Opinion
G058707
05-26-2020
In re N.I et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. R.L., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 18DP0564, 18DP0565) OPINION Appeal from orders of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
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INTRODUCTION
R.L. (Mother) appeals from orders made pursuant to Welfare and Institutions Code section 366.26 terminating parental rights to her son, N.I. and her daughter, J.L. (together referred to as the Children), who were taken into protective custody in May 2018. She contends the juvenile court erred by asserting subject matter jurisdiction. She argues the juvenile court did not make a timely and proper determination of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), Family Code section 3400 et seq., and substantial evidence does not support a finding that Arizona declined jurisdiction. We reject those arguments, conclude the juvenile court had subject matter jurisdiction, and affirm.
Undesignated code sections are to the Family Code.
FACTS AND PROCEDURAL HISTORY
I. The Children Are Taken Into Protective Custody in
California.
Mother gave birth to N.I. in 2008 in Arizona and gave birth to J.L. in 2016 in Arizona. W.I., the alleged father of N.I., was incarcerated in Arizona during the dependency proceedings. B.W. is the father of J.L. Neither W.I. nor B.W. challenges the orders terminating parental rights.
While living in Arizona, Mother engaged in irrational behavior, had delusions, and displayed signs of paranoia. In March 2018 she was placed on an involuntary hospital hold for three weeks. Shortly after her release in April 2018, Mother and the Children entered a domestic violence shelter in Arizona.
In May 2018, Mother and the Children were placed in a relocation program. Mother and the Children soon thereafter traveled by bus to a homeless shelter in Orange County to start a new life and to get away from B.W., who Mother claimed was abusive.
On May 30, 2018, three days after arriving in Orange County, Mother took the Children to a hospital in Irvine to have their brains scanned. Mother claimed a government organization was trying to control her brain and kill her and the Children. An Irvine police officer and a social worker arrived. Mother was sedated and placed in a psychiatric hold, and the Children were placed in protective custody. Health professionals diagnosed Mother as having schizophrenia and other psychotic disorders.
II. The Juvenile Court Asserts Emergency Jurisdiction at
the Detention Hearing.
On June 1, 2018, Orange County Social Services Agency (SSA) filed a juvenile dependency petition alleging, as to both N.I. and J.W., failure to protect (Welf. & Inst. Code, § 300, subd. (b)(1)) (count 1), serious emotional damage (id., § 300, subd. (c)) (count 2), and no provision for support (id., § 300, subd. (g)) (count 3). The petition alleged Mother had "unresolved mental health issues," described her hospitalizations and psychotic behavior, and alleged N.I. displayed signs of emotional distress. In the detention report, SSA requested that the juvenile court exercise emergency jurisdiction in California under the UCCJEA and contact the court in Arizona to find out whether Arizona wanted to assert jurisdiction.
Just before the detention hearing, the assigned social worker spoke with Mother and B.W., who were sitting together in court. B.W. told the social worker he was planning to relocate to California from Arizona and live with Mother. Mother confirmed her plan was to live with B.W. in California.
During the detention hearing on June 4, 2018, the court made a finding of emergency jurisdiction under the UCCJEA and stated it would call the relevant judicial officer in Arizona before the pretrial. The court ordered the Children detained.
Later in June 2018, the juvenile court approved placing the Children with their maternal grandmother and maternal aunt. They had moved to Orange County from Arizona in order to take placement of the Children.
III. The Juvenile Court Asserts Jurisdiction
Under the UCCJEA.
Mother returned to Arizona in July 2018. She claimed she had left California because maternal grandmother and maternal aunt were harassing her. Mother claimed that her last hospitalization in Arizona was based on false allegations made by maternal grandmother and maternal aunt, and a doctor had lied by saying Mother had psychotic symptoms.
At the jurisdictional hearing on July 17, 2018, the juvenile court announced it had received information that Mother and B.W. had relocated to Arizona. The court stated: "Given the information that the parents have relocated back to Mesa, Arizona, I have recontacted Judge Timothy Ryan in Maricopa County this morning, advised him of that fact, and that in addition to a U.C.C.J.E.A. issue, there is now a forum non conveniens issue. I am advised that in order for Arizona to assume jurisdiction, that a caretaker has to file for legal guardianship in the dependency department in Maricopa County. The Department of Child Services in Arizona will then assess the matter and determine whether or not it wishes to assume jurisdiction and/or whether the court will approve legal guardianship in that county. Based on that information, I am ordering [SSA] to advise the caretakers to file for legal guardianship for the [C]hildren in Maricopa County, Arizona, as soon as possible."
The juvenile court asked SSA to advise it within two weeks whether the legal guardianship petition had been filed. The court stated that as soon as the petition was filed the court would "notify Judge Ryan's clerk of that filing" as "[t]hey are keeping track of the matter in that jurisdiction." The court continued the hearing to a date in August 2018 and ordered Mother and B.W. to appear "[i]n the event Arizona does not assume jurisdiction."
