Opinion
B300503
04-15-2020
Y.S., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Law Offices of Vincent W. Davis & Associates and Vincent W. Davis for Petitioner. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Real Party in Interest. No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK10199) ORIGINAL PROCEEDING; petition for extraordinary writ. Steven E. Ipson, Commissioner. Writ denied. Law Offices of Vincent W. Davis & Associates and Vincent W. Davis for Petitioner. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Real Party in Interest. No appearance for Respondent.
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I.
INTRODUCTION
Y.S. (father), N.A. (mother), and their two children—10-year-old K.S. and 8-year-old Z.S.—are all Jordanian citizens. Both children were born in Jordan. The children became the subjects of this dependency proceeding less than a year after the family arrived in the United States. Y.S. filed this petition for extraordinary writ relief after the juvenile court terminated reunification services and set a Welfare and Institutions Code section 366.26 hearing. The sole issue on appeal is whether the juvenile court had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.). We find that it did and deny the petition.
Further statutory references are to the Family Code.
II.
The UCCJEA
The UCCJEA provides "the exclusive jurisdictional basis for making a child custody determination by a court of this state." (§ 3421, subd. (b); In re C.W. (2019) 33 Cal.App.5th 835, 859; R.B. v. D.R. (2018) 28 Cal.App.5th 108, 113.) A dependency proceeding is a "child custody proceeding" within the meaning of the UCCJEA. (In re E.R. (2018) 28 Cal.App.5th 74, 79; see also In re M.M. (2015) 240 Cal.App.4th 703, 715.) Under the UCCJEA, section 3405, subdivision (a), "A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of [determining jurisdiction]." (See In re M.M., supra, 240 Cal.App.4th at p. 715; In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 490.)
The UCCJEA's purposes include "avoid[ing] jurisdictional competition between states or countries, promot[ing] interstate cooperation, avoid[ing] relitigation of another state's or country's custody decisions and facilitat[ing] enforcement of another state's or country's custody decrees." (In re Gloria A. (2013) 213 Cal.App.4th 476, 482; accord, In re R.L. (2016) 4 Cal.App.5th 125, 136.) Another "underlying objective[]" is "to prevent parental kidnapping." (In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 496.)
"Under [the UCCJEA], a court has jurisdiction to make an initial child custody determination only if (1) th[e] state is the child's 'home state,' meaning the state in which the 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[, or the state was the home state of the child within six months before the commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in the state] (§§ 3421, subd. (a)(1), 3402, subd. (g)); (2) the child's home state has declined to exercise jurisdiction (§ 3421, subd. (a)(2) & (3)); or (3) the child does not have a home state (§ 3421, subd. (a)(4))." (In re Gino C. (2014) 224 Cal.App.4th 959, 965.)
A state court without jurisdiction under section 3421, subdivision (a) may nevertheless exercise temporary emergency jurisdiction "if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse." (§3424, subd. (a).) "If a California court has exercised temporary emergency jurisdiction pursuant to section 3424, subdivision (a), . . . that court may not address the merits of the dependency petition or otherwise make a final child custody determination until it properly asserts jurisdiction under the nonemergency jurisdiction provisions of the UCCJEA. [Citations.] Thus, if the court is aware that another state (or foreign country) 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 its home state jurisdiction. (See §§ 3421, subd. (a)(2) & (3), 3424, subd. (b); In re M.M., supra, 240 Cal.App.4th at pp. 718-719 [assertion of jurisdiction affirmed; 'the record shows the juvenile court made several attempts to discuss the jurisdiction issue with a Japanese court before the juvenile court properly exercised permanent jurisdiction']; In re Gino C., [supra, 224 Cal.App.4th] at p. 966 [reversing exercise of permanent jurisdiction; '[s]ince the court opted to remain passive and did not contact Mexico, Mexico has not been given an opportunity to decide whether to exercise its home state jurisdiction']; In re A.M. [(2014)] 224 Cal.App.4th [593,] 598; see generally § 3410, subd. (a) ['[a] court of this state may communicate with a court in another state concerning a proceeding arising under this part'].)
