In re AIDEN L. et al., Persons Coming Under the Juvenile Court Law.
B277445
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 10/23/17
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. DK06921)
APPEALS from orders of the Superior Court of Los Angeles County, Annabelle G. Cortez and Lisa R. Jaskol, Judges. The order terminating parental rights is vacated and the matter is remanded with directions.
Lori N. Siegel, under appointment by the Court of Appeal, for Brittney M.
Law Office of Landon C. Villavaso and Landon C. Villavaso for Cora L. and P.L., minors.
Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and David Michael Miller, Deputy County Counsel for Respondent.
Although conceding the Los Angeles juvenile court properly exercised temporary emergency jurisdiction over her now-seven-year-old son, Aiden L., Brittney M. contends Arizona is Aiden‘s home state under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (
Even though the juvenile court at no time addressed the UCCJEA, the Los Angeles County Department of Children and
We vacate the order terminating parental rights and remand the matter to the juvenile court to make the findings necessary to determine jurisdiction under the UCCJEA and, to the extent mandated by those findings, comply with the procedural requirements of the UCCJEA.
FACTUAL AND PROCEDURAL BACKGROUND
1. Brittney and Joseph L.‘s Unstable Life in Arizona and Sojourn to California
Brittney and Joseph L. were married in 2006 and, while living in Arizona, had three children together, Cora, now 10 years old, P.L. now nine years old, and Aiden.2 In early 2012 Brittney temporarily separated from Joseph and brought the children to stay with her parents, Hector and Sandra M., who lived nearby in Yucca, Arizona. (Hector is a retired Santa Ana police officer; Sandra a retired Orange County deputy sheriff.) After several weeks Brittney took the children with her to visit a friend over a weekend. She returned only Cora and P.L. to the maternal grandparents. According to Joseph, they voluntarily relinquished care of the two girls because he and Brittney were unable to provide them with a stable home. However, Aiden, who was not yet in school, “needed them more than the girls.” Over the next two years Hector and Sandra made several unsuccessful attempts to persuade Brittney and Joseph to allow Aiden to stay with them, as well.
In March 2014, after two more difficult years in Arizona where they had been unable to find employment or maintain a stable home environment for Aiden, Brittney and Joseph travelled with their son to Los Angeles. Joseph told a Department social worker they had intended to open a “vape shop“—a retail store selling electronic cigarette products—in Long Beach. When they initially arrived in California, the family lived with paternal relatives in West Covina. However, they were concerned for Aiden‘s safety because Aiden‘s paternal grandmother was a heroin and methamphetamine addict and a second cousin, who had unrestricted access to the home, was a registered sex offender. To remove Aiden from that setting, Brittney and Joseph moved with him to a motel in West Covina.
2. Brittney‘s Arrest and Aiden‘s Detention
On August 4, 2014, after Brittney attempted to purchase a car with what appeared to be a forged or fraudulent check, police officers went to the family‘s motel room to investigate. Once in the room the officers found heroin and drug paraphernalia in a nightstand next to where Aiden was sleeping. Brittney was arrested for making false financial statements and drug possession. Although a general neglect referral to the Department was promptly made, the assigned case social worker was initially unable to locate either Joseph or Aiden. When
The following day the Department‘s social worker met with Joseph and Aiden at their motel. Aiden was allowed to remain in Joseph‘s care. Like Brittney, Joseph asked that Aiden be placed with his maternal grandparents and his sisters if removed from his custody. On August 6, 2014 Joseph tested positive for methamphetamine and marijuana. He admitted using methamphetamine two days earlier, when Brittney had been arrested, and claimed she had used heroin that day.
On August 13, 2014 the Department detained Aiden in the home of maternal great-aunt Nancy N. (Hector‘s sister). The Department filed a petition pursuant to
The detention report filed by the Department stated the maternal grandparents had called the assigned social worker, explained that Aiden‘s two sisters were in their custody and said they would like Aiden to be placed with them. The Department recommended that an evaluation of the maternal grandparents’ home under the Interstate Compact on the Placement of Children (ICPC) be ordered for possible placement of Aiden “to maintain siblings’ bond.”
In a later interview, however, Hector reported that, when Aiden was initially detained, he inquired about Aiden being placed with Aiden‘s two sisters and was told that was not possible because he lived out of state, which would interfere with Brittney and Joseph‘s reunification efforts. The social worker told Hector he needed to find a relative for Aiden to live with or he would be placed in foster care. It was at that point that Hector asked his sister Nancy if she could take Aiden into her home. Hector insisted he and Sandra had repeatedly expressed their desire to have Aiden live with them, only to be told that was not feasible so long as reunification efforts were ongoing because they lived too far away for visitation to occur. Then, when the parents’ reunification services were terminated, Hector and Sandra were told Aiden was now bonded with his maternal great-aunt Nancy.