Maternal grandmother tried to apply for legal guardianship in Arizona in late July 2018. She was told by a liaison for the Arizona Department of Child Safety she could not file for legal guardianship because there was an open dependency matter in California. Maternal grandmother was told the juvenile court could set up a conference/meeting with the presiding judge in Arizona.
At the continued jurisdictional hearing on August 15, 2018, the juvenile court found the allegations of the petition true by a preponderance of evidence on all three counts as to N.I. and on counts 1 and 2 as to J.L. The court denied W.I.'s request for a continuance because "[t]his matter has been continued past the jurisdictional hearing date hoping that we would have a different response from Arizona on assuming jurisdiction. They're not doing that."
IV. Reunification Services are Granted, Then
Terminated, and Parental Rights Are Terminated.
At the dispositional hearing in September 2018, the juvenile court declared N.I. and J.L to be dependent children, vested custody with SSA, ordered reunification services, and approved SSA's case plan.
Mother and B.W. continued living together in Arizona. The assigned social worker sent Mother information about a number of Arizona service providers to help her meet her case plan goals. Mother did not, however, comply with her case plan, maintain contact with SSA, or show proof of treatment of her mental health issues. As of March 2019, at the end of the first six-month review period, Mother had made "minimal progress" toward addressing the issues that brought the Children into the dependency system. The court extended reunification services, but Mother's compliance with her case plan only got worse: As of August, 2019, at the end of the next review period, Mother had made "no progress."
The Children remained in maternal grandmother's care in California. They continued to do well, and maternal grandmother provided them a "safe and stable environment . . . to meet their daily needs."
At the 12-month review hearing in September 2019, the juvenile court terminated reunification services and scheduled a hearing under Welfare and Institutions Code section 366.26. At that hearing, held in December 2019, the juvenile court made orders terminating parental rights to both N.I. and J.L. with adoption as the permanent placement plan. Mother meanwhile had moved to New York. Maternal grandmother had expressed a desire to adopt the Children and a commitment to providing them a safe, stable, and permanent home.
DISCUSSION
I. The UCCJEA
The UCCJEA, which is codified at sections 3400 through 3465, is the exclusive means for determining subject matter jurisdiction in a dependency proceeding in California. (§§ 3402, subd. (d), 3421, subd. (b); see In re E.R. (2018) 28 Cal.App.5th 74, 79; In re Aiden L. (2017) 16 Cal.App.5th 508, 516 (Aiden L.).) Arizona also has adopted the UCCJEA. (Ariz. Rev. Stat., §§ 25-1001-1067.) "'The UCCJEA is designed to avoid jurisdictional conflicts between the states and facilitate enforcement of another state's custody decrees.'" (Aiden L., supra, 16 Cal.App.5th at p. 516.)
Subject matter jurisdiction over a dependency matter must exist under the UCCJEA at the time the petition is filed. (Aiden L., supra, 16 Cal.App.5th at p. 516.) Jurisdiction cannot be conferred by a party's presence, stipulation, consent, waiver, or estoppel. (Ibid.) A trial court's findings on jurisdictional facts are reviewed under the substantial evidence standard. (Id. at p. 520.)
Section 3421 creates four alternative bases for subject matter jurisdiction:
"(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." (Id., subd. (a)(1).)
"(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 child's 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 child's care, protection, training, and personal relationships." (Id., subd. (a)(2).)
"(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." (Id., subd. (a)(3).)
"(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3)." (Id., subd. (a)(4).)
The difference between subdivision (a)(2) and subdivision (a)(3) of section 3421 is that subdivision (a)(3) omits the requirements of significant connections and substantial evidence of care requirements with this state. (See In re A.C. (2017) 13 Cal.App.5th 661, 678 (A.C.).)
"'Home state'" under the UCCJEA means: "[T]he 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period." (§ 3402, subd. (g).) A child's home state has priority over other jurisdictions. (§ 3421, subd. (a)(1); Aiden L., supra, 16 Cal.App.5th at pp. 517-518.)
A California court may exercise temporary emergency jurisdiction pursuant to section 3424, subdivision (a) in order to protect a child in the state from threatened or actual abuse. If the court is aware another state qualifies as the child's home state, the California court must contact the home state court to give it an opportunity to decide whether to exercise home state jurisdiction. (§§ 3421, subd. (a)(2) & (3), 3424, subd. (b); see Aiden L., supra, 16 Cal.App.5th at pp. 518-519.)