"An express order by the home state declining jurisdiction in response to the inquiry from the California court is not required. [Citation.] '. . . [A] home state [may] decline[] jurisdiction in any manner that conveys its intent not to exercise jurisdiction over a child in connection with a child custody proceeding . . . .' [Citation.]" (In re Aiden L. (2017) 16 Cal.App.5th 508, 518-519; see also In re E.R. (2018) 28 Cal.App.5th 74, 81 ["'"[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, . . . such . . . refusal is tantamount to a declination of jurisdiction . . . ."'"]; In re M.M., supra, 240 Cal.App.4th at p. 717 [a home state declines jurisdiction when it "in any manner . . . conveys its intent not to exercise jurisdiction over a child in connection with a child custody proceeding"].)
III.
FACTUAL AND PROCEDURAL BACKGROUND
We focus our discussion of the procedural and substantive facts on those relating to the juvenile court's subject matter jurisdiction. Father, mother, and the children moved from Jordan to Illinois in March 2014. In July 2014, mother moved with the children to a shelter in Illinois. In early February 2015, more than 10 months after arriving in Illinois, mother brought the children to California where she had family. Father remained in Illinois. There was evidence father had abused mother and the children, all of whom feared him.
On February 26, 2015, several weeks after mother and the children arrived in California, the Department of Children and Family Services (DCFS) exercised emergency jurisdiction over the children. DCFS acted following allegations the children were being generally neglected and emotionally and sexually abused. DCFS filed a dependency petition on March 10, 2015, and detained the children three days later.
The juvenile court asked DCFS to determine whether any child protection proceedings were pending in Illinois. DCFS learned Illinois authorities had investigated the family but no dependency proceeding ensued. The Illinois agency closed its investigation after mother and the children left the state.
In May 2015, father filed an action in Illinois for divorce and custody of the children. The Illinois judge contacted DCFS to indicate a desire to speak with the California bench officer and provided phone contact information, but the record does not reflect what if any communication occurred between the California and the Illinois courts at that time. In November 2015, the Illinois judge issued a ruling that reflected it had ceded jurisdiction to California, stating: "On [father's] emergency ex parte motion the court cannot rule on custody as long as the case is pending in California. This court does have jurisdiction pursuant to the Uniform Act if [and] when the juvenile court case in California is closed." The juvenile court's record also reflects the Illinois court had, at some point, ceded jurisdiction to California. In a subsequent order, the juvenile court stated: "The court finds that UCCJEA is not applicable as Illinois has previously declined jurisdiction."
The juvenile court convened several hearings between May and November 2015 (the first date for which our record on appeal reflects the Illinois court had declined to exercise jurisdiction), but petitioner has not provided transcripts of any of these hearings, and we cannot determine whether there the juvenile court discussed on the record any communications with the Illinois court during this time frame. Father does not appear to contend the juvenile court failed to communicate on UCCJEA issues with the Illinois court, but to the extent such an argument were made we would deny father's petition on record adequacy grounds. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)
In April 2017, the Jordanian consul wrote to the juvenile court seeking the children's return to Jordan with their father. The letter, from Consul Anas Oran, read: "The Embassy of the Hashemite Kingdom of Jordan would like to inform the esteemed court that [K.S.] holder of [a] Jordanian passport . . . and [Z.S.] holder of a Jordanian Passport . . . who currently reside at the Department of Children and Family services in Lancaster, California are both Jordanian citizens and need to be transferred to Jordan with their father through the Embassy in Washington DC . . . . [¶] The Embassy of the Hashemite Kingdom of Jordan would like to ask your help in facilitating the process of moving these children back to their home especially that they were born in Jordan and their parents are Jordanian." In response, the juvenile court ordered the parents to surrender their passports and to not remove the children from California.
The juvenile court continued to exercise jurisdiction up to and including August 29, 2019, when it terminated father's reunification services and set a section 366.26 hearing. This writ followed. While this matter has been pending, the court has: terminated mother's reunification services; repeatedly denied father's request to surrender the children to the Jordanian government; and identified adoption by the current caretakers as the permanent plan.
The section 366.26 hearing is currently set for April 20, 2020.