3. Subsequent Dependency Proceedings
A combined jurisdiction-disposition hearing was set for October 21, 2014 and continued to December 17, 2014 for a contested hearing.3 In filings with the court the Department
Brittney and Joseph told the social worker they were homeless, slept in their car at night and needed financial assistance to be able to rent an apartment to provide a home for Aiden.
Brittney was convicted on August 21, 2014 on charges of child cruelty and felony drug possession. She was sentenced to three years of probation with a condition she serve 181 days in county jail. Due to a conviction for identity theft in Arizona, she was subsequently confined in state prison in Perryville, Arizona, with a reported January 6, 2017 release date.4
The court sustained most of the subdivision (b) failure-to-protect counts of the dependency petition on December 17, 2014. Aiden was removed from parental custody and placed with his
Brittney and Joseph‘s visitation with Aiden during the following months was sporadic, and their participation in court-ordered services minimal. At some point (when is unclear) both parents returned to Arizona. Brittney and Joseph were arrested in Arizona in early July 2015 for shoplifting. The social worker spoke by telephone with Sandra, who informed her both Brittney and Joseph had other outstanding warrants in Arizona. Whether those warrants were for offenses that predated their arrival in California in March 2014 is not indicated.
Family reunification services were terminated on January 5, 2016 at the 12-month permanency review hearing (
On April 29, 2016 Cora and P.L. filed a petition to modify prior court orders (
After testimony was taken over several days, the court on August 3, 2016 denied Cora and P.L.‘s petition, finding Aiden‘s best interest would not be served by changing his placement. The court proceeded with the selection and implementation
Brittney, Hector and Sandra, and Cora and P.L. timely filed separate notices of appeal. Brittney‘s motion to consolidate the appeals was granted in January 2017. Each of the appellants contends the Los Angeles juvenile court lacked subject matter jurisdiction over Aiden under the UCCJEA and, as a result, all permanent child custody orders must be reversed.
DISCUSSION
1. Subject Matter Jurisdiction Under the UCCJEA
a. Jurisdictional bases
The UCCJEA, adopted in California effective January 1, 2000 (see In re Cristian I. (2014) 224 Cal.App.4th 1088, 1096 (Cristian); In re C.T. (2002) 100 Cal.App.4th 101, 106) and in Arizona effective January 1, 2001 (see Welch-Doden v. Roberts (2002) 202 Ariz. 201, 208 [42 P.3d 1166]), governs dependency proceedings (
Subject matter jurisdiction over a dependency action under the UCCJEA either exists or does not exist at the time the petition is filed. (In re A.C., supra, 13 Cal.App.5th at p. 668; In re A.M. (2014) 224 Cal.App.4th 593, 598.) Jurisdiction may not be conferred by mere presence of the parties or by stipulation, consent, waiver or estoppel. (In re R.L., supra, 4 Cal.App.5th at p. 136; In re A.M., at p. 598.)
“(a) Except as otherwise provided in
Section 3424 ,5 a court of this state has jurisdiction to make an initial child custody determination only if any of the following are true:
“(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.
“(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 or3428 , 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.“(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 or3428 .“(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).”
“Home state” under the UCCJEA means, “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 commencement of a child custody proceeding. In the case of a
Jaheim B., at pp. 1349-1350; accord, Cristian, at pp. 1097-1098.) Nonetheless, the proper exercise of temporary emergency jurisdiction does not confer authority to make a permanent child custody order. (In re Gino C. (2014) 224 Cal.App.4th 959, 965-966; In re C.T., supra, 100 Cal.App.4th at p. 108.)
The term “lived” for the purpose of conferring home state jurisdiction is properly interpreted to mean physical presence. Agreeing with, and quoting from, the analysis of the Texas Supreme Court, the Court of Appeal in Ocegueda v. Perreira (2015) 232 Cal.App.4th 1079, 1087-1088, explained it was “‘significant that the Legislature chose the word “lived” as opposed to “resided” or “was domiciled.” The test for “residence” or “domicile” typically involves an inquiry into a person‘s intent. [Citation.] In our view, the Legislature used the word “lived” “precisely to avoid complicating the determination of a child‘s home state with inquiries into the states of mind of the child or the child‘s adult caretakers.“‘”
“Temporary absence,” on the other hand, another aspect of the home state analysis, necessarily requires consideration of the parents’ intentions, as well as other factors relating to the circumstances of the child‘s or family‘s departure from the state where they had been residing. (See In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 493, fn. 12 [“both parents intended for Son to return to California . . . . Because the trip at least began as a ‘temporary absence,’ under any applicable standard, the time Son spent in Pakistan before Wife informed Husband that she would not return to California should be considered part of Son‘s period of residence in California“]; cf. In re Nelson B. (2013) 215 Cal.App.4th 1121, 1131-1132 [“a minor‘s unilateral
“Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.” (
b. Contacting the child‘s home state
If a California court has exercised temporary emergency jurisdiction pursuant to
An express order by the home state declining jurisdiction in response to the inquiry from the California court is not required. (In re M.M., supra, 240 Cal.App.4th at p. 716.) “[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
2. Standard of Review: The Respective Roles of the Juvenile and Appellate Courts
A number of appellate courts have stated we independently reweigh the jurisdictional facts when reviewing a juvenile or family court‘s findings regarding subject matter jurisdiction under the UCCJEA. (See, e.g., In re A.M., supra, 224 Cal.App.4th at p. 598 [“‘[w]e are not bound by the juvenile court‘s findings regarding subject matter jurisdiction, but rather “independently reweigh the jurisdictional facts” ‘“]; In re A.C. (2005) 130 Cal.App.4th 854, 860 [same]; see also Schneer v. Llaurado (2015) 242 Cal.App.4th 1276, 1284, fn. 2 [collecting cases] (Schneer).)