An express order from the home state court declining jurisdiction is not required for the juvenile court to assert jurisdiction. (Aiden L., supra, 16 Cal.App.5th at p. 519.) "[W]hen a home state declines jurisdiction in any manner that conveys its intent not to exercise jurisdiction over a child in connection with a child custody proceeding, including inaction or, as in the instant case, by refusing to even discuss the issue of jurisdiction despite myriad good faith attempts to do so by the juvenile court, . . . such inaction or refusal is tantamount to a declination of jurisdiction by the home state on the grounds California is the more appropriate forum under subdivision (a)(2) of section 3421." (In re M.M. (2015) 240 Cal.App.4th 703, 717 (M.M.).) "This is the case even where the foreign court makes no findings on the more convenient forum issue." (In re E.R., supra, 28 Cal.App.5th at p. 81.)
II. The Juvenile Court Did Not Err by Asserting
Jurisdiction Under the UCCJEA.
Mother argues the juvenile court did not follow the correct procedures and did not make a proper factual record of its communications with the Arizona court regarding jurisdiction. Mother forfeited those arguments by not raising those issues and making objections before the juvenile court. (A.C., supra, 13 Cal.App.5th at p. 671.) Mother also argues substantial evidence did not support a finding of subject matter jurisdiction in California. We conclude otherwise.
Section 3421, subdivision (a)(3) serves as a basis for subject matter jurisdiction in this case. The Children's home state was Arizona because both N.I. and J.L. were born in Arizona and lived there until just three days before they were detained in California. The juvenile court properly made a finding of emergency jurisdiction at the detention hearing. By the time of the jurisdictional hearing, the court had contacted the juvenile court in Maricopa County, Arizona at least once and informed that court of the case. The juvenile court was told the caretakers would have to file for legal guardianship before Arizona would even consider asserting jurisdiction. This response is not a display of enthusiasm for accepting subject matter jurisdiction. At no later point did the Arizona court express any interest in asserting subject matter jurisdiction. At the jurisdictional hearing, the juvenile commented it had hoped to receive "a different response from Arizona on assuming jurisdiction" but "they're not doing that." The Arizona court's inaction was "tantamount to a declination of jurisdiction." (M.M., supra, 240 Cal.App.4th at p. 717.)
Jurisdiction therefore could not exist under section 3421, subdivision (a)(1). Subject matter jurisdiction could not exist under section 3421, subdivision (a)(2) because, when the dependency petition was filed, N.I., J.L., Mother, W.I., and B.W. did not have "a significant connection with this state other than mere physical presence." (Id. at (a)(2)(A).) Subject matter jurisdiction in California could not exist under section 3421, subdivision (a)(4) because Arizona would have jurisdiction as the Children's home state.
When maternal grandmother tried to apply for legal guardianship in Arizona, she was told she could not do so because there was an open dependency case in California. In real terms that meant the dependency petition would have to be dismissed before Arizona would so much as consider jurisdiction. Considering the age of the Children and the risk of continued abuse, that was not an acceptable requirement and, we conclude, was also tantamount to declining jurisdiction.
In M.M. the juvenile court made three or four telephone calls to its counterpart in Japan, the child's home jurisdiction, about accepting subject matter jurisdiction over the dependency proceeding. (M.M., supra, 240 Cal.App.4th at pp. 709-710.) The court was informed by Japanese officials that communication by telephone or e-mail about a specific case was inappropriate. In an abundance of caution, the juvenile court sent a certified letter to Japanese authorities regarding jurisdiction and asking for a response by e-mail, telephone, or correspondence at the earliest possible convenience. (Id. at p. 711.) Four weeks later, having received no response, the juvenile court found it had exhausted its efforts to discuss jurisdiction with Japanese authorities, who were not interested in asserting jurisdiction. (Id. at pp. 711-712.) The Court of Appeal concluded that the juvenile court had properly found the Japan court had declined jurisdiction. (Id. at p. 717.)
In A.C., supra, 13 Cal.App.5th at pages 665 and 670-671, the juvenile court sent e-mails to court authorities in Mexico, the child's home jurisdiction, asking whether they would defer subject matter jurisdiction. One month later, the court stated on the record it had not received a response to those communications and took subject matter jurisdiction over the case. (Id. at pp. 666-667.) The Court of Appeal concluded "the Mexico judicial authorities' inaction by failing to timely respond to the court's e-mails was tantamount to their declination to exercise jurisdiction over the children's case on the ground California was the more convenient forum." (Id. at p. 675.)
M.M. and A.C. support the juvenile court's assertion of subject matter jurisdiction over this dependency case. The juvenile court in this case, as its counterparts in M.M. and A.C., communicated with the home state court but received no response indicating an interest in accepting jurisdiction. The Arizona court, as the foreign courts in M.M. and A.C., declined to take any action to assert subject matter jurisdiction and, in addition, imposed a requirement (requiring the dependency case in California to be closed) that amounted to declining jurisdiction.
DISPOSITION
The orders terminating parental rights are affirmed.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.