Following authorized briefing of this petition and while the matter was pending before this court, father purported to submit additional documents for our consideration. The court clerk marked the material as received but did not file it. We disregard those documents for several reasons. First, father is represented by counsel and, "[a]s a general rule, parties who are represented in court by counsel of record are required to proceed in court through their counsel." (In re Barnett (2003) 31 Cal.4th 466, 471; see also People v. Harrison (2001) 92 Cal.App.4th 780, 788 ["'a party who is represented by counsel has no right to be heard personally'" and "pro se filings by that party may be returned unfiled"].) Second, father did not file a motion for judicial notice (Cal. Rules of Court, rule 8.252) or to augment the record (Cal. Rules of Court, rule 8.155). Third, the juvenile court did not consider the submitted documents in connection with the challenged finding. (See Cal. Rules of Court, rule 8.155(a)(1)(A); In re Zeth S. (2003) 31 Cal.4th 396, 405 ["[i]t has long been the general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration'"]; People v. Brown (1993) 6 Cal.4th 322, 332 ["[a party] cannot . . . 'augment the record' with information not presented to . . . the lower court"].) And fourth, even if the documents could be considered, father has not demonstrated the submitted material is relevant to the question whether the juvenile court had jurisdiction under the UCCJEA.
IV.
DISUSSION
A. Standard of Review
When the facts are contested, we review a juvenile court's jurisdiction finding under the UCCJEA for substantial evidence. (W.M. v. V.A. (2018) 30 Cal.App.5th 64, 74; In re Aiden L., supra, 16 Cal.App.5th at p. 520; Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1286-1287.) When the evidence is uncontested, we review the court's determination of jurisdiction de novo. (W.M. v. V.A., supra, 30 Cal.App.5th at p. 74; In re A.C. (2017) 13 Cal.App.5th 661, 670.) There was no contested evidence with respect to subject matter jurisdiction in this case. Therefore, we independently review the juvenile court's determination of jurisdiction.
B. The Juvenile Court Had Subject Matter Jurisdiction
Illinois was the children's home state at the time DCFS filed the petition in this matter. The children lived in Illinois for more than six consecutive months immediately before the dependency proceeding commenced in California, and father continued to live in Illinois after mother left with the children for California. (§ 3421, subd. (a)(1).) The children had been in California for only a few weeks when the juvenile court exercised its temporary emergency jurisdiction over them. However, the Illinois court subsequently declined to exercise jurisdiction. The Illinois judge presiding over father's divorce and custody case acknowledged Illinois had jurisdiction with respect to child custody under the UCCJEA, but declined to exercise that jurisdiction while this dependency matter was pending. Because the Illinois court declined to exercise its jurisdiction, the California court has subject matter jurisdiction over the dependency proceedings. (§ 3421, subds. (a)(2) & (3); In re E.R., supra, 28 Cal.App.5th at p. 81.)
Father does not dispute that the juvenile court properly exercised temporary emergency jurisdiction under the UCCJEA.
Illinois has adopted the UCCJEA. (See People v. Hollis (In re D.S.) (2005) 217 Ill.2d 306, 312-313.)
Father argues without citation to any legal authority that the juvenile court erred by failing to contact Jordan. However, as discussed above, the California court was required to treat Jordan as if it were a state of the United States for purposes of determining jurisdiction under the UCCJEA. (§ 3405, subd. (a); In re M.M., supra, 240 Cal.App.4th at p. 715; In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 490.) Jordan was not the children's home state. The children did not live in Jordan for at least six consecutive months immediately before the dependency proceedings commenced. (§§ 3402, subd. (g).) The children and their parents had not lived in Jordan for more than 10 months when the children were detained in California. Because Jordan was not the children's home state, the UCCJEA did not require the California juvenile court to contact Jordan before assuming subject matter jurisdiction over the children. (Compare In re A.M. (2014) 224 Cal.App.4th 593, 598 ["[t]he juvenile court erred by not contacting and providing notice to a court in Mexico to determine whether Mexico wished to assert jurisdiction" where the children and their parents had been living in Tijuana for at least six months before dependency proceedings commenced].)
Father does not argue for jurisdiction in Illinois. Rather, father's entire argument is: "The juvenile court erred by concluding it had subject matter jurisdiction under the UCCJEA over the children's juvenile dependency cases. At the initial hearing, the court continued the matter to contact the dependency judge in Chicago, however, the court failed to contact the family's home state of Jordan. The family had only been living in California for three weeks at the time of the detention falling far short of the required six months. Further, neither the children nor the parents had significant contacts within the state. Without any contact, the Jordanian government had no opportunity to even decline jurisdiction. The court erroneously assumed jurisdiction over the case without contacting the Jordanian government who in fact has jurisdiction over the children as Jordanian citizens." --------
IV.
DISPOSITION
The petition for extraordinary writ is denied.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.