In Schneer our colleagues in Division Two of the Fourth Appellate District analyzed those cases and concluded they had misapplied precedent and were contrary to the “fundamental principle that appellate courts do not reweigh facts and generally
Earlier this year, Division One of the Fourth Appellate District adopted the Schneer court‘s reasoning and applied the substantial evidence standard in reviewing the juvenile court‘s findings on jurisdictional facts to the extent they were based on disputed or contested evidence. (In re A.C., supra, 13 Cal.App.5th at p. 669 & fn. 5.) We agree with Schneer, as well.6 It is the responsibility of the juvenile court in the first instance to hold an evidentiary hearing to determine whether any basis exists under the UCCJEA for it to exercise jurisdiction and to make child custody orders beyond the temporary emergency orders authorized by
3. UCCJEA Subject Matter Jurisdiction over Aiden‘s Case
The detention report filed August 14, 2014 clearly stated that Brittney, Joseph and Aiden had traveled to California from Arizona in March 2014, approximately four months before the dependency petition was filed. Accordingly, as the Department concedes, California was not Aiden‘s home state on the date of the commencement of the proceedings. Yet for unexplained reasons, the issue of subject matter jurisdiction under the UCCJEA was not raised by the Department or addressed by the juvenile court either when it initially detained Aiden or when it
present satisfied the requirement of an evidentiary hearing before a California court could assert temporary emergency jurisdiction and rejected the mother‘s contention a further evidentiary hearing was necessary to maintain that jurisdiction while waiting to learn whether Arizona intended to exercise its exclusive, continuing jurisdiction. (Id. at pp. 1099-1100.) We explained, “[I]f the juvenile court had attempted to exercise something beyond temporary emergency jurisdiction—if it had proceeded to adjudicate the dependency petition and to enter disposition orders without the Arizona court first ceding jurisdiction—a further evidentiary hearing would have been required to determine the basis on which the California court had jurisdiction . . . .,” citing
First, as required by the UCCJEA, the juvenile court should have determined whether Arizona was Aiden‘s home state and, if it was, communicated with the Arizona court system to give it an opportunity to decide whether to exercise its home state jurisdiction. Although Aiden had “lived” in California with Brittney and Joseph for four months prior to the filing of the dependency petition according to the objective standard articulated in Ocegueda v. Perreira, supra, 232 Cal.App.4th at pages 1087 through 1088, the court should have considered whether the family‘s stay in California during this period was a “temporary absence” from Arizona within the meaning of
A ruling on the temporary absence issue on remand will entail an evaluation of Brittney and Joseph‘s reasons for leaving Arizona in March 2014 and their plans once they arrived in California, including whether they discussed returning to Arizona if their search for employment in California, the purported motive for leaving, proved unsuccessful. (Cf. In re Marriage of Nurie, supra, 176 Cal.App.4th at p. 493, fn. 12.) In addition, the court should consider that Brittney and Joseph had apparently resided in Arizona for their entire adult (post-high school) lives and maintained a transient lifestyle after traveling to California. Also significant is the fact that Aiden‘s siblings continued to reside in Arizona with the maternal grandparents and that Arizona custody proceedings were then pending with
Second, if the court determines Arizona was not Aiden‘s home state when the dependency proceedings were initiated and, therefore, no state had jurisdiction under
As discussed, it is for the juvenile court in the first instance to hold an evidentiary hearing and to evaluate witness credibility, resolve conflicts in the evidence and make the factual findings necessary to determine whether Arizona was Aiden‘s home state in August 2014 when the dependency petition was filed and, if not, whether California could properly exercise subject matter jurisdiction under
DISPOSITION
The August 8, 2016 order terminating Brittney and Joseph‘s parental rights is vacated, and the cause remanded for the juvenile court to hold an evidentiary hearing to determine whether it properly exercised subject matter jurisdiction under the UCCJEA and thereafter to proceed in conformity with the procedural requirements of the UCCJEA. If the court concludes jurisdiction was properly exercised without further action required, the order terminating parental rights may be reinstated.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.