in cases of genuine immediate, substantial, threatened physical harm to the child, that is, imminent child abuse. (Hafer v. Superior Court (1981) 126 Cal.App.3d 856, 864-865.) Being homeless and trying to sell a Playstation in the parking lot of a Taco Bell restaurant does not strike us as that kind of an emergency. In any event, the court’s failure to conduct an evidentiary hearing forecloses any possibility of finding an emergency.
Respondent also argues there is no evidence that a child custody proceeding has been commenced in the home state. This argument fails for two reasons: First, the juvenile court was statutorily required to contact the Arizona court to make this determination before a jurisdictional hearing and failed to do so. (Fam. Code, § 3424, subd. (d).) Second, DPSS did not attempt to determine whether a child custody proceeding had been commenced in that state, despite possession of information about numerous CPS contacts and numerous juvenile court interventions in that state. We find it highly unlikely that mother could have an “extensive” record of CPS contacts going back as far as 1989, along with CPS interventions resulting in removal of these children on numerous occasions over such a long span of time, without the commencement of some sort of child custody proceeding. The lack of evidence of any sister court proceedings is due to the court’s failure to comply with the statutory requirements essential to establish subject matter jurisdiction. Third, the lack of a child custody proceeding in Arizona does not mean Arizona was not the home state of the family for UCCJEA purposes, which is the core of the jurisdictional issue.
The juvenile court erred in finding that the children were residents of Riverside County, and in declaring the children to be dependents of the California court. The jurisdictional and dispositional orders are void. A void order cannot support a subsequent order; because it is, in legal effect, no judgment; therefore, all proceedings founded upon it, including the termination of parental rights, are equally worthless. (Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228, 1240.)
3. Disposition
The judgment is reversed with directions. The juvenile court is directed to communicate with the Maricopa County Superior Court in accordance with the UCCJEA. If that court declines jurisdiction, all orders commencing with the jurisdiction order will be reinstated. However, if that court accepts jurisdiction, all orders beginning with the jurisdiction order are reversed.
We concur: Ramirez P. J., McKinster J.